The Supreme Court of India, on August 24, 2018, delivered a judgment involving the interpretation of Section 15 of the Hindu Marriage Act, 1955
(Act) and clarified that second marriage would not be void if solemnized during the pendency of the appeal.
A Bench comprising of Justices SA Bobde and L Nageswara Rao
explaining the legal position said that the “incapacity to marriage” as mentioned under the Act would not lead to nullity of second marriage as incapacity for the second marriage for a certain period of time did not have the effect of treating the former marriage as subsisting and that a marriage contracted during that period will not be void because it was contracted under an incapacity. Section 15 of the Act states that a divorced person can marry again ‘when a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed.’
The Supreme Court stated that “During the pendency of the appeal, there was a settlement between the husband and his former spouse, after which the husband did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal”. It further stated that “It cannot be said he has to wait till a formal order is passed in the appeal, or otherwise his marriage shall be unlawful. Following the principles of purposive interpretation, we are of the opinion that the restriction placed on second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.” The apex court has set aside the order passed by the Delhi High Court which had held that any marriage solemnized by a party during the pendency of the appeal wherein the operation of the decree of divorce has stayed, would be in contravention of Section 5 (i)
of the Act. The Bench said that, “The Hindu Marriage Act, 1955 is a social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The Act intends to bring about social reforms. It is well known that this court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone.” While referring to the case of Lila Gupta v. Laxmi Narain
, the Bench further said that, “The dissolution of the marriage is complete once the decree is made, subject of course to appeal. This court also decided that incapacity for second marriage for a certain period of time does not have the effect of treating the former marriage as subsisting and the express ‘spouse’ would not include within its meaning the expression ‘former spouse’.”