Madras High Court
Maheswari ... Revision vs Ayyappan @ Kumar on 17 July, 2023
C.R.P.(MD)No.2385 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 17.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.2385 of 2018
Maheswari ... Revision Petitioner/Petitioner/
Respondent
Vs.
Ayyappan @ Kumar ... Respondent/ Respondent / Petitioner
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, to call for the records and to set aside the fair and decretal order,
dated 13.07.2018, in I.A.No.18 of 2018, in H.M.O.P.No.140 of 2015, on the
file of the District Judge, Family Court, Kanyakumari Division at
Nagercoil.
For Petitioner : Mr.S.Vasik Ali
for Mr. R.M.Sivakumar
For Respondent : Mr.L.Shaji Chellan
ORDER
The instant Civil Revision Petition has been filed, against the
order, dated 13.07.2018, in I.A.No.18 of 2018, in H.M.O.P.No.140 of 2015,
on the file of the District Judge, Family Court, Kanyakumari Division
at Nagercoil.
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C.R.P.(MD)No.2385 of 2018
2. The revision petitioner herein is the wife and the respondent
herein is the husband.
3. For the sake of convenience, the parties are referred to
according to their litigative status before the trial Court.
The respondent herein / husband has filed an application, seeking
a relief of divorce to dissolve the marriage dated 27.08.2006. Since the
petitioner herein / wife has not filed counter statement and in pursuance
thereof, an exparte decree of divorce was granted by the Court below on
21.10.2016. When the petitioner / wife filed an application to set aside the
exparte decree, there was a delay of 417 days. But, the respondent /
husband filed a counter statement resisting the petitioner's contention.
Wherein, he has pleaded that after having waited for 14 months from the
date of exparte decree, he married one Shanmugavadivu, D/o. Petchuvel,
at Tiruchendur Arulmighu Subramaniyaswamy Thirukoil. Therefore, the
respondent / husband would submit that if the delay is condoned, it would
prejudice his valuable rights and would put his second wife's status at peril.
Hence, prayed to dismiss this application.
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C.R.P.(MD)No.2385 of 2018
4. The learned counsel for the petitioner would fairly concede the
factum of second marriage of the respondent / husband, after the exparte
decree. However, he would submit that since the petitioner is having
daughter, and that she is willing to live with the petitioner, prayed this
Court to condone the delay.
5. I have given my anxious consideration to the either side
submission.
6. From the perusal of the records, it is an admitted fact that the
respondent / husband has re-married, after the statutory period for setting
aside the exparte decree. It is relevant to refer Section 15 of the Hindu
Marriage Act. The same is as follows:-
“ Section 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
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C.R.P.(MD)No.2385 of 2018
dismissed, it shall be lawful for either party to the
marriage to marry again.”
7. As per Section 15 of the Hindu Marriage Act, 1955, it shall be
lawful for either party to re-marry, if no appeal has been filed within a
statutory period. In this case, though exparte decree was passed on
21.10.2016, the petitioner did not think it fit to file an application to set
aside the exparte decree. In the meanwhile, the respondent / husband has
married one Shanmugavadivu. Eventually, now, third party right has also
involved in this matter. This Court is of the firm view that the conduct of
the petitioner has conferred valuable right upon the respondent, and such
valuable right of remarriage cannot be lightly dealt under Section 5 of the
Limitation Act.
8. The learned counsel for the respondent also relied upon the
judgment of the High Court of Delhi made in MAT.APP(F.C.) No.189 of
2022, (Seema Devi V. Shree Ranjit Kumar Bhagat). Wherein it has been
held that, it is lawful for the ex-spouse to re-marry, when there is a delay in
filing the appeal, and it would further held that the appeal becomes
infructuous from the inception. The relevant portion of the judgment
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C.R.P.(MD)No.2385 of 2018
reads as follows:-
“30. The provision of Section 15 of the Act has been
subject matter of a recent decision of the Supreme Court in
Krishnaveni Rai v. Pankaj Rai and Signature Not Verified
Digitally Signed ASWAL Signing Date:21.04.2023 14:58:35
N.C. No. 2023:DHC:2686-DB Anr., (2020) 11 SCC 253. In that
case the ex-husband of appellant wife remarried as no appeal
was filed within period of limitation. The appeal was preferred
by the appellant wife almost one year after the expiry of period
of limitation. In this factual backdrop, the Supreme Court held
that bar of Section 15 was not attracted, it was lawful for the ex-
husband to remarry and the appeal was infructous from the
inception. The relevant extract of the judgment reads as under:
"28. Section 15 clarifies that when a marriage has
been dissolved by a decree of divorce, and 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 preferred, or an appeal has been presented but
the same has been dismissed, it shall be lawful for either
party to the marriage to marry again. Had it been the
legislative intent that a marriage during the pendency of an
appeal should be declared void, Section 11 would expressly
have provided so.
29. As held by this Court in Anurag Mittal v. Shaily
Mishra Mittal [Anurag Mittal v. Shaily Mishra Mittal, (2018)
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C.R.P.(MD)No.2385 of 2018
9 SCC 691 : (2018) 4 SCC (Civ) 550] , the object of Section
15 is to provide protection to the person who had filed an
appeal against the decree of dissolution of marriage and to
ensure that such appeal was not frustrated. The protection
afforded by Section 15 is primarily to a person contesting the
decree of divorce. As observed by Bobde, J. in his concurring
judgment in Anurag Mittal [Anurag Mittal v. Shaily Mishra
Mittal, (2018) 9 SCC 691 : (2018) 4 SCC (Civ) 550] : (SCC
pp. 702-703, paras 31 & 33) "I am in agreement with the
view taken by Nageswara Rao, J. but it is necessary to state
how the question before us has already been settled by the
decision in Lila Gupta v. Laxmi Narain [Lila Gupta v. Laxmi
Narain, (1978) 3 SCC 258] . Even when the words of the
proviso were found to be prohibitory in clear negative terms
-- "it shall not be lawful", etc., this Court held that the
incapacity to marry imposed by the proviso did not lead to
an inference of nullity, vide para 9 of Lila Gupta [Lila
Gupta v. Laxmi Narain, (1978) 3 SCC 258] . It is all the
Signature Not Verified Digitally Signed ASWAL Signing
Date:21.04.2023 14:58:35 N.C. No. 2023:DHC:2686-DB
more difficult to infer nullity when there is no prohibition;
where there are no negative words but on the other hand
positive words like "it shall be lawful". Assuming that a
marriage contracted before it became lawful to do so was
unlawful and the words create a disability, it is not possible
to infer a nullity or voidness vide paras 9 and 10 of Lila
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C.R.P.(MD)No.2385 of 2018
Gupta case [Lila Gupta v. Laxmi Narain, (1978) 3 SCC
258] . ...
***
33. What is held in essence is that if a provision of
law prescribes an incapacity to marry and yet the person
marries while under that incapacity, the marriage would not
be void in the absence of an express provision that declares
nullity. Quae incapacity imposed by statute, there is no
difference between an incapacity imposed by negative
language such as "it shall not be lawful" or an incapacity
imposed by positive language like "it shall be lawful (in
certain conditions, in the absence of which it is impliedly
unlawful)". It would thus appear that the law is already
settled by this Court that a marriage contracted during a
prescribed period will not be void because it was contracted
under an incapacity. Obviously, this would have no bearing
on the other conditions of a valid marriage. The decision in
Lila Gupta case [Lila Gupta v. Laxmi Narain, (1978) 3 SCC
258] thus covers the present case on law."
(Emphasis supplied by this Court)
9. Therefore, this Court is of the view that when an opportunity
was available to the petitioner / wife, to file an application to set aside the
exparte decree within the reasonable time, having failed to file within the
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C.R.P.(MD)No.2385 of 2018
statutory period and filed after 14 months would make the very Section 5 of
Limitation Act application become infructuous, as the respondent has
remarried in the interregnum is with in the frame work of Section 15 of the
Hindu Marriage Act. It is pertinent to mention here that the delay only
indicate that the petitioner do not have any interest to pursue the life with
the respondent herein.
10. Therefore, this Court is not inclined to allow this Revision
petition. In the result, the instant Civil Revision Petition is dismissed.
There shall be no order as to cost.
NCC : Yes/No 17.07.2023
Index :Yes/No
Ls
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C.R.P.(MD)No.2385 of 2018
To
1.The District Judge,
Family Court,
Kanyakumari Division at Nagercoil.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD)No.2385 of 2018
C.KUMARAPPAN.,J.
Ls
C.R.P(MD)No.2385 of 2018
17.07.2023
https://www.mhc.tn.gov.in/judis
