Second marriage of a Hindu will be valid even if plea against divorce is pending: SC

New Delhi, Aug 26: In a significant ruling, the Supreme Court of India has stated that the second marriage (among Hindus) will be considered valid even if plea against divorce is pending.

Although the Hindu Marriage Act prescribes that it shall be lawful to marry again only after dismissal of an appeal filed by aggrieved party against the decree of divorce, the second marriage would not be void if solemnised during the pendency of appeal, said a bench of Justices S A Bobde and L Nageswara Rao.

Interpreting section 15 of the Act, the bench said that incapacity for second marriage for a certain period of time (during the pendency of appeal against divorce) 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 says 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, it shall be lawful for either party to the marriage to marry again. Section 5(1) of the Act says a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage.

The apex court set aside 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 was stayed, would be in contravention of Section 5 (i) of the Act. It passed the order on an appeal filed by a man challenging HC verdict which had declared his second marriage void on a plea of his second wife.

“The Hindu Marriage Act 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,” the bench reportedly said.

While referring to its 1978 verdict, the bench said, “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.”