IMPORTANT POINT
The court established that a decree of divorce, whether contested or ex-parte, allows either party to remarry once the appeal period has expired, as per Section 15 of the Hindu Marriage Act, 1955.

JUDGMENT :

Sandipkumar C. More, J.

1. By consent of the learned counsel of the rival parties, heard finally at admission stage.

2. The present appellant/wife has preferred this second appeal against the judgment and order dated 15/09/2021 passed by the learned District Judge-10, Aurangabad (hereinafter referred to as 'the learned first appellate court') in Civil Miscellaneous Application No.168 of 2020, whereby the application filed by the present appellant/wife for condonation of delay of 166 days in challenging the impugned order dated 29/08/2019 passed by the learned trial court i.e. 12th Joint Civil Judge (Senior Division), Aurangabad, whereby marriage between the present appellant and respondent solemnized on 02/04/2013 has been dissolved by way of decree of divorce.

3. Background facts are as under :

The marriage between the appellant/wife and respondent/husband had solemnized on 02/04/2013 and they are having one girl child out of the said wedlock. However, a dispute arose between them after few days of the marriage resulting into filing of Hindu Marriage Petition No.3 of 2016 by the respondent/husband on 16/12/2015 before the learned trial court for getting decree of divorce. Though the said petition was resisted by the appellant/wife under her written statement, but she did not lead any evidence. As such, vide decree dated 29/08/2019 the learned trial court dissolved marital tie between the appellant and respondent. The appellant thereafter filed Civil Miscellaneous Application No. 168 of 2020 for condonation of delay of 166 days in challenging the aforesaid decree of divorce alongwith appeal. However, on 15/09/2021 the learned first appellate court rejected the said application by refusing to condone the delay by observing the negligent approach of the appellant. Hence, this second appeal.

4. The learned counsel for the appellant/wife vehemently argued that the learned first appellate court has definitely erred in not condoning the delay of 166 days. According to him, the appellant/wife had succeeded in establishing that the delay was caused since her advocate did not inform her about the decree of divorce in time. According to him, the learned first appellate court should have dealt the delay condonation application liberally but by dismissing the same, it has violated the principle of natural justice since the decree of divorce was passed exparte.

5. On the contrary, the learned counsel for the respondent/husband supported the impugned judgment and order of the learned first appellate court as well as the decree of divorce passed by the learned trial court. His main contention is that after passing the decree of divorce dated 29/08/2019 the respondent/husband remarried to one Mayuri on 01/10/2019 and now he is having one son from his second wife by name Purvesh, who has born on 18/06/2020. Thus, he submitted that even if the delay in filing first appeal by the appellant/wife is condoned, then also in view of second marriage of the respondent/husband, the present second appeal has become infructuous. For this purpose he relied on the judgment of this court in Civil Revision Application No. 118 of 2023 (Rahul Raman Gulale vs. Varsha Rahul Gulale) dated 5th April, 2024.

6. Admittedly, the appellant/wife and respondent/husband had got married on 02/04/2013 and out of the said wedlock they are having one daughter. However, because of the dispute arose between themselves, the respondent/husband had to file Hindu Marriage Petition No. 3 of 2016 before the learned trial court for decree of divorce, which he got on 28/08/2019. Though the learned counsel for the appellant/wife is contending that the learned first appellate court should have condoned the delay of 166 days in challenging the aforesaid decree of divorce, which was in fact passed ex-parte, but there is another angle to the present matter that after passing the aforesaid decree of divorce, the respondent/husband got married again with one Mayuri and out of his second mar