Gurpreet Kaur vs Kulwinder Singh

S.S. Saron, J.—The marriage between the parties was solemnized by way of Anand Karaj ceremony at village Sabdi Kalan, District Ludhiana on 12.11.2004. After marriage, the parties lived and cohabited together as husband and wife at village Bhadalwad, Tehsil Dhuri, District Sangrur. From the marriage, they had a son who died after three days of his birth in the month of October, 2005. Thereafter, they had a daughter namely Arshdeep Kaur, who was born on 02.08.2006. She is at present residing with the appellant-Gurpreet Kaur. Due to matrimonial disputes between the parties, the respondent-Kulwinder Singh on 24.07.2008 filed a petition u/s 13 of the Hindu Marriage Act, 1955 (Act-for short) seeking dissolution of the marriage between the parties by a decree of divorce on the ground of cruelty.

Notice of the petition filed by the respondent-husband was issued by the learned Additional District Judge (Adhoc), Fast Track Court, Sangrur, on 24.07.2008 for 02.09.2008. On the latter date i.e. 02.09.2008, notice to the appellant was issued for 14.10.2008 on filing registered cover and process fee within five days. The case was taken up on 15.10.2008. Registered cover was not received back. One month''s time had passed, but the appellant-wife did not appear. So, she was proceeded against ex parte. The respondent-husband examined four witnesses on 30.10.2008. The arguments in the case were heard on 01.11.2008 and vide impugned judgment and decree dated 01.11.2008, the petition of the respondent-husband was allowed.

Aggrieved against the judgment and decree dated 01.11.2008 passed by the learned Additional District Judge (Adhoc), Fast Track Court, Sangrur, the appellant-wife filed the present appeal on 19.05.2009. It was time barred by 109 days. Along with the appeal, CM No. 12558-CII of 2009 was filed seeking condonation of delay of 109 days in filing the appeal. Notice of the CM was issued by this Court on 22.05.2009. The respondent-husband put in appearance on 14.09.2009. Reply to the application for condonation of delay was filed in Court on 12.11.2009.

It may also be noticed that the appellant during the pendency of the petition for divorce had filed an application (T.A. No. 404 of 2008) in this Court for transfer of the divorce petition from the Court at Sangrur to Ludhiana. The application was listed for hearing on 05.03.2009. On the said date, the respondent informed, in reply to the transfer application, that an ex parte decree of divorce had been passed on 01.11.2008.

The case of the appellant is that in fact the case was not taken up by the learned Additional District Judge, Sangrur on 14.10.2008, on which date the appellant had gone to attend the Court. The Reader of the Court had informed her that the case had been adjourned to 09.01.2009. Admittedly, the appellant has not filed any application in terms of Order 9 Rule 13 of the CPC (C.P.C.-for short) for setting aside the ex parte order dated 15.10.2008 as also the ex parte judgment and decree dated 01.11.2008. She has filed the present appeal in this Court. The appeal is to be seen as it is as evidence has not been led as may have been adduced in proceedings for setting aside an ex parte decree in terms of Order 9 Rule 13 C.P.C.

According to learned counsel for the respondent, knowledge of the decree, even according to the appellant, was with her on 09.01.2009. In this respect, he has referred to a letter dated 29.08.2009 written by the advocate of the appellant, which shows that she had knowledge that the petition had been decreed in favour of the respondent on 01.11.2008. The writing of the letter by the counsel for the appellant has been admitted by the learned counsel for the appellant after obtaining necessary instructions from the appellant, who is present in Court. According to learned counsel for the appellant, it was informed by the learned counsel for the appellant in terms of the said letter that the present appeal against the judgment and decree dated 01.11.2008 was pending in this Court and the respondent had no right to perform second marriage on 02.09.2009, as the appeal was pending in this Court. According to learned counsel for the respondent, the delay in filing the appeal had not been condoned till the said date and it was condoned on 06.12.2012.

It is an admitted position that the respondent has solemnized his second marriage on 02.09.2009, which is valid as limitation for filing the appeal had expired. The delay had not been condoned till the date of marriage and the respondent was not informed of the pendency of the appeal through the process of the Court. The respondent remarried on 02.09.2009 after the period of limitation for filing the appeal had expired. A marriage solemnized after the expiry of period of limitation has been held to be valid in case of Vijayalakshmi Vs. Kannappan, ; Harjeet Singh Vs. Smt. Guddi, ; Smt. Barsha Arora Vs. Satish Kumar Arora, ; Babita Paul v. Vijay Paul, 2010(1) RCR (Civil) 449 (P & H) and O.P. Arora v. Chander Kala Arora, 2007(56) AIC 667 (Delhi); besides, a Division Bench judgment of this Court in case Gursimran Kaur v. Sandeep Singh, FAO No. M-261 of 2003, decided on 19.08.2013.

At present, the position is that the marriage between the parties stands dissolved by ex parte judgment and decree passed on 01.11.2008. The respondent has remarried on 02.09.2009. The delay in filing the appeal was condoned by this Court on 06.12.2012. The appellant is getting maintenance of Rs. 5,000/- per month. The respondent is a constable in Punjab Police.

Deliberations were carried out with the parties, who are present for amicably settling the dispute between them. After deliberations, learned counsel for the appellant, on instructions from the appellant, submits that he may be allowed to withdraw the appeal. However, permanent alimony be fixed for the appellant with liberty to her to seek its enhancement as and when the need arises or the circumstances change. It is also submitted that the appellant shall withdraw the criminal case filed by her in case the respondent files a petition in this Court in terms of Section 482 of the Code of Criminal Procedure seeking quashing of the criminal case, the appellant it is stated would give her necessary statement and depose an affidavit giving her consent that she has no objection to the quashing of the said FIR.

Learned counsel for the respondent, on instructions from the respondent, submits that the salary of the appellant is Rs. 28,000/- per month. He has his wife and children from his first wife; besides, he has aged parents to look after. It is also submitted that he is paying monthly installment of Rs. 5316/- and another sum of Rs. 6909/- towards loans that he has taken. Therefore, for the present, the appellant will pay Rs. 5,000/- as maintenance; besides, it is agreed that the minor daughter of the parties namely Arshdeep Kaur shall remain with the appellant-Gurpreet Kaur.

In the aforesaid circumstances, the appeal of the appellant is dismissed as withdrawn. The respondent shall, however, continue to pay an amount of Rs. 5,000/- per month to the appellant. The respondent shall deposit all arrears of maintenance due and payable to the appellant in her bank account No. 65136069545 with State Bank of Patiala, Village and Post Office Swaddi, Tehsil Jagraon, District Ludhiana. The amount of Rs. 20,000/- has been tendered in cash today in Court, which has been handed over to the appellant and the maintenance stands cleared till July, 2014. The appellant would be at liberty to seek enhancement of maintenance by filing necessary application in terms of Section 25 of the Act before the learned trial Court as and when the need and circumstances so arise. The parties shall bear their own costs.

The respondent shall not default in making of payments. He also undertakes to deposit the amount by the 10th of every month commencing from August, 2014. The maintenance shall be payable by the respondent to the appellant during her lifetime except if she re-marries.