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WaytoGo (None)     12 March 2016

Second marriage

Is it ok to marry second time after obtaining an ex-parte divorce and waiting for 2 years while the spouce has not preferred an appeal in the high court but only condemed the delay in filing an application in the lower court for setting aside the ex-parte divorce. 

 3 Replies

Vijay Raj Mahajan (Advocate)     12 March 2016

If the Ex-parte order for divorce has not been set aside by any court either the trail subordinate court or the higher court in appeal than there is no harm in getting remarried again. Nothing unlawful if your remarry after 2 years of divorce decree passed ex-parte but not set aside by the wife for such a long time.


  Setting aside decree passed Ex-parte against the defendant/respondent is never so easy as the onus lies on the defendant/respondent to prove that not only the summons was not duly served on him/her or that he/she was prevented by any "sufficient cause" from appearing when the suit was called on for hearing; 
As far the first part the service of summon through Registered Post, Court Process server, Newspaper publication, affixing of summons outside the door of the house/shop/office of the defendant/respondent are various modes which are carried out first by the trail court before proceeding Ex-parte against the defendant/respondent. 
More so the Court after making order for Ex-parte proceedings record the evidence of the Plaintiff/Petitioner, consider the Plaint/Petition in question and based on the facts and circumstance pass any Ex-parte order/decree, it not that just immediately after passing order for ex-parte proceeding the order/decree is being passed, what this means the sufficient time is given for the defendant/respondent to come forward at any of these stages to get the ex-parte proceeding order revoked but if still such person is not doing so than he/she cannot be allowed to take advantage of his/her wrong and prevent the Plaintiff/Petitioner to avail the relief from the court. 

As far if the summon was served upon such defendant/respondent but he/she was prevented to be present on the date fixed for his/her appearance, than in such case what has to be seen what was the "sufficient cause" for doing so, it not that such person avoids his/her appearance in the court without any "sufficient cause" , the court has to be satisfied for the reason or cause this person gives for the nonappearance. One cannot take the Civil Court for granted and move in and out of the courtroom as if you are moving in leisure park by not following the order of the court to appear on the fixed date and time you are committing contempt of court and in order you are not punished for this contempt (proceeding Ex-parte against you) you must give sufficient reason to the court to excuse your mistake. 

Keeping in mind the Ex-parte decree of divorce passed by the Family Court and your waiting for next 90 days the period of appeal, still there has been no move on the part of your ex-wife, you can go for remarriage as it is on no use sitting for anything to happen now from her side more so it will be very difficult for him to explain his move for getting the ex-parte decree of divorce revoked now. 
In such cases it has been mostly decided by the Supreme Court as well many High Courts in India the spouse against whom ex-parte decree of divorce is passed is not getting much relief as far revoking the decree of divorce is concerned, maximum financial relief in the form of cost may be allowed to such spouse but that too depending on the facts and circumstance not in every case.




Shreshta R Sandesh   13 March 2016

I agree with Sr Advocate Mr Vijay Raj Mahajan.

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