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nalni (service)     01 January 2010

Marriage Failing - Guidance Please !!

Halo learned lawyers n members, I can understand all of you must be in the enjoyment of celebrating the new year 2010, however, due to some unfortunate reasons, instead of enjoing life n celebrating, i m in deep trauma n require ur kind guidance. My first marriage was annuled and I got an ex-parte decree of nullity on the grounds of 12(1)(a) of the HMA, as my husband never appeared in court, nor filed his reply, neither any counsel appeared on his behalf, it was totally neglected by the husband. Since it was neglected by the first husband, hon. family court on goin thru the evidences like signed RPAD of summons etc..gave me ex-parte decree...My advocate guided me to wait for 90 days and later get married....accordingly, I waited for 90 days & later got married also...... In the new marriage, in the first week things were all good, however, all of a sudden, second week onwards, there were arguements between me n my husband, and just to cover up his faults he talks of my earlier failed marriage always which hurts me & now i feel i cannot continue with this new husband also..... To add to my trauma, I have got information from some sources that my first husband is planning to set aside the nullity order for which he may be even ready to go to high court. I being from a decent middle class family have dreamt of having a decent n happy married life. In the first marriage, I was compelled to go for nullity, & get separated, as it was unbearable to be deprived of the basic conjugal pleasures of marriage & hence applied for nullity of marriage on 12(1)(a) of the hindu marriage act withing 6 months of the marriage. I explained myself that sometimes luck is not favourable & engulfed the sorrow of breaking of marriage. However, I had not lost hopes also, so when new proposal came, I married the new person, but even he is now showing his colours.... it appears my fate says i don't have marital pleasure & now I m justifying myself with this fact n preparing mind to go for divorce...In such scenarios, please guide what best options are available to me. I m being told by my well wishers that now somehow I have to maintain my second marriage and face whatever troubles second husband is showing, coz if I again apply for divorce or anything like separation, the court will have prejudice in mind..... Also, I m told that, if i get separated from this second husband, the first husband will easily set aside the ex-parte nullity decree from HIGH COURT, is it so....?? does it mean that if second marriage fails means first marriage valid again....does it sound logical?? Learned Advocates, to tell u frankly, I cannot continue with this new husband for the sake of failing first husband's appeal for setting aside ex-parte decree........Also, to be frank, I m not sure what legal actions like separation or divorce my second husband may adopt, to part away from me, so signs of separation are from both sides, i.e. me n my second husband, & to add to this situation, the first husband is trying to set aside the ex-parte nullity order.... In such a scenario, my health is declining with tensions n worries, kindly, please tell me, what options are available with me. badly awaiting, nalni


 17 Replies







In your lengthy querry, you missed one most important point to guide you.  You want to go for divorce in this second marriage.  What is your exact grievance?  Whether that can be a ground for divorce or not has to be seen.  I can understand about his nagging of you nullity decree of the first marriage.  But before this nagging, there must be some reason.  What is that?  Precisely, whether his commissions/omissions amount to cruelty or any other ground has to be seen.

Regarding to set aside the ex-parte decree of nullity of marriage (first one), you need not fear.  It would be very difficult (impossible) to get it aside as you had gone for second marriage, even though your second marriage is at rocks.  

If the question of prejudicial mind of judiciary comes into pricture, you need not  bother about such presumptions.  There are methods to get such prejudices aisde by the courts.

Revert back and inform us the grounds for seeking divorce from second marriage.  We will do our leve best to help you out.   

N.K.Assumi (Advocate)     01 January 2010

Very sad and pathetic episode, but at the same time very interesting legal queries. Are you sure that the summon was dully served and returned to the court? Yes, I agreed with the views of Reddy as well as Prabakhar. Just be specefic in your second grounds for seeking divorce if at all it is unbearable, but note what Mr.Reddy, has pointed out. Hope to hear more from the members. In addition to Nalni, questions I would like to add one more questions. Is the second marriage valid or invalid in  the face of section 57 of the indian Divorce Act 1869 which provides 6 months for remarriage.

subhash kumar (advocate)     01 January 2010

Dear, better you established cordial relations with your second husband and you have to face the some problems , kindly ignore the petty issues and try to adjust and keep yourself busy in work. your second marriage at present is a valid marriage.

Subhash kumar, adv

N.K.Assumi (Advocate)     01 January 2010

Dear Nalni, Impotent has been made  as voidable only under the HMA, and accordingly you have obtained a decree of nullity from the court, and married thereafter with the second husband which again appears to be on the rock with your past marriage, and if this continues the marriage is surely going to be a failed marriage. If your first husband is impotent there is no reasons why you should not seek for such declarations, as you did it, as marriage is not only fo s*x but motherly instinct is there in evry woman to procreate. It appears that your second husband does not really loves you, as true love never digs the past of the spouse, as love does not mean looking at each others eyes but to look together at the future, but inspite of looking to the future he is looking at the past which can never be erased from your life, and if he is going to be hunted by your past it is better to snaped the relationship by mutual understanding before it gets very bitter for both of you. If you get a second divorce dont rush for marriage as you have learnt from past mistakes as verything that glitters is not gold. Be on your own for sometime, and I am sure the right man will appear for you one fine morning. Regarding the efforts of your first husband trying to get the ex parte order to be vacated you need not worry for that. Yes, there are provisions to get such order vacated, but in your case the law is on your side. All the best.

H.D.Kumaravelu (Advocate)     01 January 2010


You are not clear in the allegations against the 2nd husband as you made against the 1st husband. Be clear on the allegations. Merely his speaches of refering the 1st  marriage hurts you is no ground for marriage. I suggest you as stated by my friends to go for good counselling.

Your second marriage is valid under law. You need not aprehend against the steps by the 1st husband before the court if the allegations made against his are true. You can forget that issue.

Indian divorse Act is applicable only for persons who professes the christian religion. Try to make your second husband understand that his speach of refering you earlier breakdown marriage is hurting you a lot. Keep him confortable and lead a happy married life.


N.K.Assumi (Advocate)     01 January 2010

Yes, H.D.Kumaravelu is right on IDA of 1869, which is applicable to christians only, and I am posting a query on certain other grounds seperately, inspite of mixing the same in this query.

nalni (service)     01 January 2010

Dear All advocates/participants (esp. Mr. Prabhakar, Mr. Assumi, Mr. Kumarvelu),

With tears in my eyes, I thank you all for attending my queries, I was cynical that my queries will be even answered at all today i.e. on 1st Jan 2010, since all will be relishing the first day of the new year, however, the contribution by you gentlemen, is indeed overwhelmingly supportive and gives lots of hopes n confidence....

In your genuine responses, I have found a common query from all of u, which is u would like to know the exact ground on which i wish to go for a second divorce.....well, since I m not so well versed with legal aspect, I feel my second husband digging my past annulled marriage  troubles me as it hurts me, sometimes he uses it to even cover up his own faults, I m not sure whetehr this can be ever a ground for divorce, however, in case, if this behaviour of his goes beyond my tolerance limits, what I can do at the most is discuss the matter straight with him in front of his parents, my parents & our marraige co-ordinator, and stratight away demand him for a mutual consent divorce and as suggested by one of the expert advocates here take this as a lesson for life & in future not hurry for re-marriage, as rightly said all that glitters is not gold.....

Also, special thanks to Adv. Prabahkar, who has solved my biggest worry, by stating that now the first husband cannot succeed or it is next to impossible to him to set aside the decree considering the fact that I got re-married after 90 days time limit & even if this second marriage is on rocks.....I see almost all of the advocates participated in this query have agreed to mr. Prabhakar's views which he has put firmly, with confidence and at the very begining itself.....I can assure my ailing parents now that they need not worry, for, even if I m required to part away with second husband after giving him enough chance to improve n he doesnt improve, the first husband cannot open the already annulled marriage which is declared so on ex-parte ....

Any other serene advises are most wel-come....

high regards,



Even though "cruelty" has not been defined, the learned courts have been giving various definitions from time to time depending upon the facts of the each and every case.  In your case, nagging by the husband about the first marriage is definitely "cruelty".  Before filing the petition for divorce, follow the conciliation methods suggested by my ld. friends above.

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     01 January 2010

I go with assumi

H.D.Kumaravelu (Advocate)     01 January 2010


As said by you, your husband hurts you on the issue of the anulled marriage, you yourself rightly pointed out that he does so to cover up his own faults. Face him and expose him on the wrong he commits and make him understand that this is not the way a sincere husband should treat his wife. You are seen to be dipressed with things not happening  the way you expected. Life is a challenge meet it with with courage and do not be a coward. 

Your husband owes a duty to give respect to you as you do. If he goes on continuining the way without adhereing to you request he is seen to be wantonly doing only to put you to mental and physical torture. Go for a divorse as a last resort on the ground of cruelty.

nalni (service)     01 January 2010

Dear Kumarvelu sir,

I understood your point, but even if I get divorce, my first husband shud not take adavantage of that and open up the ex-parte annulled first marriage...he will say - 'now she is divorcee again, he will try to influence the judge by saying that she cud not maintain her second marriage also, so u can imagine how much i was troubled by her, so please open up my case and let me answer..'...will he not succeed in his attempt....??

can u guide how to cope up in such a case...?




gold (-)     02 January 2010

my 2 cents though not legal. what I feel is marriage is not just to break when one is hurt at some point of time and every marriage holds some sort of disputes. If you keep on breaking just to meet your requirement or thinking that one day you will get ideal partner then my dear this is married life which can not guarantee of such ideals and every marriage depends on adjustment of partners and in every quarrel, one will try to bring the mistakes/ weak points of others so that he can victory over other for time being. So you need to accept the basics of this married life and at present what I feel is give some time, think patiently and then you both go to marriage counsller - they have excellent skills of convincing one about his mistakes even if he has not done any mistake :) but defintely it will help your husband.

H.D.Kumaravelu (Advocate)     02 January 2010


  1. You have obained a decree that the marriage has not been consummated owing to the impotence of your first husband. Under law you are bound to prove before the court that your first husband is impotent and the marriage has not been consumated. Since he has not appeared inspite of notice from court, the court on your evidence has granted you the relief prayed for.
  2. Now your apprehension is that your first husband will  try to influence the judge by saying that she cud not maintain her second marriage also, so u can imagine how much i was troubled by her, so please open up my case and let me answer..'...will he not succeed in his attempt....?
  3. Under law any person who has been set exparte and against whom an exparte decree has been passed should move the court within 30 days from the date of the exaprte order to get it it set aside. If he fails to do so, he has to file an application under section 5 of the limitation Act to condone the delay in prefering the application to set aside the exparte order. In your case ithe matter is now very old, you can keep quite. If your 1st husband files an application he cannot plead the facts stated by you supra, he has to plead and prove the reasons for the delay. Under law each and every days delay has to be explained. You will be having an apportunity to defend that application and also an opportunity to get the application dismissed that the reasons stated are imaginary. The court on hearing you will even dismiss the application filed by your husband. If that is done the matter cannot be reopened. So, it is not that much easy as you apprehend for. Forget and lead a happy life.

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