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Remarriage after divorce

Marriage under the Hindu Marriage Act of 1955 is seen as a holy sacrament and not  a contract.

As described in the Introduction of the Hindu Marriage Act, the act is based on the maxim, “conjuncticmartitetpeminaeest de nature”, meaning, “to keep the husband and wife together is the law of nature.”

The protection of the institution of marriage is always seen at the helm of justice.

The State of Indiaisriding on the stability of this pious institution.

The first divorce law was introduced in India by the British in 1866, called the Converts Marriage Dissolution Act, 1866. This Act was meant for the lower caste Indians who were converting their religion to the one followed by their Colonisers.

Among Hindus, divorce was legalized after independence in the former states of Bombay in 1947, Saurashtra in 1952, and Madras in 1949.

Then, came the Hindu Marriage Act 1955 for the Hindus in India.

The divorce law has seen several changes through the years to meet the changing needs of society.

In a recent 2020 Judgment passed by the Supreme Court, the Court stated that the “cooling off” period of 6 months is not compulsory, if the parties don’t show any signs of reconciling.

Taking a liberal view, keeping in mind the current temperaments and the fast-paced culture, the Court stated that, "We are of the view that the period mentioned in section 13B(2) is not mandatory but directory; it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation."

Under section 15 of the Hindu Marriage Act, The parties are not allowed to remarry within 90 days after the final decree of divorce is announced and if an appeal is preferred during this period, then the time frame in which the appeal is pending.

However, in a 2018 judgment,Anurag Mittal v Shaily Mishra Mittal ( 2018 SCC online SC 1136) , Justice Bobde and Justice Nageshwara Rao held that, “if  a marriage is solemnized during that period, then the marriage will not be held to be void.”

The Court, in this case, made certain observations and stated that, although the second marriage can be solemnized only after the appeal period has expired, or if the parties have settled the matter to not file an appeal or if there is no right of such an appeal, yet, if the parties have, gone ahead and remarried, it will not hold the second marriage void.

“If the law prescribes an incapacity to marry and yet the person marries while under the incapacity, then the marriage would not be void in the absence of an express provision that declares nullity.

The Court while agreeing with a view that the object of section 15 is to provide protection to the person going in appeal, also appreciates the fact that the Hindu Marriage Act is a “socially beneficial” document, that needs to be read in the light of the dynamic society and not “as if the words therein are cast in stone”.

Therefore, as the society is growing and transforming, the law and judicial decisions are also evolving.

Marriage is no more an indivisible, divine bond that is broken only in heaven, today it is a more volatile attachment that is seen through the prism of a mutating nation.

 

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