After ex parte decree of divorce, it shall be lawful for either party to marry again if no appeal made within the period of limitation: Delhi HC

After ex parte decree of divorce, it shall be lawful for either party to marry again if no appeal made within the period of limitation: Delhi HC

Facts of the Case:

The present appeal has been filed assailing the order dated 03.02.2006 vide which the Additional District Judge, Delhi has dismissed the application filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking setting aside of the ex parte judgment and decree of divorce passed between the parties on 14.05.2003 in HMA No.849/2001.

The marriage between the parties was solemnized on 04.05.1998 at Village Maliganj, District Madhepura, Bihar and a girl child was born from said wedlock on 23.07.1999, who is presently 23 years of age.

Due to differences husband filed divorce petition in the Court of District Judge, Saharsa, Bihar. However, application of withdrawal was filed by husband. The respondent-husband further filed a Divorce Petition in the District Court, Delhi on 15.10.2001 under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955. Appellant wife refused to accept the summon, eventually the divorce petition was allowed and an ex parte decree of divorce on the ground of “desertion” was passed in favour of the respondent-husband and against the appellant-wife, on 14.05.2003 by the Additional District Judge, Delhi.

On 25.11.2004 the appellant-wife filed an application under Order IX Rule 13 CPC alleging that the summons issued by the court in the divorce petition was neither tendered to her nor she refused to accept the same. It was pleaded by her that she acquired the knowledge of the ex parte divorce decree dated 14.05.2003 only on 30.08.2004.

The respondent filed his reply, pleading that the appellant was having knowledge of the Divorce Petition filed by him in Delhi and that he has already re-married to Smt. Sanju Devi, D/o of Sh. Ramji Prasad Bhagat on 24.11.2004 as per Hindu rites and customs.

Additional District Judge, Delhi dismissed the application of the appellant-wife under Order IX Rule 13 CPC on the ground that the appellant-wife was aware of the divorce petition pending in the Court at Delhi and that the contention that she had not been duly served and had not refused to accept the notice of the petition, cannot be accepted.

Observation

In the case of Parimal Vs. Veena @ Bharti, (2011) 3 SCC 345 Hon’ble Supreme Court observed that, “the Court shall not set aside the ex parte decree on mere irregularity in the service of summons in a case where the defendant otherwise, had notice of the date of hearing and sufficient time to appear in the court.”

In Krishnaveni Rai v. Pankaj Rai and Anr., (2020) 11 SCC 253     Hon’ble Supreme Court observed that, “Section 15 clarifies that when a marriage has been dissolved by a decree of divorce, and there is no right of appeal against the decree, or if there is such a right of appeal, the time for appealing has expired without an appeal having been preferred, or an appeal has been presented but the same has been dismissed, it shall be lawful for either party to the marriage to marry again.”

The Hon’ble High Court made it clear that 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. Each one becomes competent to contract another marriage as provided by section 15 of the Act.

It was held that, in the present case no appeal was preferred within the period of limitation or even thereafter.

In the circumstances, it was lawful for the respondent husband to solemnize another marriage.

Case Details

MAT.APP. (F.C.) 189/2022

IN THE HIGH COURT OF DELHI AT NEW DELHI

Seema Devi vs Shree Ranjit Kumar Bhagat on 21 April, 2023

CORAM:

HON’BLE MR. JUSTICE SANJEEV SACHDEVA

HON’BLE MR. JUSTICE VIKAS MAHAJAN