D. Gitanjali Dora v. D. Nityananda Dora

For appellant: Mr. Niranjan Singh (1), Advocate For respondent: Mr. Gopal Krishna Behera, Advocate CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO J U D G M E N T -------------------------------------------------------------------------------------------- Dates of hearing: 1st August, 2024 and 28th August, 2024 Date of Judgment: 4th September, 2024 -------------------------------------------------------------------------------------------- ARINDAM SINHA, J.

#1. Appellant was wife in the marriage dissolved by ex-parte order dated 7th March, 2012 made by the Family Court. She had applied for setting aside of said ex-parte order. Her application was dismissed on 12th September, 2014. On wrong advice, she had challenged the dismissal order by seeking judicial review. The writ petition was presented on 4th December, 2014. It came to be disposed of by the learned single Judge on order dated 23rd April, 2024. It is after that, appellant preferred this appeal.

#2. By our order dated 1st August, 2024 we had condoned the delay. We also put appellant on notice regarding her position, consequent to subsequent fact of respondent having got re-married in year 2018. We reproduce below paragraphs 3 to 5 of our order dated 1st August, 2024. “3. We have called for the record in renumbered W.P.(C) no. 16829 of 2015, disposed of by the learned single Judge on said order dated 23rd April, 2024. We find from order sheet though respondent was noticed but there was no interim order made. On query from Court Mr. Behera submits, respondent got re-married in year, 2018.

#4. It is clear that applicant was wrongly advised to seek judicial review for dismissal of her application for setting aside the ex parte order. As such, the circumstances make us inclined to accept prayer for exclusion of time. Accordingly, the delay is condoned and the appeal admitted. The application is disposed of.

#5. Appellant is on notice that respondent is married and has a daughter. There is no question arisen regarding his re-marriage. Appellant will consider her position, obtain advice and be heard on adjourned date. Respondent will MATA no. 213 of 2024 Page 2 of 4 also be heard. Mr. Behera waives formal notice of appeal.”

#3. Mr. Singh, learned advocate appears on behalf of appellant and Mr. Behera, learned advocate, for respondent.

#4. There is a prayer in the memorandum of appeal. It appears therefrom, the appeal has been preferred against said ex-parte order dated 7th March, 2012, dissolving the marriage. An additional prayer is for order dated 12th September, 2014, dismissing appellant’s application for setting aside impugned ex-parte order, to be quashed.

#5. On query Mr. Singh submits, his client wants to continue having status of being married to respondent. Considering he has re-married, his client will not insist on physical togetherness. He submits, she was not heard when impugned order was made, dissolving the marriage. It ought not to have been dissolved. She was always a good wife. Situation and circumstances caused omission to duly prevent respondent from re-marrying. The appellate Court should interfere and reverse impugned order.

#6. Mr. Behera submits on query made, impugned order did not direct permanent alimony. However, before that maintenance had been paid by his client for the son born to respondent and him. Impugned order was duly made upon appellant having chosen to go MATA no. 213 of 2024 Page 3 of 4 unrepresented. There was no restraint on his client, who after waiting long years, got re-married in year 2018. There is a daughter from the second marriage. Interference in the appeal will cause manifest injustice to not only his client.

#7. Events taken place subsequent to lastly dismissal order dated 4th December, 2014, cannot be undone. Appellant, though was allowed to exercise her right of appeal belatedly but has lost her claim to substantial relief because the clock cannot be put back. In the circumstances, appellant has to obtain advice on whether she will accept the situation or she has further remedy.

#8. With above observations, the appeal is disposed of. (Arindam Sinha) Judge (M.S. Sahoo) Judge Sks Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT Date: 04-Sep-2024 11:31:43 MATA no. 213 of 2024 Page 4 of 4