Case Name: VIJAY R. NAIR VS. LIJITHA
Petition No.: Mat. Appeal No. 501 of 2024
Neutral Citation: 2026:KER:42087
Date of Judgement: 12.06.2026
Coram: Hon’ble Dr. Justice A.K. Jayasankaran Nambiar & Hon’ble Mrs. Justice Preeta A.K.
Relevant Statutes & Provisions: Sections 5(i), 13(1)(i-a) and (i-b), 15, 17, and 25(3) of the Hindu Marriage Act, 1955

INTRODUCTION

The Hon’ble Kerala High Court has held that a marriage solemnised by one of the parties during the pendency of an appeal against a decree of divorce does not become void merely because the appeal was filed within the period of limitation. Section 15 of the Hindu Marriage Act, 1955 only postpones the right to remarry for a specified period, it does not revive the dissolved marriage or create a fiction that it subsists, so as to render a subsequent marriage bigamous under Section 5(i) read with Section 17 of the Act.

FACTS

The respondent-wife had instituted proceedings before the Family Court, Muvattupuzha, seeking divorce on the grounds of cruelty and desertion under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, along with maintenance under Section 25. No evidence was adduced on behalf of the appellant-husband, and the Family Court allowed the petition, dissolved the marriage, and awarded permanent alimony of Rs. 20,00,000/- to the respondent. The appellant preferred the present Appeal with a delay of 12 days, subsequently condoned, though no interim stay of the decree was granted. During its pendency, the respondent contracted a second marriage. The appellant contended that this marriage was void, and that the changed circumstances warranted a reduction of the alimony awarded.

ISSUES

1. Whether the second marriage contracted by the respondent during the pendency of the Mat. Appeal is void under Section 5(i) read with Sections 15 and 17 of the Hindu Marriage Act, 1955, so as to render the appeal against the grant of divorce maintainable.

2. Whether the award of permanent alimony of Rs. 20,00,000/- by the Family Court, made in the absence of any evidence adduced by the appellant, warrants being set aside and remitted for fresh adjudication.

ARGUMENTS OF PARTIES

The Appellant submitted that the subsequent marriage contracted by the Respondent during the pendency of the appeal had to be treated as void, and that the Respondent could not rely on it to contend that the appeal against the grant of divorce had become infructuous. It was further submitted that the alimony award came about solely because the Appellant lacked an effective opportunity to adduce evidence, and that the Respondent’s remarriage entitled him to invoke Section 25(3) of the Hindu Marriage Act to seek its cancellation or reduction.

The Respondent submitted that the second marriage was not void, since the bar under Section 15 applies only where the appeal is filed within the period of limitation, whereas the present appeal had been filed with a delay of 12 days, subsequently condoned. On alimony, it was submitted that the absence of evidence on the Appellant’s part was attributable solely to his own lapses, and that the Family Court had rightly relied on the evidence led by the Respondent.

JUDGEMENT AND ANALYSIS

Regarding the first issue, the Court rejected the Appellant’s interpretation of Section 15 of the Hindu Marriage Act. The Court remarked that Section 15 “only clarifies that when a marriage has been dissolved by a decree of divorce, and if an appeal has been preferred within the period permitted by the Statute, it would be unlawful for either party to the marriage to marry again”. Relying on Leela Gupta v. Laxmi Narain and Ors. (1978) 3 SCC 258, as followed in Krishnaveni Rai v. Pankaj and Anr. AIR 2020 SC 1156, the Court held that a mere incapacity to remarry for a specified period does not have the effect of reviving the dissolved marriage or creating a legal fiction that it continues to subsist, holding in terms that “an incapacity for second marriage for a certain period does not have the effect of treating the former marriage as subsisting”. 

The Court further found that since the present appeal had itself been filed with a delay of 12 days, condoned only subsequently, the statutory bar under Section 15, which operates only where the appeal is filed within the period of limitation, could not be invoked in the Appellant’s favour, more so as no interim stay had been granted restraining the Respondent from remarrying. Accordingly, the Court held that the Respondent’s second marriage was neither void nor bigamous, and that the appeal, insofar as it impugned the decree of divorce, had become infructuous, and was dismissed to that extent.

Regarding the second issue, the Court accepted that the Family Court’s finding on permanent alimony had been rendered without any evidence adduced by the Appellant. While ordinarily reluctant to remand such a finding for fresh adjudication, the Court held that the changed circumstances arising from the Respondent’s subsequent remarriage necessitated a fresh determination of both her entitlement to, and the quantum of, permanent alimony, to be undertaken by the Family Court upon an application being preferred by the Appellant under Section 25(3) of the Hindu Marriage Act. The Court accordingly set aside the award of Rs. 20,00,000/- as permanent alimony and remitted the issue to the Family Court, directing that the parties be afforded an opportunity to lead evidence, with the fresh adjudication to be completed within two months of receipt of the judgment.

CONCLUSION

The Kerala High Court dismissed the Mat. Appeal as infructuous insofar as it challenged the decree of divorce, holding that the Respondent’s second marriage, though contracted during the pendency of the appeal, was neither void nor unlawful. The Court, however, set aside the Family Court’s award of permanent alimony of Rs. 20,00,000/- and remitted the issue for fresh adjudication within two months, after affording both parties an opportunity to lead evidence. The Mat. Appeal was thus partly allowed. The judgment clarifies that the embargo against remarriage under Section 15 of the Hindu Marriage Act applies only where an appeal is filed within the period of limitation, and does not treat a dissolved marriage as subsisting so as to void a subsequent marriage.