Mehboobun Nahar Milky v. Amarjeet Nayak

Orissa HC7 Feb 2024MATA/41/2024

Case brief

AI extract

What is this about?

MATA No. 41 of 2024, High Court of Orissa at Cuttack, decided 07.02.2024, Arindam Sinha and M.S. Sahoo JJ. — impleadment under Order I Rule 10 r/w Section 151 CPC refused; Section 15 Hindu Marriage Act 1955 remarriage bar; Section 5 Limitation Act delay condonation; ex-parte divorce decree set aside; Krishnaveni Rai v. Pankaj Rai (Supreme Court, Criminal Appeal No. 321 of 2020) applied on facts; subsequent spouse neither necessary nor proper party; appeal disposed of without notice.

What did the court decide?

Appeal admitted but disposed of without issuance of notice of appeal; the Family Court's rejection of the appellant's impleadment application stands, the lis remaining between the original parties, with the Family Court free to take note of subsequent facts in the fresh trial. ¶¶23

Mehboobun Nahar Milky Vs Amarjeet Nayak — Matrimonial and Divorce | Orissa HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the Family Court correctly rejected the appellant's application under Order I Rule 10 read with Section 151, CPC to be added as a party to the divorce proceeding after its restoration on setting aside of the ex-parte decree. +1 more

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Court's answer

The appeal is admitted, but the Court is not inclined to direct issuance of notice of appeal, because the Family Court was correct in rejecting the appellant's application for being added as party.

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Ratio / Principle

Upon the ex-parte judgment and decree having been set aside, the lis is between the parties to the original civil proceeding; for purposes of adjudication the appellant is neither a necessary nor a proper party, though the Family Court may take note of subsequent facts established by the parties in the fresh trial.

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Key takeaways

The bar under Section 15, Hindu Marriage Act, 1955 is against remarriage prior to expiry of the prescribed period for filing appeal; the Court was convinced no appeal was filed within that time.obiter¶¶19
Accepting the Supreme Court's declaration of law in Krishnaveni Rai and the factual predicate urged by counsel, the appellant's marriage held after expiry of the statutory period, within which no appeal was filed, cannot be said to be void.obiter¶¶19

Detailed headnote1 paragraphs

Matrimonial Appeal (MATA) — impleadment of appellant's subsequent spouse under Order I Rule 10 read with Section 151 CPC rejected by the Family Court; Orissa High Court admits appeal without notice and upholds the rejection: after the ex-parte divorce decree (26.10.2022) was set aside on the wife's application with condonation of 9 months 9 days' delay under Section 5, Limitation Act, the lis remains between the original spouses; the appellant (who married respondent no.1 after expiry of the Section 15, Hindu Marriage Act appeal period) is neither a necessary nor a proper party, though the Family Court may consider subsequent facts in the fresh trial. The Court accepts, on the facts and per Krishnaveni Rai v. Pankaj Rai (SC, Crl.A. 321 of 2020), that such remarriage is not void — stated 'notwithstanding' its party-status conclusion.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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MATA No. 41 of 2024

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Mehboobun Nahar Milky

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…. Appellant

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Mr. Debidutta Mohapatra, Advocate

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-versus-

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…. Amarjeet Nayak and another Respondents

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CORAM:
JUSTICE ARINDAM SINHA
JUSTICE M.S. SAHOO
ORDER
07.02.2024

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Order No. 1. 1. Mr. Mohapatra, learned advocate appears on behalf of

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appellant, who is aggrieved by order dated 1^st December, 2023 made by the family Court rejecting her application made under rule 10 in order I read with section 151, Code of Civil Procedure, 1908.

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2. On query from Court Mr. Mohapatra submits, judgment and decree for divorce was on 26^th October, 2022. It was made ex-parte against respondent no.2 herein. Said respondent was the wife in the divorce proceeding. She filed application for setting aside ex-parte

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Page 1 of 4

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// 2 //

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decree on delay of 9 months and 9 days. In the meantime and after expiry of the statutory period in section 15 of Hindu Marriage Act, 1955, his client married respondent no.1 on 28^th August, 2023. Hence, when the matrimonial proceeding stood restored on setting aside the ex-parte judgment and decree, his client being vitally interested, applied to be added as party.

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3. He relies on judgment dated 19^th February, 2020 of the Supreme Court in Criminal Appeal no.321 of 2020 (Krishnaveni Rai v. Pankaj Rai and another) , paragraphs 34 to 37. He submits, declaration of law was that by reason of prescription of statutory period in section 15, it cannot be said that the marriage taken place after expiry of the statutory period in section 15 and appeal not filed within that time, is void.

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4. We admit the appeal but are not inclined to direct issuance of notice of appeal. This is because the family Court was correct in rejecting the application of appellant for being added as party. We accept the submission regarding declaration of law made by the Supreme Court as relied upon by appellant on urging that she had got married to petitioner in the original divorce proceeding, after the statutory period, within which no appeal had been filed. We accept the submission to be on facts because by order dated 28^th August, 2023,

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Page 2 of 4

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// 3 //

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setting aside the ex-parte judgment and decree the family Court noted that respondent-wife in the original civil proceeding had filed for setting aside ex-parte decree along with petition under section 5 of Limitation Act with a prayer to condone the delay of 9 months and 9 days. It is obvious that said respondent had availed of one of the two remedies available to her on suffering ex-parte judgment and decree dissolving her marriage. She having chosen to apply for setting aside had not preferred appeal. The bar under section 15 is against remarriage prior to expiry of the prescribed period for filing appeal. We are convinced no appeal was filed within that time. Hence, appellant’s marriage held subsequently on 18^th April, 2023 cannot be said to be void per Krishnaveni Rai (supra).

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5. Notwithstanding aforesaid, on said ex-parte judgment and decree having had been set aside, the lis is between parties to the original civil proceeding. For purpose of adjudicating the civil proceeding, appellant is neither necessary nor a proper party. The controversy is between parties to the original proceeding. That however will not preclude the family Court from taking note of subsequent facts, as may be established by the parties in the fresh trial.

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Page 3 of 4

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// 4 //

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6. The appeal is disposed of as above.

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(Arindam Sinha) Judge

(M.S. Sahoo)

Judge

Sks

Signature Not Verified

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Digitally Signed Signed by: SISIR KUMAR SETHI Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT Date: 07-Feb-2024 18:12:42

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Mehboobun Nahar Milky v. Amarjeet Nayak

Case brief

What is this about?

What did the court decide?

Mehboobun Nahar Milky v. Amarjeet Nayak

Case brief

What is this about?

What did the court decide?

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What the court decided

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