The remarriage of a party during the pendency of an appeal against a divorce decree does not render the appeal infructuous and does not bar the other party from seeking to set aside the ex parte decree.

R.S. Garg, J.

1. The appellant husband, whose application for setting aside the exparte decree dated 11-8-1987, passed in civil suit No. 25-A of 1987. has been rejected by order dated 22-4-1989 in Misc. Civil Case No. 10 of 1987, passed by the District Judge, Seoni, has preferred this appeal under the provisions of Order 43, Rule l(d) of the Code of Civil Procedure.

2. The brief facts leading to the present appeal are that the parties, who are Hindus, were husband and wife. Their marriage was solemnised on 18-11-1984. On 7-7-1987, the respondent wife filed an application before the District Judge, Seoni, seeking a divorce under section 13 of the Hindu Marriage Act, on the ground of cruelty. The learned trial Court in suit No. 25-A of 1987, holding that the summons was properly served, proceeded ex parte in the matter and finally passed an exparte decree on 11-8-1987.

3. The appellant husband, as he alleges, having come to know about the ex parte decree, filed an application for setting aside the said ex parte decree on 12-12-1987, on the ground that the summons was not properly served. After service of the present petition filed under Order 9, Rule 13, Civil Procedure Code, the wife made appearance and opposed the application on the ground that the application has become infructuous as she had already contracted marriage with one Munnalal on 24-10-1987. She also submitted that if the said ex parte decree is set aside, then it could create a chaotic situation.

4. The trial Court, after hearing the parties, came to the conclusion the application for setting aside the ex parte decree has become infructuous because of the second marriage which, under the circumstances was legal and valid. The appellant husband has preferred this appeal under the provisions of Order 43, Rule l(d), Civil Procedure Code. It was admitted for hearing parties and notice was issued to the respondent wife. None appeared on her behalf to oppose the appeal.

5. Learned counsel for the appellant contended that the learned court below in its hot haste has not appreciated the true import and impact of sections 15, 23(4) and 28 of the Hindu Marriage Act, 1955. It was contended that an ex parte decree can always be set aside, if the person applying for setting aside the ex parte decree satisfies the Court that there was sufficient cause for his non-appearance on the date when the suit was called on for hearing. It was also submitted that the satisfaction of the Court below is of prime consideration and the moment the Court is satisfied that the summons was not duly served or that the applicant was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, etc.

6. In the instant case, the wife raised a plea that the ex parte decree was passed on 11-8-1987 and the second marriage was contracted by her on 24-10-1987 and she begot a daughter from the second marriage on 13-11-1988. According to her, if the ex parte decree is set aside, it would create a chaotic condition. The learned trial Court, after hearing the parties considering the effect of section 15 of the Hindu Marriage Act, held that the non-applicant wife has remarried after the prescribed waiting period on remarriage of the divorce, therefore, she was entitled to remarry soon after the impediments of section 15 of the Hindu Marriage Act became inapplicable to her. The learned trial Court was also of the view that the effect of setting aside the decree may result in the dismissal of the original petition of the non-applicant on the admitted ground that she has married a second husband and, therefore, she would be deemed to be living in adultery because the second marriage then would be void and her daughter may be deemed to be illegitimate. The learned trial Court was carried away by the thought that the legal marriage subsisting would stand dissolved, though not due to her fault