The provision is short enough to read in full, and reading it is what settles most of the argument.
Before anything else, clear away a myth. Section 15 once carried a proviso barring remarriage until a year had passed from the decree of the court of first instance. That proviso was deleted by the Marriage Laws (Amendment) Act, 1976, on the Law Commission's recommendation. Anyone telling you there is a one-year waiting period after a divorce decree is quoting a repealed proviso. There is no waiting period. There is a condition, and the condition is about appeals.
What the Supreme Court has actually held
In Tejinder Kaur v. Gurmit Singh, decided on 23 February 1988, the husband obtained a divorce decree, the wife's appeal was dismissed by the High Court on 16 July 1986, and the husband remarried on 17 August 1986, about a month later. When the wife filed a special leave petition, he argued it had become infructuous because he had remarried. The Court overruled that objection. It held that under the Hindu Marriage Act monogamy is the rule and a party can contract a valid second marriage only after the first ceases to exist in the manner envisaged by Section 15, that the Limitation Act allows ninety days for a special leave petition from the disposal of the appeal by the High Court, and that a successful party cannot take away the other spouse's right to present such an application by marrying immediately after the High Court's judgment. Until that period was over, the Court said, it was not lawful for either party to marry again as provided by Section 15. It added that it was incumbent on the husband to have found out whether the appeal was still pending, and if not, whether the time for a special leave petition had expired.
So the first and most useful thing to know is that the remarriage does not end your case. The appeal or the special leave petition goes on.
Why it is still not simply bigamy
Because bigamy requires the earlier marriage to be subsisting. A decree of divorce that has not been stayed dissolves the marriage from the date of the decree, and while the decree stands the second marriage is not on its face a marriage during the subsistence of the first. That is why courts have declined to treat a remarriage in breach of the timing condition as automatically void, and it is why a criminal complaint filed on those facts alone tends to run into difficulty.
What changes everything is the outcome of the appeal. If the decree is set aside, the first marriage stands as though it had never been dissolved, and the person who did not wait is left holding a second marriage contracted while the first subsisted. That is the real risk being run, and it falls entirely on the spouse who remarried. Courts also treat the conduct as disentitling. In a well-known case where a husband remarried during the pendency of the proceedings, the Supreme Court declined to exercise its discretion in his favour, observing that a party who comes to court with clean hands is the one to be assisted.
What to do, in order
- Check whether your appeal is in time and, if it is not, file it with an application for condonation of delay immediately rather than investigating first
- Apply for a stay of the operation of the decree in the appeal. A decree that is not stayed operates, and the absence of a stay is what gives the remarriage its footing
- Put the remarriage on record by affidavit, with the marriage certificate if obtainable, the invitation, photographs, and the details of the date and place
- Do not withdraw the appeal or the special leave petition on the basis that the remarriage has made it pointless. It has not
- Ask that any maintenance, residence and custody arrangements be protected in the interim, because those do not depend on the outcome of the appeal
- Take advice before filing a criminal complaint. It is a separate decision with its own consequences, and it is rarely the strongest move while the civil appeal is alive
The appeal windows, which are short
| Provision | Period | From |
|---|---|---|
| Section 19(3), Family Courts Act, 1984 | Thirty days | The date of the judgment or order of the Family Court, for an appeal to the High Court |
| Section 28(4), Hindu Marriage Act, 1955 | Ninety days | The date of the decree or order under that Act |
| Limitation Act, 1963, for a special leave petition | Ninety days | The date of the High Court's judgment, as the Supreme Court noted in Tejinder Kaur |
The first two do not sit comfortably together and there has been litigation about which governs a decree passed by a Family Court in a matter under the Hindu Marriage Act. Section 19(1) of the Family Courts Act opens with a non obstante clause and Section 20 gives that Act overriding effect, which is why the thirty-day period is the safer assumption in practice. If you are already past thirty days, file at once with a condonation application rather than relying on the longer period. Section 19(2) also matters here: no appeal lies from a decree or order passed by a Family Court with the consent of the parties, so a decree that followed a settlement is a different problem altogether.
What I tell clients
The two mistakes are symmetrical. The spouse who has won a decree and wants to remarry should wait out the appeal period, confirm from the court record that nothing has been filed, and keep the certified copy of the order sheet showing it. Ten days of patience prevents a decade of litigation. The spouse who has lost and wants to appeal should apply for a stay on day one, because it is the absence of a stay, far more than the wording of Section 15, that lets the remarriage happen at all. The guide on when you can remarry after a divorce decree works through the timing, and how to appeal a Family Court order covers the filing.