If Divorce Decree Goes Unchallenged, The Second Marriage Is Legal: Patna HC

legal-newsThe Patna High Court in Rajesh Kumar vs. Pushpa Rani, considered the sustainability of a decree for judicial separation. The Bench comprising Chief Justice Iqbal Ahmed Ansari and Justice Nilu Agrawal dealt with the effect on a person, who having received a decree of judicial separation and later a divorce decree, proceeds to remarry and father children.

In this case, the petitioner husband had filed for a decree of dissolution of marriage under section 13(1)(i) of the Hindu Marriage Act, 1955, which was granted to him in an ex parte proceeding against the wife who failed to attend the proceedings despite having transferred the case from Patna to Allahabad, after a year had elapsed since the decree for separation. Once the decree was granted and the limitation period for filing an appeal against the dissolution granted had expired, the petitioner remarried and fathered two children from the second marriage.

The first wife (respondent herein), however, filed an application to review the decree for judicial separation that was granted. The petitioner filed an SLP at the Supreme Court against this order, which was dismissed without any reason, against which the husband filed for a review of the application at this court that set aside the decree of judicial separation.

Thus, the court reached the conclusion that: “…having not taken into account the impact of interference with the decree for judicial separation while making the order under review, has committed an error on the face of the record and, for the reasons that we have assigned above, we are clearly of the view that in the face of the fact that the review petitioner had already married for the second time and had two children from his second marriage, the appeal against the decree for judicial separation, in the absence of any order of stay against the decree for judicial separation, had became infructuous and could not have been interfered with.”



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