Former husband challenging ex-parte divorce order after my second marriage

[Anonymous]

I was married in 2012. Due to certain problems in matrimonial life, i moved an application for divorce. The notice was duly served on my then husband, but he did not respond or appear in the said case. The Trial Court passed an ex-parte order of divorce as my then husband did not appear. After getting the ex-parte divorce, I moved on in my life and married another man. I am living happily with him and my life was going smoothly until yesterday when i got information/notice of a case of nullity of my marriage (my second marriage) which is instituted by my first husband to harass me. What relief do i have as my second marriage also looks to be in danger. Please help me sir.

[Dr. Ashok Dhamija]

Under Article 123 in the Schedule to the Limitation Act, 1963, the limitation period to set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte, is only 30 days from the date of the decree or where the summons or notice was not duly served from the date when the applicant had knowledge of the decree. Of course, for sufficient cause being shown, delay may be condoned by the court concerned. In your question, you have mentioned that summons were in fact served to your husband before passing the ex parte decree of divorce.

Secondly, Section 15 of the Hindu Marriage Act, 1955, which deals with the issue when divorce persons may marry again, lays down that: “When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

Section 28(4) of Hindu Marriage Act lays down that an appeal has to be filed within 90 days of the date of the decree.

In your question, you have not provided full details of your second marriage and the time period within which your husband has filed an application to set aside the ex parte decree of divorce.

If he has filed the application (for setting aside the ex parte decree of divorce) beyond the above limitation period and if he does not have sufficient cause to explain the delay, his application may become time-barred and may not be entertained.

At the same, you should not have married again (i.e., your second marriage) within 90 days of the period from the date of decree of divorce, etc.

So, depending on these detailed facts, which you have not disclosed, the fate of the ex parte decree of divorce and your second marriage will get decided.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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