Section 15 of the Hindu Marriage Act lays down conditions on when divorced persons may remarry. The conditions specifically mentioned are as follows:
- When there is no right of appeal against the divorce decree or,
- If there is a right of appeal, the time for appealing has expired without an appeal having been presented, or
- An appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again
However, in an appeal filed before the Supreme Court, a paramount issue on interpretation of the provisions of Section 15 were put forth before the Bench of Justice L Nageswara Rao.
The facts of the case were that the Appellant had sought for challenging a divorce decree granted in favour of his First wife before the High Court. However, during the pendency of the appeal, the Appellant and his first wife arrived at an amicable ‘settlement’ and the husband filed an application to withdraw the appeal which was subsequently granted by the High Court. In the midst of the acceptance of the withdrawal application, the Appellant married his second wife right before the High Court allowed the withdrawal and dismissed his appeal before it. The Second wife filed a petition before the Family Court seeking divorce on the ground that the marriage was null and void because of the pendency of the appeal against the divorce decree of the First wife at the High Court. The Family Court rejected the plea but was accepted by the High Court which declared the second marriage as null and void. Upon being appealed before the Apex Court, two issues were considered to be answered:
- Whether the dismissal of the appeal relates back to the date of filing of the application for withdrawal?
- Whether the marriage dated 06.12.2011 (second marriage) between during the pendency of the appeal against the decree of divorce (in first marriage) is void?
The Hon’ble Court primarily delved into the interpretation of the laws applicable on the instant appeal, the first being the provisions of Order XXIII Rule 1(1) of the CPC which was observed and laid down in Shiv Prasad v. Durga Prasad, and observed that Order XXIII Rule 1 (1) of the CPC gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. It said: “There is no doubt that Order XXIII Rule 1 of the CPC is applicable to appeals as well and the Appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. Therefore, the appeal is deemed to have been withdrawn on 28.11.2011 i.e. the date of the filing of the application for withdrawal”. It therefore concluded that the first wife would not be considered as a living spouse at the time of the second marriage thereby not attracting provisions of section 5(i) of the HMA Act.
The Hon’ble Court then proceeded with examining the applicability of Section 15 to the present case by making the following observation:
He observed: “Section 15 of the Act provides that it shall be lawful for either party to marry again after dissolution of a marriage if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.”
Therefore the Appellants intention to accept the decree of divorce was evidenced with the filing of the withdrawal application of his appeal against the decree of dissolution of the first marriage.
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