Can Remarriage During Pendency Of A Delay-Condoned Divorce Appeal Be Treated As Void? Kerala High Court Explains

The Division Bench of Dr. Justice A.K. Jayasankaran Nambiar and Justice Preeta A.K. was considering an appeal filed by a husband/appellant challenging a decree of divorce granted by the Family Court to his wife/respondent.

The appeal was filed after the period of limitation and the delay of 12 days was condoned. While the appeal was pending, the respondent-wife had remarried.

Referring to the provisions of the Hindu Marriage Act, and noting that no interim stay against decree of divorce was granted, the Court remarked:

“...since the bar under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation and not afterwards upon condonation of delay in filing the appeal, we are of the view that the bar will not come to the aid of the appellant to contend that the second marriage of the respondent was, in any way, unlawful. In that context, it is also significant that in the instant appeal, there was no interim order of stay granted by this Court restraining the respondent from remarrying during the pendency of the appeal.”

Section 15 lays down that it would be legal for a party to remarry after grant of decree of divorce only after the expiry of appeal period if there is a right to appeal.

The wife had preferred a petition before the Family Court seeking a divorce and for maintenance for herself and their child as per the Act from her husband. The grounds raised for seeking divorce were cruelty and desertion.

She had earlier preferred a complaint against her husband and her mother-in-law under Section 498A IPC and the same is pending before the Magistrate Court. She had also filed petitions for maintenance and divorce in 2011 but the cases were settled through mediation and a compromise was entered into between the parties.

Since the husband filed honour the terms of the compromise with respect to payment of maintenance to her and their child, she had approached the Family Court again. The husband entered appearance through counsel before the Family Court but did not file any objection or adduce oral/documentary evidence. The Family Court then allowed the wife's plea, granted a decree of divorce and directed the husband to pay Rs. 20 lakhs as permanent alimony to her.

Aggrieved, the husband filed the present appeal challenging the Family Court's order with a delay of 12 days. 

The appellant/husband contended that the wife's remarriage during the pendency of appeal was void. He argued that the appeal against grant of divorce is therefore, not infructuous. He also pointed out that he is entitled to seek a cancellation or at least, reduction of the alimony awarded by the Family Court. He relied on Section 25(3) to canvass the afore point.

Section 25 deals with permanent alimony and maintenance. It also lays down that order of permanent alimony can be modified or rescinded if there is change in circumstance of either party. Sub-section (3) further states that modification or rescission can be done if the party remarries.

The respondent/wife opposed the contention that her remarriage is invalid. Referring to Section 15, it was pointed out that the bar against remarriage is only when the appeal is filed on time, which is not the case here. Defending the alimony granted, it was contended that she nor the Family Court can be blamed if the appellant failed to adduce evidence.

After hearing the parties, the Court opined that the appeal has become infructuous with respect to the challenge to the divorce decree.

The Court further opined that the subsequent marriage would not be rendered void merely because the appeal was pending.

“We might…observe that we cannot accept the interpretation sought to be placed…on the provisions of Section 15 of the Hindu Marriage Act that, if one of the parties to a marriage that has been dissolved by a decree of divorce, marries again during the pendency of an appeal that is filed within time, it would render the subsequent marriage void ab initio in view of the provisions of Section 5(i) read with Section 17 of the Hindu Marriage Act, 1955. Section 15 of the Hindu Marriage Act only clarifies that when a marriage has been dissolved by a decree of divorce, and if an appeal has been preferred within the period permitted by the Statute, it would be unlawful for either party to the marriage to marry again.”

Section 17 provides the punishment for bigamy. Section 5 lists out the conditions for a Hindu marriage.

The Court also relied on the Apex Court decision in Krishnaveni Rai v. Pankaj and Anr., which clarified that first marriage does not subsist merely because there is a bar against remarriage.

“an incapacity for second marriage for a certain period does not have the effect of treating the former marriage as subsisting. This settled position in law would suffice to reject the argument…that the second marriage was void since it was bigamous in nature,” it observed.

Next, considering the issue of award of alimony, the Court noticed that there is change of circumstance with respect to the wife's remarriage, and ordered the matter to be remanded to the Family Court. The Family Court was requested to complete the fresh adjudication on the issue of alimony within 2 months.

Thus, the Court partly allowed the appeal.

Case No: Mat.Appeal No. 501/2024

Case Title: Vijay R. Nair v. Lijitha

Citation: 2026 LiveLaw (Ker) 343

Counsel for the appellant: Dr. Sebastian Champappilly, Dr. Abraham P. Meachinkara, George Cleetus, Annie George, Margaret Maureen Drose, Swathi Krishna P.H., Rincy R.

Counsel for the respondent: A. Parvathi Menon, P. Sanjay, Biju Meenattoor, Indira K.P., Paul Varghese (Pallath), Kiran Narayanan, Rahul Raj P., Muhammed Bilal V.A., Meera R. Menon, Basila Beegam, Devika S. Prasad