APPEAL AGAINST DIVORCE DECREE PENDING, STILL GET REMARRIED?

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The Supreme Court has been battling with the question of Subsequent marriage under the Hindu Marriage Act, 1955 while the divorce decree is still pending in the court, for quite some time now. The question of restriction on remarriage under section 15 of the Hindu Marriage Act was brought up in front of the court by aggrieved party (Husband) whose both marriages have ended up in the court.

His first marriage was dissolved by the trial court when his first wife filed for divorce. He appeal in the high court against the decision of the trial court. However, before the appeal could be decided by the High Court, both the parties came to an agreement and decide to withdraw their appeal application. The appeal was dismissed by the high court on 20th of December with the consent of both the parties.

However, the husband has gotten remarried to another woman on December 6th while the appeal was still pending. His second wife filed an application in the court to declare their marriage as void on the basis that the appeal of divorce with his first wife was still pending before the court when they both got married. The plea was rejected by trial court and granted by the high court. The aggrieved party (Husband) had approached the Supreme Court for reinstatement of his second marriage.

According to the section 15 of the Act, dismissal of appeal is necessary for remarriage while appeal against first divorce decree is still pending in the court.

Section 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.

And getting remarried while the appeal for first divorce is still pending would be contravening Section 5 (1) of the Act too. The Section lays down that remarriage is allowed between two Hindus who don’t have any living spouse at the moment of marriage.

The Supreme Court Bench consisting of Justices SA Bobde and L. Nageswara Rao have given a decision that Section 15 of the Hindu Marriage Act won’t apply to cases where the parties have consented not to challenge their divorce decrees, and appeals would be treated as dismissed from the date on which the application of withdrawing it was made.

The decision came in favor of the husband who got remarried just days before dismissal of his appeal against divorce decree. The Supreme Court relied on the Judgment given in Shiv Prasad V. Durga Prasad, observing the absolute right to the plaintiff to withdraw his suit or abandon any part of his claim, to bypass the restriction of Section 5(1).

The Bench supported their decision by stating that -“The Hindu Marriage Act is social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The Act intends to bring about social reforms. It is well known that this court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone”.

The decision is being welcomed by many as a considerable step towards more liberal Family laws. The decision to avoid nullity of marriage at any cost is to protect the sanctity of marriage.

By-

Neha Bargotra
Chairperson – Reporter’s Committee

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