WHETHER A MARRIAGE PERFORMED AFTER DIVORCE IS GRANTED AND

DURING PENDENCY OF APPEAL, WOULD BE SAID TO BE A VOID MARRIAGE?

The topic “whether a marriage performed during pendency of appeal” can be understood by
going through various judgements as this concept have a lot of pros and cons for both the
sides and during 1976, the amendment in the provision of section 15 of Hindu Marriage act,
1955 thereby allowing the spouses to remarry without finding out whether or not an appeal is
pending in the appellate court has created a lot of fuss in society till date.
To understand this concept, I am taking an example: Let's claim X applied for divorce and
the court granted it. The respondent who aggrieved by the decision files an appeal,
Meanwhile, X marries another woman. In such a scenario, what if the judgement is reversed
in the appeal, how legitimate would the second marriage be? When looking at situations like
this, one must consider that they arise as a result of one or both spouses performing their
respective "second marriage" shortly after the divorce has been granted.1
Section “15 of the Hindu Marriage Act, 1955 states that, “Divorced persons when may marry
again. a) When a marriage has been dissolved by a decree of divorce and either there is no
right of appeal against the decree or, b) if there is such a right of appeal, the time for
appealing has expired without an appeal having been presented, or c) an appeal has been
presented but has been dismissed, it shall be lawful for either party to the marriage to marry
again”.
In layman terms, Section 15 of the Act made it possible to remarry just one year after a
divorce order was issued, not before, and inserted a proviso in the hope that the couples
would be able to settle their disputes within that time period.

However, amendment in Marriage law (amendment) act, 1976 enabled couples to remarry
without first checking whether or not an appeal was pending in the appellate court. The effect
of this recent reform resulted in a variety of cases where the incidence of remarriage began to
increase, attracting the interest of many judicial officers and the Supreme Court. This resulted
in many inconsistent rulings in cases of appeals by spouses who were unhappy with the lower
courts' decisions.

1
Daljeet Singh, “Desirability of instant divorce by the judiciary: A Critique, Law Journal India, pg 439-452
In case of Chandra Mohini Srivastava v. Avinash Prasad Srivastava2:

Facts: On the 27th of May, 1955, the wife of Chandra Mohini was charged by her husband,
Avinash, with adultery with Prakash, a relative of the wife. The lawsuit was dismissed
because there was no "Sexual Involvement with Prakash," according to the lower court.
However, on January 7, 1964, the Allahabad High Court overturned the lower court's
decision, citing that the two letters written by Prakash in 1955 were sufficient evidence of
their adultery relationship. On 2/8/1964, the Supreme Court approved the wife's appeal for
Special Leave Petition. Following that, the husband petitioned the Supreme Court to have the
"private leave petition” revoked.
Following that, the husband petitioned the Supreme Court to revoke the "special leave
petition” on two grounds:
1. After the appeal was permitted, the High Court ordered his divorce.
2. He was totally unaware of his wife's plan to contest the decree until September 9, 1964.

Meanwhile, the husband remarried, claiming that there was no legal dispute between them.
Meanwhile, the husband remarried on 2/7/1967, claiming that there was no legal issue
between them. He already had a son with the second wife. The Apex court made two
observations in this case.
1. The wife was not obliged to notify him of her intention to appeal the decree.
2. It is correct that the husband was notified on September 9, 1964. In the other hand, the
same husband asked for the termination of special leave.

The husband's plea, however, was dismissed by Justices K.N. Wanchoo and G.K. Mitter, who
cited sections 15 and 28 of the Indian Penal Code as:
“Section 28 of the Act, inter alia, provides that all decrees and orders made by the court in
any proceedings under the Act may be appealed from under any law for the time being in
force as if they were decrees and orders of the court made in the exercise of its original civil
jurisdiction. These two sections make it clear that where a marriage has been dissolved,
either party to the marriage can lawfully marry only when there is no right of appeal against
the decree dissolving the marriage or if there is such a right of appeal, the time for filing the
appeal has expired without an appeal having been presented, or if an appeal has been

2
AIR 1967 SC 581
presented, it has been dismissed. It is true that section 15 does not in terms apply to a case of
an application for special leave to the Supreme Court”

In this case, both sides had similarly valid claims. In the case of the husband, he could argue
that his second marriage was not null and void because:
1. A right of appeal to the court is not valid.
2. It would not be unconstitutional for the respondent to marry directly after the High Court's
decision.
When it comes to the wife's side, it may be said that instead of marrying again right away, the
husband had an obligation to inquire whether there was an appeal on the wife's side over the
divorce decree. The author believes that the second union should be declared null and invalid.
The explanation for this is that, although the Supreme Court did not directly discuss the
fairness of the ruling, it did implicitly overturn it.

Without giving any clear judgement, Court held that “Under the law laid down in this
enactment, monogamy is the norm, and a party can only contract a legitimate second
marriage after the first ceases to exist in the manner envisaged by section 15,” the court has
hinted. The law set out in this clause is an important part of the litigation, since it is the sole
means for all parties to a divorce decree to be freed from their failure to contract a new
marriage.” This proves that the marriage with second wife is void.

In another case Lila Gupta v. Laxshmi Narain and ors3:

Facts: The first wife's divorce was granted by the lower court. Rajender married Lila Gupta
again a month later, and he died two years later. As a result, Lila, the second wife, claimed
her right to the deceased's house. She eventually obtained the assets by legal means. Laxmi
Narain and Others, on the other hand, filed a petition in the Allahabad High Court, alleging
that Lila's rights were in violation of section 15 of the Act. A single bench judge admitted the
plea, and then a division bench did as well. Following that, Lila appealed the ruling.

All the three judges, R.C Pathak, D.A. Desai and Y.V. Chandrachud, wrote their own
judgements. Chandrachud and Desai referred to “section 5, 11, 12” of the Act and stated:
“Any marriage solemnized in contravention of conditions laid down in clauses (i), (iv) and (v)
of section 5 is declared as 'void' while section 12 declares that any marriage solemnized in
3
AIR 1978 SC 1351
contravention of the condition laid down in clause (ii) of section 5 only as 'voidable' and this
indicates that only certain marriages are void while others are not provided in the Act”.
Further the court observed that, “neither the marriage is void nor voidable in absence of any
provision but section 18 only prescribes simple punishment without declaring the marriages
as void”.
Also, the reference to section 15 was given by the judges to highlight that, “the net result is
that now since the amendment, parties whose marriage is dissolved by a decree of divorce
can contract marriage soon thereafter provided the period of appeal has expired”. Justice
Pathak was too in favour of the appeal and stated that, “Right to marriage shall not be
exercised before the decree of divorce has reached finality. A marriage solemnized in
violation of the main provision of Section 15 is nullity cannot be summarily rejected”

Hence, all the three judges were of the mutual opinion that even though the marriage between
Lila and Rajendra was violative of Section 15 of the Act, it cannot be fully denied that Lila
was not the legitimate wife. Eventually, she was given the status of a wife and even declared
as the official heir to Rajender.

In both the above cases, court held that second marriages were void during pendency of
appeal and could only be voidable if facts of the particular case hint to this side just like in
lila gupta case.

Until now, it has been found that courts were not clear about their decisions when
determining the legitimacy of a second marriage when a divorce order was pending.
However, since the amendment in 1976, courts have been more forthright in their rulings
have recently ruled that the legitimacy of the second marriage would not be absolutely void.

In the recent case of Krishnaveni Rai v. Pankaj Rai & Anr4 , the Apex court held that, “A
marriage contracted during the pendency of an appeal from a divorce decree isn't ab initio
void especially when such an appeal is filed after expiry of the period of limitation”.
The court 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
4
Krishnaveni Rai v. Pankaj Rai & Anr AIR 2020
during the pendency of the appeal. 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”.

In layman’s term, it was lawful under section 15 to remarry after divorce with first spouse
even if there is a right to appeal, but the limitation period has expired or the appeal though
presented has been dismissed.
In another case of Kanchan v. Prashant Manikrao Bagade5, the Bombay High Court
dismissed the wife's appeal against the divorce order, ruling that the husband's second
marriage to another woman could not be considered contempt of court or a breach of section
15. In his decision, Justice Anil Kilor noted that, while section 15 allows for a second
marriage to be solemnised after the first marriage's finality of appeal, it never says that the
results of a second marriage would be void.” the court concluded.

All these decisions vary from case to case according to factual need of the case.

5
 2020 SCC OnLine Bom 911,