Kerala High Court: No Offense for Second Marriage During Pending Divorce Appeal
The Kerala High Court, led by Justice P. Somarajan, recently ruled that if a person remarries while the appeal of their first marriage’s divorce decree is still pending, they are not guilty of bigamy under Section 494 of the Indian Penal Code — provided the appeal is eventually dismissed.
The court said, “Once the appeal ends in dismissal confirming the Family Court’s divorce decree, the second marriage falls under Section 15 of the Hindu Marriage Act, no matter if the second marriage happened before or after filing the appeal.”
In this case, the wife claimed her husband married again while the appeal against their divorce was still ongoing. As a result, the man was charged under Sections 494, 114, and 34 of the IPC. He challenged the charges in court.
The man’s second marriage took place after the Family Court granted the divorce decree but while an appeal and stay order were still active.
The court explained that for bigamy to be an offense, these conditions must be met:
- The accused had a first marriage.
- The accused remarried.
- The first marriage was still valid (not legally ended).
- The first spouse was still alive.
The court referred to the Supreme Court case Gopal Lal v. State of Rajasthan (AIR 1979 SC 713), which says a second marriage is void if it happens while the first spouse is alive.
The Kerala High Court also mentioned the updated Section 15 of the Hindu Marriage Act, which clarifies when a divorced person can legally marry again. It states that after a divorce decree is final—either because no appeal is filed or an appeal is dismissed—the parties are free to remarry.
Importantly, the court said the divorce decree’s effect dates back to the original Family Court’s decree, not the date when the appeal ends. So, if the appellate court confirms the divorce, it is considered effective from the Family Court’s original decree date.
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