The court emphasized the importance of providing the respondents with an opportunity to present their case and cross-examine witnesses, ruling that an exparte decree based solely on the petitioner's evidence could not be sustained.

1. This appeal by the respondents is against the exparte decree dissolving the marriage between the petitioner and the first respondent passed by the lower court under S.13 of the Hindu Marriage Act, 1955.

2. The petitioner had married the first respondent on 6-6-1976. A petition under S.13 of the Act was filed on 29-10-1980 for dissolution of the marriage on the ground that the first respondent wife had after solemnization of the marriage voluntary sexual intercourse with the second respondent her sister's husband. Both the respondents filed written statements denying the allegation of adultery. The case was posted from time to time and on 12-1-1984 it was posted for trial on 22-2-1984. The case was however, advanced to 4-2-1984 on an oral representation made on behalf of the petitioner (we do not see any petition to advance the trial of the case among the records sent up to this court). The respondents were absent on 4-2-1984. The power of attorney holder of the petitioner was examined as PW-1. Arguments on behalf of the petitioner were heard on 4-2-1984 itself and the case was posted for orders on 1-2-1984 The court below on 8-2-1984 passed a decree dissolving the marriage between the petitioner and the first respondent on its finding that the first respondent is guilty of adultery after the solemnization of her marriage "with the petitioner. The only evidence adduced in the case is the oral evidence of PW-1 the power of attorney holder of the petitioner. The finding of adultery is based entirely on the evidence of PW-1.

3. The respondents filed this appeal on 26-5-1986 long after the period of 30 days for an appeal provided for under S.28 (4) of the Act. The appeal was accompanied by a petition C.M.P. 11164 of 1986 to condone the delay in filing the appeal. A learned judge of this court by order dated 12-8-1987 after hearing both parties condoned the delay and the appeal was taken to file. In the counter affidavit filed in C.M.P. 1739/1988 for stay of operation of the decree, the petitioner husband has averred that he had on 20-12-1985 married one Omana and a male child was born to Omana on 15-11-1986. Ext. RI (a) produced along with the counter affidavit is the certificate of marriage issued by the local Registrar of Marriages.

4. Counsel for the respondent in this appeal has raised a preliminary objection that the appeal has become infructuous for the reason of the second marriage of the petitioner at a time when there was no impediment for such marriage by virtue of the provisions of S.15 of the Act. S.15 of the Act after the deletion of its proviso by the Marriage Laws Amendment Act 68/1976 reads:

"15. Divorced persons when may marry again. When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again".

Counsel points out that the second marriage of the petitioner was at a time when there was a decree dissolving the marriage between the petitioner and the first respondent in force, no appeal had been filed against the decree and the time for filing the appeal had expired. It is also pointed out that the appeal itself was filed with a petition to condone the delay long after the second marriage of the petitioner. Since, according to the petitioner, the second marriage is valid under S.15 of the Act, the appeal itself has become infructuous and is liable to be dismissed on that ground. Counsel relies on the decision of the Madhya Pradesh High Court in Shakuntala & Shakum v. Govind Prasad (1985 (1) DMC 472) in support of the proposition. A learned judge of the Madhya Pradesh High Court in the aforesaid decision following an earlier decision of a Division Bench "of the same High Court in Mohanakumari v. Kusumkumari (AIR 1965 M. P