Patna High Court: While answering a plethora of important questions regarding the sustainability of a decree for judicial seperation, the Division Bench of I.A. Ansari, C.J., and Nilu Agarwal, J., observed that a decree of judicial separation only lays down the foundation for making an application for the grant of divorce and does not entitle one to a decree of dissolution unless the statutory grounds under Section 13 of the Hindu Marriage Act, 1955 are satisfied. The Bench further observed that unless a decree of divorce is not challenged in appeal, such a decree subsists and once the statutory period for preferring an appeal expires, a party can then go for a second marriage without any legal hassles.

In the present case, the petitioner had applied for divorce on grounds of cruelty and desertion; however after several failed attempts for reconciliation a decree for judicial separation was passed by the  Family Court concerned . Afterwards the petitioner again sought a decree for divorce when there was no resumption of cohabitation between the parties for 1 year after the aforementioned decree for judicial separation. This time however, the respondent abstained from attending the proceedings and as a result an ex parte divorce decree was passed. The petitioner solemnised his second marriage after the statutory limitation period for filing an appeal against the divorce decree expired. The aggrieved respondent filed a suit to set aside the ex parte decree which was accepted by the  court concerned .  The petitioner thus filed this present petition to review the aforementioned decision on the ground that the Court concerned had ignored the fact that the limitation period for preferring an appeal against the divorce decree had already expired.

Considering the facts of the case, the Court delved at length upon the principles of review and appeal, and observed that a Court’s power to review is a statutory power and can be used in exceptional cases. Further perusing Section 13(1-A) of the Hindu Marriage Act, it was observed by the Court that a party seeking to set aside the decree of judicial separation, (there is no order to a stay of the decree of judicial separation in this duration) has to prove the non-resumption of cohabitation for 1 year or more and if proved, the decree for divorce can be granted. In the present case, the petitioner being married and having fathered two children from his second wife, the Court cannot ignore the interest of the third party. The Court held that the petitioner’s second marriage is not a nullity even when the ex parte divorce decree had been set aside as the second marriage very well took place after the divorce decree was granted and statutory period of appeal expired. [Rajesh Kumar v. Pushpa Rani, 2016 SCC OnLine Pat 4639 , decided on 16.09.2016]

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