Balakrishna Menon, J.This appeal by the respondents is against the ex parte decree dissolving the marriage between the petitioner and the first respondent passed by the lower Court u/s 13 of the Hindu Marriage Act, 1955.

2. The petitioner had married the first respondent on 6-6-1976. A petition u/s 13 of the was filed on 29-10-1980 for dissolution of the marriage on the ground that the first respondent wife had after solemnization of the marriage voluntary sexual intercourse with the second respondent her sisters husband. Both the respondents filed written statements denying the allegation of adultery. The case was posted from time to time and on 12-1-1984 it was posted for trial on 22-2-1984. The case was, however, advanced to 4-2-1984 on an oral representation made on behalf of the petitioner (we do not see any petition to advance the trial of the case among the records sent up to this Court). The respondents were absent on 4-2-1984. The power of attorney holder of the petitioner was examined as P. W.-1. Arguments on behalf of the petitioner were heard on 4-2-1984 itself and the case was posted for orders on 8-2-1984. The Court below on 8-2-1984 passed a decree dissolving the marriage between the petitioner and the first respondent on its finding that the first respondent is guilty of adultery after the solemnization of her marriage with the petitioner. The only evidence adduced in the case is the oral evidence of P.W. 1 the power of attorney 1j holder of the petitioner. The finding of 1 adultery is based entirely on the evidence of P.W. 1.

3. The respondents filed this appeal on 26-5-1986 long after the period of 30 days for an appeal provided for u/s 28(4) of the. The appeal was accompanied by a petition C.M.P. 11164 of 1986 to condone the delay in filing the appeal. A learned Judge of this Court by order dt. 12-8-1967 after hearing both parties condoned the delay and the appeal was taken to file. In the counter-affidavit filed in C.M.P. 1739/1988 for stay of operation of the decree, the petitioner husband has averred that he had on 20-12-1985 married one Omana and a male child was born to Omana on 15-11-1986. Ext. R1(a) produced along with the counter-affidavit is the certificate of marriage issued by the Local Registrar of Marriages.

4. Counsel for the respondent in this appeal has raised a preliminary objection that the appeal has become infructuous for the reason of the second marriage of the petitioner at a time when there was no impediment for such marriage by virtue of the provisions of Section 15 of the. Section 15 of theafter the deletion of its proviso by the Marriage Laws Amendment Act 68/1976 reads :

"15. Divorced persons when may marry again.-- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again".

Counsel points out that the second marriage of the petitioner was at a time when there was a decree dissolving the marriage between the petitioner and the first respondent in force, no appeal had been filed against the decree and the time for filing the appeal had expired. It is also pointed out that the appeal itself was filed with a petition to condone the delay long after the second marriage of the petitioner. Since, according to the petitioner, the second marriage is valid u/s 15 of the, the appeal itself has become infructuous and is liable to be dismissed on that ground. Counsel relies on the decision of the Madhya Pradesh High Court in Shakuntala @ Shakum v. Govind Prasad (1985) 1 DMC 472 in support of the proposition. A learned Judge of the Madhya Pradesh High Court in the aforesaid decision following an earlier decision of a Division Bench of the same High Court in Mohanmurari Vs. Smt. Kusum Kumar i, has in similar circumstances held that the second marriage is perfectly valid as the earlier marriage had been dissolved by the decree of the trial Court and if the appellant wanted the respondent not to contract a second marriage, she should have filed an appeal in time and obtained an order of Court directing the respondent to maintain the status quo. The appeal was accordingly dismissed as infructuous for the reason of the second marriage of the respondent. We find it difficult to agree with the view expressed by the Madhya Pradesh High Court in Mohanmurari Vs. Smt. Kusum Kumar i, and in Shakuntala alias Shakun v. Govind Prasad (1985) 1 DMC 472 A Full Bench of this Court in Kunnarath Yesoda Vs. Manathanath Narayanan, considering the applicability of Section 12 of the Limitation Act for an appeal u/s 28 of the Hindu Marriage Act observed t p. 543 (of Ker LT) : (at p. 223 of AIR) :

"By providing for appeals in Section 28 of the Hindu Marriage Act, the decrees are held to be appealable as "decrees of the Court made in the exercise of its original civil jurisdiction" and the forum for filing such appeal is prescribed by stating that "every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of that Court". The appeal under the Hindu Marriage Act is thus a remedy available under the special enactment with all the characteristics of an appeal under the CPC and the High Court, in appeal has the same jurisdiction and exercises the same power and authority available in respect of every appeal under the Code".

It is further stated at page 545 :

"Section 15 of the Hindu Marriage Act only declares that it shall be lawful for either party to the marriage to marry again under certain circumstances. From this it does not follow that a right to remarry enures automatically after the expiry of 30 days from the date of the decree of divorce. If an appeal is presented, one will have to wait till it is dismissed. If there is a right of appeal, the time for filing the appeal should have expired without the appeal being filed, taking into consideration the time required for obtaining the certified copy. The period for filing the appeal does not expire if once the delay in filing the appeal is condoned".

5. In the present case the delay in filing the appeal had been condoned by order of this Court dt. 12-8-1987 and the appeal should therefore be deemed to have been filed within the time allowed by law.

6. The question whether the special leave granted for an appeal against the decree of the High Court, dissolving the marriage between the parties is liable to be cancelled for the reason of the remarriage of the respondent was considered by the Supreme Court in Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581 [LQ/SC/1966/266] . Referring to Sections 28 and 15 of thethe Supreme Court observed at p. 583 :

"These two sections make it clear that where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or, if there is such a right of appeal, the time for filing appeal has expired without an appeal having been presented, or if an appeal has been presented it has been dismissed. It is true that Section 15 does not in terms apply to a ease of an application for special leave to this Court. Even so, we are of the opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot be marrying immediately after the High Courts decree and thus take away from the losing party the chance of presenting an application for special leave. Even though Section 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Courts decree, for no appeal as of right lies from the decree of the High Court to this Court in this matter, we still think it was for the first respondent to make sure whether an application for special leave had been filed in this Court and he could not by marrying immediately after the High Courts decree deprive the appellant of the chance to present a SLP to this Court. If a person does so, he takes a risk and cannot ask this Court to revoke the special leave on this ground. We need not consider the question as to whether the child born to the new wife on May 20, 1965 would be legitimate or not, except to say that in such a situation Section 16 of themay come to the aid of the new child. We cannot, therefore, revoke the special leave on the grounds put forward on behalf of the first respondent and hereby dismiss his application for revocation of special leave".

The decision in Chandramohinis case AIR 1967 SC 581 [LQ/SC/1966/266] was followed in a later decision of the Supreme Court in Tejinder Kaur Vs. Gurmit Singh, The decision of the Madhya Pradesh High Court in Mohanmurari Vs. Smt. Kusum Kumar i, was expressly dissented from by a learned Judge of the Madras High Court in Vathsala Vs. N. Manoharan, . In that case the wife obtained an ex parte decree of nullity of marriage against the husband and contracted a second marriage during the pendency of an application to set aside the ex parte decree. The learned Judge observed (Para 2) :

"What appears to me is that when an order of nullity of marriage is made and the law allows an appeal as well as an application to set aside an ex parte order and actually these remedies have been resorted to, any act of the parties pending final disposal of those remedies availed of cannot have the effect of rendering them infructuous, so to speak. Where such remedies are provided from an order, the order should be taken to be valid and in force, but only subject to the result of the application to set aside the ex parte order or the result in the appeal. To hold otherwise would mean that by an act of the party, he can successfully defeat the lawful remedy accorded to the aggrieved person".

7. In taking the above view the learned Judge has followed the decision of the Supreme Court in Chandra Mohinis case AIR 1967 SC 581 [LQ/SC/1966/266] . To the same effect is the decision of a Division Bench of the Jammu and Kashmir High Court in Krishen Lal v. Krishna AIR 1971 J & K 31. In that case a petition for restitution of conjugal right was dismissed by the trial Court on the finding that there was no valid marriage between the parties. The respondent wife married another person during the pendency of an appeal before the High Court A contention on behalf of the respondent that the appeal has become infructuous for the reason of her marriage was repelled following the decision of the Supreme Court in Chandranchinis case (AIR 1967 SC 581 [LQ/SC/1966/266] ) and of the Madras High Court in Vathsala Vs. N. Manoharan, The learned Judges dissented from the decision of the Madhya Pradesh High Court in Mohanmurari Vs. Smt. Kusum Kumar i, and after hearing the appeal on merits granted a decree in favour of the appellant for restitution of conjugal right.

8. For the aforesaid reasons, we overrule the preliminary objection that the appeal has become infructuous for the reason of the second marriage of the petitioner after the decree dissolving the marriage passed by the trial Court.

9. The ground on which a decree for dissolution of marriage is claimed in this case in that the wife after the solemnization of marriage had voluntary sexual intercourse with the second respondent. The only evidence in support of the plea is that of P.W. 1 the power of attorney holder of the petitioner examined on 4-2-1984. The records do not show that the respondents had notice of the posting of the case on that date. The case was actually posted for trial on 22-7-1984. The trial had been advanced to 4-2-1984 and an ex parte decree is passed against the respondents on 8-2-1984. The respondents had thus no opportunity to cross-examine P.W. 1 and to adduce evidence on their behalf. The decree appealed against cannot, therefore, be sustained. It is accordingly set aside and the case is remanded to the lower Court for fresh disposal in accordance with law and in the light of the directions and observations contained in this judgment The parties will appear before the Court below on 3-4-1989. The appeal is allowed as indicated above. There will be no order as to costs in this appeal.