19 April 2023 10:48 AM GMT
The Bombay High Court rejected a woman’s interim application seeking dismissal of her husband’s appeal against their divorce decree on the ground that she had already married someone else.The court observed that the “Family Court Appeal filed by the husband within the appeal period (of 90 days) would not be rendered infructuous upon the Applicant (wife) having contracted second marriage...
The Bombay High Court rejected a woman’s interim application seeking dismissal of her husband’s appeal against their divorce decree on the ground that she had already married someone else.
The court observed that the “Family Court Appeal filed by the husband within the appeal period (of 90 days) would not be rendered infructuous upon the Applicant (wife) having contracted second marriage and that also during the appeal period.”
Section 15 of the Hindu Marriage Act disallows spouses from re-marrying while an appeal against the divorce is pending or if it has been less than a year since the Family Court passed the divorce decree. Section 19 gives the aggrieved spouse at least 90 days to file the appeal.
A division bench comprising Justices RD Dhanuka and MM Sathaye observed this was a “classic example of increasing tendency amongst the litigants to try to overreach the provisions of Law by creating a situation, which is difficult to reverse, thereby making pending proceedings infructuous.”
The couple was married in 2006 and had one child. On a petition filed by the wife the Family Court granted her divorce in 2019 and also gave her permanent custody of the child.
The husband filed an appeal against the decree in the High Court. As interim relief the Family Court order was stayed. The wife then approached the High Court in the present application and sought dismissal of the complaint.
Through lawyer Advocate Vikramaditya Deshmukh the wife argued that she was already married to a German National unaware that her husband had filed an appeal. The appeal papers were served to her three days after her wedding, she said.
She further submitted that the couple had been living separately for over 10 years now and their marriage had irretrievably broken down. Therefore, the stay on the divorce decree should be vacated, the appeal should be dismissed and in the alternative the appeal should be expedited.
The husband opposed the application on the ground that his wife married hastily and immediately applied for the child’s passport only to deny him access to his son. He further submitted that the court disallowed his wife from taking the son abroad and granted a stay on the divorce observing the wife’s conduct.
The second marriage cannot be legally registered or socially accepted, the estranged husband claimed.
At the outset the court observed that it was called upon to consider the effect of the wife’s second marriage on the divorce decree, at interim stage. Especially when the divorce isn’t even final.
“The effect of contravention of Section 15 in the light of her conduct of remarrying in haste without waiting for the appeal period to be over, on the final outcome of appeal filed by the husband, can be dealt with only at the stage of final hearing. In our view, effect of such remarriage (in contravention of Section 15 of the said Act) on the final outcome of the pending appeals, depends on facts of each case,” the court observed.
The court was surprised by the “boldness” with which the wife was seeking for the appeal to be dismissed on the ground of second marriage in contravention of Section 15 of the Hindu Marriage Act, 1955.
Arguments couldn’t be considered at an interim stage, the court added and refused dismissal of the appeal at an interim stage.
Case Title: Akash Kanwarlal Kamal v.Himani Akash Kamal
Citation: 2023 LiveLaw (Bom) 205
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