A marriage during the pendency of an appeal against divorce remains invalid under the Hindu Marriage Act.

Sathish Ninan, J.

The original petition seeking declaration of marital status and paternity, was decreed by the Family Court. The first respondent, who is the rival claimant, is in appeal.

2. For the sake of convenience, the parties are hereinafter referred to as per their status before the Family Court.

3. According to the petitioners, the marriage between the first petitioner and late Ayyappan was solemnised on 20.03.1977. Petitioners 2 to 4 were born in the wedlock. Ayyappan had instituted OP( HMA ) 5/1988 against the first petitioner, seeking divorce. Though the original petition was allowed dissolving the marriage, the decree was reversed in appeal filed by the first petitioner. The first respondent claims that after the dissolution of marriage of Ayyappan with the first petitioner, he had married the first respondent on 30.01.1991, in which a son was born. With regard to the claim over retirement benefits of late Ayyappan, there has arisen disputes between the petitioners and the first respondent, thus leading to the litigation.

4. The family court allowed the original petition.

5. We have heard Smt.M.Hemalatha, the learned counsel appearing on behalf of the appellant-first respondent and Sri.G.S.Reghunath, the learned counsel appearing for respondents

1 to 4/petitioners.

6. The marriage between the first petitioner and late Ayyappan was solemnised on 20.03.1977. The original petition seeking divorce was allowed by the Court on 13.06.1990. Challenging the decree, an appeal was filed by the first petitioner before this Court on 10.07.1990 as MFA 667/1990. Thereafter, on 30.01.1991, Ayyappan married the first respondent. The short question is, whether the marriage of Ayyappan with the first respondent, which was held pending the appeal, is valid or not.

7. Section 5 of the Hindu Marriage Act (herein after referred to as “the HM Act”) prescribes the conditions for a valid marriage. (i) ensures monogamy. In terms of Section 11 of the Act, contravention of (i) renders the marriage null and void. The argument of the learned counsel for the appellant is that, in the present case the marriage was after the decree of the trial court dissolving the marriage. Though an appeal had been pending there were no interdictory orders. Reliance is placed on the judgment of the Apex Court in Lila Gupta v. Laxmi Narain 1978 (3) SCC 258 to contend that, by virtue of the decree for divorce which was in operation at the time of marriage, the appellant got conferred with the status of wife.

8. We are unable to agree with the argument of the learned counsel. 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. Section 28 of the HM Act vests the aggrieved party with a right of appeal. Section 15 imposes a restriction on the right to marry during a certain period as specified therein. The Section reads thus: -

“15. Divorced person when may marry again— When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

Originally, the Section had a proviso which reads thus: -

“Provided that it shall not be lawful for the respective parties to marry again unless