Case Note & Summary
The dispute arose from a matrimonial suit between respondent No.1 (husband) and respondent No.2 (first wife). The Family Court passed an ex parte decree of divorce on 23.08.2003. The first wife filed an application under Order 9 Rule 13 CPC to set aside the decree, but the Additional District Judge declined to condone the delay in filing that application on 10.12.2004. The first wife appealed under Order 43 Rule 1(d) CPC before the High Court (M.A. No.709/2005). Meanwhile, the husband married the appellant (second wife) after the decree and limitation period expired. The High Court, by order dated 09.08.2011, set aside the ex parte decree and directed that 'the parties shall live together as husband and wife', despite noting the husband's marriage to the appellant. The appellant, not being a party to the appeal, filed a review petition (R.P. No.48/2014) which was dismissed by the Division Bench on 17.10.2014. The appellant then appealed to the Supreme Court. The Supreme Court found that the High Court passed the order without impleading or hearing the appellant, whose rights were directly affected. The Court held that the order was wholly without jurisdiction and legally unsustainable. It set aside both impugned orders and remanded the case to the High Court to decide the appeal afresh after impleading the appellant as a party. The High Court was also requested to first attempt an amicable settlement between all parties. The Supreme Court clarified that its observations should not influence the fresh decision.
Headnote
A) Civil Procedure - Natural Justice - Right to be Heard - Order 9 Rule 13, Order 43 Rule 1(d) Code of Civil Procedure, 1908 - The High Court set aside an ex parte divorce decree and directed the husband and first wife to live together, without impleading or hearing the second wife, who had married the husband after the decree. The Supreme Court held that the order was passed without jurisdiction and in violation of natural justice, as the second wife was a necessary party whose rights were affected. (Paras 10-12) B) Matrimonial Law - Ex Parte Decree - Condonation of Delay - Order 9 Rule 13, Order 43 Rule 1(d) Code of Civil Procedure, 1908 - The appeal before the High Court only concerned whether the Family Court was justified in refusing to condone delay in filing an application to set aside an ex parte decree. The High Court exceeded its jurisdiction by issuing directions beyond the scope of the appeal. (Para 13) C) Civil Procedure - Remand - Impleadment of Necessary Party - The Supreme Court set aside the impugned orders and remanded the case to the High Court to decide the appeal afresh after impleading the second wife as a party, and to first attempt settlement between all parties. (Paras 14-17)
Issue of Consideration
Whether the High Court could pass directions affecting the rights of the second wife without impleading her or hearing her in an appeal between the husband and first wife.
Final Decision
The Supreme Court allowed the appeals, set aside the impugned orders of the High Court dated 09.08.2011 and 17.10.2014, and remanded the case to the High Court for deciding the miscellaneous appeal afresh after impleading the appellant as a party. The High Court was requested to first attempt an amicable settlement.
Law Points
- Natural justice
- Right to be heard
- Order 9 Rule 13 CPC
- Order 43 Rule 1(d) CPC
- Condonation of delay
- Ex parte decree
- Matrimonial dispute
