The limitation period for setting aside an ex parte decree of divorce and the validity of remarriage after dissolution of marriage under Section 15 of the Hindu Marriage Act.

JUDGMENT

Tarlok Singh Chauhan, J. - Aggrieved by the order dated 19.05.2012, whereby the application filed by the appellant for setting aside ex parte judgment and decree of divorce dated 02.09.2009 has been ordered to be dismissed, the petitioner has filed the instant appeal.

2. The marriage of the parties was solemnized on 21.02.2007, however, on account of matrimonial discord, the petitioner-respondent filed a petition for divorce. Despite service, appellant did not appear to contest such proceedings and eventually an ex parte decree of divorce came to be passed by the learned Court below on 02.09.2009.

3. On 26.02.2010, the petitioner filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree of divorce but the same was dismissed by the learned Court below, constraining the petitioner to file the instant appeal.

4. It is not in dispute rather admitted by the appellant herself that she had received summons on 27.05.2009 from the learned Court in which the date was fixed for 30.05.2009 but she did not choose to appear on the ground that petitioner had asked her not to appear since the conciliation proceedings were under progress. Since there being nothing on record to support this contention, the same had rightly been negated by the learned trial Court.

5. However, learned counsel for the appellant would contend that the learned Court below has wrongly decided the question of limitation against the appellant, as it is more than settled that an application for setting aside the ex parte decree can be filed within 30 days from the date of knowledge as envisaged under Article 123 of the Limitation Act. However, this contention is equally without merit.

6. It would be relevant to reproduce Article 123 of the Limitation Act, which reads as under:-

123. To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte.

Thirty days The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.

7. A bare perusal of the aforesaid Article reveals that an application to set aside decree that has been passed ex parte, the period of limitation is 30 days and the same begins to run from the date of decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.

8. As observed above, the petitioner was duly served in the proceedings, therefore, the limitation would begun from the date of order and not from the date of knowledge of such order.

9. As a last ditch effort, the learned counsel for the appellant would contend that since the respondent-petitioner has got remarried during the pendency of these proceedings, therefore, such re-marriage is required to be declared null and void. Even this contention is without any merit.

10. Admittedly, the appeal for setting aside the decree of divorce has been filed after five months after the prescribed period of limitation for filing of the appeal, Section 15 of the Hindu Marriage Act permits marriage after dissolution, if there is no right of the 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.

11. In the instant case, no appeal had been presented within the prescribed period of limitation, the Section 15 of the Hindu Marriage Act attract. In coming to such conclusion support can conveniently be taken from a recent judgment of the Hon'ble Supreme Court in Criminal Appeal No. 321 of 2020,, titled as Krishnaveni Rai vs. Pankaj Rai, wherein the Hon'ble Supreme Court observed as under:-

25. Sections 5, 11 and 15 of the Hindu Marriage Act, 1955, relevant to this appeal are set out here-in-below for convenience: -

"5. Conditions for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of th