C.R.P.(MD)No.2385 of 2018

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.

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C.R.P.(MD)No.2385 of 2018

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.

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C.R.P.(MD)No.2385 of 2018

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

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C.R.P.(MD)No.2385 of 2018

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