Either Party Can Remarry If No Appeal Is Filed Within Limitation Period Against Ex Parte Decree Of Divorce: Delhi HC

The Delhi High Court has held that 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.

“In law the effect of ex parte decree of divorce is not different from a contested one. Even Section 15 of the Act does not make any distinction between a contested decree and an ex parte decree. 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”, Justice Sanjeev Sachdeva and Justice Vikas Mahajan noted.

In this case, an appeal was filed against the Order dismissing the application filed by the appellant-wife seeking setting aside of the ex parte judgment and decree of divorce.

The appellant-wife submitted that she had no knowledge about the divorce petition pending before the Additional District Judge, Delhi. She also contended that she always had an impression that the divorce petition will be filed only in Madhepura Court, Bihar but the respondent-husband allegedly committed fraud by filing the divorce petition in the Court at Delhi.

Advocate Neeraj Shekhar appeared for the respondent.

The Court observed that the appellant-wife had refused to accept the summons of the Court in the divorce proceedings.

“The summons sent through registered post were received back unexecuted with the report that “lene se inkaar karne par chipka diya”. The process server also tried to serve the appellant but as the appellant had refused to accept the same, therefore, a copy of the summons and the petition, were affixed by him on a conspicuous part of the appellant’s residence in the presence of two witnesses”, the Court noted.

Thus the Court held that the procedure adopted for effecting the service on appellant was proper and the service was complete.

The Court further held that the contention of the appellant that the respondent withdrew the divorce petition filed before the District Judge, Saharsa for filing it before the District Court, Madhepura but the respondent committed fraud upon the appellant by filing it before the District Court in Delhi instead of Madhepura, was also without substance.

“The appellant, in any case, could have objected to the territorial jurisdiction of the Court at Delhi to entertain the divorce petition filed by the respondent after entering her appearance in the divorce petition, but she chose not to appear despite service and adequate notice of the date of hearing”, the Court observed.

The counsel for the respondent-husband submitted that after seventeen months of the ex-parte decree, the respondent has remarried.

The Court noted that no appeal was preferred against the ex-parte decree within the period of limitation or even thereafter. Thus the Court held that it was lawful for the respondent to solemnize another marriage.

The Court held that there was no merit in the appeal. Accordingly, it came to be dismissed.

Cause Title- SD v. RKB

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