Gujarat High Court Stays Divorce Decree After Husband Enters Second Marriage During Pendency Of Wife's Appeal

The Gujarat High Court stayed a family court order granting divorce to the husband, after noting that he contracted a second marriage during the pendency of the wife's appeal, thereby depriving her the legitimate right to present her case in appeal, as protected under Section 15 Hindu Marriage Act. [2026 LiveLaw (Guj) 195]

For context, Section 15 states that when a marriage has been dissolved by a divorce decree 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.

The husband had file a divorce plea under the Hindu Marriage Act, which was granted by the family court while awarding permanent alimony to the wife as well as money for medical expenses. The wife moved the high court in appeal against the order and also filed an application seeking stay of the judgment. The wife contended that while her appeal was pending, the husband contracted a second marriage and the protection intended by the statute must be extended to prevent the appeal from being rendered infructuous. 

The husband submitted that the marriage between the parties stood legally dissolved by the judgment on 15.05.2024 passed by the Family Court. He contracted a second marriage on 11.07.2024, which was duly registered on 15.07.2024 before the Registrar of Marriages. It was submitted that though the wife's appeal has been presented before the High Court on 15.07.2024, the respondent had already contracted the second marriage on 11.07.2024, on which date no appeal had been presented. 

A division bench of Justice Ilesh J Vora and Justice RT Vachhani in its order referred to Section 15 Hindu Marriage Act and said that its object is to provide protection to a person who has filed an appeal against a decree of dissolution of marriage, ensuring that the said appeal is not frustrated. 

The bench said that the explicit purpose is to avoid the legal and factual complications that would inevitably arise due to a second marriage being contracted during the pendency of the appeal. Referring to various judgments on the provision the court said:

"Thus, in view of the aforesaid, the immediate action on the part of the respondent in contracting a second marriage immediately after the decree, i.e. on the date when the appeal was preferred, which can be termed to have been contracting a second marriage during the subsistence of the appeal as in view of the aforesaid decision, it is incumbent on the part of the respondent to make sure whether an appeal has been preferred or not. Therefore, the respondent, by marrying immediately, deprived the wife i.e. the petitioner herein, of her legitimate right to present her case, which otherwise may be dealt with on its own merits. Thus, considering the object of the provision, and without entering much into any other such arena that may prejudice the right and contentions in substantial matter, this Court is inclined to grant the stay". 

The court noted that the balance of convenience heavily tilts in favor of the wife and she had successfully established a prima facie case, as non-granting of the interim relief at this stage would amount to nonsuiting her, causing irreparable loss, specifically the loss of her status as the wife due to the grant of the decree of divorce.

This loss of status may seriously affect her legitimate claims against the husband and could adversely impact the proceedings pending, if any, initiated to secure her status against the family court's judgment, the court said.

The court thus stayed the execution, operation, and implementation of the family court order granting divorce till the final disposal of the appeal. 

The court said its observations were prima facie in nature and was passed exclusively based on the facts of the case on hand and shall not be treated as precedent. 

Case title: RAJASHREEBEN W/O BHUPENDRAKUMAR PATEL v/s  BHUPENDRAKUMAR AMBALAL PATEL

CIVIL APPLICATION (FOR STAY) NO. 1 of 2024 In R/FIRST APPEAL NO. 2740 of 2024

Click Here To Read/Download Order

Citation: 2026 LiveLaw (Guj) 195