Application to set aside ex-parte divorce decree by a spouse is not rendered infructuous by remarriage of opposite spouse

Kerala High Court: A Division Bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. while hearing a matrimonial appeal ruled that remarriage by the opposite spouse during pendency of an application for setting aside ex-parte divorce decree would not render such application as infructuous. 

The appellant-husband was granted an ex-parte divorce decree against which the respondent-wife filed an application to set aside the said decree along with an application for condonation of delay of 48 days. By that time, the appellant had married another woman. Respondent’s submission before the Family Court was that she had delivered a premature baby through cesarean operation during the hearing of case due to which she could not enter her appearance before the court. Appellant’s contention was that he had remarried after the grant of divorce decree and therefore the application for setting aside the ex-parte decree had become infructuous. The Family Court allowed respondent’s applications and set aside the divorce decree, against which order the appellant preferred the instant appeal. 

The High Court refused to interfere with the findings of fact of Family Court and noted that the appellant had remarried after receiving notice in the application for setting aside the divorce decree and during the pendency of that application. Relying on the dictum of Apex Court in Chandra Mohini Srivastava v. Avinash Prasad Srivastava, (1967) 1 SCR 864 the court held that remarriage of a spouse who obtained ex-parte divorce decree would not render the application filed by opposite spouse for setting aside the ex-parte decree, as infructuous and the said application must be considered on its own merits notwithstanding the remarriage. However, Family Court’s observation that remarriage by appellant could amount to bigamy, was dismissed as unwarranted. Thus, the instant appeal was dismissed. [Denny Pazhoor v. Greeta Sunitha Vincent,2018 SCC OnLine Ker 3921, decided on 17-10-2018] 

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