Delay In Filing Appeal Against Decree Of Divorce Is Not Satisfactorily Explained: Gauhati HC Holds That Remarriage Is Not Barred U/s. 15 Of Hindu Marriage Act
The Gauhati High Court observed that the bar against remarriage under Section 15 of the Hindu Marriage Act, 1955 (HMA) was not applicable to the case since the appeal against the ex parte decree of divorce was beyond the period of limitation, while holding that the delay in filing the appeal had not been satisfactorily explained.
The Bench dismissed an interlocutory application filed by a wife under Section 5 of the Limitation Act seeking condonation of 122 days of delay in appealing against an ex-parte matrimonial decree whereby her marriage with her husband was dissolved.
A Single Bench of Justice Parthivjyoti Saikia observed, “The ex parte decree was passed on 17.07.2021. Within 90 days thereafter, no appeal was filed. Hence, on 26.05.2022, 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.”
Advocate PK Das represented the applicant, while Advocate AK Boro appeared for the respondent.
The Husband in the case had filed an application under Section 13 of the HMA in Kokrajhar, Assam seeking a decree of dissolution of his marriage with his wife. The wife did not contest the case even though notice was issued to her. Therefore, the trial court passed the decree against her ex-parte.
After 122 days of delay, the wife filed an appeal against the said decree and an application for condonation of delay.
The Wife argued that during COVID-19, her husband had sent her to Mathura, Uttar Pradesh and therefore, she could not come to Kokrajhar to contest the case before the trial court. Regarding the delay of 122 days, the wife submitted that she had to take care of her 8-year-old son and her old parents.
Because the wife did not file an appeal against the decree of divorce, the husband got remarried.
The wife referred to the 1988 Supreme Court’s judgment in Tejinder Kaur v. Gurmit Singh to argue the necessity of caution before remarriage until the appeal period concluded. Conversely, the husband referred to the 2020 Supreme Court’s decision in Krishnaveni Rai v. Pankaj Rai, which held that the bar under Section 15 HMA applies only if an appeal is filed within the limitation period.
The Court stated that the delay of 122 days had not been satisfactorily explained by the wife and thus could not be condoned. The Bench explained that the bar under Section 15 of the HMA was inapplicable in the case, leading to the dismissal of the wife’s application.
Accordingly, the High Court dismissed the interlocutory application.
Cause Title: X v. Y