Clarification on interpretation of Supreme Court’s Judgment regarding validity of second marriage even if plea against divorce is pending.

05 Sep 2018

As a headlines regarding a recent judgment of Mr. Anurag Mittal Vs Mrs. Shaily Mittal[i]created misconceptions in the minds of many people that by this very judgment Hon’ble Supreme Court legalized the second marriage as valid even though the first marriage is subsisting. However, this is totally wrongly interpreted.

The factual background of this case is, Ms. Rachna Aggrawal (First wife herein after referred as W1) filed a divorce petition before the Family Court. The husband filed a counter petition u/s 9 of Hindu Marriage Act (hereinafter referred as the Act) for restitution of conjugal rights. The Family Court by the judgment dated 31/08/2009 allowed the petition of W1 and dismissed the petition of husband. Being aggrieved with this judgment, husband filed an appeal before the High Court. The decree of divorce was stayed by High Court by order dated20/11/2009.  During pendency of appeal,the parties i.e. W1 and Husband reached a settlement before the Mediation Center, and as per the terms of the settlement husband moved an application for withdrawal of appeal on 28/11/2011 and the matter was then adjourned on20/12/2011. The appeal was duly withdrawn by husband on that day. Meanwhile the withdraw application was pending, the husband contracted second marriage on06/12/2011. Mrs. Shaily Mittal (Second Wife hereinafter referred as W2) then filed a petition in the Family Court to declare their marriage as void u/s 5(i)r/w s.11 of the Act as husband was already married. The Family Court rejected the petition of W2 and being aggrieved appeal before the High Court was preferred wherein High Court declared their marriage as void by judgment dated10/08/2016.  Husband being aggrieved with the judgment went to Supreme Court and filed present appeal.

The division bench consisting of Justice L. Nageshwara Rao and Justice S.A. Bobde upon discussion of the issue in detail stated that:

Upon entering in the settlement, the husband did not intend to contest decree of divorce. His intention was clear by filing an application of withdrawal. The Court was of opinion that, it is not requisite to wait till a formal order in appeal, Following the the principles of purposive construction, we are of the opinion that the restriction placed on a second marriage till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.

Therefore,  as per the interpreting this very judgment of Supreme Court, it also clarifies that contracting such remarriage during pendency of appeal  is not advisable and if such marriage is contracted the legacy of such marriage will depend on the decision of the appeal preferred. Herein the present case Supreme Court pronounced the ratio that, during period of pendency of appeal even if person remarries, then just because the appeal is pending the second marriage cannot be declared to be void ab initio. The legality of such second marriage depends on decision of appeal.

[i]2018 SCC OnLine 1136 / Civil Appeal No. 18312/2018

Recent Blogs