If Divorce Decree Goes Unchallenged, The Second Marriage Is Legal: Patna HC [Read Judgment]

If Divorce Decree Goes Unchallenged, The Second Marriage Is Legal: Patna HC [Read Judgment]

The Patna High Court in Rajesh Kumar vs. Pushpa Rani, considered the sustainability of a decree for judicial separation. The Bench comprising Chief Justice Iqbal Ahmed Ansari and Justice Nilu Agrawal dealt with the effect on a person, who having received a decree of judicial separation and later a divorce decree, proceeds to remarry and father children.

In this case, the petitioner husband had filed for a decree of dissolution of marriage under section 13(1)(i) of the Hindu Marriage Act, 1955, which was granted to him in an ex parte proceeding against the wife who failed to attend the proceedings despite having transferred the case from Patna to Allahabad, after a year had elapsed since the decree for separation. Once the decree was granted and the limitation period for filing an appeal against the dissolution granted had expired, the petitioner remarried and fathered two children from the second marriage. The first wife (respondent herein), however, filed an application to review the decree for judicial separation that was granted. The petitioner filed an SLP at the Supreme Court against this order, which was dismissed without any reason, against which the husband filed for a review of the application at this court that set aside the decree of judicial separation.

The important questions raised and answered in the case are as follows:

Q. Whether a review petition would stand barred if it is filed after dismissal of the Special Leave Petition by the Supreme Court against an order passed in an appeal arising out of a decree granted for judicial separation, bar a petition for review of the appellate decree whereby the decree for judicial separation stood set aside?

A. When an appeal is provided and the appeal is preferred, the appeal stands instituted; but when a leave for appeal is applied, then, until the leave is granted, there is really no appeal. Hence, the disposal of the Special Leave Petition or of any petition for leave to appeal does not subsume the order from which the appeal arose, for, with the rejection of the petition for leave, no appeal survived… if a Special Leave Petition is dismissed in limine (at the threshold) without the appeal having came into existence, because of the leave having been declined, the doctrine of merger will not apply and, therefore, a petition for review of the order of the High Court remains open.

Q. Subsequent to the granting of decree for judicial separation, when a marriage is dissolved by a decree of divorce and one of the parties after the decree of divorce had solemnised his marriage and fathered two children, whether these facts are relevant for consideration at a time, when an appellate court considers the sustainability of the decree for judicial separation?

A. When a decree of divorce is based on a decree for judicial separation, it is to be borne in mind that with the passing of a decree of divorce, the marital ties between the parties come to an end. The parties are no longer treated as husband and wife and they are no longer successors of each other under the law of succession. Their respective rights and obligations, under different statutes, as husband and wife, end. Unless the decree of divorce is modified/reversed by a superior court, it remains. After the period of appeal is over or if an appeal is preferred, but is dismissed, the parties are free to go for another marriage.

Once a decree of divorce is passed and unless there is an appeal challenging the same, the decree subsists. Once there is no appeal or the period, for preferring appeal, expires or an appeal, having been preferred, is dismissed, the party can go for a second marriage without any legal obstacle. Such a second marriage is always valid.

Q. What are the fallouts or the effect, when a person, having received the decree for judicial separation, applies for divorce, the decree for dissolution is granted and he remarries and fathers children?

A. If a decree of divorce is granted, it is the decree of divorce, which needs to be interfered with, if appealed against, inasmuch as the appeal against the decree for judicial separation, in the absence of an order of stay, would become infructuous so long the decree for dissolution of marriage remains in force… A court cannot pass a decree, which would not or cannot make the parties concerned stand on the same position as they stood on the date of institution of the appeal against the decree for judicial separation.

Since in this case the petitioner had remarried and fathered two children, the parties couldn’t be held to be on the same footing as they stood on the date of institution of appeal against the judicial separation.

Q. Whether these facts are relevant for consideration, in an appeal, which arises out of the decree for judicial separation and whether these facts, if relevant, have an outcome on the appeal?

A. After the dissolution of marriage by a decree of divorce, the petitioner-husband had married and fathered two children and, hence, third party right has been created in the whole dispute. Therefore, the interest of such a third party, who are innocent, minor and legitimate children, could not have been ignored. If for any reason, interference with the decree for judicial separation, in appeal, is actually made, it would render the appeal of the petitioner-husband, against the order setting aside the ex parte decree for dissolution of marriage, almost redundant, infructuous and ineffective.

It was also stated: Any judgment disturbing the decree for judicial separation has an adverse impact on the enjoyment of statutory rights, if not the fundamental rights, by the second wife, who entered the marital ties only after passing of a decree of divorce.

Q. Whether such a development, which is subsequent to the granting of a decree for judicial separation, is an aspect which must be necessarily taken into account by the appellate court before it chooses to interfere with the decree for judicial separation?

A. Such development subsequent to the granting of a decree for judicial separation had to be taken into account before interfering with the decree for judicial separation as per the answers by the court:


1. ‘The infringement of statutory rights of wife and children from the second marriage and the hardships that would follow from reversal of the decree for judicial separation’ were not considered by the High Court while setting aside the decree of judicial separation on the application by respondent wife.

Going by the maxim actus curiae neminem gravabit’ (an act of the court shall prejudice no man), when the decree for judicial separation was set naught, the court caused prejudice to the second wife and children.

3. The decree of divorce is based on the decree of judicial separation that was passed, which, if reversed, would automatically reverse the decree of divorce and thus, the second marriage becomes a nullity. When the petitioner solemnised his second marriage after the decree of divorce, the second marriage, notwithstanding the fact that the ex parte decree of divorce has now been set aside, cannot be treated as a nullity. In order to, therefore, treat the subsequent marriage a nullity, it will have to be presumed that the parties to the divorce are still spouses even when their marriage has been dissolved by a decree of divorce. This is legally not permissible inasmuch as a decree of divorce, unless stayed by an order of superior court, snaps the relationship between the parties and, hence, they are not treated as spouse or else, such second marriage, prior to expiry of appeal period, would have rendered the subsequent marriage void under Section 11 of the Hindu Marriage Act, 1955. 

Thus, the court reached the conclusion that:

“…having not taken into account the impact of interference with the decree for judicial separation while making the order under review, has committed an error on the face of the record and, for the reasons that we have assigned above, we are clearly of the view that in the face of the fact that the review petitioner had already married for the second time and had two children from his second marriage, the appeal against the decree for judicial separation, in the absence of any order of stay against the decree for judicial separation, had became infructuous and could not have been interfered with.”

Read the Judgment here.