August 28, 2018
Divorced persons when may marry again –In this recent judgment, the Supreme Court has rendered an extensive judgment clarifying the law pertaining to remarriage of divorced persons. The Apex Court’s judgment throws light on the circumstances in which second marriage in such cases would be valid.
Case name: Mr. Anurag Mittal v. Mrs. Shaily Mishra Mittal
In the case, the Appellant was earlier married to one, Ms. Rachna Aggarwal. Later on the marriage was dissolved between the Appellant and Ms. Rachna Aggarwal, however the Appellant filed appeals against order of dissolution of marriage. During the pendency of the appeal, a settlement was reached between the Appellant and Ms. Rachna Aggarwal on basis of which the Appellant filed for withdrawal of appeal against the judgment of dissolution of marriage. The cause of action in the case arose when the Appellant married the Respondent even before the appeal was withdrawn by the High Court in the case.
Hence, the Respondent applied for divorce in the case on the ground that her marriage with the Appellant was void as appeal against the decree of divorce in his earlier marriage was pending on the date of their marriage. The Family Court dismissed the petition filed by the Respondent, however the High Court declared the marriage between the Appellant and the Respondent held on 06.12.2011 as null and void. Aggrieved by the judgment of the High Court, the Appellant has approached this Court.
The two-Judge Bench of the Supreme Court while arriving at its judgment made reference to the provision of Divorced Persons. When Marry again as enumerated under Section 15 of the Hindu Marriage Act, 1955.
- According to the provision when a marriage has been dissolved by a decree of divorce and either 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 presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.
The Court noted that the proviso to Section 15 of the Act stated that it shall not be lawful for the respective parties to marry again unless at the time of such marriage at least one year has elapsed from the date of the decree in the Court of first instance. However, the said Proviso was repealed w.e.f. 27.05.1976.
- The Supreme Court opined that as per the statutory provision, in case of a dissolution of marriage, a second marriage shall be lawful only after dismissal of the appeal. However, the Supreme Court has held in the case that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.
- The Apex Court in the case while elaborating on the validity of second marriage in case of divorce in earlier marriage noted that The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and has to be interpreted in a manner which advances the object of the legislation.
- The Court was of the view that the Act intends to bring about social reforms and it is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone.
- When it shall Lawful to Marry again for Divorced Persons- While elucidating on the legislative intent behind enactment of Section 15 of the Act, the Supreme Court opined 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.
- Object of Section 15 of the Hindu Marriage Act, 1955– The Court also noted that 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.
The entire case can be accessed here.