2nd marriage during divorce pendency won't be void: SC

A man or a woman's act of tying a nuptial knot during the subsistence of marriage or pendency of divorce appeal would not make the second marriage itself void.

The "incapacity to marriage" as mentioned under the Hindu Marriage Act would not lead to nullity of second marriage, the Supreme Court has said.

A bench of justices S A Bobde and L Nageswara Rao also said the restrictions put into remarriage would not be applicable where the parties have settled or decided not to pursue the appeal.

The top court explained the legal position, while overturning a judgement of the Delhi High Court, which declared a man's marriage during the pendency of his appeal against a decree of divorce as void.

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, the bench said.

"The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The act intends to bring about social reforms. It is well known that this court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone,” the bench said.

In the case, the court noted the man filed an appeal and obtained a stay on the decree of divorce granted by the trial court.

During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal.

"It cannot be said that he has to wait till a formal order is passed in the appeal, or otherwise his (second) marriage shall be unlawful," Justice Rao said.

In his own separate and concurring judgement, Justice Bobde relied upon the decision in 'Lila Gupta v Laxmi Narain and Ors' (1978). "If a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity," he said.