Post-Divorce Remarriage under the HMA
Section 15 of the Hindu Marriage Act, 1955 (HMA), governs the eligibility of divorced parties to remarry following the issuance of a divorce decree. The statute mandates a mandatory waiting period of ninety days before either party may contract a subsequent marriage.
Prohibition During Pendency of Appeal
Where a right of appeal exists against a divorce decree, remarriage is prohibited until the appeal is dismissed or the appellate period expires. This restriction serves to prevent complications that might arise from premature remarriage and protects the interests of parties challenging the dissolution decree.
Exception for Mutual Consent Divorces
The prohibition under Section 15 does not apply to divorces granted by mutual consent, as such decrees are not appealable and therefore become final immediately upon pronouncement.
Validity of Marriages Contracted During Prohibition Period
In Anurag Mittal v. Shaily Mishra Mittal (2018) 9 SCC 691, the Supreme Court held that marriages contracted during the pendency of an appeal filed beyond the limitation period are not void ab initio. Similarly, the Bombay High Court has observed that while Section 15 prohibits remarriage during appeal pendency, the absence of prescribed consequences renders such marriages valid rather than void.
Legal Framework and Enforceability
Section 11 of the Act declares marriages void only when they contravene specific conditions under Section 5. Since divorced parties are no longer “spouses living” after decree pronouncement, subsequent marriages cannot be declared void under Section 11, even during the prohibition period.
The Supreme Court in Leela Gupta v. Laxmi Narain (1978) 3 SCC 258 established that temporary incapacity to remarry does not restore the original marriage or render subsequent marriages void. The prohibition remains largely unenforceable due to the absence of specific penal provisions.
Additional reading
- The judgment in Anurag Mittal v Mrs. Shaily Mishra Mittal, available at https://indiankanoon.org/doc/124571211/
- The judgment in Leela Gupta v Laxmi Narain & Ors [(1978) 3 SCC 258], available at https://indiankanoon.org/doc/1549626/
- The judgment in Krishnaveni Rai v Pankaj Rai & Anr available at https://main.sci.gov.in/supremecourt/2019/26750/26750_2019_3_1501_20710_Judgement_19-Feb-2020.pdf
