A second marriage during the pendency of an appeal against a divorce decree is illegal under Section 15 of the Hindu Marriage Act, and allegations of cruelty must be substantiated by evidence.

JUDGMENT :

PRAYER: Civil Miscellaneous Appeal filed under Section 19(1) of Family Courts Act, 1984 against the judgment and decree dated 18.09.2017 made in H.M.O.P.No.241 of 2016 on the file of Family Court, Madurai.

This Civil Miscellaneous Appeal is filed by the wife, who had lost her case before the Family Court in H.M.O.P.No.241 of 2016, which was initiated by the husband for divorce.

2. On 28.03.2007, the appellant married the respondent as per the Hindu rites and customs. The respondent/husband, after marriage, went to Singapore to pursue his avocation, leaving behind his wife. Thereafter, when he proposed her to join him in Singapore, the appellant delayed the chance of joining by quoting her studies. On 16.12.2007, she joined her husband at Singapore, but was very inquisitive about the salary and other perks earned by the respondent/husband. She was very suspicious about his character and also avoided sexual cohabitation with him. However, due to the marital life, the appellant got conceived and she was brought back to Madurai for delivery. In the month of May, 2008, they both came back to Madurai and lived for few days. Due to the ill advice of the parents of the appellant, she has taken away her jewels, dress and got separated. Alleging that since June 2008, the appellant is not living with the respondent inspite of repeated demand, a complaint was lodged by the appellant before the Police alleging dowry harassment. Citing these incidents as a cause of cruelty, divorce petition was filed by the respondent/husband before the Family Court, Madurai.

3. The criminal complaint lodged by the appellant was taken up on file by the learned Judicial Magistrate, Madurai in C.C.No.155 of 2011 and was transferred to Additional Mahila Court, Madurai, re-numbered as C.C.No.165 of 2014 and the same was dismissed after full trial. A maintenance petition was filed by the appellant/wife in M.C.No.62 of 2011 before the Family Court, Madurai and the respondent was directed to pay monthly maintenance of Rs.5000/- to the appellant and her child. Considering all these facts, the Family Court, Madurai has allowed the divorce petition by order dated 18.09.2017. Challenging the same, the appellant/wife had preferred the present Civil Miscellaneous Appeal.

4. The appeal was presented on 20.10.2017. The respondent/husband had filed a caveat through his counsel on 20.09.2017 and had notice about the presentation of appeal by the wife challenging the decree of divorce. However, it is now submitted that the respondent has married another lady on 23.01.2020 and has also begotten a male child. Citing this as a reason, the appeal was strongly contested besides other facts, which have been found in favour of the respondent.

5. This Court, in order to ascertain the validity of the second marriage pending appeal, directed the learned counsels for the respective parties to place their arguments on this point first to test the same as per Section 15 of the Hindu Marriage Act. Accordingly, the facts were placed before this Court along with the rulings.

6. Heard the learned counsels on both sides on the point of validity of the second marriage as well as the validity and sustainability of the order passed by the Family Court, which is under challenge before this Court.

7. The parties got married on 28.03.2007. Divorce petition was presented on 08.03.2016 by the respondent/husband under Section 13(1), (i-a) and (i-b) of the Hindu Marriage Act. The Family Court dissolved the marriage by order dated 18.09.2017 and the copy of the order was made ready on 10.10.2017. The appeal by the aggrieved wife was presented before this Court on 20.10.2017 well within the period of limitation. Even before the presentation of the appeal, the respondent/husband has preferred a caveat petition on 20.09.2017 in SR38322 Caveat Petition(MD)No.1716 of 2017, i.e., within two days from the date of order passed by the Family Court. While so, pending appeal in C.M.A.(MD).No.937 of 2017, the re