The Supreme Court has observed that a marriage contracted during the pendency of an appeal from a divorce decree is not ab initio void especially when such an appeal is filed after expiry of the period of limitation.
In this case, a maintenance petition filed by a wife was dismissed on the grounds that the marriage was a nullity because the marriage had taken place while an appeal filed by her against a decree of dissolution of marriage with her first husband was still pending. The issue considered by the Apex Court was whether the 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.
Referring to Sections 5, 11 and 15 of the Hindu Marriage Act, 1955, the bench of Justices Indira Banerjee and MR Shah observed that 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
In any case, the bar of Section 15 is not at all attracted in the facts and circumstances of this case, 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. In this case no appeal had been presented with the period prescribed by limitation.
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. If the marriage of the Appellant’s ex-husband in 2006 was a valid marriage in law recognizing that he had no living spouse, the subsequent re-marriage of the Appellant could also not be void.
The Court observed 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.
Holding thus, the bench allowed the appeal and directed the husband to pay maintenance to the wife.
