Marriage contracted during pendency of appeal from a divorce decree filed after expiry of limitation period, is not void

The Supreme Court in the matter of Krishnaveni Rai vs. Pankaj Rai & Anr. (Criminal Appeal No. 321 of 2020), decided on 19.02.2020 has observed that a marriage contracted during the pendency of an appeal from a divorce decree is not ab initio void especially when such an appeal is filed after expiry of the period of limitation.

Facts
In this case, a maintenance petition filed by a wife 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.

Issue
The issue for consideration before the Apex 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.

Ratio
Referring to Sections 5, 11 and 15 of the Hindu Marriage Act, 1955, the Apex Court observed that it could never have been the intent of the Legislature 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.
Section 15 permits a marriage after 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.
The Court further observed that the bar if any, under Section 15 of the Hindu Marriage Act 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 is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal.
In this case as no appeal had been presented with the period prescribed by limitation, the bench allowed the appeal and directed the husband to pay maintenance to the wife.