Gauhati High Court Dismisses Delayed Matrimonial Appeal Over Ex-Parte Divorce Decree

Guwahati: The Gauhati High Court on Wednesday dismissed an interlocutory application filed by a woman applicant to condone 122 days of delay in filing the matrimonial appeal challenging a divorce decree passed  'ex-parte' by the District Court of Kokrajhar.

The court refused to condone the delay on the ground that the bar on remarriage imposed by Section 15 of the Hindu Marriage Act would not be applicable in the case as the delay has not been satisfactorily explained.

The single judge bench of Justice Parthiv Jyoti Saikia was hearing a matrimonial interlocutory application (I.A.(Civil)/3357/2022)  filed by the applicant under Section 5 of the Indian Limitation Act, 1963, praying for condoning a delay of 122 days in preferring the matrimonial appeal under Section 28 of the Hindu Marriage Act, 1955.

The details of the case, which led to the filing of the application, are that the ex-husband of the applicant filed an application under Section 13 of the Hindu Marriage Act seeking a decree of dissolution of his marriage with the applicant of the instant application.

The case was filed in the court of the District Court, Kokrajhar, and a notice was issued to the applicant. The present applicant did not contest the case, although she received the said notice. The District Court, therefore, passed the decree against the applicant (respondent in decree) ex parte on July 17, 2021.

The present applicant did not file an appeal against the said decree within the time frame stipulated by law, which is 90 days, after an amendment was brought in the Hindu Marriage Act and the Special Marriage Act. The applicant filed the appeal after 122 days of delay, along with the present application stating that her husband had sent her to Uttar Pradesh during the COVID-19 period, and so she could not come to Kokrajhar to contest the case before the trial court.

It should be noted that Section 5 of the Limitation Act, 1963, under which the application was filed, is applicable only to the situation where the suit is already filed and pending for disposal and is not applicable to get an extension of time period for filing the same.

Regarding the delay in filing the application, the applicant stated that she has to look after her 8-year-old son and her old parents.

On the other hand, the respondent submitted that when the applicant did not file the appeal within the stipulated time, he remarried. The counsel appearing for the respondent placed reliance upon a Supreme Court judgement regarding the bar under Section 15 of the Hindu Marriage Act.

Under Section 15 of the Hindu Marriage Act, divorced persons 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.

The bench noted that no appeal was filed within 90 days after the ex parte decree was passed on July 17, 2021, and the respondent husband remarried on May 26, 2022.

The bench, therefore, noted that the bar of Section 15 of the Hindu Marriage Act would not be applicable in the present case. Moreover, he ruled that the delay has not been satisfactorily explained in this case. Thus, the interlocutory application was dismissed by the court.

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