Case BriefsHigh Courts

Delhi High Court: Division Bench of Jyoti Singh and G.S. Sistani, JJ. allowed an appeal filed against the order of Family Court whereby an ex-parte divorce decree was passed against the wife.

The parties were married to each other. However, subsequently some differences arose and the husband filed for divorce under Section 13(1)(ia) of the Hindu Marriage Act. His petition was allowed and ex-parte divorce decree on ground of “cruelty” was passed against the wife. The wife applied to Family Court under Order 9 Rule 13 CPC for setting aside the ex-parte decree which was dismissed. Aggrieved thereby, the wife preferred the present appeal.

Trilok Chand and Rita, Advocates for the wife contended that she had instructed the previous counsel to prosecute the case on her behalf but he was not diligent in doing so. It was submitted that a complaint had also been filed against the previous counsel with Bar Council of Delhi.

The High Court issued a notice pursuant to which the husband appeared and submitted he had no objection to the appeal provided the wife does not take any unnecessary adjournment in the matter. The wife assured the Court to not cause delay in completion of the trial. As such, wife’s application under Order 9 Rule 13 read with Section 151 CPC was allowed and the ex-parte divorce decree passed Family Court was set aside. The matter was remitted back to Family Court. [R v. S.B.K., 2019 SCC OnLine Del 6929, dated 25-01-2019]

Case BriefsHigh Courts

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]