Bombay High Court refuses relief to woman who remarried during appeal period

Bombay High Court refuses relief to woman who remarried during appeal period

A division bench of Justices RD Dhanuka and Milind Sathaye refused to vacate the stay granted on the divorce decree passed by the Family Court in 2019.

Urvi MahajaniUpdated: Tuesday, April 18, 2023, 10:56 PM IST
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Bombay High Court | Wikimedia Commons

Mumbai: The Bombay High Court recently refused to grant relief to a woman who remarried without waiting for the statutory period of 90 days. As per the Hindu Marriage Act, an appeal can be filed before the high court within 90 days from the date of decree passed by the Family Court.

A division bench of Justices RD Dhanuka and Milind Sathaye refused to vacate the stay granted on the divorce decree passed by the Family Court in 2019.

The HC was hearing an application filed by the wife urging the court to dismiss the appeal filed by her former husband challenging the divorce granted by the FC. She contended that she has already remarried and hence no purpose will be served in keeping the appeal pending.

"Overreaching provision of law"

“This interim application is a classic example amongst litigants to try to overreach the provisions of law by creating a situation which is difficult to reverse, thereby making pending proceedings infructuous. In the present case, such effort is made by a wife in a matrimonial dispute arising out of divorce proceedings,” the HC noted.

According to the woman’s plea, the couple married in August 2006 and a son was born in May 2008. However, she left her matrimonial home due to cruel treatment by the husband and filed a petition for divorce and child custody. The FC dissolved the marriage on July 12, 2019, and granted her the child’s custody. It granted the husband access to the child on weekends. The 90-day period for appeal would expire on October 11, 2019.

Woman says she was not aware of appeal filed by her husband

On October 6, 2019, that is within 90 days of the divorce decree, she married a German national of Indian origin. She was served with the appeal papers on October 9, 2019. During the hearing on October 11, 2019, she informed the HC that she was not aware of the appeal filed by the husband and had remarried.

The HC granted an interim stay on the divorce decree and restrained her from taking the child out of the country.

Advocates Firdaus Moosa and Rajesh Dharap, appearing for the husband, argued that the woman married hastily within a short span from the date of decree. She even immediately applied for the child’s passport without the husband’s knowledge and consent to deprive him of access. The advocates urged that the high court take serious note of her conduct saying a second marriage cannot render his appeal infructuous.

Agreeing with the arguments, the HC said that it is clear that the wife did not wait till the appeal period was over and remarried and “has taken a risk to be at odds with the law”. It further added that the husband was “diligent enough” to file an appeal within the prescribed period of limitation.

“In our view, the Family Court appeal filed by the husband within the appeal period would not be rendered infructuous upon the applicant having contracted second marriage and that also during the appeal period,” said the judges.

Although the HC refused to vacate the stay on the divorce decree, it expedited the hearing in the husband’s appeal.

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