JUDGMENT
R.S. Kejriwal, J.
1. This revision has been directed against the order dated 7.9.1994, passed by learned District Judge, Alwar, whereby the said Court allowed the application submitted under Order 9, Rule 13 read with Section 151, C.P.C. filed by the respondent and set-aside the ex-parte decree of divorce dated 25.9.1986, passed in Civil Misc. Case No. 36/199/85.
2. The brief relevant facts of the case are that the petitioner filed an application for divorce against the respondent. Notice of the said application was sent to the respondent by registered post. On the basis of an endorsement of refusal, the learned District Judge, Alwar, found that the service on the respondent was sufficient and proceeded ex-parte and an ex-parte decree was passed against the respondent on 25.9.1989. On 30.3.1988, the respondent filed an application under Order 9, Rule 13, C.P.C. for setting aside the ex-parte decree with the allegations that she never refused to accept the notice. She came to know only on 1.3.1988, about the ex-parte decree. It was prayed that the ex-parte decree be set aside. The petitioner filed reply to the said application mentioning that the service on the respondent was proper. She refused to accept the notice containing summons when tendered by the post man. Objection regarding limitation was also raised. It has been further mentioned in the application that the petitioner solemnised second marriage on 23.11.1987 with Smt. Rajni Yadav and there are two children from the second wedlock. It has been prayed that the application be dismissed. The learned District Judge, Alwar, after recording the evidence of the parties, vide his order dated 7.9.1994, came to the conclusion that the respondent was not served with the Notice of the divorce application. The respondent was at Ajmer at the relevant time when the notice was sent by registered post at Jaipur address. Under such circumstances the learned Judge set-aside the ex-parte decree dated 25.9.1986. This order has been challenged in this revision.
3. Mr. Anil Jain, Counsel for the petitioner submits that the finding recorded by the learned Judge that the respondent was not served with a notice of divorce application is contrary to the record. His second submission is that the petitioner solemnised second marriage on 23.11.1987, with Smt. Rajni Yadav, and on account of this fact the ex-parte decree cannot be set-aside. In support of his arguments, he placed reliance on Smt. Shimla Devi & Anr. v. Kiran Kumar, re-ported in 1994 (3) W.L.C. (Raj.) 519.
4. On the other hand, Mr. Amrit Kumar, Counsel for the respondent sup- ported the order passed by the learned District Judge. He submits that on the ground the petitioner solemnised second marriage, the order cannot be set-aside. In support of his arguments, he placed reliance on Smt. Lata Kamat v. Vilas, reported in A.I.R. 1989 S.C. 1477=I (1989) DMC 589, and Smt Veena Rani v. Romesh Kumar, reported in A.I.R. 1995 P&H 213=II (1994) DMC 536.
5. In Smt. Lila Gupta v. Laxmi Narain & Ors., reported in A.I.R. 1978 S.C. 1351, the Apex Court held as below :
“A marriage contracted in contravention of or violation of the proviso to Section 15 is not void but merely invalid not affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing from the marriage.”
Under such circumstances, second marriage of the petitioner with Smt. Rajni Yadav is not: void. The petitioner has got two children with the said wedlock. Under such circumstances, I have to seen whether it is proper to set-aside the ex-parte decree of divorce passed by learned District Judge. This question was decided by this Court in Smt. Shimla Devi’s case (supra). This Court held that service of the summons of the application for divorce on the defendant was not sufficient, still the Court refused to set-aside the ex-parte-decree on the ground that during this period the husband solemnised second marriage. This Court directed that the wife can move an application under Section 25 of the Hindu Marriage Act for permanent alimony and maintenance.
6. The judgments cited by Counsel for the respondent and reported in Lata Kamat (supra) and Veena Rani (supra) are not relevant for the decision of the present case. In these cases, the second marriage was solemnised during the pendency of appeal against the divorce decree, whereas in the present case, the second marriage was solemnised after more than one year from the date of decree. In my opinion, the learned District Judge without considering the effect of second marriage, set-aside the ex-parte decree. The order passed by the learned Judge is perverse and in case the same is allowed to stand, it would cause irreparable injury to the petitioner.
Consequently, I allow the revision, set-aside the order dated 7.9.1994, passed by learned District Judge, Alwar, dismiss the application submitted under Order 6, Rule 13, C.P.C. and direct the learned District Judge, Alwar, to decide the application of the respondent for permanent alimony, submitted on 30.3.1988, expeditiously as far as possible within a period of six months from receipt of a copy of this order. Parties are directed to appear before the learned District Judge, Alwar, on 16.9.1996.
Parties to bear their own costs.