D.K.SETH, J. - (1.)In this case, a suit for restitution of conjugal rights was filed by the husband-opposite party. It was decreed ex parte. The wife filed an application under Order IX, Rule 13 of the Code of Civil Procedure. That was also dismissed. Thereafter, a suit for divorce was filed on the ground that no cohabitation took place after the decree for restitution of conjugal rights despite intimation to the learned counsel for the wife. This suit was decreed on contest where wife had denied that no such communication was received by her. Such an appeal has been preferred by the wife before this Court against the decree of divorce. This was filed along with an application under Section 5 of the Limitation Act a little late on 7th of April, 2003. But on 2nd of July, 2003, the delay was condoned. It is contended on behalf of the respondent-opposite party that the husband has contacted marriage for the second time on 11th of June, 2003.
(2.)At this stage this application for stay of operation of the judgment and decree has been asked for. The learned counsel for the appellant points out from the decision in Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591 : (2002 All LJ 355), Smt. Chandra Mohini Srivastava v. Shri Avlnash Prasad Srivastava, AIR 1967 SC 581 and Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839 to contend that in view of Section 15 of the Hindu Marriage Act, the husband has a duty cast upon him to enquire before contracting second marriage whether an appeal has been preferred after the proviso is deleted. He has also relied on a decision in Prakash Chandra Sharma v. Vimlesh (Smt.), 1995 Supp (4) SCC 642. In this case the appeal was preferred three days after the expiry of the limitation. The husband had contracted marriage after the presentation of appeal though barred by limitation. In such situation, the Apex Court had held that the contracting of second marriage by the husband during the pendency of the appeal is hit by the provisions of Section 15 of the Hindu Marriage Act since the husband cannot take advantage of his own wrong. On this ground, he contends that in view of Section 15, the operation of the Judgment and decree appealed against should be stayed. Contracting of second marriage cannot be a justification to refuse grant of stay in this case.
(3.)Mrs. Nandy, learned counsel for the respondent, on the other hand, contends that the husband has contracted marriage after the expiry of the period for preferring the appeal. He was not aware that the appeal was pending when he has contracted second marriage. In fact, the husband had waited for almost nine months before contracting marriage. No intimation of filing of the appeal was ever given to the husband. The husband might have a duty cast upon him to enquire as to whether an appeal has been preferred or not but at the same time, the appellant-wife has also a responsibility about the preferring of the appeal. She also seeks to distinguish the decision cited by the learned counsel for the appellant on the ground that Section 15 permits remarriage after the expiry of the period of limitation or where an appeal is presented and after hearing or otherwise the same is dismissed. This presentation of the appeal must be deemed to have been presented within the period of limitation. It will not include an appeal presented after the expiry of limitation. So far as the decision in Prakash Chandra Sharma v. Vimlesh (Smt.) (supra) is concerned, her contention is that this judgment has not laid down the law after discussing the question raised by her and, therefore, the same is distinguishable.
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