SC rules, Marriage during pendency of Appeal against Divorce Decree not Void, if Appeal filed beyond time. [Read the Judgement]

21 Feb 2020

Categories: Latest News Marriage and Divorce News Case Analysis

On Wednesday, while giving judgement in a case titled as Krishnaveni Rai v/s Pankaj Rai & Anr, the Supreme Court has observed that a marriage contracted during the pendency of an appeal from a divorce decree isn't ab initio void especially when such an appeal is filed after expiry of the period of limitation.

CASE BACKGROUND

The petitioner herein had filed a maintenance plea against her husband which was dismissed on the grounds that the marriage was a nullity because the marriage had taken place while an appeal filed by her against a decree of dissolution of marriage with her first husband was still pending.

The legal question put up to the Top Court was whether the second marriage performed during the pendency of an appeal from a decree of divorce a nullity, even though there were no stay of operation of the decree.

The Apex Court in this regard referred to Section 5, Section 11 and Section 15 of the Hindu Marriage Act, 1955, and observed that never ever, it could be the legislative intent that a marriage validly contracted after the divorce and after expiry of the period of limitation to file an appeal from the decree of divorce should be rendered void on the filing of a belated appeal.

It held in the judgement:

"In any case, the bar of Section 15 is not at all attracted in the facts and circumstances of this case, where the appeal from the decree of divorce had been filed almost a year after the expiry of the period of limitation for filing an appeal. Section 15 permits a marriage after the dissolution of a marriage if there is no right of appeal against the decree, or even if there is such a right to appeal, the time of appealing has expired without an appeal having been presented, or the appeal has been presented but has been dismissed. In this case, no appeal had been presented with the period prescribed by limitation.

It could never have been the legislative intent that a marriage validly contracted after the divorce and after expiry of the period of limitation to file an appeal from the decree of divorce should rendered void on the filing of a belated appeal. If the marriage of the Appellant's ex-husband in 2006 was a valid marriage in law recognizing that he had no living spouse, the subsequent re-marriage of the Appellant could also not be void."

Where does Section 15 of the Hindu Marriage Act gets applied?

The Court observed that the bar, if any, applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce has stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal.

Stating all of the above, the bench allowed the appeal and the husband to pay maintenance to the petitioner-wife.

The judgement was passed by Justice Indira Banerjee and Justice MR Shah on 19-02-2020.

Read Judgement Here:

Tags : Supreme Court Divorce Divorce Cases Marriage and Divorce News marriage Void Marriage Hindu Marriage Act

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