Rajkumar Sheoran 01 April 2023

one-sided divorce --

My wife filed a case of 498a & maintenance and married another person after two years and a girl child was born to her. I got the birth certificate of the girl child and filed a divorce case. The court issued summons to both. Husband's summon was trained, not hers. Four summons were issued to the wife at the address of her in-laws and maternal home, for whom due to lack of training, MUNADI done twice, yet she did not appear in the court. The court certified the evidence given by the plaintiff and after arguing, gave one sided divorce. Please tell how many days I can do second marriage. Can she challenge the ex-party divorce and after how many days she can do so.

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4 Replies

T. Kalaiselvan, Advocate (Advocate) 01 April 2023

You have mentioned that the wife has already married another person during the subsistence of her marriage with you.

It clearly indicates that she has committed the offence of bigamy under section 494 IPC and it is an offence punioshable up to 7 years of mprisonment too.

The provision of law states thus:

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either descripttion for a term which may extend to seven years, and shall also be liable to fine.

In the given circumstances you are not prevented from taking legal action to file a criminal comlaint against her for this offence.

There is no necessity for you to file the divorce case in haste before she is getting punished for her offence.

If you sitll insist on divorce from your side then on getting exparete decree of divorce you can wait for a period of one month for her to file a set aside petiton, if nothing is forthcoming within that period you can proceed with your desire to remarry the person of your choice

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Dr J C Vashista (Advocate) 02 April 2023

When you came to know about re-marraige of your wife did you file a case under section 494 of Indian Penal Code, 1860 ?

Birth certificate of her daughter is insufficient evidence to prove the allegation of bigamy.

If you have filed complaint for bigamy against your wife, what is the judgement in the case?

If not, it is presumed you have condoned the crime committed by your wife.

You have stated to have served the summons for divorce case upon your wife, where she did not appear and ex-parte decree has been passed. Your wife, if wanted to contest the ex-parte decree of divorce, may move as per law, where limitation starts from the date of knowledge.

However, after obtaining an ex-parte decree of divorce you may proceed to marry afresh (any time after judgment), the subsequent marriage will be valid and legal.