Hindu Marriage Act, 1955 - S.15 - Remarriage of the spouse who obtained the ex parte decree of divorce will not render the application filed by the opposite spouse for setting aside the ex parte decree infructuous and that the application in that regard has to be considered on its own merits notwithstanding the remarriage.

Divorce Act, 1869 - S. 57 - Hindu Marriage Act, 1955 - S. 15 - Divorced persons when may marry again - Liberty to parties to marry again.

The aforesaid provisions grant liberty to a spouse, who has obtained a decree of divorce, to marry again after the expiry of the time for filing the appeal or when an appeal is filed, after the dismissal of the appeal. Strictly speaking, these provisions do not prohibit the spouse, who has obtained an ex parte decree of divorce, to marry again before the expiry of the time for filing an application to set aside the ex parte decree or during the pendency of such an application filed by the opposite spouse. However, on parity of reasoning and logic, judicial precedents have made it clear that, the principle underlying the aforesaid provisions also applies to an application for setting aside an ex parte decree of divorce.

Penal Code, 1860 - S. 494 - Bigamy - Whether remarriage of the appellant would amount to bigamy.

The following ingredients are necessary to constitute bigamy: (1) the accused must have contracted first marriage; (2) he must have married again; (3) the first marriage is subsisting at the time of the second marriage and (4) the spouse must be living. Insofar as the present case is concerned, the remarriage of the appellant was on 12.07.2018. On that date, the marriage of the appellant with the respondent was not subsisting by virtue of the ex parte decree of divorce granted in his favour. A decree of divorce, though passed ex parte against a spouse, breaks the marital tie. Till the time it is set aside in appeal or in an application filed under Order IX Rule 13 of the Code of Civil Procedure or other appropriate proceeding, the dissolution of the marriage stands. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting. Therefore, it cannot be found that remarriage of the appellant amounts to bigamy.

‘Remarriage of the spouse is not a relevant factor to be taken into account in deciding the merits of an application filed for setting aside an ex parte decree of divorce.

The Kerala High court has held that remarriage of the spouse who obtained an ex parte decree of divorce, after the filing of the application for setting aside the ex parte decree by the opposite spouse, would not render such application infructuous.

The bench was considering an appeal filed by a man against the order of the family court setting aside the ex parte decree. The family court had earlier granted an ex parte decree of divorce to the husband. The wife had filed the application to set aside ex parte decree with a delay of 48 days. By the time, the husband had married another woman. His application before the family court seeking dismissal of wife’s application as infructuous since he had remarried was dismissed.

The bench referred to various decisions in this regard and said that the preponderance of view is that remarriage of the spouse who obtained the ex parte decree of divorce will not render the application filed by the opposite spouse for setting aside the ex parte decree infructuous and that the application in that regard has to be considered on its own merits notwithstanding the remarriage.

“We are of the firm view that remarriage of the spouse who obtained the ex parte decree of divorce will not render the application for setting aside the ex parte decree filed by the opposite spouse infructuous. Remarriage of the spouse is not a relevant factor to be taken into account in deciding the merits of an application filed for setting aside an ex parte decree of divorce. The application under Order IX Rule 13 of the Code of Civil Procedure has to be considered on its own merits within the four corners of that provision,” the court said.

Not bigamy

The bench also noticed that the family court, in this case, had observed that remarriage by the husband could amount to bigamy. Terming the said observation as unwarranted, the court said: “The remarriage of the appellant was on 12.07.2018. On that date, the marriage of the appellant with the respondent was not subsisting by virtue of the ex parte decree of divorce granted in his favour. A decree of divorce, though passed ex parte against a spouse, breaks the marital tie. Till the time it is set aside in appeal or in an application filed under Order IX Rule 13 of the Code of Civil Procedure or other appropriate proceedings, the dissolution of the marriage stands. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting. Therefore, it cannot be found that remarriage of the appellant amounts to bigamy.