The bench of Justice GR Swaminathan and Justice MD Sumathi noted that when there was no stay on the divorce order, the status of the woman was that of a “divorced woman” and she was thus entitled to remarry. The court thus refused relief to a husband, dismissing an appeal against the order of divorce.

“Though the appeal was filed within time, interim stay was not granted. The order granting divorce was fully in force. The status of the respondent [wife] herein was that of a divorced woman. She was, therefore, technically entitled to marry,” the court observed.

During the course of the hearing, the wife informed the court that she had remarried in the meanwhile and thus the appeal itself had become infructuous. The court noted that though the appeal against the order of divorce was filed on time, it was dismissed for non-prosecution and later restored.

The court held that when the appeal was dismissed for default, the rigours of Section 15 of the Act would not apply.

“Deriving inspiration from Krishnaveni Rai, we would hold that once an appeal has been dismissed for default, Section 15 loses its sting. Section 15 talks about dismissal. This expression would include within its ambit “dismissed for default or non-prosecution” also. When the application for restoration is taken up and it is reported that the respondent has remarried, the appeal has to be dismissed as infructuous. It is irrelevant when the remarriage took place,” the court said.

The court noted that as per Section 15 of the Hindu Marriage Act, either party to the marriage could marry again when the marriage was dissolved by a decree of divorce, and either there is no right of appeal or if there is a right of appeal, the time for appealing has expired without an appeal or an appeal has been presented but dismissed.

The court called for an amendment to the Section to make sure that while the appeal is presented in time, the appellant should also obtain an interim stay of the decree of divorce within 2 months thereafter.

“We would respectfully suggest that Section 15 of the Hindu Marriage Act deserves an amendment. It should not be enough if the appeal is presented within time. The appellant must also obtain an interim stay of the decree of divorce within two months thereafter,” the court said.

The bench was hearing an appeal filed by a husband against the Family Court's order allowing the wife's plea and granting an order of divorce. The couple got married in 2001 as per Hindu rites and customs and had 2 children from the marriage. The wife had filed the divorce plea alleging cruelty and desertion.

The court noted that the Family Court had granted divorce after noting that the husband had doubted the wife's character and enquired about her conduct with the security guard of the residential quarters. The court noted that the husband had, even as per his own admission, posed certain queries to their daughter about the mother's conduct. Following this, the wife had left the matrimonial home.

The court noted that the husband's suspicion about the wife's conduct would constitute cruelty. The court noted that this seed of suspicion would later take a firm root and would make conjugal company incompatible. The court also added that no self-respecting spouse would put up with such a conduct.

The court also noted that after the wife left the matrimonial home with the children, the husband had not taken any step for reconciliation or maintained the children. The court held that such an attitude would amount to desertion as it would show that the husband was not interested in sustaining the marriage.

“The appellant had not taken any step for reunion or reconciliation. The respondent cannot be blamed for having left the matrimonial home. As already mentioned, the appellant was elder to her by 11 years. When the appellant doubted the chastity of the respondent, it was bound to cause her mental anguish. From the indifference shown by the appellant, one can conclude that he was not interested in sustaining the marriage. Indifference coupled with failure to maintain the children can certainly constitute willful neglect thereby amounting to desertion. The appellant was guilty of constructive desertion,” the court noted.

Thus, the court dismissed the plea.

Counsel for Appellant: Mr. P. R. Prithiviraj

Counsel for Respondents: Mr. S. Manojkumar

Case Title: R v J

Citation: 2026 LiveLaw (Mad) 400

Case No: CMA (MD) No 672 of 2021