Declaration suit against remarriage
Querist :
Anonymous
(Querist) 30 August 2011
This query is : Resolved
A (Woman) got divorce from B (man) in March 2004 on the ground of nullity as B was impotent. The decree was ex-parte because B’s defence was struck off as he has not paid the maintenance amount to A ordered by the trial court. B filed an appeal in high court against ex-parte decree in April 2004 which was admitted in Feb 2008. The appeal was admitted only after B paid the full maintenance amount to A in Dec 2007. A did not received any summon or notice of the appeal as it was never served, however she received a summon in Nov 2004 on stay application filed by B against execution filed by A. The appeal got dismissed in Jan 2009 in default and restored in April 2009. Again appeal got dismissed in default and for non prosecution in March 2011 and then again restored in April 2011. the same is pending for final hearing in high court.
In the meanwhile A got remarried to X in Jan 2005. a child is born out of this wedlock. But, B filed an declaration suit in September 2010 in civil court for declaring marriage between A and X null and void on the ground of marrying again during pendency of appeal. The suit was dismissed in march 2011 as non maintainable on these two grounds: 1) the decree has not yet set asided, 2) the decision of high court will have precedence over findings of civil court. B filed an application for review of the said orders of civil court. Now the matter is pending for arguments.
Please advise/guide me (A):
(1) Is marriage between A and X is valid or invalid and why?
(2) Can B at this stage challenge the marriage of A and X?
(3) As per HMA, after divorce a person can marry again after 90 days, and I (A) have not received any summon or notice in that period, moreover the appeal is admitted only in Feb 2008.
(4) Is filing appeal in itself a stay against remarriage?
(5) When an appeal is termed as pending, when it is filed or when it is admitted?
(6) The limitation period for filing the declaration suit?
Guest
(Expert) 30 August 2011
the marriage between the A & B is null and void., Still now the decree is not been set aside.
1. The marriage between a & X is valid one.
2. B can challenge the decree (but no use)
3. After 30 days from date of decree(merit/exparte) the parties can marry. There is no bar. unless and otherwise the decree is stayed by trail court or appellate court.
4. & (5) mere filing/pendency of the appeal will not tantamount to stay.
6. The limitation for filing the declaration suit on this type of matter (civil right, status etc) is three years from date of occurrence or date of knowledge
Raj Kumar Makkad
(Expert) 30 August 2011
I do agree with Ganesan and suggest you not to waste your time here and believe in your counsel/lawyer defending your cases.
Querist :
Anonymous
(Querist) 02 September 2011
Thanks to all of you for valuable advise.
