Status of parties when divorce appeal is pending

Querist : Anonymous (Querist) 30 December 2020 This query is : Resolved
The Family Court granted divorce in husbands favour and wife filed a appeal in High Court .What is the status of parties when appeal is pending ? Can husband marry when appeal is pending ?Will it attract bigamy ?

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When a divorce decree is granted but an appeal is filed in a higher court, the status of the parties and the legality of remarriage become complex. While a divorce decree is in effect, remarriage during the appeal process is generally not advisable and can lead to complications, even if a stay order hasn't been granted. Legal interpretations suggest that remarriage might not be considered void ab initio, particularly if the appeal is filed after the limitation period, but it's crucial to consult a lawyer for specific advice due to the potential for reversal of the divorce decree.

Isaac Gabriel (Expert) 30 December 2020
If the court has not granted stay, nothin illegal to proceed.Neverthless consult your lawyer about the stage of appeal.

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Querist : Anonymous (Querist) 30 December 2020
The first appeal is just filed , stay application not decided . How much time will the stay application need to be decided by High Court ? Also is stay granted easily ?

Advocate Bhartesh goyal (Expert) 31 December 2020
Husband has to wait till limitation to file appeal expires thereafter husband can get marry if he does not receive the notice from H.C.Court and if he gets the notice from H.C. then he has to wait till on order of stay application.

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Guest (Expert) 31 December 2020
On 19th Feb 2020 in the case titled Krishnaveni Raj VS Pankaj Raj & Anr the Supreme Court Bench of Honorable Justice Indira Banerjee and Mr Shah had observed that a marriage contracted during the pendency of an appeal from a divorce decree ISN'T ab initio void especially when such an appeal is filed after expiry period of limitation

Rajendra K Goyal (Expert) 31 December 2020
Agree with the advice from expert Advocate Bhartesh goyal.

SHIRISH PAWAR, 7738990900 (Expert) 31 December 2020
Hello,

During the pendency of the appeal, the husband cannot remarry even if the stay is not granted.

Querist : Anonymous (Querist) 01 January 2021
@Shirish Sir ...Why cant husband marry even if there is no stay ?

Guest (Expert) 02 January 2021
Legally you could remarry the day when the court releases / pronounces the Divorce Orders in India.

K Rajasekharan (Expert) 02 January 2021
When a Hindu can remarry after a decree of divorce by a trial court is a tricky issue as of now.

The Section 15 of the Hindu Marriage Act says either party in a post divorce situation can remarry, if there is no right of appeal against the divorce decree. In case an appeal is filed a second marriage 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 a party to remarry.

The purpose of the Section is to avert undue complication due to a second marriage during the pendency of the appeal, and to protect the interest of the person appellant, when the decree of divorce is reversed.

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. This is because such a divorce decree is not appealable as per law and the decree of divorce of the trial court itself is final.

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, the Supreme Court held in a case.

The Bombay High court recently held that Section 15 of the act allows remarriage only after the dismissal of appeal. The court made it clear that 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 also. There is no provision in the law that can be invoked either to make the prohibition effective or to punish the person who remarries when such prohibition exists. The prohibition is a paper tiger of no much value at all.

However it is a matter of prudence not to remarry if there is a reasonable chance of reversal of the divorce degree.

Even if you remarry nothing much will happen as the earlier marriage is not legally subsisting after the divorce decree.

Querist : Anonymous (Querist) 02 January 2021
If husband remarries during pendency of appeal can it attract bigamy case ?

K Rajasekharan (Expert) 02 January 2021
The section 15 of the Hindu marriage act & the sections 494 - 495 of the Indian penal Code deal with bigamy.

As per the sections bigamy is attracted only when a husband or wife living. After dissolution of marriage by a decree of a District Court one party in the proceedings cannot think the other one as a husband or wife living.

Therefore in normal sense the offence of bigamy cannot be impossed on a person whose marriage has been dissolved by a court of law.

However, Indian courts and lawyers are so creative and imaginative and they can make a dog a God or vice versa, by their inborn talent.

Therefore a definite answer cannot easily be given on your question but a "no" is reasonably possible answer.

Querist : Anonymous (Querist) 03 January 2021
Sir I am told by a lawyer that the appeal is conferred under the act and therefore it is proceeding under the act ,and hence appeal is continution of the divorce proceedings. Is this wrong ?

K Rajasekharan (Expert) 03 January 2021
Not wrong at all. That is definitely an unquestionable or a well settled position of law.

K Rajasekharan (Expert) 13 January 2021
I have prepared a brief write up on the issue of remarriage after divorce with essential web links to judgements and that is available at https://www.lawwatch.in/2021/01/09/Hindu%20remarriage/

ashok kumar singh (Expert) 09 June 2021
agreed with views of earlier experts, therefore no further comments, so far.
thanks

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