validity of marriage
sanjay kumar patibandla
(Querist) 28 August 2008
This query is : Resolved
A filed divorce petition against B, and after completion of trail and arguments, it was allowed by the Hon'ble senior civil judge court. after completion of apple time A got married with another person C. But B filed appeal before the Appellate court with a petition to condone the delay along with stay petition. And the Appellate court condoned the delay and granted stay on the lower court's decree of divorce.
What is the validity of the marriage between A and C.
Srinivas.B.S.S.T
(Expert) 28 August 2008
Sir your query is incomplete. Under what circumstances the court allowed the petition filed by A? if it is an exparte decree it is liable to be set aside. Once the decree is set aside then the marriage between A and B would be still in force.
K.C.Suresh
(Expert) 29 August 2008
Pl describe "it was allowed by the Hon'ble court"
KamalNayanSaxena
(Expert) 30 August 2008
Sanjay,
AIR 1989 SUPREME COURT 1477 "Lata Kamat v. Vilas" will guide you regarding your query.
Please describe whether the appeal was pending at the time of remarriage, because this factor will decide the status of second marriage finally
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SANJAY DIXIT
(Expert) 30 August 2008
Dear Sanjay,
In the circumstances mentioned by you, the status of second marriage between A & C would be invalid.
Whether Appellate Court allowed the condonation of delay and granted the stay without issuance of any notice to A?
If so A may approach for vacation of stay.
A should put his submission of second marriage firmly and boldly in the appellate court as he got the second marriage after completion of appeal period.
Murali Krishna
(Expert) 30 August 2008
Dear Sanjay, leaving aside the issue from legal angle, I feel that the marriage has to be allowed to be valid. Courts now a days dealing with matrimonial issues liberally, especially when the marriages are broken down irritrivably. Instant case is one such. Similar case, which is not as better as yours, where the woman during the period of limitation for appeal remarried. The case was allowed by High court of AP keeping in view the attending circumstances. I could not recollect the citation but it was between 2002-2006.
Apart from this, in your case, even from legal angle, once the period of limitation for appeal is over, the Act prescribes no restriction over the marriage.
Legislature has to rethink about the validity of the provision and its existance in view of its futility.
KamalNayanSaxena
(Expert) 30 August 2008
Dear sir Dixit,
with regards I am not agree with your cotention, as the marriage between A and C is invalid, without assigning merits of the case.
S.15, Divorced persons when may marry again. - 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"
This will include appeal presented even after expiry of period of limitation. In fact, the provision couched in a manner so as to include the mischief of Section 15 in respect of second marriage if made during the pendency of the appeal even if it is contracted after the expiry of limitation. Whether such appeal was filed along with an application under Section 5 of the Limitation Act or not, contracting of marriage during the pendency of an appeal would be hit by the mischief as has been held in the decision in Prakash Chandra Sharma supra. At the same time, as observed by the Supreme Court in the other three decisions in Tejinder Kaur (supra) Smt. Chandra Mohini Srivastava supra and Savitri Pandey (supra), the husband has a duty to enquire as to whether an appeal has been preferred or not. The embargo has been imposed on the person contracting second marriage. Inaction or infraction of any responsibility on that part will not enure to the benefit of the respondent contracting second marriage.
It is true that the delay in filing the appeal had been condoned by order of Court and the appeal should therefore be deemed to have been filed within the time allowed by law. Therefore, the preliminary objection that the appeal had become infructuous for the reason of second marriage could not be allowed.
Therefore, contracting second marriage during the pendency of an appeal would be an important factor to decide the status between A and C.
So, Mr. Sanjay if you become successful in proving your case on abovementioned guidelines, success shall be yours.
Adv.Shine Thomas
(Expert) 31 August 2008
This is a valid marriage because the Marriage is done after the expiry of reasonable appeal time.
G. ARAVINTHAN
(Expert) 05 September 2008
First we have go see on what ground the appellate court granted stay for the execution of divorce.
If the condonation of delay is on a valid ground, then the appeal is to be heard. Only after the order passed in the appeal, the question of validity of marriage between A & C have to be gone through.
As of now, the marriage between A & C is a valid one asthe Marriage is done after the expiry of reasonable appeal time.( As Shine Thomas said)
Now the appeallate court, on hearing the appeal have also duty to look after the welfare of C, whose life is also based on the order of the appeal.
