Remarriage after Divorce under Section 15 of the Hindu Marriage Act, 1955: A Doctrinal and Jurisprudential Analysis

Remarriage after Divorce under Section 15 of the Hindu Marriage Act, 1955: A Doctrinal and Jurisprudential Analysis

Introduction

Section 15 of the Hindu Marriage Act, 1955 (“HMA”) governs the capacity of divorced Hindus to contract a subsequent marriage. Although concise, the provision has generated extensive litigation concerning (i) the legal consequence of non-compliance, (ii) the impact of appellate proceedings (including special-leave jurisdiction), and (iii) the procedural diligence expected of parties. This article critically analyses the statutory text and judicial exposition of Section 15, drawing upon leading authorities such as Chandra Mohini Srivastava v. Avinash Prasad Srivastava[1], Lila Gupta v. Laxmi Narain[2], Tejinder Kaur v. Gurmit Singh[3] and Anurag Mittal v. Shaily Mishra Mittal[4].

Legislative Framework and Evolution

The original Section 15 permitted remarriage only after disposal (or expiry) of appellate remedies and, by a proviso, imposed a one-year waiting period after such disposal. The Marriage Laws (Amendment) Act 1976 repealed the proviso, liberalising the right while retaining the prerequisite that either (a) no appeal lies, (b) the appeal period has expired without appeal, or (c) any filed appeal has been dismissed.

Current text: “15. Divorced persons 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.”

Doctrinal Issues Raised by Section 15

1. Is Contravention Void, Voidable, or Irregular?

In Lila Gupta the Supreme Court held that a marriage solemnised in breach of the (then extant) one-year proviso is not void because Parliament, having expressly declared certain marriages void in Section 11, chose not to extend that sanction to Section 15. The breach is therefore directory, rendering the subsequent marriage at most “irregular” but legally subsisting.[2] This jurisprudence remains influential for post-1976 scenarios where appeals are pending out of time or under special leave.

2. Effect of Pending Appeals and Special Leave Petitions

In Chandra Mohini the Court, while acknowledging that Section 15 did not expressly cover special-leave petitions, emphasised that a successful litigant remarries at his peril before ascertaining whether an SLP has been filed.[1] Tejinder Kaur reiterated this caution, holding that the 90-day period for moving an SLP is a zone of risk.[3]

After the 1976 amendment, Anurag Mittal clarified that once an appeal is withdrawn, the impediment under Section 15 ceases ab initio; the formal dismissal order merely records a fait accompli.[4]

3. Limitation, Withdrawal, and Belated Appeals

High-Court dicta (e.g., Jasbir Kaur v. Kuljit Singh[5]) hold that “an appeal has been presented” includes an appeal admitted after condonation of delay. Conversely, the Supreme Court in Prakash Chand Sharma v. Vimlesh treated remarriage during pendency of even a time-barred appeal as contrary to Section 15, underscoring a purposive rather than literal reading.

4. Interplay with Sections 5 and 11

A remarriage in breach of Section 15 does not immediately offend Section 5(i) (no living spouse) because the earlier marriage stands dissolved. However, if the divorce decree is later reversed on appeal, the subsequent marriage retrospectively violates Section 5(i) and may be declared void under Section 11.[6] This possibility explains the judiciary’s insistence on prudence before remarriage.

5. Constitutional Dimensions

Autonomy in marital choice is embraced under Article 21 (life and personal liberty) and Article 19(1)(c) (association). Recent equality jurisprudence for gender minorities (Supriyo v. Union of India[7]) further situates Section 15 within a matrix of personal liberty and anti-discrimination. The provision must therefore be applied in a manner that reconciles individual freedom with the need for procedural finality.

Analytical Synthesis

  • Directory Construction: Courts prefer sustaining the validity of marriages even when Section 15 is breached, to avoid collateral hardship (Lila Gupta).
  • Purposive Interpretation: The objective of preventing marital status uncertainty guides rulings on appeal withdrawal, dismissal, or condonation (Anurag Mittal).
  • Equitable Caution: Parties rushing into remarriage before exhaustion of appellate remedies do so at their peril and cannot seek equitable relief if adverse consequences ensue (Chandra Mohini).

Prospective Reforms

Although the 1976 amendment simplified Section 15, practical complexities persist. Mandatory digital certification of appellate status, legislative clarification on the impact of belated appeals and SLPs, and harmonisation with the Transgender Persons (Protection of Rights) Act 2019 would enhance legal certainty and inclusivity.

Conclusion

Section 15 exemplifies the delicate balance between procedural finality and personal autonomy. Judicial interpretation has forged a nuanced framework: the provision is mandatory in purpose but directory in consequence, safeguarding appellate rights without delegitimising subsequent familial arrangements. Ongoing vigilance in procedural compliance, coupled with targeted legislative fine-tuning, will ensure that Section 15 remains both an instrument of juridical certainty and a facilitator of individual liberty.

Footnotes

  1. Chandra Mohini Srivastava v. Avinash Prasad Srivastava, AIR 1967 SC 581.
  2. Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258.
  3. Tejinder Kaur v. Gurmit Singh, (1988) 2 SCC 90.
  4. Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691.
  5. Jasbir Kaur v. Kuljit Singh, 2008 SCC OnLine P&H 455.
  6. See Anurag Mittal, para 8 (discussing interplay of Sections 5(i), 11, and 15).
  7. Supriyo @ Supriya Chakraborty v. Union of India, 2023 SCC OnLine SC 1348.