When can a Hindu remarry after divorce?

Post divorce remarriage

The Section 15 of the Hindu Marriage Act is the provision that deals with the eligibility of a divorced person to remarry after the issue of a divorce decree by the trial court.

After the decree of divorce, both the parties have to wait at least for 90 days for getting married with someone else again.

Remarriage not lawful when appeal pending

The law states that after dissolution of a marriage either party can marry again, if there is no right of appeal against the divorce decree.

In case an appeal is filed a remarriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce. When an appeal is pending it shall not be lawful for a party to remarry.

The purpose of the Section 15 of the act is to ensure that when an appeal is filed against the decree of dissolution of marriage by a party in a divorce case, the appeal shall not be defeated by the act of an early remarriage. The provision purports to avert undue complication due to a second marriage during the pendency of the appeal. It protects the interest of the person who is contesting the decree of divorce, in case the decree of divorce is reversed in the appeal.

No prohibition in mutually consented divorce

However, the prohibition of a second marriage under the Section 15 of the act would not apply to the parties of a mutually settled divorce.

In such a marriage either of the divorced parties can remarry any day immediately after the divorce is granted. This is because such a divorce decree is not appealable as per law and the decree of divorce of the trial court itself is therefore final.

Post marriage divorce cannot be termed void

In Mr. Anurag Mittal v Mrs. Shaily Mishra Mittal case [ (2018) 9 SCC 691] the Supreme Court (SC) held that a marriage contracted during the pendency of an appeal from a divorce decree is not ab initio void when such an appeal is filed after expiry of the period of limitation. That means the delayed filing of the appeal will enable the other party to remarry as the prohibition of remarriage comes to an end by the end of the appeal period.

Similarly, the Bombay High court recently held that Section 15 of the act allows remarriage only after the dismissal of appeal, but since no consequences for contravention of the provision are provided in the law, a remarriage during pendency of appeal cannot be termed void. Such a post divorce marriage cannot be considered as an act of contempt of court as well.

No law penalizes a remarriage

The Section 11 of the Act states that any marriage solemnized after commencement of the Act shall be null and void if it contravenes any of the conditions specified in Clauses (i), (iv) and (v) of Section 5.  The Section 5(1) of the Act puts a bar on the second marriage and says that a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage.

On the day of the divorce decree the parties in the divorce case cease to be spouse living. Therefore, if a party holding a divorce decree marries again during the period of incapacity such a marriage cannot be declared void.

Even if there is a stay of the judgment by a superior court the effect is only that the decree of divorce remained in abeyance but it does not become non-existent.

The SC states this principle in Leela Gupta v Laxmi Narain & Ors [(1978) 3 SCC 258] and the subsequent judgments. The SC categorically states that merely because each one of the parties in the divorce decree is prohibited from contracting a second marriage for a certain period, it cannot be said that the first marriage subsists or is presumed to subsist.

Imposing some incapacity on the parties for the second marriage for a certain period does not have the effect of treating the former marriage as subsisting.  Therefore a marriage contracted during that period of incapacity will not be void.

There is no specific provision in the law that can be invoked to make the prohibition effective or to punish the person who remarries during such period of prohibition. The prohibition is after all a paper tiger of no much value at all.

Additional reading

  1. The judgment in Mr. Anurag Mittal v Mrs. Shaily Mishra Mittal, available at https://indiankanoon.org/doc/124571211/
  2. The judgment in Leela Gupta v Laxmi Narain & Ors [(1978) 3 SCC 258], available at https://indiankanoon.org/doc/1549626/
  3. The judgment in Krishnaveni Rai v Pankaj Rai & Anr available at https://main.sci.gov.in/supremecourt/2019/26750/26750_2019_3_1501_20710_Judgement_19-Feb-2020.pdf

 

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K Rajasekharan Online
on 18 January 2021
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