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Vathsala v. N. Manoharan.
Factual and Procedural Background
The petitioner instituted an original petition in this court for a declaration that her marriage with the respondent was a nullity on the ground of the respondent's impotency. A decree for nullity was granted ex parte. The ex parte decree was based on evidence given by the petitioner and her father and on the report of the medical examination of the respondent. The respondent filed an application to set aside the ex parte decree and also filed an appeal from the order (the appeal was later withdrawn). The court below set aside the ex parte decree, finding that sufficient cause for the respondent's absence had been shown. Meanwhile, relying upon the ex parte decree declaring the marriage a nullity, the petitioner contracted a second marriage. The petitioner argued before the court below that this second marriage rendered the respondent's application to set aside the ex parte decree infructuous; the court below rejected that contention. The present opinion dismisses the petition challenging the court below's approach.
Legal Issues Presented
- Whether an ex parte decree of nullity, which is the subject of an application to set aside and/or an appeal, remains effective such that an intervening second marriage contracted relying on that decree is valid.
- Whether the pendency of an application to set aside an ex parte decree (or an appeal) becomes infructuous by reason of the other party contracting a second marriage during the pendency.
Arguments of the Parties
Petitioner's Arguments
- Counsel for the petitioner relied on Mohanmurari v. Kusamkumari and argued that at the time the second marriage was contracted the ex parte decree of nullity was in force and therefore the second marriage was valid.
- It was contended that because the decree was in force when the second marriage was solemnized, the pendency of the respondent's application to set aside the ex parte decree could not invalidate the second marriage.
- Counsel argued that if the respondent wished to prevent the second marriage he should have sought a prohibitory order in the court below, and having not done so, the respondent's application to set aside the ex parte decree should have been dismissed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mohanmurari v. Kusamkumari | Relied upon by petitioner to support the contention that a decree in force at the time of a subsequent marriage validates that marriage despite pendency of an application to set aside or an appeal. | The court observed that the decision "goes a long way to support" the petitioner but expressly declined to follow that view in the present case. |
| Smt. Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581 | Principle that when an ex parte order is set aside the trial is re-opened, and that on allowance of an appeal the appellate order is to be treated as the order that should have been passed; and that a spouse can lawfully marry only when there is no right of appeal or the time for appeal has expired or the appeal has been dismissed. | The court relied on this authority to explain that an order of nullity remains subject to the result of an application to set aside or an appeal, and that acts done while those remedies are pending cannot be allowed to defeat those remedies. |
Court's Reasoning and Analysis
The court agreed with the court below and rejected the petitioner's contention. The analysis proceeded as follows:
- An order declaring a marriage a nullity, when subject to remedies (an application to set aside an ex parte order and/or an appeal) that have actually been invoked, must be regarded as valid and in force only subject to the eventual result of those remedies.
- Allowing an act by a party (such as contracting a second marriage) during the pendency of those remedies to defeat the remedies would enable a party to successfully circumvent the lawful remedy granted to the aggrieved person; this is not permissible.
- The mere filing or pendency of an application to set aside an ex parte decree or an appeal does not automatically reverse the order; however, if an application to set aside is allowed, the ex parte order is set aside and the trial is re-opened. If an appeal is allowed, the appellate order stands as the order that ought to have been passed at trial. This is the principle from Smt. Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581, which the court applied.
- On dissolution of marriage, a spouse may lawfully remarry only when no right of appeal remains against the decree or the time for filing an appeal has expired or any appeal presented has been dismissed.
Holding and Implications
Petition dismissed. No costs.
Direct effect: The petition challenging the court below's decision to set aside the ex parte decree was dismissed and the petitioner was not permitted to rely on the ex parte decree as immune from the consequences of the respondent's application to set it aside. The opinion applies the existing principle that ex parte orders remain subject to the result of applications to set them aside and appeals; it does not purport to create a new precedent beyond applying the authority cited (Smt. Chandra Mohini v. Avinash Prasad).
1. This is rather a peculiar case. The petitioner instituted an original petition for a declaration that her marriage with the respondent in this court was a nullity because of his impotency. A decree for nullity was eventually granted, but ex parte. The petitioner and her father had given evidence and there was also the report of the Medical examination of the respondent. That was the basis on which the ex parte decree was made. The respondent filed an application to set aside the ex parte decree, and at the same time, also filed an appeal from the order. The appeal had been withdrawn. But the court below has set aside the ex parte decree, it being of opinion that sufficient cause for the absence of the respondent was made out. In the meantime, relying upon the decree declaring the marriage to be a nullity, the petitioner contracted a second marriage. The petitioner pressed before the Court below that the respondent's application for setting aside the ex parte decree became for that reason infructuous. The Court below declined to accept that view.
2. In my view the Court below was right. But learned counsel for the petitioner refers me to Mohanmurari v. Kusamkumari, , and contends that at the time the second marriage was contracted, the decree for nullity was in force and therefore, it was a valid marriage. He says if that be so, the pendency of the application to set aside the ex parte decree could not invalidate it and adds that if the respondent wanted to prevent the second marriage, he should have appealed to the Court below for a prohibitory order against the petitioner and that having not been done, the application for setting aside the ex parte decree should have been dismissed. It is true that the decision relied upon by the petitioner goes a long way to support her. But, with great respect, I am unable to concur in that view. What appears to me is that when an order of nullity of marriage is made and the law allows an appeal as well as an application to set aside an ex parte order and actually these remedies have been resorted to, any act of the parties pending final disposal of those remedies availed of cannot have the effect of rendering them infructuous, so to speak. Where such remedies are provided from an order, the order should be taken to be valid and in force, but only subject to the result of the application to set aside the ex parte order or the result in the appeal. To hold otherwise would mean that by an act of the party, he can successfully defeat the lawful remedy accorded to the aggrieved person. It is true the filing or pendency of an application to set aside an ex parte decree or an appeal does not work as an automatic reversal of the order. But once an application is allowed and the ex parte order is set aside, the order passed in such an application re-opens the trial, or if the appeal is allowed, the order made in the appeal should be taken to be the order that should have been passed at the trial. That is the principle of Smt. Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581. The principle laid down in that decision has general application. The Supreme Court pointed out that on dissolution of marriage, a spouse can law-fully marry only when there is no right of appeal against the decree dissolving the marriage or if there is a right of appeal, the time for filing of an appeal has expired or the appeal presented has been dismissed.
3. The petition is dismissed. No costs.
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