Second marriage not void during pendency of appeal against divorce

The apex court's verdict came as it set aside Delhi High Court's August 2016 judgement which had declared as null and void the second marriage of a man during pendency of his appeal against divorce

The Supreme Court has held that the second marriage of a person during the pendency of an appeal against a divorce decree would not be void in cases where the parties have decided not to pursue the appeal.

A bench of Justices S A Bobde and L N Rao, while interpreting section 15 of the Hindu Marriage Act dealing with the issue of marriage by divorced persons, said the restriction placed on second marriage till the dismissal of an appeal would not apply in cases were the parties have arrived at a settlement and decided not to go ahead with the appeal.

"Following the principles of purposive construction, we are of the opinion that the restriction placed on a 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," the bench said.

Section 15 of the Act states that it shall be lawful for either party to marry again after dissolution of a marriage if there was no right of appeal against the decree of divorce. It also said the second marriage by either of the parties shall be lawful only after dismissal of appeal, if any, against the decree of divorce.

The apex court's verdict came as it set aside Delhi High Court's August 2016 judgement which had declared as null and void the second marriage of a man during pendency of his appeal against divorce.

"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 said.

While referring to an earlier judgement of the apex court, the bench said it was held that "incapacity for second marriage for a certain period of time does not have the effect of treating the former marriage as subsisting and the expression 'spouse' would not include within its meaning the expression 'former spouse'."

The first marriage of the man was dissolved by the trial court after his then wife had approached the court seeking divorce. The man had approached the high court against the trial court's order. During the pendency of appeal, both the parties arrived at a settlement after which the man filed an application to withdraw his appeal against the trial court order. The high court on December 20, 2011, dismissed his appeal as withdrawn in terms of the settlement.

However, the man married another woman on December 6, 2011. His second wife thereafter filed a petition for declaring the marriage as void and raised the ground that the appeal filed by the man against the divorce with his first wife was pending before the high court when the marriage was solemnised between them. The trial court had rejected her plea, following which she had approached the high court which declared their marriage as null and void.

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