Right to Marry Is a Human Right, Calls for Stay Requirement in Divorce Appeals: Madras HC

Madurai: The Madurai Bench of the Madras High Court has held that the right to marry is a human right and that restrictions on that right must be construed strictly, while dismissing a husband's appeal against a decree of divorce granted on the ground of cruelty and suggesting that the Hindu Marriage Act, 1955 be amended to prevent a pending appeal from indefinitely holding up a divorced spouse's remarriage.

A Bench of Justice G.R. Swaminathan and Justice M.D. Sumathi was hearing a Civil Miscellaneous Appeal filed by the husband against a fair and decreetal order, whereby the wife's petition for divorce on the grounds of cruelty and desertion had been allowed. The marriage between the parties, who are related as the wife is the husband's maternal uncle's daughter, was solemnised in 2001, and two children were born through the wedlock. The wife left the matrimonial home in August 2015 along with the children and instituted the HMOP in October 2017, alleging that the husband had doubted her character and conduct, made enquiries with their daughter and with a security guard about her, and failed to take any step towards reconciliation.

Counsel for the husband reiterated the grounds of appeal and sought dismissal of the HMOP, while counsel for the wife supported the impugned order as well-reasoned and additionally submitted that since the wife had remarried during the pendency of the appeal, the proceedings had themselves become infructuous. It was submitted that the wife had married one Guhan Ramasamy on 27th August 2021, duly registered with the Registrar of Marriages, Peenya, Bangalore.

On the merits of the divorce, the Court held that doubting one's character, whether explicit or by insinuation, would constitute cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act, and that the husband's own admissions regarding his enquiries about the wife's conduct indicated a lingering suspicion that made conjugal life incompatible. It further held that the husband's failure to maintain the children or take any step for reconciliation, coupled with his indifference, amounted to willful neglect constituting constructive desertion, and upheld the Family Court's finding on both grounds.

On the question of whether the appeal had become infructuous owing to the wife's remarriage, the Court examined Section 15 of the Hindu Marriage Act, which permits a divorced person to remarry once there is no right of appeal, the limitation period has expired without an appeal being presented, or an appeal has been presented but dismissed. Referring to N. Rajendran v. S. Valli (2025) 3 SCC 801, Krishnaveni Rai v. Pankaj Rai (2020) 11 SCC 253, and Lila Gupta v. Laxmi Narain (1978) 3 SCC 258, the Court noted that although the appeal in this case had been filed within time, it was later dismissed for non-prosecution on 5th November 2025 before being restored to file on 30th March 2026, and that no interim stay of the divorce decree had been granted at any point.

Deriving inspiration from Krishnaveni Rai, the Court held that the expression “dismissed” in Section 15 would include an appeal dismissed for default or non-prosecution, and that once such dismissal occurs, Section 15 loses its bar even if the appeal is later restored. “Right to marry is a human right. Of course, subject to conditions. Since Section 15 places restriction on this right, it has to be construed strictly,” the Court observed, holding that the wife's remarriage in these circumstances could not be treated as unlawful and that it was irrelevant when exactly the remarriage had taken place once the conditions for dismissal were met.

The Court also referred to an article, “Post Divorce Marriages Pending Appeal”, published by C.S. Raghuraman in 45 JILI (2003) 456, and suggested that Section 15 of the Hindu Marriage Act deserves amendment, observing that it should not suffice for an appellant merely to present an appeal within time; the appellant should also be required to obtain an interim stay of the divorce decree within two months thereafter, so that a validly contracted second marriage is not left to abide by the uncertain and often prolonged outcome of appellate proceedings.

Holding that the Family Court had correctly appreciated the evidence in granting the divorce, and that the appeal in any event stood liable to be treated as infructuous in light of the wife's remarriage following the earlier dismissal for non-prosecution, the Court dismissed the husband's appeal.

Appearances:

For the Appellant: Mr. P.R. Prithiviraj, Advocate.

For the Respondent: Mr. S. Manojkumar, Advocate.

Case Title: R. Muthukumar vs. J.R. Lekha @ Vennila, C.M.A.(MD)No.672 of 2021