Shobha Dikshit - (1.) PETITIONER has invoked the revisional/supervisory Jurisdiction of this Court praying for quashing of order dated 19.2.1996 passed by the learned Civil Judge (Senior Division), Sitapur, in Misc. Case No. 23 of 1996 by which an application moved by her under Section 151 of the Code of Civil Procedure for setting aside the ex parte decree of divorce dated 27.3.1995 allegedly obtained by the respondent/husband, a sitting Rajya Sabha Member, by means of a fraud upon the Court has been rejected as not maintainable. PETITIONER's grievance is that her sacrosanct marriage with the respondent performed in the year 1973 as per Hindu customary rites and ceremonies at Allahabad has been dissolved by the impugned decree behind her back, thereby not only stripping her of her marital status but also the dignity and honour of a married Hindu wife. PETITIONER alleges that a collusive suit for decree of divorce under Hindu Marriage Act was got filed by the respondent through an impostor in impersonating the petitioner Smt. Garima Singh and thus fraudulently obtained the impugned decree of divorce dated 27.3.95.
(2.) SINCE fraud on the Court and serious irregularities in the conduct of the case have been alleged, therefore, it is necessary to narrate the facts as averred by the petitioner in the application under Section 151 of the Code of Civil Procedure in detail, the same are as follows :- Suit No. 78 of 1995 was instituted on 25.2.1995 by one Smt. Garima Singh, claiming to be the wife of Sri Sanjai Singh, the respondent herein, in the Court of Civil Judge (Senior Division), Sitapur, under Section 13 of the Hindu Marriage Act praying that by means of a decree of divorce, her marriage with Sri Sanjai Singh, respondent, resident of Lucknow be dissolved. It was averred in the suit that the petitioner was married to the respondent on 14.12.1973 as per Hindu rites and ceremonies at Allahabad and the parties last resided together till 2.4.1992 at Sitapur. Out of the said wedlock three children, now aged between 18 years to 12 years were born. The sole ground on which the dissolution of marriage was sought was stated in para 4 of the said petition, "that with the passage of time, disputes due to difference of opinion even in petty matters arose between the parties to this petition and it has become quite impossible for them to live together." Complete desertion was stated to be with effect from 2.4.1992, i.e., the date since when the respondent/husband is residing at Lucknow. It was specifically averred in para 8 of this petition that there was no collusion between the parties. The cause of action was said to have accrued on 2.4.1992 when husband and wife finality parted company at Sitapur to live separately. The territorial jurisdiction therefore, was also claimed at Sitapur. The suit was valued for the purpose of pecuniary Jurisdiction at Rs. 50,000/. However, a fixed court-fee of Rs. 37.50 was affixed on the petition for divorce. Interestingly a photograph of young Smt Garima Singh was affixed on the first page of the petition. Suit was presented on 25.2.1995 through counsel and summons were issued on the same day and 15.3.1995 was fixed for filing of written statement and 22.3.1995 for framing of issues. On 15.3.1995 written statement was not filed and neither party appeared before the Court as per proceedings recorded in the suit. On 22.3.1995 the suit was directed to proceed ex parte in the absence of the respondent and decree of divorce was granted on 27.3.1995. Petitioner states that she never appeared before the Court as is also clear from the proceedings. A written statement was filed in the said suit by the respondent reiterating the ground of divorce taken in the petition, i.e., "with the passage of time, difference of opinion in petty matters has been arisen between the parties", collusion was denied and respondent also prayed for grant of decree of divorce. In other words, there was no opposition to the prayer of the petitioner to grant the decree of divorce.
(3.) THEREAFTER it is stated that a news item was published in the daily newspaper The Pioneer' on 23.4.1995 viz. "Sanjai Singh marries Amita". Reading the said news, the petitioner was shocked. She Immediately contacted the respondent on telephone who accepted that a decree of divorce has been passed by a competent Court of Law. The respondent however did not disclose to the petitioner that the decree was passed by the Civil Judge at Sitapur. It is only on 25.7.1995 that the respondent while he was at Lucknow, on persistent queries being made by the petitioner and her father, disclosed that the decree for divorce was granted by the Court of Civil Judge at Sitapur and he married Amita Modi on 21.4.95. It is only thereafter that the petitioner immediately rushed to Sitapur and engaged an Advocate who inspected the record which revealed that the aforesaid civil suit for divorce under Hindu Marriage Act was instituted in the name of Smt. Garima Singh, petitioner herein against the opposite party which was decided on 27.3.1995. Her counsel who inspected the file took all the necessary details of the suit and the proceedings and informed the petitioner accordingly. The case of the petitioner is that she never filed any suit under Hindu Marriage Act seeking a decree of divorce, dissolving her marriage performed in the year 1973, that she never resided at Sitapur with respondent as was stated in the petition. Completely socked and unnerved at what had happened In her life, the petitioner, a mother of three grown up children, sought legal advice and on the basis of the same she filed a Suit No. 271 of 1995 for cancellation of the decree of divorce at Sitapur itself. In this case the petitioner has denied that she had any differences with her husband, that she last resided at Sitapmr, that she ever engaged any counsel at Sitapur or that she ever knew an Advocate by the name of V. K. Singh practising at Sitapur, that she took any steps whatsoever in the said suit as she has no knowledge of how the suit proceeded when she never filed the same. She very specifically denied that she ever visited Sitapur in her life before the filing of the suit No. 271 of 1995 and pleaded that a systematic fraud has been practiced not only against her by someone impersonating her but also on the Court of Civil Judge, Sitapur, and the decree of divorce has thus obviously been obtained by the said impostor in the name of the petitioner in collusion and conspiracy with the respondent. She has specifically denied ever residing at the address that was given in the first suit, Le., that of one Sri N. K. Singh. She claimed that she always lived either at Allahabad at her parental house or at Amethi, district Sultanpur her matrimonial home or at Lucknow with the respondent who was a Rajya Sabha Member. On such averments in the suit, it has been pleaded by her that the Courts at Sitapur had no territorial jurisdiction to entertain the suit. While disputing the valuation in the first suit, the subsequent suit has been valued at Rs. 50,000 because the fictitious suit was so valued and she has prayed for the cancellation of the decree passed in the former suit. On these pleadings, the petitioner prayed for the setting aside of the decree passed in Suit No. 78 of 1995 obtained fraudulently by the husband. After filing the suit the petitioner was again advised by her lawyers that she could also invoke the inherent jurisdiction of the same Court which had passed the impugned decree under Section 151 of the Code of Civil Procedure on the ground that a decree obtained by fraud was a nullity and could therefore be set aside. Petitioner accordingly moved an application under Section 151 of the Code of Civil Procedure before the same Court of Civil Judge (Senior Division) which was numbered as Misc. Case No. 23 of 1996, praying inter alia for the setting aside of the ex parte collusive and fraudulently obtained decree of divorce as well as the entire proceedings in Suit No. 78 of 1995. In this application all the attending circumstances which in the petitioner's opinion go to establish a case of fraud upon the Court are set out in great detail. According to her neither the petitioner nor the respondent appeared before the Court (as is revealed from the record of proceedings) and the trial court without adhering to the due procedure of law and the rules framed under the Hindu Marriage Act and the Family Courts' Act as also the provisions of Code of Civil Procedure passed the impugned decree in great haste. Violation of mandatory provisions of Section 23 (2) of Hindu Marriage Act and Order XXXII, Rules 3 and 5 of the Code of Civil Procedure have been alleged. Since no effort was made by the learned Judge to assist the parties in arriving at a settlement/reconciliation. According to her it is a suspicious circumstance that the suit was decreed within a month which Is most unusual. It has also been stated by the petitioner that she never applied for the certified copy of the decree and everything has been done by some impostor impersonating Smt. Garima Singh. It was accordingly prayed in this application that the learned Court under its inherent powers be pleased to set aside/recall the orders dated 25.2.1995 by which the cognizance of the suit filed by some impostor was taken, the order dated 22.3.1995 by which the order to proceed ex parte was passed and order dated 27.3.1995 by which the judgment and decree has been passed. This application was opposed by the respondent on the ground that the same is not maintainable and the only remedy available to the petitioner in the alleged facts and circumstances of the case is filing of a fresh suit, which has already been availed of by her, therefore, the application is liable to be rejected. Respondent chose not to file reply to this application on merits until the question of maintainability was decided. The learned trial court after hearing both the parties, rejected the said application on 19.2.96 on the ground that it is not maintainable as such declined to consider the merits of the application. Aggrieved by the said rejection of the application, the petitioner has approached this Court by filing the present Civil Revision under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India with the prayer to set aside the impugned orders dated 12.2.1996 and 19.2.1996 passed by the learned First Additional Civil Judge (Senior Division), Sitapur, and while treating the application as maintainable allow it on merits also thereby quashing the entire proceedings of the Suit No. 78 of 1995 and restore it to its original number to proceed in accordance with law.;