SC:Remarriage while pendency of appeal against divorce isn’t void ab initio

The Hon’ble Supreme Court, on 19th February 2020, in the matter of Krishnaveni Rai v. Pankaj Rai & Anr. pronounced that a marriage contracted during the pendency of an appeal from a decree of divorce is not ab initio void, and certainly not when such an appeal is filed after expiry of the period of limitation.

Question before the Hon’ble Supreme Court:

Is a 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 ?

Court’s observation(s):

A marriage which is null and void is no marriage in the eye of law. Where the marriage is a nullity application for maintenance is liable to be set aside on that ground alone. (Para 26)

A careful reading of Sections 5, 11 and 15 makes it amply clear that while Section 5 specifies the conditions on which a marriage may be solemnized between two Hindus, only contravention of some of those conditions render a marriage void. (Para 28)

Contravention of Sections 5(ii) or 5(iii) of the Hindu marriage Act does not render the marriage null and void. In such a case, the marriage is voidable at the option of the underaged party to the marriage or the party who could not have validly consented to the marriage. (Para 30)

Section 15 clarifies that when a marriage has been dissolved by a decree of divorce, and 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 preferred, or an appeal has been presented but the same has been dismissed, it shall be lawful for either party to the marriage to marry again. Had it been the legislative intent that a marriage during the pendency of an appeal should be declared void, Section 11 would expressly have provided so. (Para 31)

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. (Para 35)

It could never have been the legislative intent 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 rendered void on the filing of a belated appeal. (Para 37)

A marriage contracted during the pendency of an appeal from a decree is not ab initio void, and certainly not when such an appeal is filed after expiry of the period of limitation. (Para 38)

Copy of judgement: Judgement_19-Feb-2020

-Adv. Tushar Kaushik

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