The Gauhati High Court, in a recent decision, rejected an Interlocutory Application filed by a woman seeking condonation of a 122-day delay in filing her matrimonial appeal challenging an ex-parte divorce decree issued by the District Court. The court ruled that Section 15 of the Hindu Marriage Act, which pertains to the bar against remarriage, would not apply in this case due to the unsatisfactorily explained delay.
Justice Parthiv Jyoti Saikia, presiding as a single judge, considered an application under Section 5 of the Limitation Act, 1963, filed by the applicant to excuse the delay of 122 days in filing the matrimonial appeal under Section 28 of the Hindu Marriage Act, 1955.
The background leading to this application involves the respondent filing for dissolution of marriage under Section 13 of the Hindu Marriage Act in the District Court, Kokrajhar. Despite receiving notice, the applicant did not contest the case, resulting in the District Court issuing an ex-parte decree on July 17, 2021.
The applicant failed to appeal against this decree within the prescribed timeframe but later filed the appeal along with the current application, citing her inability to contest the case in Kokrajhar during the COVID-19 period, as she was sent to Mathura, Uttar Pradesh by her husband.
Explaining the delay, the applicant mentioned responsibilities towards her 8-year-old son and elderly parents. Her legal counsel referenced the Supreme Court’s decision in Tejinder Kaur v. Gurmit Singh (1988) 2 SCC 90.
Contrarily, the respondent argued that during the delay period, the applicant’s husband had remarried. The respondent’s counsel relied on the Supreme Court’s ruling in Krishnaveni Rai v. Pankaj Rai (2020) 11 SCC 253, highlighting relevant legal principles.
“The bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of court, restraining the parties or any of them from remarrying during the pendency of the appeal.”
The Court observed that despite the ex parte decree being issued on July 17, 2021, no appeal was filed within the subsequent 90-day period. Consequently, on May 26, 2022, the respondent husband remarried.
“I am of the considered opinion that the bar of Section 15 of the Hindu Marriage Act would not be applicable in the present case. Moreover, I find that the delay has not been satisfactorily explained in this case,” the Court noted.