Right to marry is a human right: Madras HC suggests changes to Hindu Marriage Act to avoid obstacles to remarriage

The right to marry is a human right and restrictions on that right must be construed strictly, the Madras High Court said while suggesting that the Hindu Marriage Act be amended to prevent a pending appeal against divorce from indefinitely holding up remarriage [Muthukumar Vs Lekha]

A Division Bench of Justices GR Swaminathan and MD Sumathi said Section 15 of the Hindu Marriage Act, 1955 should be amended to require a person challenging a divorce decree to obtain an interim stay within two months of filing the appeal.

At present, Section 15 permits a divorced person to remarry only if any of the three conditions are met: where there is no right of appeal or where the time for filing an appeal has expired without one being filed or where an appeal has been filed but dismissed.

This meant that a person could file an appeal against a divorce decree and keep the opposing party from remarrying.

The High Court said that merely filing an appeal within time should not be enough to keep the successful spouse from remarrying for years.

“A quarter of a century has elapsed since then and we must take note of the changing social mores. We would respectfully suggest that Section 15 of the Hindu Marriage Act deserves an amendment. It should not be enough if the appeal is presented within time. The appellant must also obtain an interim stay of the decree of divorce within two months thereafter,” the Bench said.

The Court was dealing with an appeal against a family court decree dissolving a marriage on the grounds of cruelty and desertion. During the pendency of the appeal, the woman remarried. Significantly, there had been no interim stay of the divorce decree.

This prompted the Bench to examine the effect of Section 15 on a remarriage contracted while an appeal against the divorce decree was pending.

The Court noted that although the provision speaks of remarriage becoming lawful once an appeal has been dismissed, it does not expressly state that a marriage contracted in breach of the provision is void or voidable.

It referred to the Supreme Court's decision in Lila Gupta v. Laxmi Narain, which held that a marriage performed in breach of Section 15 is neither void nor voidable. The High Court observed that this creates an anomalous situation where a remarriage that is otherwise valid is made dependent on the uncertain outcome of an appeal.

“It does not appear to be equitable. More so, when the appeals take years together to get disposed of,” the Bench said.

The Court also referred to an academic article published in 2003 that had discussed the difficulties surrounding post-divorce marriages during the pendency of appeals and suggested amendments to Section 15.

Noting that more than two decades had passed since then, the Bench said changing social mores also warrant reconsideration of the provision.

The Court further held that the expression “dismissed” in Section 15 would include an appeal dismissed for default or non-prosecution.

“Right to marry is a human right. Of course, subject to conditions. Since Section 15 places restriction on this right, it has to be construed strictly,” the Bench said.

Accordingly, once an appeal against a divorce decree is dismissed for default, the restriction imposed by Section 15 ceases to operate, the Court held.

It added that if the divorced spouse has remarried by the time an application for restoration of the appeal is considered, the appeal must be dismissed as infructuous.

“It is irrelevant when the remarriage took place,” the Court said.

Separately, while upholding the divorce decree, the Bench also observed that doubting a spouse's character can amount to cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, whether the suspicion is expressed directly or through insinuation.

“Doubting one's character would constitute cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act, 1955. This can be explicit or by insinuation,” the Court said.

The appeal was ultimately dismissed.

The appellant was represented by advocate PR Prithiviraj.

The respondent was represented by advocate S Manojkumar.

[Read Judgment]