KRISHNA DEVI Vs. SUMER CHAND

JUDGEMENT

(1.) The present appeal is directed against the judgment of the District Judge, Ambala, dated December 4, 1976, whereby the petition of the appellant under Section 12 of the Hindu Marriage Act for a decree of nullity of marriage was dismissed.

(2.) The brief facts are that the appellant was married with the respondent on May 9, 1972. A petition under Section 12 of the Hindu Marriage Act (hereinafter called the Act) was filed by the appellant against her husband (the respondent) on January 5, 1974, for a decree of annulment of marriage on the ground of impotency of the respondent. As the respondent did not appear in spite of service ex parte decree was passed on August 17, 1974. The respondent submitted an application on June 21, 1975, for setting aside the ex parte decree on the ground that he was employed in the Navy and was not sanctioned leave for putting in appearance in the case by the Commanding Officer. This application was contested by the appellant. However, the operation of the ex parte order was not stayed during the pendency of the application and the appellant contracted a second marriage with one Banta Singh on June 15, 1975. The ex parte decree was ultimately set aside by the District Judge on March 26, 1976. In her reply to the application for setting aside ex parte decree, the appellant had taken the objection that after the passing of the ex parte decree nullyfying the marriage, she had contracted a second marriage and, therefore, the ex parte order should not be set aside. [n that application Issue No. 3 was also framed relating to the effect of the subsequent marriage by the appellant. The order dated March 20, 1976, by which the ex parse decree was set aside makes it evident that Issue No 3 was deleted and it was specifically ordered that the appellant will he entitled to agitate this matter in the main petition regarding nullity of marriage. When the main petition was taken up on merits, the appellant submitted in application dated October 27, 1976, in which the contention was raised that on account of the second marriage by her, her main petition regarding nullity of marriage be allowed. This application was dismissed by the District Judge vide order dated December 2, 1976, in which it was strangely observed that if the application was allowed and the matter relating to the second marriage was allowed to be reagitated, this will amount to review of the previous order dated March 20, 1976, by which the ex parse order had been set aside. It is not possible to appreciate the logic of the order. The trial Court itself had ordered on March 20, 1976, that the appellant will be entitled to agitate the matter regarding the effect of re-marriage in the main petition. When the opportunity was availed of by the appellant to agitate this matter, this attempt was interpreted by the Court as amounting to review of the previous order.

(3.) The learned counsel for the respondent has frankly conceded that it would have been better if the appellant had been allowed to agitate she matter regarding the effect of re-marriage by the appellant and opportunity had been granted to the appellant to lead evidence and then the finding had been given on merits. However, it has been strenuously urged that in view of the conduct of the appellant that the did not produce any evidence in spite of two opportunities having been given, the appellant should not be allowed another opportunity under any garb and the appeal should be dismissed. It is further stressed that even the conditional order regarding costs was not complied with. A perusal of the order under appeal shows that the appellant was given two opportunities to lead evidence and to summon her witnesses but some how she did not avail of the opportunity. Even the costs were not paid. However, taking into consideration all the circumstances of the case and the fact that the appellant was denied the opportunity to agitate the matter regarding the effect of remarriage, it will be in the interest of justice that the order dated December 4, 1976, is set aside and the case is remanded for decision of the main petition along with the issue regarding re-marriage by the appellant with Banta Singh and its effect. A perusal of the application dated October 27, 1976, by the appellant and the reply by the respondent shows that the factum of re-marriage by the appellant was denied by the respondent. In view of these pleadings the following two new issues are framed :