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Anuradha (back office)     14 April 2012

With only order of divorce, second marriage is done

 

A friend of mine who had filed for mutual divorce with her husband ,  has got tthe  divorce order recently.  The story is , on 12th march Judge has ordered for divorce and accepted the legal seperation of my friend  and her husband.  Jugde signed the order and the respective lawyers accepted it by signing.

 

Lawyers said that now either of you won't have to come to court again, you both are legally seperated. The lawyers said that they will apply for the decree of divorce. 

 

But than 2 days later , my friend got married with her lover at arya samaj mandir, and got the certificate aswell.  Her lover knows that my friend is a divorcee and knows everything. They have also submitted documents for legal registeration of marriage.

At arya samaj mandir my friend did not mention that she is a divorcee , she wrote that she is unmarried.  She did this because her partner already knows the truth and has given his consent to do this all, her partner didn't wanted her to disclose about her 1st marriage. She has not cheated her present husband by any means.

They have got their legal marriage certificate aswell.   I mean they did registry marriage also, with the arya samaj photo's and documents .

 

The only thing is the decree is still pending. So now my question is :-

1)  Is this marriage legal  or valid ??  Marriage hasbeen solemised after the order of divorce not before that. on 12th march order of divorce and marriage happened on 14th march.

2) Can the 1st husband challenge this marriage ??  ( All the formalities are done, order hasbeen passed and the second marriage happened, only the decree of divorce is still pending )

Please kindly guide me with your answers so that i can clear my friend's doubts.

Thankyou



 10 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     14 April 2012

Date of the order of divorce is important.

1 Like

(Guest)

I am surprised that the order was passed on 12th March and the decree sheet has still not been prepared. Decree always follows judgement. Anyways, u/s 15 of The Hindu Marriage Act once a marriage has been dissolved by a decree of divorce, the divorced persons may remarry in the following cases.

 

1. When there is no right to appeal.

2. When there is right to appeal but no appeal has been presented to the court within a period of 90 days.

            Or

3. When an appeal has been made but the same has been dismissed.

 

The expression used in the section is 'decree'. Therefore, in strict legal sense, remarriage cannot be done before the above mentioned essentials are fulfilled. It is always better to contract a remarriage only after the expiry of the period provided to appeal against the decree. A marriage solemnised in a tearing hurry by one spouse much before the expiry of the appeal period may become void if the appeal is successful. However, since the divorce in this case was by a mutual consent, there is very little likelihood of the other spouse challenging the decree. In light of this, if the decree is not impeached, the second marriage would not run into rough weather.

 

 

1 Like

Anuradha (back office)     15 April 2012

Rama chary sir and ashish sir....thankyou very much

anil kumar (service)     15 April 2012

The marriage solemnised after the date of passing of final order granting divorce upon mutual consent of the parties would be valid and binding on the parties since it satisfies the ingredients of 'decree' as per Section 2 (2) of the CPC which is not even appealable as it is passed by mutual consent of both the spouses.

 I trust this decision of the court is passed on second motion after the waiting period of 6 months is over after the filing of first petition. There is No need to worry if the decree copy is provided belatedly on account of administrative delay.  The first marriage already stands dissolved and the subsequent marriage is valid in law.

1 Like

Anuradha (back office)     15 April 2012

Thankyou Anil sir,

Yes mutual consent divorce follwed every particular step, and then finally after 2-3 dates judge finally ordered for divorce, legal separation of husband & wife on 12th march, the only thing left is decree nothing else.


(Guest)

''which is not even appealable as it is passed by mutual consent of both the spouses.''

 

I differ on this. It is a consent decree and can be challenged on the ground that the consent was vitiated.

anil kumar (service)     15 April 2012

Mr. Ashish,

The ground of consent was vitiated would not be available as the consent is admitted before the judge and is recorded by the Court. So in my view, where parties consent by way of an agreement out of court then ofcourse a consenting party may lateron resile on some such ground of fraud, undue influence etc. but not in this type of case.      

1 Like

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     15 April 2012

This query has been satisfactorily answered in the expert section.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Anuradha (back office)     15 April 2012

@Anil kumar - Sir you are right. @ashish sir- In tthis case their is no fraus, coersion etc....divorce was done  very amicably.  My friend have not even taken a single penny from her ex-husband. no allimony.

 

Thankyou everyone


(Guest)

@ Anil

The consent might have been admitted before the court, but the consent was arrived at between the parties outside the court, based on some mutual understanding, and if genesis of this consent lay in fraud, coercion or misrepresentation, the consent stands vitiated.


Attached File : 335566577 krishna khetarpal vs satish lal on 10 september, 1986.pdf downloaded: 65 times

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