In Lila Gupta v. Laxmi Narain & Ors [1978 AIR 1351], the Supreme Court held that a marriage contracted in violation of the (then-existing) proviso to Section 15 of the Hindu Marriage Act is not void, since the legislature had not expressly declared it to be so, even though it made no provision for legitimating the offspring of such a marriage.
The Division Bench of the Kerala High Court, in Vijay R. Nair v. Lijitha [2026:KER:42087], relying on Lila Gupta, held that a second marriage contracted after dissolution of a marriage by decree of divorce does not become void merely because an appeal against the decree is pending and that the incapacity to remarry for a certain period does not have the effect of treating the earlier marriage as subsisting, and rejected the husband’s contention that the second marriage was void as bigamous in nature.
What Section 15 of the Hindu Marriage Act States
“15. 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.”
Section 15 thus enables a divorced person to remarry once the decree has attained finality — i.e., once there is no further right of appeal, the appeal period has expired unused, or a filed appeal has been dismissed.
If No Right to Appeal Exists, a Party Can Remarry
Section 15 provides that when a marriage has been dissolved by a decree of divorce, either party may marry again if there is no legal right of appeal against the decree, or the time for appealing has expired without an appeal being filed, or a filed appeal has been dismissed. In other words, the right to remarry should not ordinarily be exercised before the decree of divorce has attained finality — though, as Vijay R. Nair v. Lijitha clarifies, a marriage contracted before finality is not automatically void; it may be voidable at the instance of the aggrieved spouse, not void ab initio.
Child Born During the Appeal Period Remains Legitimate
Even where a second marriage contracted during the appeal period is challenged, Section 16 of the Hindu Marriage Act — as substituted by the 1976 Amendment — confers legitimacy on children of void and voidable marriages, regardless of whether a decree of nullity is ultimately granted.
Ordinarily, where a marriage is annulled by a decree of nullity, the legal fiction is that no marriage existed at all in the eye of law, notwithstanding that the parties went through a ceremony of marriage. Section 16 was specifically introduced to override this consequence and protect the legitimacy of children born of such marriages.
In Conclusion
Remarrying before a divorce decree has attained finality can still invite legal challenge, even though such a marriage is not automatically void. The appeal period exists as a safeguard against reversal of the divorce decree. It remains advisable, wherever practical, to wait until the appeal period has lapsed or obtain a non-appeal certificate from the court before proceeding with a mutually agreed remarriage.
