Case Note & Summary
The present second appeal was filed by the appellant/wife against the judgment and order dated 15/09/2021 passed by the learned District Judge-10, Aurangabad, in Civil Miscellaneous Application No.168 of 2020, whereby the application for condonation of delay of 166 days in challenging the ex-parte divorce decree dated 29/08/2019 was rejected. The marriage between the appellant and respondent was solemnized on 02/04/2013, and they have a daughter. Due to disputes, the respondent/husband filed Hindu Marriage Petition No.3 of 2016 for divorce, which was decreed ex-parte on 29/08/2019 as the wife did not lead evidence. The wife filed an appeal with a delay condonation application, claiming her advocate did not inform her of the decree. The first appellate court refused to condone the delay, observing that the wife, being a government officer, should have been diligent. Meanwhile, the husband remarried one Mayuri on 01/10/2019 and has a son from that marriage. The wife was aware of this remarriage during the pendency of her delay condonation application. The High Court, while considering the appeal, noted that the husband's remarriage occurred after the expiry of the limitation period for appeal. Relying on Section 15 of the Hindu Marriage Act, 1955, and judgments of the Delhi High Court and Supreme Court, the court held that once the time for appeal has expired without an appeal being presented, it is lawful for either party to remarry. The subsequent filing of an appeal with a delay condonation application does not affect the validity of the remarriage. Therefore, even if the delay were condoned, the appeal would be infructuous as the husband's second marriage is valid. Consequently, the second appeal was dismissed.
Headnote
A) Family Law - Condonation of Delay - Section 5 of Limitation Act, 1963 - The wife sought condonation of 166 days delay in filing appeal against ex-parte divorce decree, claiming her advocate did not inform her of the decree. The first appellate court refused, citing her negligence as a government officer. The High Court held that while normally delay may be condoned, the husband's remarriage after expiry of limitation period under Section 15 of the Hindu Marriage Act, 1955 makes the appeal infructuous. (Paras 2-10) B) Hindu Marriage Act - Remarriage after Divorce Decree - Section 15 of Hindu Marriage Act, 1955 - The husband remarried after the decree of divorce and after the limitation period for appeal expired. The wife filed appeal with delay condonation application. The High Court, relying on Delhi High Court and Supreme Court judgments, held that the second marriage is valid and the appeal cannot be entertained as it would not affect the husband's right to remarry. (Paras 7-10) C) Hindu Marriage Act - Effect of Remarriage on Pending Appeal - Section 15 of Hindu Marriage Act, 1955 - The court considered the effect of remarriage when an appeal is filed after limitation. Following the principle in Seema Devi vs. Shree Ranjit Kumar Bhagat and Krishnaveni Rai vs Panjak Rai, the court held that once the time for appeal has expired without an appeal being presented, the party is free to remarry, and a subsequent appeal with delay condonation does not invalidate the remarriage. (Paras 8-10)
Issue of Consideration
Whether the learned first appellate court erred in refusing to condone the delay of 166 days in filing the appeal against the divorce decree, and whether the subsequent remarriage of the respondent/husband renders the appeal infructuous.
Final Decision
The second appeal is dismissed. The judgment of the first appellate court refusing to condone delay is upheld, as the husband's remarriage after expiry of limitation period makes the appeal infructuous.
Law Points
- Condonation of delay
- Section 15 Hindu Marriage Act
- 1955
- Remarriage after divorce decree
- Effect of remarriage on pending appeal
- Limitation for appeal
- Ex-parte divorce decree
