SC expounds: Second Marriage is not void even if solemised during pendency of Divorce Appeal. Read Judgment

26 Aug 2018

August 26,2018:

Supreme Court has expounded that,"Although Hindu Marriage Act prescribes that it shall be lawful to marry again only after dismissal of an appeal filed by aggrieved party against the decree of divorce".

Apex Court Bench clarified that Second Marriage would not be void if solemnised during the pendency of appeal.

SC Bench comprising of Justice SA Bobde and Justice L Nageswara Rao while interpreting Section 15, Hindu Marriage Act, stated that incapacity for Second Marriage for a certain period of time (during the pendency of appeal against divorce )did not have the effect of treating the former marriage as subsisting and that a marriage contracted during that period will not be void because it was contracted under an incapacity".

Section 15 lays down that 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.

Section 5(1) of the Act adds that a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage.

Supreme Court proceeded to set aside Delhi HC's order which had held that any marriage solemnized by a party during the pendency of the appeal wherein the operation of the decree of divorce was stayed, would be in contravention of Section 5 (i) of the Act. It passed the order on an appeal filed by a man challenging HC verdict which had declared his second marriage void on a plea of his second wife.

According to the Facts, a man got married the second time when his appeal against divorce from his first wife was pending in HC.

During pendency of his plea, he had settled the dispute with his first wife and filed an application for accepting the divorce and sought withdrawal of his appeal.

But a fortnight before the HC passed the formal order allowing him to withdraw his appeal, he got married for the second time.

His second marriage also did not turn out to be blissful and matrimonial discord between the couple led his second wife to challenge validity of the marriage stating that it was void as it was solemnised during the pendency of case in HC.

After hearing both the parties, Apex Court Bench concluded that violation of Section 15 did not render marriage void.

Bench further added that,“if a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity”.

“The Hindu Marriage Act is a 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 bench concluded.

Source TOI