SRI RAJESH KUMAR Vs. SMT. PUSHPA RANI

JUDGEMENT

(1.) Whether dismissal of a Special Leave Petition by the Supreme Court against an order, passed in an appeal arising out of a decree granted for judicial separation, bar a petition for review of the appellate decree, whereby the decree for judicial separation stood set aside? Subsequent to the granting of decree for judicial separation, when a marriage is dissolved by a decree of divorce and one of the parties after the decree of divorce had solemnized his marriage and fathered children, whether these facts are relevant for consideration at the time, when an appellate Court considers the sustainability of the decree for judicial separation? What are the fall out or the effect, when a person, having received the decree for judicial separation applies, for divorce, the decree for dissolution is granted and he remarries and fathers children? Whether these facts are relevant for consideration, in an appeal, which arises out of the decree for judicial separation, and whether these facts, if relevant, have a bearing on outcome of appeal? Whether such a development, which is subsequent to the granting of a decree for judicial separation, is an aspect, which must necessarily be taken into account by appellate Court before it chooses to interfere with the decree for judicial separation? These are, amongst others, some of the important questions, which the present review petition has raised.

(2.) The material facts, which have given rise to the present review application, may, in brief, be set out as under:

(3.) Broadly speaking, the petitioner -husband has sought for review of the order, dated 23.07.2015, aforementioned, primarily, on the ground that while hearing the appeal, it escaped the attention of the Court that the period of limitation for preferring appeal against the decree for dissolution of marriage having elapsed, the petitioner -husband had already remarried and had two children from his second marriage. These were such facts, which could not have been ignored inasmuch as any interference with the decree for judicial separation would not put the parties, to the decree for judicial separation, in the same position in which they were before the decree for judicial separation, was granted inasmuch as the parties to the decree for judicial separation, on the date of decree for judicial separation, were married to each other, whereas, since after the passing of the decree for judicial separation, a third party had entered the scene, third party being petitioner -husbands second wife and her two children. When Court cannot put the parties in the same position in which they were, if the decree for judicial separation is interfered with and set aside, it makes the appeal infructuous and the Court should not, it is contended, interfere with such a decree for judicial separation; more so, when there was no order of stay against the decree for judicial separation restraining the petitioner -husband or causing any impediment on his right to apply for divorce, though the question, whether he was entitled to the divorce or not, is altogether a different question. This apart, interference with the decree would not only render the second marriage illegal, but also render the two children, who where otherwise legitimate, as illegal children, causing, thus, irreparable harm and damage to two minor children, who are innocent and, secondly, there was enough material showing that the petitioner -husband had been subjected to mental cruelty by his wife and, therefore, on this ground, too, the order, dated 23.07.2015, allowing the Misc. Appeal No. 513 of 2009, needs to be reviewed.