The Delhi High Court has dismissed an appeal challenging the impugned order of the Additional District Judge, Delhi which had dismissed an application filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure, 1908. The appeal had sought to set aside an ex-parte judgment and decree of divorce passed between the parties. The application and then further the appeal was held to be infructuous for all “practical purposes”.

“…It is trite that the 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 Act1 . 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…”, a bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan noted.

The petitioner, Seem Devi appeared in person while Advocate Neerja Shekhar appeared for the respondent.

In the present matter the appellant was married to the respondent-husband on May 4, 1998 in Madhepura, Bihar and had a girl child (23 years now) from the said wedlock. Because of the disputes between the parties the respondent-husband filed a divorce petition against the appellant on July 27, 2001 in the Court of District Judge, Saharsa, Bihar. Subsequently, the respondent withdrew the application for improper jurisdiction, and then filed a Divorce Petition in the District Court, Delhi on October 15, 2001 under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 (HMA) on the ground of cruelty and desertion.

Considering the incessant refusals to accept the summons by the wife, 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. Pursuant to which after 18 months, 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. She further alleged that the ex parte divorce decree of May 14, 2003 came to her knowledge on August 30, 2004 when the copy of said ex-parte divorce decree was filed by the respondent-husband in her maintenance proceedings pending in the Court at Madhepura, Bihar

Now the pertinent question before the Court was that since the respondent-husband has remarried and has two children (16 years and 15 years) from the marriage, would the same be challenged on the ground that the decree of divorce so passed in his favour was ex-parte? Whether the vigor of Section 15 HMA not touch upon the said marriage?

Section 15 of HMA stipulates provisions for Divorced persons when may marry again.

The Court while taking note of the argument that the appellant was not served in the case held, "On the basis of the report of the process server, and regard being had to the previous refusal, the learned Additional District Judge, Delhi vide order dated April 8, 2003 proceeded ex-parte against the appellant. We are also of the view that the procedure adopted for effecting the service on appellant was proper and the service was complete. There is no irregularity in the service of summons and the learned Additional District Judge has rightly held that the appellant had been duly served with the summons in the divorce petition".

The Court relied on Krishnaveni Rai v. Pankaj Rai and Anr., (2020) 11 SCC 253, where the ex-husband of the appellant wife remarried as no appeal was filed within the period of limitation. The Court had then observed that the bar of Section 15 of the Hindu Marriage Act, 1955 will not be attracted, as it was lawful for the ex-husband to remarry, and thus held that the appeal was infructous from the inception.

Therefore considering the facts and circumstances of the case, the Court thus opined, “In the present case no appeal was preferred within the period of limitation or even thereafter. The application under Order 9 Rule 13 CPC was also filed after seventeen months from the date of ex parte decree as against limitation period of thirty days from the date of decree as provided under Article 123 of the Limitation Act, despite the appellant having been duly served with summons. In the circumstances, it was lawful for the respondent husband to solemnize another marriage. We have already observed that no fraud has been committed by the respondent. Summons were also served on the appellant as per the procedure prescribed in law. This being the position, an application under Order 9 Rule 13 CPC filed by the appellant a day after the second marriage was solemnized by the respondent-husband, was infructuous for all practical purposes, from the very inception. So is the present appeal..”.

Cause Title: Seema Devi v. Ranjit Kumar Bhagat

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