When can a divorced person marry again — 90 days after the decree of divorce is issued, as envisaged under the Hindu Marriage Act, 1955, or 30 days as stipulated under the Family Courts Act, 1984?
A full bench of the Bombay high court will answer this question while deciding a reference.
A division bench of justice Abhay Oka and justice Ajay Gadkari referred the case, as it refused to accept the 2007 view of a division bench, which stated that provisions of the Hindu Marriage Act — which allows 90 days to file an appeal against a divorce decree issued by a family court — will prevail over the provisions of the Family Courts Act, which allows only 30-day period.
According to Section 15 of the Hindu Marriage Act, either parties can lawfully remarry after the marriage has been dissolved by a decree of divorce, provided the period within which to file an appeal is over.
The case pertains to a Thane resident, who challenged his estranged wife’s marriage to another man
The divorce was issued on April 22, 2013, by a Thane court. The husband filed the appeal in high court on July 3, 2013. However, six days later the woman remarried, which was before the completion of 90 days.
Apart from challenging the divorce order, the man objected to the validity of the woman’s second marriage.
“If the prescribed period of limitation for filing an appeal is considered as 90 days under the Hindu Marriage Act, then the marriage will be illegal,” the bench observed.
The judges, however, refused to accept the view. “As an appeal is a creation of a statue, it will be governed by the period of limitation provided in the statute,” the bench said, referring to the fact that the family court appeal is a creation of the Family Courts Act.
The bench said the provision of appeal under the Hindu Marriage Act was for challenging orders issued by the district court and not a family court.
The bench has, therefore, referred the question for decision to a larger bench.