Either party can re-marry if no appeal within stipulated period post ex parte divorce: HC

A divorce breaks marital ties between couples who forfeit their status as husband and wife, and even if divorce is ex-parte, it is lawful for either party to re-marry if no appeal is filed within the stipulated time, the Delhi High Court said on Friday.

The court made the observations while hearing a petition by a woman who challenged a 2003 order of divorce passed by a lower court here in her absence on her then husband's plea who has since re-married.

The petitioner first unsuccessfully assailed the divorce before an additional district judge 18 months after the date of the order on the ground that she had no knowledge of the proceedings.

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Before the high court, the former husband opposed the petition against the district judge's decision and informed that he remarried 17 months after the ex-parte decree and now has two children from the second marriage.

A bench headed by Justice Sanjeev Sachdeva observed as per section 15 of the Hindu Marriage Act, a divorced Hindu couple becomes "competent to contract another marriage" in the absence of a duly filed appeal. Since in the present case, no appeal was preferred within the period of limitation, there was no merit in the petition.

"It is trite that the dissolution of marriage is complete once the decree is made. A decree of divorce breaks the marital tie and the parties forfeit the status of husband and wife in relation to each other," said the bench, also comprising Justice Vikas Mahajan.

"In law the effect of ex parte decree of divorce is not different from a contested one. 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," stated the court.

The court said no fraud was committed by the former husband and summons in relation to the divorce proceedings were served on the petitioner as per the law.

"The application under Order 9 Rule 13 CPC (plea to set aside ex parte decrees) 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," said the court.

"This being the position, an application under Order 9 Rule 13 CPC filed by the appellant a day after the second marriage was solemnized by the respondent-husband, was infructuous for all practical purposes, from the very inception. So is the present appeal," the court ruled.