In the instant case, the appellant had remarried after he received notice in the application filed by the respondent for setting aside the ex parte decree of divorce and during the pendency of the application. Remarriage of the appellant had not rendered the application filed by the respondent for setting aside the ex parte decree of divorce infructuous.
Divorce Act, 1869 – S. 57 – Hindu Marriage Act, 1955 – S. 15 – Divorced persons when may marry again – Liberty to parties to marry again.
The aforesaid provisions grant liberty to a spouse, who has obtained a decree of divorce, to marry again after the expiry of the time for filing the appeal or when an appeal is filed, after the dismissal of the appeal. Strictly speaking, these provisions do not prohibit the spouse, who has obtained an ex parte decree of divorce, to marry again before the expiry of the time for filing an application to set aside the ex parte decree or during the pendency of such an application filed by the opposite spouse. However, on parity of reasoning and logic, judicial precedents have made it clear that, the principle underlying the aforesaid provisions also applies to an application for setting aside an ex parte decree of divorce.
Penal Code, 1860 – S. 494 – Bigamy – Whether remarriage of the appellant would amount to bigamy.
The following ingredients are necessary to constitute bigamy: (1) the accused must have contracted first marriage; (2) he must have married again; (3) the first marriage is subsisting at the time of the second marriage and (4) the spouse must be living. Insofar as the present case is concerned, the remarriage of the appellant was on 12.07.2018. On that date, the marriage of the appellant with the respondent was not subsisting by virtue of the ex parte decree of divorce granted in his favour. A decree of divorce, though passed ex parte against a spouse, breaks the marital tie. Till the time it is set aside in appeal or in an application filed under Order IX Rule 13 of the Code of Civil Procedure or other appropriate proceeding, the dissolution of the marriage stands. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting. Therefore, it cannot be found that remarriage of the appellant amounts to bigamy.