Second marriage, during pendency of appeal against divorce decree filed after expiry of period of limitation, is valid; SC.

Supreme Court of India

Justice Indira Banerjee & Justice M R Shah

The SC {Krishnaveni Rai v. Pankaj Rai & Anr.} holds that  the bar of Section 15 is not at all attracted, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an 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.  It was held that in this case no appeal had been presented with the period prescribed by limitation.

Further, held 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.

It was also held that the effect of the prohibition against one of the parties from contracting a second marriage for a certain period is not to nullify the divorce and continue the dissolved marriage, as if the same were subsisting.

Accordingly, the present case was remitted by the SC to the appropriate Court having jurisdiction for determination of the Appellant’s claim to maintenance. In the meanwhile, it was directed by the SC that the Respondent No.1 shall pay to the Appellant maintenance of Rs.20,000/- per month, as directed by the Family Court by its order dated 19.12.2018, without prejudice to the rights and contentions of either party, until further orders of the appropriate Court/Family Court in the application under Section 125 of the Cr.P.C.

In the present case, the appeal was against a judgment and order dated 9.4.2019 passed by the High Court for the State of Telangana, dismissing Criminal Revision Case No. 2587 of 2017 filed by the Appellant under Section 397/401 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”), challenging the order dated 7.8.2017 passed by the Additional Metropolitan Sessions Judge, Fast Track Jubilee Hills Bomb Blast Case(JHBBC)-cum-Additional Family Judge at Hyderabad, dismissing the application of the Appellant under Section 125 of the Cr.P.C. for maintenance, on the purported ground that the marriage between the Appellant and the Respondent No.1 was a nullity. The appeal was allowed by the SC.