Appeal/suit against second marriage
Nitin Gupta
(Querist) 08 August 2011
This query is : Resolved
A (Woman) got married to B (Man)in July 2000. A files divorce petition within one year on the ground of nullity (due to impotency of B). She got decree of divorce on 15.03.2004 (Ex-party) from District court. B files appeal against the decree (ex-party) in High Court on 19.04.2004. But no notice or summon was ever issued of this appeal to A. However, a summon was received by A on 18.11.2004 for an application move by B for stay against execution filed by A for payment of Maintenance ordered by lower court. A got remarried on 30.01.2005. The appeal was admitted in Jan 2008 after B had paid the full amount of maintenance to A. The appeal got dismissed in Jan 2009 in default. B moved an application for restoration of appeal and same was allowed in Aug 2009. The appeal again got dismissed on 03.03.2011 in default and for non prosecution. B again moved an application for restoration, the same was allowed again in May 2011 but with the penalty of Rs 5000. Now, the case is listed for final hearing.
It is requested to advise and pls clarify:
(a) What is the time period for appeal against decree of divorce in HC under HMA,
(b) The waiting period after divorce for remarriage,
(c) Is filing appeal in itself is a stay against remarriage,
(d) What will be the future of A, who is remarried and living happily for about 6 and a half year with a child born out of this wedlock?
R.Ramachandran
(Expert) 08 August 2011
According to you the appeal against the Decree of Divorce passed in March 2004 was admitted only in the year 2008. According to you no notice or summon was ever issued to the Wife. If she had remarried in the year 2005 after about 9 months waiting, she is perfectly within her rights.
The High Court can go on dismiss, restore, dismiss and restore your appeal. This happens since you might not have ever in these 6 years brought to the notice of the High Court that your ex-wife had already remarried and happily settled.
You ask what will be the future of "A". Even according to you she is happily remarried for the past 6 and half years and having a child from her remarriage. Her future seems to be so secure and bright.
sibasish pattanayak
(Expert) 08 August 2011
HI,
I agree wth R.RAMACHANDRAN and beg to add that the HON"BLE APPEX COURT held that,........it is not the sweet will of the appellant to file ....and not to move the same........in that event the case of "B" WILL DIE WITH OUT OXYGEN.
REGARDS,
SIBASISH PATTANAYAK, ADVOCATE
09874854594/9231668664/09477090999.
mail to: sibasish_adv@yahoo.co.in
M/s. Y-not legal services
(Expert) 08 August 2011
Am also agree with experts.. But my question is why b went to appeal without set aside the exparty decree before the trial court.?
