Kerala High Court | Hindu Marriage Act | Second Marriage During Appeal Period Valid If Divorce Decree Remains Unchallenged by Former Spouse
Sanchayita Lahkar
The High Court of Kerala, Division Bench of Justices Devan Ramachandran and M.B. Snehalatha held that a marriage contracted within the statutory appeal period after a divorce decree cannot be treated as illegal if the decree is not challenged by the former spouse. The Bench made this observation while considering an original petition filed by a wife questioning a Family Court order that permitted her husband to amend his divorce petition to assert the marriage was void. The Court ruled that such contradictory claims cannot stand unless framed as alternatives, and accordingly set aside the amendment.
The dispute arose between a husband and wife regarding the validity of their marriage. The husband had filed an original petition before the Family Court, South Paravoor, seeking divorce under the Hindu Marriage Act, 1955. In his pleadings, the husband unequivocally admitted that there was a valid marriage between the parties solemnized on 28 December 2007. The wife contested the petition.
Subsequently, the husband sought to amend his petition by introducing additional reliefs and pleadings. He alleged that, at the time of marriage, the wife was still legally married to another person. According to him, her earlier marriage had been dissolved only later on the same day, through a decree of divorce passed by the Family Court, Kollam. He argued that since the decree of divorce took effect only from the time it was delivered, his own marriage to the wife, solemnized at 10 a.m. that morning, was void. On this basis, he applied to amend his petition to include a declaration that the marriage was null and void.
The Family Court allowed the husband’s application for amendment, enabling him to incorporate two additional reliefs in the original petition. This order was challenged before the High Court by the wife, who contended that permitting such amendments was illegal and impermissible.
On behalf of the wife, it was argued that the decree dissolving her earlier marriage took effect from the commencement of the date on which it was delivered, i.e., 28 December 2007, and not from the specific time it was pronounced. It was submitted that the husband’s attempt to rely on the precise time of delivery was a stratagem to invalidate their marriage. Counsel for the wife maintained that the law was clear that judgments and decrees operate from the commencement of the date they are delivered, and therefore, the marriage solemnized on the same date could not be said to be void.
The husband contended that he only became aware of the wife’s earlier divorce proceedings in March 2025 and was justified in seeking to amend his pleadings accordingly. He submitted that judgments in Family Courts are generally delivered after 11 a.m. and hence, since the marriage occurred at 10 a.m., it was void in law. He further invoked Section 15 of the Hindu Marriage Act, 1955, which permits remarriage only after the period for filing an appeal against a divorce decree has expired or an appeal, if filed, has been dismissed. He asserted that because both the divorce decree and the marriage occurred on the same day, the requirements of Section 15 were not satisfied.
The Bench recorded that “on the fundamental norms, no doubt, Section 15 of the ‘Act’ would authorize a person to lawfully marry only after the time frame for appealing against the decree dissolving his/her earlier marriage has elapsed, or if an Appeal had been dismissed.” It also noted that “Ext.P6 judgment is a decree of divorce obtained by the petitioner from her earlier spouse under Section 13B of the ‘Act’ through mutual consent. Normally, therefore, a chance for an appeal against this is remote.”
The Court stated that “when there was no challenge against Ext.P6, the marriage contracted by the petitioner on 28.12.2007 would stand protected from challenge by any other person, except her first husband; and this is more so when the same has been delivered under the ambit of Section 13B of the ‘Act’.” The judges further observed that “when there is no challenge by the petitioner’s former husband to her subsequent marriage, we fail to fathom how the 1st respondent can now say that her marriage with him is null and void.”
On the question of when a judgment takes effect, the Court declared: “Every judgment, as soon as it is delivered, becomes the operative pronouncement of the Court… once the judgment is pronounced/delivered, it takes effect immediately and operates from the commencement of the day it was so pronounced or delivered.” The Bench made it clear that “no judgment or decree statutorily requires to carry an endorsement of the time it was delivered, since no law provides for it.”
The Court found that the amendments permitted by the Family Court created conflicting reliefs. It noted: “The first set, which is the original set, seeks divorce on the basis of marriage being valid; while, the second one, as is proposed to be amended, impels a plea for the marriage to be declared to be void. Ext.P3 application does not seek amendments to be as alternative reliefs, but as substantive prayers; but without deleting the earlier ones. Furthermore, the pleadings in the Original Petition are also left untouched… thus creating a scenario of two antipodean streams.”
The judgment recorded: “In the afore circumstances, we have little doubt that the learned Family Court ought not to have allowed the application of the 1st respondent for amendment; and resultantly allow this Original Petition and set aside Ext.P5.”
Advocates Representing the Parties
For the Petitioners: Sri. Johnson Gomez, Sri. Sanjay Johnson
For the Respondents: Sri. K.R. Arun Krishnan, Sri. M.S. Ajithkumar, Smt. Deepa K. Radhakrishnan, Shri. Sanal C.S, Shri. Vishak K.V.
Case Title: Rakhi v. Krishnakumar & Ors.
Neutral Citation: 2025: KER:60941
Case Number: OP (FC) No. 409 of 2025
Bench: Justice Devan Ramachandran, Justice M.B. Snehalatha
