Siddharth Dixit Vs Smt. Sujata Dixit (Orissa HC)( Civil Procedure Code - 1908 (Act no. 5 Of 1908) Order-9 Rule- 13)
4. Shri Yeesan Mohanty, learned Senior Counsel appearing for the petitioner assailed the impugned order stating that after the ex parte decree was passed, the petitioner waited for the appeal period to be over and, thereafter married for the second time. Under these circumstances, application under Order 9, Rule 13 C.P.C. could not have been allowed and the only course open to the opposite party was to pray for permanent alimony. In this connection, reliance is placed by the learned Senior Counsel on a decision of the Allahabad High Court in the case of S.P.Srivastva Vrs. Smt. Premlata Srivastava reported in A.I.R. 1980 Allahabad 336. In the said reported case, the husband filed a suit for divorce under Section 13 of the Hindu Marriage Act. The suit was decreed ex parte on 2.6.1973. The wife filed an application under Order 9, Rule 13 C.P.C. on 15.4.1976 for setting aside the ex parte decree on the allegation that she had never been served with summons on divorce petition. The husband had contracted a second marriage with another woman on 14.4.1976. The trial court having allowed the application filed by the wife under Order 9, Rule 13 C.P.C., the matter was brought before the High Court. The High Court on consideration of different orders passed by the trial court came to a finding that there were some irregularities in service of summons but that would not be a ground for setting aside the ex parte decree and allowed the revision.
5. Though the above decision is silent about the submission of Shri Y. Mohanty, learned Senior Counsel for the petitioner that the only option available to the opposite is to claim for permanent alimony, another decision of Rajasthan High Court supports such a submission. In the case of Surrender Kumar Vrs. Kiran Devi reported in AIR 1997 Rajasthan 63, it was held that after an ex parte decree of divorce is passed, if the husband has contracted a second marriage after expiry of appeal period, the petition filed under Order 9, Rule 13 C.P.C. at the instance of the wife is not maintainable and the wife can file an application under Section 25 of the Hindu Marriage Act claiming permanent alimony.
6. Shri Dutta, learned counsel appearing for the opposite party submitted that the first notice issued by the court admittedly was not served on the opposite party. The subsequent publication of notice in the ‘Times of India’ in pursuance of an order passed by the court for substituted service was on a date on which the opposite party was in China and, therefore, had no scope to know about publication of such notice. This submission of the learned counsel, Shri Dutta was seriously opposed by the learned counsel appearing for the petitioner. There is no material before us to show that on the date of publication of notice in the ‘Times of India’, opposite party was in China. This point was also never taken before the trial court and had such a point been taken, the parties would have been directed to adduce evidence in this regard. Therefore, we decline to entertain a disputed question of fact raised for the first time in this writ application.
7. So far as finding of the learned Judge, Family Court in setting aside the ex parte decree is concerned, we are of the view that such a finding is not sustainable. Admittedly, notice could not be served on the opposite party on the first occasion due to want of time. Therefore, an application was filed by the petitioner under Order 5, Rule 20 C.P.C. and permission having been granted by the court, notice was published in a widely distributed English Newspaper. The court being satisfied with regard to compliance of requirement of Order 5 Rule 20 C.P.C., had permitted the petitioner to take steps for substituted service by way of publication in a widely distributed English Newspaper. Therefore, it is not open for the trial court now to say that grant of permission to the petitioner at that stage was not justified. The ex parte order has not been set aside in any other ground by the trial court in the impugned order.
8. For the reasons stated above, we are of the view that the ground on which the trial court has set aside the ex parte decree is not sustainable and, accordingly, the impugned order is set aside. The petitioner may approach the trial court in an application under Section 25 of the Hindu Marriage Act for permanent alimony in view of the changed circumstances and in the event, such an application is filed, the trial court shall permit the parties to adduce evidence and determine the permanent alimony on the basis of such evidence.