May 5, 2007


I offer my own life as a monumental example of what the shortcoming of Section 15 HMA, 1955 has to pour forth. I cannot but venture on in my own little way,to plug up the esoteric pothole of irredeemable fathom, in Sec. 15 HMA 1955. Believe me, it’s a grim, grim story. The anecdote based on true life is as follows:

A petition for divorce filed before the Family Court under Section 13 (B) HMA, 1955 on mutual consent by my husband and myself was dismissed applying the principle reported in AIR 1992 SC 1904. The Court, following the dictum in my case as I had withdrawn my consent from the petition, also held that there was nothing to suggest an irretrievable break down in our marriage and that we have lived together happily during the pendency of the proceedings. However, my husband filed an Appeal against this Judgment before the High Court. Further more, another petition alleging cruelty and desertion was filed against me before the very same Family Court, on which the Court subsequently passed an Ex-parte decree against me. The proceeding sheet of the Family Court says that I was absent only on one posting before it was set ex-parte. More importantly, more interestingly, the Ex-parte decree allowed for my husband the reliefs he had sought for in the mutual consent petition that was dismissed by the very same Court. Much less, the Appeal before the High Court was also pending. Accordingly, on the Ex-parte decree, I filed an application under Order 9 Rule 13 CPC within 30 days, the statutory time limit prescribed for the same.

Accompanied by my lawyer, I appeared before the Court on the day my application was posted for objections. Unfortunately, I was completely unaware that I had caused any matrimonial offence and so, was unprepared for what happened next. Events occurred so fast that I failed to catch up with the pace. Much to my bewilderment, I was served a copy of the objection filed by my husband, enclosed inter alia a marriage certificate of my husband with a Punjabi woman, a subordinate in his personnel. The certificate said of a marriage having taken place at Delhi on a date during the pendency of Order 9 Rule 13 CPC proceedings. My husband contended that he had ceased to be my husband by virtue of the ex parte decree and that he remarried only after having waited for the statutory time limit prescribed for filing an Appeal. He asserted that as such there was no provision of law that creates any impediment in him entering a remarriage.

Parking aside my indignation that his remarriage is a lucid expression of blatant disregard towards my statutory right promised under Order 9 Rule 13 of the CPC by virtue of Sec. 21 HMA – nonetheless, the MFA against the dismissal of the mutual consent petition was also pending before the High Court- I waited, for nine long months, for the Family Court to decide on my application.

Now, then; the Family Court set aside its ex-parte decree of divorce. The Court in its 16 page Judgment also held that my husband could not be blamed for getting into a remarriage as he remarried after the statutory period fixed for filing the Appeal. The Judgment continues to hold that there is no deliberate laches for my non appearance on the date the case was set ex-parte, that there is sufficient cause for the same, and hence the ex-parte decree is being set aside. If that were so, what is the status of my husband’s remarriage? Am I or am I not my husband’s legally wedded wife? They say every right has a remedy. But did I have any right in the first place? That was it! That was radically it !

My conjugal prospect hence stood bifurcated. The choice was either to gracefully accept my disposition, bear and wear the insignia, the albatross of matrimonial misconduct all my life attached on me by virtue of such a divorce decree or to valiantly refuse to accept the same. The inequity was not grotesque. It was brutal! The proceeding sheet of the Family Court on my file says that I was absent only on one posting. The evidence were not heard, facts were not examined. With the only document in the dossier, a ludicrously drafted petition, the Court was magnanimous enough to grant a decree of divorce against me! Hail the grand heritage of the principles of natural justice and fair play! Marriage – we are told in every other context – is a sacrament. If a divorce comes as facilely as this, if a party to a marriage can wish the other one away as easily as this, I wonder again in my own little way-what this triumph on “efforts for settlement” mentioned in Sec. 9 of the Family Courts Act and Section 23 of the Hindu Marriage Act are about? What did our Hon’ble Supreme Court mean when it decided on ‘efforts for reconciliation’ in the case law reported in AIR 1998 SC 764? Perhaps marriage is not a sacrament alone but a disposable sacrament also!

When the hysteria of my grief subsided, I tried to make sense of what had happened. And I began to wrestle with, what I thought was the imperfections of my own jurisprudence. I struggled through the contextual labyrinthine provisions of the CPC and the HMA, to find something-if nothing else; at least an excuse-to lay the blame on. I lived among law books for hours and hours, in vain; Mullah, Saha, Mayne-the possible text books considered to be the be-all and end-all in personal law, the DMC, the CCC, the HLR, the CLT…all journals on the domain-I tried; leaving no page unturned, no alphabet un-dissected! To my reluctant realization, there is no law, whatsoever – statute or otherwise in Hindu Law that speaks about the matrimonial relief for a person victimized and lost by an Ex-parte decree of divorce. In Hindu Law, perhaps the strict laws against polygamy were not there even in textbooks. Spouses as unfortunate as me did not feature in journals either!

And while I am made acutely aware that nothing has paused in regard for my loss and that the loss is solely mine, my analysis may seem more emotional than rational, for I am equally pensive about the ethical perspective of it! While I adorned the hairline on my forehead with the traditional sindooram every morning, I contemplated the other woman adorning hers, to forecast her marriage with my husband! Excuse me, I thought I heard something about a God’s own nation that sports the most exhaustive, stringent and progressive laws against polygamy? I mean no disrespect to certain prerogatives under Muslim Personal Law; but what would a High-tech era woman call her husband’s wife? Even when the term ‘bigamy’ underwent its metamorphosis-both legally and semantically-I doubt if anyone ever confronted the legitimate dismay of a woman having to describe another one as ‘We have the same husband’. Let’s spare the Oxford, the Chambers, Collins, Rogers…-the mentors of the language, I am on my knees before the legislators of the Hindu Marriage Act, 1955 with plead to come down to this silly little woman and serve a word! Never ever did they labor under speculations- I am sure- on this account. Acquit my digression; it was irresistible!

It’s frightening, bizarre: the manner in which the legislators of the statute disregarded Order 9 Rule 13 CPC proceedings in Section 15 Hindu Marriage Act. Its astounding how an oversight of this magnitude wherein the remarriage of an Ex-parte decree holder – all the while that the decree be set aside is well within the sphere of possibility-do not merit so much as a mention in this statute. As for case laws, the various High Courts assert only on the point that by the applicability of Section 21 HMA, it is open to the party aggrieved to choose between the right to appeal before the High Court and an application for restoration of the file, before the Trial Court. More so, the query whether it is necessary to obtain a stay of the Ex-parte divorce decree till the disposal of the O. 9 R. 13 CPC application, is never dealt with as yet. And as to how long the Ex-parte decree holder needs to keep a check on the development at Court after the grant of Ex-parte divorce decree is a question that never arose!

Nonetheless, it is held that second marriage-taking place after obtaining an Ex-parte decree is void able and hence hit by Section 17 HMA. But when it has also been held (2002 (2) KLT 14 (SC)) that such marriage do not fall within the definition of Bigamy as in the Indian Penal Code and hence cannot be convicted under Section 494 therein, the remarried Ex-parte decree holder is permitted to smile legally graced with matrimonial pride! This situation of ridiculous pay off entitles the Ex-parte decree holder to have two spouses; perhaps one for de-jure and the other for de-facto! Also, applying the principles of Fait accompli and Factum valet, to unscramble the remarriage after the Ex-parte divorce decree of the first marriage is set aside at a later stage, would be impossible, not difficult. Section 15 HMA hence in its retarded form now-without O. 9 R. 13 CPC proceedings being importantly, urgently taken into account is heavily dangerous and almost matches with a Muslim Husband’s traditional prerogative to terminate the marriage unilaterally by an unequivocal pronouncement of Talaq irrespective of whether the wife agrees or not.

Much less, an Ex-parte decree - divorce by happenstance- is not conducive to the objectives of Family Courts. At a time when temperamental incompatibility is nothing but vogue or even when a party to a Hindu Marriage desires for change of flesh (legitimately?) and his/her libido gets ebulliently inclined for another way, it appears as though all it has to be done is to file a petition for divorce before a Family Court on any of the grounds mentioned in the Hindu Marriage Act, wait for the respondent to be absent for a posting or so, yell at the Court and manage to secure an Ex-parte decree. Yes, if one moves the knight well on board, the procedural shoe here does not pinch much –if not, at all!

A man determined or compelled to marry a second woman would feel forced to get the first marriage dissolved by concocting false and indecent allegations against the first wife. The second marriage is always at the cost of total destruction of the first wife’s personality and status in the society. Interestingly, pathetically the Courts too, contrary to what is preached, adopt an attitude that reconciliation as regards the first marriage is out of place and question-perhaps impressed by the sanctity and sublimity of the second marriage-and hence find no need to question it’s legality! The Courts are conscious of the fact that the well established legal principle in the regard stipulates that a party seeking divorce is required to show that he or she was not taking advantage of his or her wrong and the approach of the Court should be to preserve the marriage and be reluctant to dissolve the marriage on the asking of one of the parties; Only that it is the first marriage that is put to the receiving end and the second one that gets the judicial blessing! !

In my instance, when the two appeals filed by my husband were taken up, wherein his entering a re-marriage was the only contention take into account, my lawyer was instructed by the Court to concede that my marriage could not be resuscitated at any rate. There was absolutely nothing else to indicate that our marriage was beyond rapprochement and reconciliation. That I lost my right to belong to my man for whom I breathed-for 14 long years of my life-merely and barely for absence before Court on just one posting date was no locus-standi!! True that umpteen petitions filled with invectives have been filed against me. But none, none at all – no matrimonial offence, no matrimonial incapacity cited in the Hindu Marriage Act or otherwise-has ever been considered, leave alone established against me by any Court of law.

And hence I succumbed, to a law-imposed divorce-for no fault of mine, for no inadequacy of mine. I watched helplessly as the Courts could not be persuaded to do what seemed clearly within their power, what seemed manifestly mandated as the purpose of a Marriage Act being brought into force. No doubt, certain legal questions raised by my case were never canvassed before. But then, how did that suffice to prevent the Courts from looking at things with what is called the human face of law? In precise, Sec. 15 HMA as of now forced me into some kind of a rough compromise, orphaning me socially and legally! As, not surprisingly the truth as I have learnt it is, for our supposedly wondrous public perception it is as though divorce by definition is anathema. Divorcees are taken to be social out casts, their Bio-data becoming almost inevitably, an elusive canvass wherein anyone and everyone can paint fantasies on. More so, as belonging to a category not to be recognized by anything beyond promiscuity. The point missed by the gloating, exultant others is that divorce is not consequence of moral turpitude but of moral incapacity, pain and despair.

Nonetheless, as a lawyer who took to the profession fascinated by the potency, the armour, the reliance it could extend to a genuinely aggrieved, I was devastated by my introduction to the recognition that law is nothing like it was made out to be!!

But then, is this puppy’s whimper loud enough for the lions out there to turn around?

Advocate, High Court of Kerala

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