Sec-5 under limitation act of rule-9 under 13 cpc

[Pravata Padhy]

One of My friend (Married) falling in a case, the details are

1) My Friend’s friend filling a divorce case against his own wife and
his friend in family court i.e his own wife is not maintaining her
marital status and having sexual relationship with his friend &
others.

2) The case was filled on Apr-2016 and ex parte on Dec-2016, due to
non appearing of his wife in court.

3) Her Husband was remarried on Dec-2017,

4) On Jan-2018, Wife was filled a case in her husband name as well as
my freind’s name under Sec-5 limitation act for arising order 9 rule
13 of the case. Stated that she is not knowing the ex-parte of the
case and divorce decree, on telephonic discussion from her husband’s
distance relation on Dec-17, she has known that the divorce is final
and her husband remarried. She is not filled the case during the
period i.e Dec-2016-Dec-2017 due to not known. After listening the
divorce case her mother falling ill so she filled case on Jan-18.

It is requested for giving suggestion that…

1) In this case If any problem arise to my friend, what type of
suggestion will be required?????

2) What is the solution of the case & what is the highest & lowest
punishment in this case to my friend.

3) Pls provide your valuable suggestion how my friend will be comeup
in this case.

E-mail: Pravatapadhy@gmail.com

[Dr. Ashok Dhamija]

If the husband has got a proper ex parte decree of divorce and has waited for the minimum 3 months’ period for filing of appeal before marrying again, as required under the Hindu Marriage Act, then his second marriage may be prima facie valid and it may not be an offence under IPC for second marriage while the first wife is living. So, the chances of punishment appear to be remote. I am writing this on the basis of knowledge of limited facts. You should better consult some local lawyer with all papers.

Technically, Order 9 Rule 13 of CPC allows setting aside of the ex parte decree in the circumstances mentioned in that provision. But, in the present case, there is a complication of the second marriage performed by the husband in the meanwhile, which appears to be valid. The result will depend on the detailed facts of the case and how the court exercises its discretion. In a somewhat similar case, I had seen a Supreme Court judgment, paying compensation to the first wife. However, each case has its own detailed facts and its own peculiar circumstances. It is difficult to hazard a guess and that too without seeing the detailed papers of the case. It would be advisable for you to consult some local lawyer by showing him all detailed papers of the case.

     

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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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