इसकी टोपी उसके सर्र: Section 5(1) + Section 15 of The Hindu Marriage Act

Section 15 of the The Hindu Marriage Act, 1955: “When a marriage has been dissolved by a decree of divorce 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 purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to the person who is contesting the divorce.

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Facts, XYZ, [Civil Appeal No. 18312 of 2017]: The Appellant, A MAN, was contesting his divorce. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into the settlement, he did not intend to contest further. His intention was made clear by filing of an application for withdrawal. He married again without waiting for a formal order

Every Applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary. The act of withdrawal is complete as soon as the Applicant intimates the Court that he intends to withdraw. The SC has held: “Following the principles of purposive construction, we are of the opinion that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.”

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Hush Hush

Shah was married to Kajal. ABCDEFGH happened. Kajal was granted a divorce by Court. Shah, upset-lost-weak, filed an appeal. As he was preparing for a fresh fight, Shah fell in love with Pri. He immediately chose to let go of his ex-wife and settled. He filed for withdrawal of appeal and even before the Court formally announced ‘this is the end’, Shah married Pri.

Later LMNOPQRST happened. Even Pri wished freedom from this MAN. Instead of filing for divorce, Pri submitted before a Court that her marriage with Shah is void because of Section 5(1) r/w Section 15 – Shah married when his ex-wife was still his living wife!

[Section 5(1) of the The Hindu Marriage Act, 1955: “A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) neither party has a spouse living at the time of the marriage.”]

The Supreme Court has said ‘NO’. Held: “Following the principles of purposive construction, we are of the opinion that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.”

 

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