Validity of Appeal period in a divorce case

Tilak Marg Forum for Legal Questions Forums Family Law Validity of Appeal period in a divorce case

This topic contains 1 reply, has 2 voices, and was last updated by Dr. Ashok Dhamija Dr. Ashok Dhamija 2 months, 3 weeks ago.

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  • #5344

    Dear sir
    I won Divorce case by way of judgement on 28/8/2018
    90 days were over on 26/11/2018
    I got remarried on 9/12/2018, 102 days after divorce
    My ex wife filed appeal in HC on 21/12/2018
    Her appeal period is with in limitations as she got Judgement papers from court after one month
    Sir, Will my remarriage be void ?
    How should i know that court may take one month to give Judgement papers & appeal period is still not over ?

  • #5412

    The answer to your question lies in Section 15 of the Hindu Marriage Act, which is as under:

    15. Divorced persons when may marry again.—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.”

    And, the limitation period or time for appeal is laid down in Section 28(4) of the said Act, which is as under:

    “(4) Every appeal under this section shall be preferred within a period of ninety days from the date of the decree or order.”

    A combined reading of the two provisions shows that the limitation period to file appeal against a decree of divorce is 90 days, and if no appeal is filed during this period then it is lawful for either party to the marriage to marry again.

    It is also pertinent to point out that under Section 12 of the Limitation Act, the time requisite to obtain copy of the decree is excluded from the limitation period. At the same time, it has been held that delay caused by the appellant’s carelessness or negligence cannot be considered as “time requisite” and cannot be excluded.

    In any case, you have mentioned that the appeal filed by your wife is within limitation period as she got the copy of the judgment after one month. So, I presume that you have verified the above rules with regard to exclusion of time required to obtain copy of judgment from the court.

    In these facts, in my considered opinion, if her appeal is within limitation period (as you have said), then the remarriage may not be valid, because this would mean that “the time for appealing” had not expired within the meaning of Section 15 of the Hindu Marriage Act.

         


    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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