DELHI HIGH COURT
Sanjeev Sachdeva and Vikasmahajan, JJ.
Seema Devi – Appellant
versus
Shree Ranjit Kumar Bhagat – Respondent
Mat.App.(F.C.) 189 of 2022
Decided on 21.04.2023

IMPORTANT POINTS
(1) Exparte decree of divorce – Summons – Even if there is any irregularity in service of summons, still in view of second proviso to Rule 13 of Order IX ex-parte decree cannot be set aside on ground of irregularity in service of summons, if Court is satisfied that appellant had notice of date of hearing and had sufficient time to appear in Court.
(2) Second Marriage –In case of ex parte decree of divorce also it shall be lawful for either party to marriage to marry again if no appeal is filed against such decree within period of limitation.

Headnote:

(A) Code of Civil Procedure, 1908 – Order V Rules 7, 9, Order IX Rule 13 – Hindu Marriage Act, 1955 – Sections 13(1)(i-a) and (i-b) – Exparte decree of divorce – Setting aside of – Summons –Procedure adopted for effecting service on appellant was proper and service was complete – There is no irregularity in service of summons and Additional District Judge has rightly held that appellant had been duly served with summons in divorce petition – Even if there is any irregularity in service of summons, still in view of second proviso to Rule 13 of Order IX ex-parte decree cannot be set aside on ground of irregularity in service of summons, if Court is satisfied that appellant had notice of date of hearing and had sufficient time to appear in Court – On basis of documents on records knowledge of divorce petition pending in Court could be attributed to appellant but it cannot be said with certainty that she had notice of “date of hearing”, which is requirement under second proviso to Rule 13 of Order IX CPC for not setting aside ex parte decree on ground of irregularity in service of summons – Conjoint reading of statements of appellant and her father makes it evident that appellant has been served with summons and she had handed over copy of divorce petition to her Advocate, which leads to conclusion that appellant had notice of “date of hearing” in divorce petition and had sufficient time to appear in Court and answer respondent’s claim – Contention of appellant that she was not duly served and that she had no knowledge of divorce petition filed by respondent before Court in Delhi is bereft of any merit. [Parsa 13, 15, 19, 20, 23, 25]

(B) Hindu Marriage Act, 1955 – Section 15 – Code of Civil Procedure, 1908 – Order IX Rule 13 – Limitation Act, 1963 – Article 123 –Second Marriage – Exparte decree of divorce – Divorced persons when may marry again –Bar or impediment to contract second marriage operates during pendency of appeal only if appeal is preferred within period of limitation – Provision enables parties to marry again only after decree of divorce has become final – Dissolution of marriage is complete once decree is made – Decree of divorce breaks marital tie and parties forfeit status of husband and wife in relation to each other – Each one becomes competent to contract another marriage as provided by section 15 of Act – In law effect of ex parte decree of divorce is not different from contested one – Even Section 15 of the Act does not make any distinction between contested decree and ex parte decree – In case of ex parte decree of divorce also it shall be lawful for either party to marriage to marry again if no appeal is filed against such decree within period of limitation – No appeal was preferred within period of limitation or even thereafter – Application under Order 9 Rule 13 CPC was also filed after seventeen months from date of ex parte decree as against limitation period of thirty days from date of decree as provided under Article 123 of Limitation Act, despite appellant having been duly served with summons – It was lawful for respondent husband to solemnize another marriage – No fraud has been committed by respondent – Summons was also served on the appellant as per procedure prescribed in law – Application under Order 9 Rule 13 CPC filed by appellant a day after second marriage was solemnized by respondent-husband, was infructuous for all practical purposes, from the very inception. [Paras 29, 32, 33]

Result: Appeal dismissed.