L Nageswara Rao
Whether the marriage between the parties during the proceeding of the appeal against the decree of divorce is valid or not.
• The appellant claimed for divorce on the grounds of cruelty under the Section 13(1)(ia) of Hindu Marriage Act, and also filed suit under Section 9 of HMA claiming restitution of Conjugal rights.
• During the proceeding of the appeal, appellant and his 1st wife came to a settlement where it was agreed between the parties that appellant would withdraw his suit of appeal from the date of their settlement.
• Appellant solemnised his second marriage before his withdrawal of the suit of appeal before the Supreme Court.
• Respondent filed a suit stating that the marriage should be declared null and void, but was rejected by the Family Court.
• Later High Court rejected the observations and findings of the suit brought up by the Family Court.
• Therefore the matter was taken to Supreme Court.
Appellant contends that there is no reason to declare his marriage null and void as everything has done accordingly to the settlement between the parties on withdrawing of the appeal within 30 days of settlement, which was done by the appellant. It is to be noted that the marriage of appellant with his 1st wife stood dissolved.
The Respondent contends that the appellant solemnised his second marriage after filing of application of withdrawal, but not before the actual withdrawal. Therefore the respondent filed suit under section 5(i) and section 11 of HMA which states that marriage can be solemnised only between 2 hindus only when neither of the party has a husband/wife living at the time of marriage.
Supreme Court read out Section 15 of HMA and stated that the section was only to provide protection to the party who is contesting the decree of divorce.
"In the present case we are satisfied that the appellant’s marriage was not subsisting when he married again. He had filed an application for withdrawal of his appeal against the decree for dissolution and had done nothing to contradict his intention to accept the decree of dissolution." said the Supreme Court of India.