4 min readNew DelhiApr 22, 2023 11:02 AM IST
First published on: Apr 22, 2023 at 10:59 AM IST
The Delhi High Court has held that a “decree of divorce breaks the marital tie” making the couple competent to remarry and even in an “ex parte decree of divorce” remarriage is lawful if an appeal is not filed within the stipulated time.
A division bench of Justices Sanjeev Sachdeva and Vikas Mahajan, in its April 21 order, said, “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 (Hindu Marriage) Act”.
The observations came in a woman’s plea challenging a May 2003 order of divorce passed by a lower court in Delhi, in her absence, on her ex-husband’s plea who has since remarried.
On section 15 of the Hindu Marriage Act, the court said that a divorced Hindu couple becomes “competent to contract another marriage” in the absence of a duly filed appeal. “The provision enables parties to marry again only after the decree of divorce has become final,” the court said, further observing that in this case no appeal had been filed within the given time period hence there was no merit in the woman’s plea.
The court further held that the legal effect of an “ex parte decree of divorce” is not different from a decree which is contested. “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,” the court said.
The woman first unsuccessfully assailed the divorce before an additional district judge 18 months after the date of the order on the ground that she had no knowledge of the proceedings. She moved an appeal in the high court against the February 2006 order of Additional District Judge, Delhi who had dismissed her application seeking setting aside of the “ex parte judgment” and order of divorce passed between the parties on May 14, 2003 under the Hindu Marriage Act.
Before the high court, the former husband opposed the woman’s plea and informed that he remarried 17 months after the ex parte decree and now has two children from the second marriage.
The woman claimed that the husband had previously filed a divorce plea before the District Judge, Saharsa (Bihar) but then withdrew it stating that only the Madhepura District Court had jurisdiction. She contended that she had the impression that the divorce petition will be filed only in Madhepura court, Bihar but the ex-husband “committed fraud by filing the divorce petition” in a court in Delhi and she had no knowledge about the petition pending before the Additional District Judge, Delhi.
The court said “no fraud” was committed by the former husband and summons in relation to the divorce proceedings were served on the woman as per the law.
It noted that on January 23, 2003 summons were issued to the woman through “registered post” as well as through the concerned district judge. The summons sent through registered post were received back unexecuted with the report that “lene se inkaar karne par chipka diya”. When she refused to accept them, the summons was affixed on a conspicuous part of the woman’s house in the presence of two witnesses, the court noted.
“This being the position, an application…filed by the appellant a day after the second marriage was solemnised by the respondent-husband, was infructuous for all practical purposes, from the very inception. So is the present appeal,” the court said, dismissing the plea.
The observations came in a woman's plea challenging a May 2003 order of divorce passed by a lower court in Delhi, in her absence, on her ex-husband’s plea who has since remarried. (Representational image) 
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