Restriction for Remarriage Under Hindu Marriage Act primarily applicable to parties contesting the Decree of Divorce.

The Supreme Court delivered an important judgment qua the provision in the Hindu Marriage Act 1955 which puts a condition on a divorcee in contracting a second marriage. It has been held that the protection that is afforded by Section 15 of the Hindu Marriage Act is primarily to a person who is contesting the decree of divorce.
The Apex Court observed in the matter titled as Anurag Mittal Vs. Shaily Mishra Mittal [Civil Appeal No.18312 of 2017] decided on 24.08.2018, that restriction placed on the second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.

Challenge

In the instant case, the first marriage of the husband/Appellant failed, and the wife/Respondent successfully obtained a decree of divorce. The Appellant appealed against the said decree before the High Court, but during the pendency of the appeal, the couple ‘settled’ to part with each other and the husband filed applications to withdraw the appeal.

He married another woman on 06.12.2011, on which day his application seeking withdrawal of appeals challenging divorce decree was ‘pending’ before the High court which had only passed orders on it on 20.12.2011. The second wife approached the Family court seeking divorce on the ground that the marriage contracted by him with her is null and void because of the above-said fact of pendency of the appeal before the High court on the date of second marriage.

Two broad issues were taken into consideration by the Apex Court:

• Whether the dismissal of the appeal relates back to the date of filing of the application for withdrawal?
• Whether the marriage dated 06.12.2011 (second marriage) during the pendency of the appeal against the decree of divorce (in first marriage) is void?

Held

The Apex Court interpreting Section 15 of the Hindu Marriage Act read into the proviso of the said section which states that ‘it shall not be lawful for the respective parties to marry again unless at the time of such marriage at least one year has elapsed from the date of the decree in the Court of first instance’. The Bench relied on Lila Gupta v. Laxmi Narain, a judgment of the Apex court interpreting the said proviso wherein it was held that a marriage in contravention of the proviso to Section 15 is not void.

While interpreting Section 15, the Apex Court appreciated that the object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated and that the purposes of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.

It was therefore, held that the appellant’s marriage was not subsisting when he married again as an application for withdrawal of his appeal against the decree for dissolution had been already filed and there was nothing to contradict his intention to accept the decree of dissolution.