C.O. 3905 OF 2022 23.09.2026 Ashish Paul Sl no. 3 - Vs – Ct no. 2 Monidipa Mondal (Paul). P.M. Mr. Ganesh Shrivastava, Mr. Sukanta Das ... for the petitioner. Mr. Sanjib Mitra ... for the opposite party 1. Present petition has been filed challenging the impugned order No. 33 dated 30th November, 2022 in Judicial Miscellaneous Case No. 1 of 2019 whereby the learned Trial Court allowed the application for setting aside the exparte order filed by the wife/opposite party. 2. In the backdrop the husband/plaintiff filed an application under Section 27 of the Special Marriage Act against the wife which was registered as Mat Suit No. 815 of 2016. This Matrimonial Suit was decreed ex-parte vide order No. 13 dated 5th December 2017. 3. The opposite party/wife moved an application for setting aside the ex-parte order on 28th November, 2018 inter alia on the ground that on 21st November, 2018 she came to know that her husband is getting married and thereafter from internet she got to know about the ex-parte order. 4. The opposite party/wife also contended that there were two other proceedings under Domestic Violence Act and 125 Cr.P.C. pending between the parties. The husband never disclosed about the ex- parte order decreed in those proceedings. 5. Husband filed the reply in March, 2019 denying all the averments and stating that the wife/opposite party has duly been served. 6. Petitioner/husband aggrieved of the order setting aside the ex-parte decree invoked the jurisdiction of this court. 7. Learned counsel for the petitioner submits that the petitioner/husband after ex-parte decree and expiry of mandatory period of appeal married on 5th February, 2019 and has also been 2 blessed with a child from the second marriage. 8. Learned counsel submits that in this circumstances the ex-parte decree cannot be set aside as there cannot be two valid marriages. 9. Learned counsel has relied upon the judgement of this Court in Jharna Rani Ghosh alias Jharna Ghosh – Vs- Prabir Kumar Ghosh 2015 (2) CHN (Cal) 50. 10. Learned counsel for the opposite party/wife has refuted all the averments. 11. This Court considers that there are many questions in the present petition which are still unanswered and for the purpose of deciding the present controversy, certain facts are required to be adjudicated on the basis of materials on record. 12. It is an admitted position that the Matrimonial Suit No. 815 of 2016 was decided ex-parte on 5th February, 2017. The application for setting aside of the ex-parte decree was filed by wife on 28th 3 November, 2018. The petitioner/ husband before this court has contended that he got married on 5th February, 2019. However, in the written objections filed before the learned Trial Court in March, 2019 there is no averment about the second marriage having taken place. Another fact to be examined would be that when the petitioner/husband was served with the application of the wife for setting aside the ex-parte order. Whether the date of service is before or later of the date of second marriage would be very important issue. 13. The Court is also required to adjudicate upon the service of the main petition No. 815 of 2016. 14. The Court considers that let the matter be relegated back to the learned Trial Court for deciding the application under Order 9 Rule 13 C.P.C. being filed by the wife for setting aside the ex-parte decree dated 5th December, 2017 afresh after taking the evidence of the parties in accordance with law. 4 15. Learned Trial court may take evidence on the following points in addition to the other issues which may arise : 1. When the service of application for setting aside the ex-parte order was effected on the petitioner/husband. 2. When actually the petitioner/ husband got married with Priyanka Dinda 3. Whether the opposite party/wife was duly served in petition No. 815 of 2016. 4. Whether there are sufficient cause for delay in moving the application for setting aside the ex-parte order on behalf of the wife. 16. In view of the discussion made herein above the impugned order is set aside. 17. Learned Trial Court shall decide the matter afresh in accordance with law. 18. LCR be returned immediately. 19. This petition stands disposed of. 20. Urgent photostat certified copy of this order, if applied for, be given to the 5 parties upon compliance of all usual requisite formalities (Dinesh Kumar Sharma, J.) 6