[Hindu Marriage Act] Bar Against Remarriage Not Applicable If Delay In Filing Matrimonial Appeal Is Not Satisfactorily Explained: Gauhati HC

The Gauhati High Court on Wednesday dismissed an Interlocutory Application filed by a woman for condonation of 122 days of delay in preferring the matrimonial appeal which challenged an ex-parte divorce decree passed by the District Court, on the ground that the bar of Section 15 of the Hindu Marriage Act (remarriage) would not be applicable in the case and delay has not been satisfactorily explained.

The single judge bench of Justice Parthiv Jyoti Saikia was hearing an application under Section 5 of the Limitation Act, 1963 filed by the applicant praying for condonation of 122 days of delay in preferring the matrimonial appeal under Section 28 of the Hindu Marriage Act, 1955.

The facts leading to the filing of the above-mentioned application is that the ex-husband of the applicant (respondent) filed an application under Section 13 of the Hindu Marriage Act seeking a decree of dissolution of his marriage with his wife (applicant).

The case was filed in the court of the District Court, Kokrajhar. The District Court issued a notice to the applicant. The present applicant received the said notice, but did not contest the case. Therefore, the District Court passed the decree on July 17, 2021 against the applicant ex parte.

The present applicant did not file an appeal against the said decree within the time frame stipulated by law. After 122 days of delay, the applicant filed the appeal along with the present application stating that during the COVID-19 period, her husband had sent her to Mathura in the State of U.P. and therefore, she could not come to Kokrajhar to contest the case before the trial court.

Regarding the delay, the applicant stated that she has to look after her 8-year-old son and her old parents, therefore, the delay occurred. The Counsel appearing for the applicant relied upon the judgment of the Supreme Court in Tejinder Kaur v. Gurmit Singh (1988) 2 SCC 90.

On the other hand, the respondent submitted that when the applicant did not file the appeal within the stipulated time, he remarried. The Counsel appearing for the respondent placed reliance upon the judgment of the Supreme Court in Krishnaveni Rai v. Pankaj Rai (2020) 11 SCC 253 in which it was laid down as follows:

“The bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of court, restraining the parties or any of them from remarrying during the pendency of the appeal.”

The Court noted that ex parte decree was passed on July 17, 2021 and within 90 days thereafter, no appeal was filed. Hence, on May 26, 2022, the respondent husband, remarried.

“I am of the considered opinion that the bar of Section 15 of the Hindu Marriage Act would not be applicable in the present case. Moreover, I find that the delay has not been satisfactorily explained in this case,” the Court noted.

Thus, the Court dismissed the interlocutory application.

Citation: 2024 LiveLaw (Gau) 38

Case Title: Rashmi Indouliya @ Chaudhary v. Ved Prakash Indouliya

Case No.: I.A. (Civil)/3357/2022

Click Here To Read/Download Order