Remarriage during pendency of Appeal against Divorce not Void: Bombay HC [Read Judgement]

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The Bombay high court (HC) has held that a second marriage performed by a Hindu during pendency of an appeal against a decree of dissolution of h/her marriage — though prohibited by law — cannot be termed legally binding.

The HC held that such an act cannot also be termed as a contempt of court.

Justice Anil Kilor last week held that Section 15 of the Hindu Marriage Act, 1955, allows remarriage only after the dismissal of appeal against a decree of divorce, but since no consequences for contravention of the provision are provided in the Act, a remarriage during pendency of appeal cannot be termed void.

“It is clear that having provided no consequences of a marriage performed in contravention of Section 15 of the Act, it cannot be said that such marriage would be void,” said justice Kilor while dismissing a petition filed by a resident (35) of Akola, Maharashtra.

The judge also rejected the petitioner’s contention that her husband, a teacher (40), who also belongs to Akola, was liable to be punished for contempt of court for having performed a second marriage during pendency of her appeal challenging the decree of divorce passed by the Akola district judge.

The couple had got married in December 2003, but their conjugal ties were strained from the outset. Soon, the wife left her husband. He filed for divorce on the ground of cruelty and desertion, but a joint civil judge rejected his divorce petition in October 2009.

However, the Akola district judge allowed the teacher’s appeal on November 25, 2015, and dissolved the marriage by a decree of divorce. Then, the woman moved the HC and while the appeal was pending, her husband remarried on March 20, 2016.

The woman contended that under the Contempt of Court Act, 1971, willful disobedience of judgement, orders, directions and “other process of a court” are punishable as civil contempt.

She argued that since the right of appeal under the Hindu Marriage Act, 1955, is a “process of a court”, her husband was liable to be punished for having committed civil contempt.

Justice Kilor rejected the argument, observing that the “willful disobedience” is related to the same command issued by a court between admitting a legal proceeding to giving its verdict.

The judge clarified that during these stages various commands need to be issued by a court such as issuance of summons, deposit of cost, compelling appearance of any expert or person as a witness, production of documents or record etc, and disobedience of any such orders would come within the ambit of “other process of a court”.

But, by no stretch of imagination it can be said that contravention of provision of Section 15 of the Hindu Marriage Act, 1955 would amount to willful disobedience of “other process of a Court”, as contemplated under the Contempt of Court Act, 1971, the HC observed.

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“In the said backdrop, I am of the considered view that performance of a second marriage during the pendency of appeal would be a contravention or a breach of prohibition stipulated under Section 15 of the Hindu Marriage Act, 1955, but in no case it would amount to disobedience of any command of the court,” said Justice Kilor.

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