BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 17.07.2023 CORAM:

THE HONOURABLE MR.JUSTICE C.KUMARAPPAN C.R.P.(MD)No.2385 of 2018 Maheswari ... Revision Petitioner/Petitioner/

Respondent Vs.

Ayyappan @ Kumar ... Respondent/ Respondent / Petitioner Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to call for the records and to set aside the fair and decretal order, dated 13.07.2018, in I.A.No.18 of 2018, in H.M.O.P.No.140 of 2015, on the file of the District Judge, Family Court, Kanyakumari Division at Nagercoil.

For Petitioner : Mr.S.Vasik Ali for Mr. R.M.Sivakumar For Respondent : Mr.L.Shaji Chellan

ORDER

The instant Civil Revision Petition has been filed, against the order, dated 13.07.2018, in I.A.No.18 of 2018, in H.M.O.P.No.140 of 2015, on the file of the District Judge, Family Court, Kanyakumari Division at Nagercoil.

2. The revision petitioner herein is the wife and the respondent herein is the husband.

3. For the sake of convenience, the parties are referred to according to their litigative status before the trial Court.

The respondent herein / husband has filed an application, seeking a relief of divorce to dissolve the marriage dated 27.08.2006. Since the petitioner herein / wife has not filed counter statement and in pursuance thereof, an exparte decree of divorce was granted by the Court below on 21.10.2016. When the petitioner / wife filed an application to set aside the exparte decree, there was a delay of 417 days. But, the respondent / husband filed a counter statement resisting the petitioner's contention. Wherein, he has pleaded that after having waited for 14 months from the date of exparte decree, he married one Shanmugavadivu, D/o. Petchuvel, at Tiruchendur Arulmighu Subramaniyaswamy Thirukoil. Therefore, the respondent / husband would submit that if the delay is condoned, it would prejudice his valuable rights and would put his second wife's status at peril.

Hence, prayed to dismiss this application.

4. The learned counsel for the petitioner would fairly concede the factum of second marriage of the respondent / husband, after the exparte decree. However, he would submit that since the petitioner is having daughter, and that she is willing to live with the petitioner, prayed this Court to condone the delay.

5. I have given my anxious consideration to the either side submission.

6. From the perusal of the records, it is an admitted fact that the respondent / husband has re-married, after the statutory period for setting aside the exparte decree. It is relevant to refer Section 15 of the Hindu Marriage Act. The same is as follows:-

“ Section 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.”

7. As per Section 15 of the Hindu Marriage Act, 1955, it shall be lawful for either party to re-marry, if no appeal has been filed within a statutory period. In this case, though exparte decree was passed on 21.10.2016, the petitioner did not think it fit to file an application to set aside the exparte decree. In the meanwhile, the respondent / husband has married one Shanmugavadivu. Eventually, now, third party right has also involved in this matter. This Court is of the firm view that the conduct of the petitioner has conferred valuable right upon the respondent, and such valuable right of remarriage cannot be lightly dealt under Section 5 of the Limitation Act.

8. The learned counsel for the respondent also relied upon the judgment of the High Court of Delhi made in MAT.APP(F.C.) No.189 of 2022, (Seema Devi V. Shree Ranjit Kumar Bhagat). Wherein it has been held that, it is lawful for the ex-spouse to re-marry, when there is a delay in filing the