APHC010013782022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3526] FRIDAY, THE FIRST DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NINALA JAYASURYA THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO CIVIL MISCELLANEOUS APPEAL NO: 17 OF 2022 Between: 1. NAKKA VIJAYA KUMARI, W/O. SIVA VARA PRASAD, AGED ABOUT 31 YEARS, HINDU, HOUSEHOLD DUTIES, RESIDING C/O. AMPOLU JANARDHANA RAO, A.S. KAVITI VILLAGE, R.L. PURAM POST, PATHAPATNAM MANDAL, SRIKAKULAM DISTRICT. ...APPELLANT AND 1. NAKKA SIVA PRASAD, S/o. Nirmal Jyothi Naidu, Aged not known, Hindu, Serving in Indian Army as Naik No. 2609981A, A-Company, .7 Madra, 56 APO permanent resident of A.S. Kaviti Village, R.L.puram Post, Pathapatnam Mandal, Srikakulam District. ...RESPONDENT Counsel for the Appellant: 1. P RAJKUMAR Counsel for the Respondent: 1. RAVI KIRAN PONNURU 2 The Court made the following JUDGMENT: Aggrieved by an order dated 22.10.2021 in I.A.No.64 of 2019 in HMOP No.181 of 2017, on the file of the Court of the Additional Senior Civil Judge, Srikakulam, the present Appeal has been preferred. 2) The respondent herein filed the said H.M.O.P. seeking a decree for divorce under Section 13(i)(ia) of Hindu Marriage Act, 1955. On 12.03.2018 an ex parte decree was granted in favour of the respondent- husband. The appellant-wife filed I.A.No.55 of 2019 seeking to condone the delay of 109 days in fling the application to set aside the ex parte decree and I.A.No.64 of 2019 to set aside the ex parte decree. The learned Senior Civil Judge allowed I.A.No.55 of 2019 by an order dated 29.07.2019. Insofar as I.A.No.64 of 2019 is concerned, learned Family Court Judge has dismissed the application filed to set aside the ex parte divorce decree on the ground of subsequent marriage of the respondent- husband was crystallized and the third party rights have been intervened and, in such case, the ex parte divorce decree dated 12.03.2018 cannot be set aside and placed reliance on the judgment of the Hon’ble Apex Court in A. Raja Sundari Vs. Suresh Kumar1 and the judgment in Smt.Shimla Devi Vs. V.Kiran Kumar2. 3) Learned counsel for the appellant inter alia contended that the learned Senior Civil Judge failed to appreciate the matter in a proper 1 2016 (2) MWN (286) 2 1994 (3) WLC 519 3 perspective. He contended that the reasons for delay in filing the application for setting aside the ex parte decree was owing to health condition of the appellant and the learned Senior Civil Judge, having accepted the same and condoned the delay in preferring the application to set aside the ex parte decree, grievously erred in dismissing the application filed under Order IX Rule 13 CPC. He submits that once the learned Senior Civil Judge accepted the reason for condonation of the delay, the very same reason which is equally applicable to the petitioner for setting aside the ex parte decree ought to have been accepted, without any demur. He submits that the learned Senior Civil Judge went wrong in recording a finding with regard to the 2nd marriage stated to have been contacted by the respondent-husband, in the absence of any material on record. Contending that the order under challenge is without any valid basis, much less sound reasons, the learned counsel urges for allowing the appeal by setting aside the order under challenge. 4) On the other hand, learned counsel for the respondent made submissions to sustain the order impugned in the appeal. Drawing the attention of this Court to the relevant paras, he submits that the learned Senior Civil Judge after detailed consideration and by taking into account the material i.e., Exs.R1 and R2, as also the relevant case law, has rightly dismissed the application seeking to set aside the ex parte decree. He submits that the learned Senior Civil Judge had also taken into 4 consideration the crucial aspect that the respondent contacted the 2nd marriage on 05.07.2018, which was registered on 01.10.2019 (Ex.R1) and in such circumstances it is not a fit case to set aside the ex parte decree and rightly dismissed the I.A. filed by the appellant herein. He submits that there are no merits warranting interference by this Court in the present appeal and therefore the same is liable to be dismissed. 5) Considered the submissions made by the learned counsel on both sides. Perused the material on record. 6) On an appreciation of the submissions made by the learned counsel for the appellant and the order under challenge, this Court is of the opinion that no interference is called for in the matter. Notice was issued to her in HMOP and it would appear that the same was personally served on 28.01.2018, as per the endorsement of the Process Server. Thereafter, the appellant suffered ex parte decree of divorce. Seeking to condone the delay in preferring the application to set aside the ex parte decree she filed I.A.No.55 of 2019. Accepting the health grounds as set out in the said I.A., the learned Senior Civil Judge was inclined to condone the delay of 109 days in filing the application seeking to set aside the ex parte decree by an order dated 29.07.2019. Though the contention of the learned counsel for the appellant that the very same reason of health grounds is applicable in respect of I.A.No.64 of 2019 filed under Order IX Rule 13 of CPC merits appreciation, it is to be noted 5 that the learned Senior Civil Judge had taken the subsequent event i.e., second marriage of the respondent-husband, alleged to have been contacted on 05.07.2018 and registered vide Ex.R1 dated 01.10.2019, into consideration. Though no reasons were forthcoming as to why there was delay in registration of the marriage on a subsequent date the alleged marriage appears to have been contacted only after expiry of the appeal time specified under Section 28 of the Hindu Marriage Act. The learned counsel for the appellant is, however, not right in urging that the order of the learned Senior Civil Judge is without any basis / material. The documents i.e., Ex.R1 and R2 with reference to the 2nd marriage stated to have been contacted by the respondent was taken into consideration and the learned Judge opined that right accrued to the 3rd party and in such a case, ex parte decree of divorce cannot be set aside. In recording conclusions, reliance was placed on a decision reported in Sambayya v Juluru Narayan3 etc. Even accepting that the learned Senior Civil Judge went wrong in not appreciating the version of the appellant about the illness on the ground that no documentary evidence / medical certificate was produced in support of the same, in the light of the conclusions recorded with reference to the alleged marriage and accrual of third party rights, this Court see no reason to take a different view in the matter. Therefore, the contentions advanced by the learned counsel for the appellant merits no acceptance. However, as the 3 2002 (2) ALD 636 6 correctness or otherwise of the alleged 2nd marriage dated 05.07.2018 is not the subject matter of the Appeal, while dismissing the matter, this Court deems it appropriate to leave it open to the appellant to work out her remedies against the said marriage, in accordance with law, if she is so advised. 7) With the above observation the Civil Miscellaneous Appeal is dismissed. No costs. 8) Consequently, the Miscellaneous Applications pending, if any, shall stand closed. ____________________ NINALA JAYASURYA, J ____________________________ TARLADA RAJASEKHAR RAO, J DATE:01.08.2025 SSV 7 THE HONOURABLE SRI JUSTICE NINALA JAYASURYA THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO CMA No.17 of 2022 Date:01.08.2025. Ssv