Either Party To Marriage Can Marry Again If No Appeal Filed Against Ex-Parte Divorce Decree Within Limitation Period: Delhi High Court

The Delhi High Court has held that either party to a marriage under the Hindu Marriage Act, 1955, can marry again if no appeal is filed against an ex-parte decree of divorce within the period of limitation.

A division bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan said that section 15 of the Hindu Marriage Act enables the parties to marry again only after the decree of divorce has become final.

“Therefore, in case of an ex parte decree of divorce also it shall be lawful for either party to the marriage to marry again if no appeal is filed against such decree within the period of limitation,” the court said.

Section 15 states that when a marriage has been dissolved by a decree of divorce and the time for appealing has expired without an appeal having been presented or having it been dismissed, it shall be lawful for either party to the marriage to marry again.

The court said that bar or impediment to contract a second marriage operates during the pendency of appeal only if an appeal is preferred within the period of limitation.

Observing that the dissolution of marriage is complete once the decree is made and that the parties forfeit the status of husband and wife in relation to each other, the bench ruled:

“Each one becomes competent to contract another marriage as provided by section 15 of the Act. In law the effect of ex parte decree of divorce is not different from a contested one. Even Section 15 of the Act does not make any distinction between a contested decree and an ex parte decree. Therefore, in case of an ex parte decree of divorce also it shall be lawful for either party to the marriage to marry again if no appeal is filed against such decree within the period of limitation.”

The court made the observations while dismissing an appeal moved by a wife challenging an order of an Additional District Judge passed in 2006 rejecting her application seeking setting aside of the ex-parte decree of divorce.

The trial court had allowed the divorce petition of the husband and an ex parte divorce decree was passed on the ground of desertion in his favour and against the wife in 2003.

The Additional District Judge dismissed the wife’s application on the ground that she was aware of the pendency of the divorce petition and that her contention that she was not duly served could not be accepted.

Dismissing her plea, the bench referred to the statements of the wife and her father and said that she was served with summons and handed over the copy of the divorce petition to her advocate. The court added that it leads to the conclusion that the wife had the notice of the date of hearing in the divorce petition and had sufficient time to appear in the court and answer the husband’s claim.

“In the circumstances, the contention of the appellant that she was not duly served and that she had no knowledge of the divorce petition filed by the respondent before the Court in Delhi is bereft of any merit,” the court said.

Furthermore, the bench also noted that the wife did not deny or dispute the fact of the husband’s second marriage in 2004 and in fact, mentioned about the same in an affidavit filed in 2007.

“In the present case no appeal was preferred within the period of limitation or even thereafter. The application under Order 9 Rule 13 CPC was also filed after seventeen months from the date of ex parte decree as against limitation period of thirty days from the date of decree as provided under Article 123 of the Limitation Act, despite the appellant having been duly served with summons. In the circumstances, it was lawful for the respondent husband to solemnize another marriage,” the court said.

Title: SD v. RKB

Citation: 2023 LiveLaw (Del) 331

Click Here To Read Order