Second Marriage During Pendency of Divorce Appeal Is Void: Kerala High Court

"A Party Cannot Defeat an Appeal by Contracting a Second Marriage During Its Pendency — The Dissolution of Marriage Is Complete Once the Decree Is Made, Subject of Course to Appeal", Kerala High Court on March 17, 2026 dismissed an appeal challenging a Family Court decree that had declared a second marriage void, holding that a marriage contracted during the pendency of an appeal against a divorce decree is void under Section 11 read with Section 5(i) of the Hindu Marriage Act, 1955.

A Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar held that since the appeal against the divorce decree was ultimately allowed and the divorce reversed, the first marriage remained intact and the second marriage was a nullity from the outset.

Background of the Case

Ayyappan's first marriage with the first petitioner was solemnised on March 20, 1977, and three children were born of the union. Ayyappan filed for divorce, which was granted by the trial court on June 13, 1990. The first petitioner immediately challenged the decree by filing MFA 667/1990 before the Kerala High Court on July 10, 1990 — well within the period of limitation. During the pendency of that appeal, Ayyappan contracted a second marriage with the appellant on January 30, 1991. A son was born of this second marriage. The divorce appeal was ultimately allowed and the decree of divorce reversed, leaving the first marriage intact. Disputes over Ayyappan's retirement benefits led to a petition before the Family Court for declaration of marital status and paternity. The Family Court decreed in favour of the first petitioner and her children. The second wife appealed to the High Court.

Section 15: When Remarriage Is Permitted

The Court examined Section 15 of the Hindu Marriage Act, which permits remarriage only when no right of appeal exists against the divorce decree, or when the time for appeal has expired without an appeal being filed, or when an appeal has been presented but dismissed. In the present case, none of these conditions were satisfied — an appeal had been filed within limitation and was pending when the second marriage was contracted.

"An appeal is the continuation of the original proceeding. The respondent in an appeal cannot be heard to say that by virtue of his conduct pending the appeal, the appeal has become infructuous. Acts done pending the appeal are subject to the outcome of the appeal — lest it would be easy to defeat an appeal."

Lila Gupta Distinguished

The appellant relied on the Supreme Court's decision in Lila Gupta v. Laxmi Narain (1978) 3 SCC 258, which had held that a marriage contracted during the one-year prohibitory period under the proviso to Section 15 was not void. The Court distinguished this precedent, noting that Lila Gupta dealt with a situation where no appeal had been filed — the only question was whether violation of the one-year restriction rendered the marriage void. Critically, the Supreme Court in Lila Gupta had itself underscored that such a marriage is subject to the result of any appeal, and had quoted the Privy Council in Marsh v. Marsh (AIR 1945 PC 188):

"It is a judgment in rem and unless and until a court of appeal reversed it, the marriage for all purposes is at an end."

And the Supreme Court's own formulation in Lila Gupta: "The dissolution is complete once the decree is made, subject of course, to appeal."

Notice in Appeal Is Irrelevant

The appellant further contended that since notice in the appeal was served on Ayyappan only after the second marriage was contracted, the marriage should be saved. The Court rejected this entirely, relying on the Supreme Court's judgment in Chandra Mohini Srivastava v. Avinash Prasad Srivastava (AIR 1967 SC 581), which held that a party who has obtained a decree of dissolution cannot by marrying immediately afterwards deprive the other party of the right to file an appeal or special leave petition.

"If a person does so, he takes a risk and cannot ask this Court to revoke the special leave on this ground."

The Court also relied on Anurag Mittal v. Shaily Mishra Mittal (2018) 9 SCC 691, where the Supreme Court had observed that in case of dissolution of marriage, a second marriage shall be lawful only after dismissal of any appeal filed, and that the object of Section 15 is to protect the party who has filed an appeal from having it frustrated.

The appellant's reliance on Krishnaveni Rai v. Pankaj Rai (2020) was also distinguished, as that case concerned a belated appeal filed after the limitation period — a materially different situation where the Supreme Court had held that a marriage validly contracted after expiry of the limitation period cannot be rendered void by a belated appeal. In the present case, the appeal was filed within limitation and was ultimately allowed.

The Kerala High Court dismissed the appeal and affirmed the Family Court's decree. Since the divorce decree was reversed by the High Court in MFA 667/1990, the first marriage between Ayyappan and the first petitioner remained unbroken throughout. The second marriage contracted during the pendency of that appeal was in contravention of Section 5(i) of the Hindu Marriage Act and was void under Section 11. The second wife's claim to the status of wife — and her son's claim through that status — stood extinguished.

Date of Decision: March 17, 2026