'Contest Divorce Before Expiry of Appeal'

Published: 25th March 2016 04:33 AM  |   Last Updated: 25th March 2016 04:33 AM   |  A+A-

CHENNAI: The Madras High Court declared in response to a petition filed after the expiry (by a mere few days) of the statutory period of an ex-parte divorce decree, that when a marriage is dissolved by a decree of divorce and one of the spouses chooses to remarry after the expiry of the statutory period, the ex-parte divorce cannot be set aside as the rights of the “remarried wife”.

To put it another way, when a marriage is dissolved by a decree of divorce and when the statutory period for filing an appeal challenging the same is over, is it possible to challenge the second marriage of either party? When the husband who obtained the decree for divorce, chooses to marry again after the appeal time is over, he exercises his right under Sec. 15 of the Hindu Marriage Act. Can that right be taken away?

The Madras High Court declared that the answer to both questions is an emphatic ‘No’, especially since rights of the second wife now intervenes.

Raja Sundari of Thanjavur got married to Suresh Kumar of Puzhuthivakkam at the temple in Swami Malai in March, 2007 and were blessed with a child in 2008. Following differences, Suresh moved the Family Court in Tambaram, which on June 17, 2010 granted an ex-parte divorce decree in his favour. On April 6, 2014, he married another woman. Raja Sundari preferred an appeal before the lower court, citing a delay of just 24 days. The lower court dismissed her appeal.

Justice S Vimala, before whom the petition came up, observed that when the remarriage contracted is valid, the right of the remarried wife intervenes.

A divorce decree crystalises the rights and obligations of both spouses. When there is a remarriage resulting in a third party’s rights being allowed to intervene, this subsequent event (marriage) is a crucial factor. There cannot be two valid marriages of a person existing at the same time, the judge said.

Justice Vimala stated that normally, a delay of 24 days for filing a petition to set aside the ex-parte divorce, can be condoned taking into consideration the plight of the first wife and the child. In this case, however, it cannot be pardoned since the petitioner had, at every stage of the case, exhibited “supine indifference”.

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