Meenakshi Vijayanand (Advocate / Law Firm) 16 July 2009

Remarriage after divorce

A and B are husband and wife. Out of the wedlock a female child was born. due to incompatibility A and B applied for divorce by mutual consent (Sec.13 B HM Act) and a decree for dissolution of marriage by mutual consent was granted. After sometime both A and B exchanged garlands in a temple and started living together. A male child was born. Now, due to misunderstanding A, the husband filed divorce petition seeking dissolution of their marriage which was dissolved earlier by mutual consent.

Whether A, the husband can seek such a remedy?

What is scope of the divorce by mutual consent and their subsequent marriage / cohabitation ?

Whether the husband can seek such a relief to dissolve a marriage which already had been dissolved?

Whether the later marriage can be construed as continuation of their earlier matrimonial affair?

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7 Replies

Dharmesh Manjeshwar (Advocate/Lawyer) 17 July 2009

After the dissolution of first marriage, they married again .. so the factum of second marriage has to be proved before the court .. if A proves the same, A can seek such a remedy ... After second marriage /cohabitation.. the earlier divorce by mutual consent ceases to have any legal validity/enforcement .. U see the first marriage was dissolved and thereafter there was second marriage .. what was dissolved was the first marriage ... if the second marriage is proved .. it cannot be said to be a continuation of the earlier marriage

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Tushar (Advocate) 20 July 2009

I would like to draw your attention towards sec.7 of Hindu Marriage Act 1955 which reads as under SECTION 7 : Ceremonies for a Hindu marriage (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.' Now in view of abovesaid legal provision please examine whether conditioned as mentioned in sec.7 are satisfied or not when A and B exchanged garlands in temple if yes then they are leglly weded wife-husband and if no then they are not legally weded husband and wife and in such event application filed by husband for getting decree of divorce is not maintainable.

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jatin (self) 23 July 2009

Well, once they got married, then took divorced decree by mutual consent. So now, forget the first part of their life. Now if they are Hindu by religion, then once again they got married as per section 7 of H.M.Act? if yes, then also examine that the State in which they are residing, whether is it compulsory to registeer the marriage? If yes, have they gor it registered ( their 2nd marrigae). Also examine, what are the reasons to get divorce again, in the petition filed by Husband? If husband can prove that second marriage is legal one, they he can proceed further with his divorce petition with substantial grounds. jatin thakkar advocate Ahmedabad Cell: 98250 60656

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ad. creaminall (professional Advocate) 27 July 2009

i agree with Mr. Dharmesh.

The husband can not seek a relief to dissolve a marriage which already had been dissolved.

And the later marriage can not be construed as continuation of their earlier matrimonial affair.

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Meenakshi Vijayanand (Advocate / Law Firm) 29 July 2009

Thank you very much. Do you suggest / can you quote any citation to substatiate you view.

Naya Vazeer (Housewife) 08 June 2011

With a daughter of 9 years, I got divorce from a Hindu husband and remarried a Muslim. Now should my husband adopt my daughter from my previous marriage? Can his name be used in my daughter's official documents as Father's name? Her real father has never cared to see her even? Will there be any problem? Please advise me. Thank you.