second wife is a necessary party = Exparte divorce granted – after appeal time was over – contacted second marriage – first wife filed set aside petition with delay condonation – Apex court remand the case and asked to implead the second wife also to litigation = We, however, consider it apposite to mention that admittedly during pendency of the litigation, certain events have taken place which have bearing over the rights of the parties. 16. It is for this reason, we request the High Court to implead the appellant herein as a party in the miscellaneous appeal and persuade the parties to settle the issues, if possible, on some mutually acceptable terms to give quietus to this long pending matrimonial dispute, since it is not in the interest of any of the parties to these appeals to continue this litigation.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.4847­4848 OF 2019
(Arising out of S.L.P.(C) Nos.7529­7530 of 2015)
Karuna Kansal ….Appellant(s)
VERSUS
Hemant Kansal & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.

  1. Leave granted.
  2. These appeals are filed against the final judgment
    and order dated 17.10.2014 passed by the Division
    Bench of the High Court of Madhya Pradesh at Indore
    in Review Petition No.48 of 2014 whereby the Division
    Bench of the High Court dismissed the said Review
    Petition filed by the appellant herein and upheld the
    order dated 09.08.2011 passed by the Single Judge of
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    the High Court in Miscellaneous Appeal No.709 of
    2005.
  3. A few facts need mention hereinbelow for the
    disposal of these appeals, which involve a short point.
  4. The dispute, which is the subject matter of these
    appeals, is between the husband (respondent No.1)
    and his two wives (appellant and respondent No.2). It
    arises out of the matrimonial suit decided by the
    Family Court between respondent Nos. 1 and 2.
  5. By impugned order dated 09.08.2011, the High
    Court disposed of the appeal (M.A. No.709/2005) filed
    by respondent No.2 (first wife) against respondent No.1
    (husband) under Order 43 Rule 1 (d) of the Code of
    Civil Procedure, 1908 (hereinafter referred to as
    “CPC”) against the order dated 10.12.2004 passed by
    the Additional District Judge, Kukshi in MJC No. 35 of

  6. 2
  7. By order dated 10.12.2004, the ADJ had declined
    to condone the delay in filing the application filed by
    respondent No.2 under Order 9 Rule 13 of the CPC
    and thereby declined to set aside the ex parte decree
    dated 23.08.2003 passed in C.S. No. 09­A/02 by the
    said Court.
  8. The appellant herein is the second wife of
    respondent No.1 (husband). It is the case of the
    appellant that after passing of the ex parte decree for
    dissolution of marriage of respondent No.1 with
    respondent No.2 and expiry of period of limitation for
    filing appeal, respondent No.1(husband) entered into
    matrimony with her (appellant). On the other hand,
    respondent No.2 (first wife of respondent No.1) filed
    the aforesaid appeal of which the appellant had no
    knowledge, but the fact of respondent No.1 having
    married the appellant was indeed stated before the
    High Court. However, when respondent No.1 stated
    3
    that she was having no problem with the appellant,
    the High Court set aside the ex parte decree passed on
    23.08.2003 in C.S. No.09­A of 2002 and directed that,
    “the parties shall live together as husband and wife.”
    The appellant herein (second wife of respondent No.1),
    on coming to know of the aforesaid order dated
    09.08.2011 passed by the Single Judge of the High
    Court in M.A. No.709/2005, filed review petition (R.P.
    No.48 of 2014) before the High Court. The Division
    Bench of the High Court, by order dated 17.10.2014,
    dismissed the said review petition. Challenging both
    the orders, the appellant has filed the present appeals
    by way of special leave in this Court.
  9. Heard Mr. A.K. Chitale, learned senior counsel
    for the appellant and Ms. Pankhuri and Mr. S.K.
    Verma, learned counsel for the respondents.
  10. Having heard the learned counsel for the parties
    and on perusal of the record of the case, we are
    4
    constrained to allow these appeals, set aside the
    impugned orders and remand the case to the High
    Court for deciding the miscellaneous appeal afresh on
    merits in accordance with law.
  11. The need to remand the case has occasioned
    because we find that the appellant was not made a
    party to the appeal and nor she was heard by the High
    Court.
  12. On perusal of the impugned order dated
    09.08.2011, we find that the High Court, even after
    taking note of the factum of the marriage of the
    appellant with respondent No.1, has not adverted to
    the consequences thereof and has given such
    directions, which may not be capable of due
    performance.
  13. In such a situation, where the impugned order
    was passed without hearing the appellant and not
    issuing any notice of the appeal to her and yet giving
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    such directions, which may not be capable of being
    carried out, the impugned order, in our view, is wholly
    without jurisdiction and legally unsustainable and it
    has to be set aside on this short ground alone.
  14. It is apart from the fact as to whether such
    directions could at all be issued; and secondly,
    whether such directions were necessary in an appeal
    between the respondents inter se for its disposal
    wherein the only question involved was as to whether
    the Family Court (ADJ) was justified in declining to
    condone the delay in filing the application filed by
    respondent No.1 herein under Order 9 Rule 13 of the
    CPC and, if so, on what grounds.
  15. In view of the foregoing discussion, the appeals
    succeed and are accordingly allowed. The impugned
    orders are set aside. The case is remanded to the High
    Court for deciding the miscellaneous appeal afresh on
    merits in accordance with law after impleading the
    6
    appellant herein as a party respondent in the appeal
    before the High Court.
  16. We, however, consider it apposite to mention that
    admittedly during pendency of the litigation, certain
    events have taken place which have bearing over the
    rights of the parties.
  17. It is for this reason, we request the High Court to
    implead the appellant herein as a party in the
    miscellaneous appeal and persuade the parties to
    settle the issues, if possible, on some mutually
    acceptable terms to give quietus to this long pending
    matrimonial dispute, since it is not in the interest of
    any of the parties to these appeals to continue this
    litigation.
  18. It is only if the High Court eventually finds that
    the parties are not able to settle amicably for any
    reason, the miscellaneous appeal be decided on its
    merits in accordance with law without being
    7
    influenced by any observations made in the impugned
    order and in this order.
    …………………………………..J.
    [ABHAY MANOHAR SAPRE]
    …………………………………..J.
    [DINESH MAHESHWARI]

New Delhi;
May 09, 2019
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