• What after set aside ex parte divorce and remarriage during divorce period

Sir
I got ex parte divorce digree on 4.4.18, and remarry on 15.5.18 via regisrar,to a widow with 2 sublings,. Divorcee applied restoration on 25.7.18. and for crpc 125 on 15.10.18 now on 1.2.20 family court revoked the ex parte order and given fresh date to decide again case on merits. Simultaneously she applied 156(3) for 494, 420, 498a, 560, 460,323 on 10.12.18 and dv act on 15.1.19. What should i do now
Asked 12 days ago in Family Law from Budaun, Uttar Pradesh
Religion: Hindu

1. Since the time for filimg an appeal is 90 days, therefore, you should have wait for 90 days before remarriage,

2. Marriage is void,

 

 

Suneel Moudgil
Advocate, Haryana
1480 Answers
2 Consultations

4.5 on 5.0

you should contest the DV case and other cases filed by wife on merits 

 

2) IN DV case personal presence is not necessary sufficent if you are represented by lawyer 

 

3) file detailed reply in DV case denying allegations made by wife 

 

4) in 156(3) case police would conduct investigations and submit report 

 

5) your statement would be recorded during course of investigations 

 

6) you can apply for and obtain bail in dowry harassment case 

Ajay Sethi
Advocate, Mumbai
72014 Answers
4331 Consultations

5.0 on 5.0

Dear Sir,

First file a anticipatory bail  and then you can file quash petition when there is a false complaint filed in FIR. If the complaint is false then case will not stand for long time.

Application to set aside ex-parte divorce decree by a spouse is not rendered infructuous by remarriage of opposite spouse

Kerala High Court: A Division Bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. while hearing a matrimonial appeal ruled that remarriage by the opposite spouse during pendency of an application for setting aside ex-parte divorce decree would not render such application as infructuous. 

The appellant-husband was granted an ex-parte divorce decree against which the respondent-wife filed an application to set aside the said decree along with an application for condonation of delay of 48 days. By that time, the appellant had married another woman. Respondent’s submission before the Family Court was that she had delivered a premature baby through cesarean operation during the hearing of case due to which she could not enter her appearance before the court. Appellant’s contention was that he had remarried after the grant of divorce decree and therefore the application for setting aside the ex-parte decree had become infructuous. The Family Court allowed respondent’s applications and set aside the divorce decree, against which order the appellant preferred the instant appeal. 

The High Court refused to interfere with the findings of fact of Family Court and noted that the appellant had remarried after receiving notice in the application for setting aside the divorce decree and during the pendency of that application. Relying on the dictum of Apex Court in Chandra Mohini Srivastava v. Avinash Prasad Srivastava, (1967) 1 SCR 864 the court held that remarriage of a spouse who obtained ex-parte divorce decree would not render the application filed by opposite spouse for setting aside the ex-parte decree, as infructuous and the said application must be considered on its own merits notwithstanding the remarriage. However, Family Court’s observation that remarriage by appellant could amount to bigamy, was dismissed as unwarranted. Thus, the instant appeal was dismissed. [Denny Pazhoor v. Greeta Sunitha Vincent,2018 SCC OnLine Ker 3921, decided on [deleted]] 

Netravathi Kalaskar
Advocate, Bengaluru
4587 Answers
22 Consultations

4.8 on 5.0

1. See for the divorce case you have to contest same before the court.

2. For private complaint of her before magistrate if it is still on enquiry stage you shall get summons if already criminal case is registered file a washing petition before the high court and seek stay on trial along same.

Shubham Jhajharia
Advocate, Ahmedabad
22856 Answers
92 Consultations

5.0 on 5.0

As you are dealing with domestic cases then you have to fight all the cases very cautious ly, if you again married after getting divorce degree then nothing to worry but cases has to dealt with the same fact, file the replies in all the cases and try to get benefit of high court jurisdiction to get quashed all the cases as the case of divorce is pending before the court.

Koshal Kumar Vatsa
Advocate, Gurgaon
1851 Answers
1 Consultation

5.0 on 5.0

Your marriage is valid. Party can marry after 90 days of divorce decree. She has file set aside application after 90 days so your marriage become valid.

No case of bigamy made out. Magistrate took self cognizance or direct to register FIR u/s 156(3) ? Just apply for anticipatory bail.

DV act case will decide on merit and criminal case result depends on police investigation. How long you are lvivgn separate ? and period of marriage ?

Yogendra Singh Rajawat
Advocate, Jaipur
16702 Answers
21 Consultations

4.6 on 5.0

Dear Sir,

Yes, you can appeal in High court.

HC dismisses plea against exparte decree in matrimonial case

Chennai, Mar 24 (PTI) Madras High Court today refused to entertain a Civil Revision Petition filed for praying to set aside a February 2, 2014 ex-parte decree of a subordinate judge against one A Raja Sundari in a matrimonial case and also dismissed the condone delay application filed by her. After referring to several Supreme Court and High Courts judgement, Justice S Vimala said "unfortunately the revision petitioner has landed herself in such a position on account of her own conduct of negligence." Dismissing the petition, the judge said "it is evident that at every stage, the revision petitioner has exhibited indifference. When there is a duty to act with expedition at all stages, and if the petitioner is guilty of inordinate and unwarranted delay coupled with failure to observe the time frame, then the liability to suffer the consequences of dismissal, for want of prosecution, is inevitable." The matter relates to a matrimonial dispute between one Raja Sundari of Tanjore and Suresh Kumar of Chennai. The marriage was held on March 28, 2007 and the petitioner gave birth to boy on January 4, 2008. The husband filed a petition for divorce to Subordinate Judge, Tambaram, on August 4, 2008 and the subordinate judge on February 11, 2010 passed an ex-parte order against the wife. The condone delay petitions were also dismissed by the Judge. On July 11, 2014, Suresh Kumar got second marriage against which Raja Sundari filed a Civil Revision petition seeking to set-aside the orders passed by the subordinate Judge, in the Madras High Court.

Justice S Vimala while considering the ex-parte decree passed by the Subordinate Judge in her order after referring to the amendment made to Section 15 of the Hindu Marriage Act, 1955, which states that 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. "By virtue of the remarriage, now the interest of second wife has intervened and the court is expected to take cognizance of subsequent event also in deciding the application for restoration/setting aside ex-parte decree, provided fairness to both side" and dismissed the Civil Revision Petition. PTI CORR RC

Netravathi Kalaskar
Advocate, Bengaluru
4587 Answers
22 Consultations

4.8 on 5.0

you cannot remarry for period of 90 days after grant of divorce 

 

2) your wife has filed application for setting aside exparte decree after period of 111 days 

 

3) you can file appeal against against family court order but chances of success are bleak 

Ajay Sethi
Advocate, Mumbai
72014 Answers
4331 Consultations

5.0 on 5.0

90 days limitation period for appeal. As per law,person can re marry after 90 days if no appeal filed and stay granted. Ex parte was effective for long period, you only committed default in appearing before court. At least no case of bigamy.

You may have defaulted but your default cease after 90 days. Marriage is valid.

Yogendra Singh Rajawat
Advocate, Jaipur
16702 Answers
21 Consultations

4.6 on 5.0

Hi

Firstly, you need to contest all the cases filed against you.

DVC is not maintainable going by the contents of your post, however, contest the same on merits by filing your reply / counter to the same, get it disposed off ASAP.

Police will investigate the case and file report.  Meanwhile you obtain bail.

As far as filing appeal and obtaining stays is concerned, more often than not, HC will not give favourable orders to you, but, contest the cases filed by her by furnishing proofs against her and be ready at every date of hearing to present your case. 

S Srinivasa Prasad
Advocate, Hyderabad
1069 Answers
6 Consultations

5.0 on 5.0

The exparte divorce can be set aside by sane court. You can only get married if the said decree is not stayed by appeal court till 90 days. So technically you can Marry only after 90 days

Prashant Nayak
Advocate, Mumbai
16667 Answers
30 Consultations

4.6 on 5.0

You married immediately after 2 months of the ex parte divorce decree. She had the remwdy qnd ahe exercised it.now this is a tricky situation.

Rahul Mishra
Advocate, Lucknow
6178 Answers
14 Consultations

5.0 on 5.0

The date of recall of the decree and order is relevant here. You should appeal against this arbitrary and illegal order of the lower court. Why did she not represent herself in the family court. She is guilty of delaying tactics and hence she alone is responsible for an order against her.

Rahul Mishra
Advocate, Lucknow
6178 Answers
14 Consultations

5.0 on 5.0

See you can approach high court on this as the application to set aside the decree was filed after limitation period of appeal though merits have to be seen in that case.

Shubham Jhajharia
Advocate, Ahmedabad
22856 Answers
92 Consultations

5.0 on 5.0

You would have waited for 90 days period after X party divorce but you have married only in one month  time in ex party cases is time is 3 months means 90 days and the other party can go to the court for review divorce petition in this case this case is will definitely run  an you have to put the counterclaims

Vimlesh Prasad Mishra
Advocate, Lucknow
6196 Answers
19 Consultations

4.9 on 5.0

The offence under bigamy  may not be maintainable because the remarriage has taken place after the expiration of the time period for filing the set aside petition.

However for the other charges you may have to challenge them on merits.

 

T Kalaiselvan
Advocate, Vellore
61958 Answers
799 Consultations

5.0 on 5.0

Since the remarriage has taken place after considering the fact ther there was no petition pending for setting aside the exparte divorce decree, the restored divorce case may not be maintainable especially when the same is challenged in an appeal before high court but for that you may have to wait for the disposal of the divorce case.

T Kalaiselvan
Advocate, Vellore
61958 Answers
799 Consultations

5.0 on 5.0

As far as the judgment of the supreme court, if the exparte divorce decree has been grand then the other spouse has to wait for the appeal time to get in to the second marriage. The appeal time also includes the delay period to file the appeal that means the other spouse has to wait 90 days to get into the marriage. Applying the above said citation, the case you are stated aboue would fall under the same purview. But it is up to the court to decide the case by analysing the facts and circumstances.

Mohammed Mujeeb
Advocate, Hyderabad
13806 Answers
6 Consultations

4.5 on 5.0

1. You should have waited for a period of 90 before marrying again after getting divorce.

2. Now the option available for you is to file appeal or go for settlement with your ex wife by mutual consent divorce.

Mohit Kapoor
Advocate, Rohtak
6547 Answers
2 Consultations

5.0 on 5.0

1. A marriage which is done after the passing of an ex parte decree does not become illegal if subsequently the ex parte decree is set aside. However, the remarriage will not have any adverse bearing on the rights of the ex spouse on whose application the ex parte decree is set aside.

2. The other cases have to be contested on merits by you.

3. The order of setting aside of ex parte decree can be challenged by you in the High Court on the ground that trial court has passed it without application of mind.

Ashish Davessar
Advocate, Jaipur
27476 Answers
812 Consultations

5.0 on 5.0

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