The Bombay High Court rejected a woman’s interim application seeking dismissal of her husband’s appeal against their divorce decree on the ground that she had already married someone else.

A division bench comprising Justices RD Dhanuka and MM Sathaye observed “this was a classic example of increasing tendency amongst the litigants to try to overreach the provisions of Law by creating a situation, which is difficult to reverse, thereby making pending proceedings infructuous.”

The couple was married in 2006 and had one child. On a petition filed by the wife the Family Court granted her divorce in 2019 and also gave her permanent custody of the child.

The husband then filed an appeal against the decree in the Bombay High Court. As interim relief the Family Court order was stayed. The wife then approached the High Court in the present application and sought dismissal of the complaint.

The wife’s lawyer argued that she was already married to a German National unaware that her husband had filed an appeal. She also said that the appeal papers were served to her three days after her wedding.

She further submitted that the couple had been living separately for over 10 years now and their marriage had irretrievably broken down. Therefore, the stay on the divorce decree should be vacated and the appeal should be dismissed.

The husband argued that his wife married hastily and immediately applied for the child’s passport only to deny him access to his son. He further submitted that the court disallowed his wife from taking the son abroad and granted a stay on the divorce observing the wife’s conduct.

“The second marriage cannot be legally registered or socially accepted”, the estranged husband claimed.

Section 15 of the Hindu Marriage Act disallows spouses from re-marrying while an appeal against the divorce is pending or if it has been less than a year since the Family Court passed the divorce decree. Section 19 gives the aggrieved spouse at least 90 days to file the appeal.

The court was surprised by the “boldness” with which the wife was seeking for the appeal to be dismissed on the ground of second marriage in contravention of Section 15 of the Hindu Marriage Act, 1955.

The court refused dismissal of the appeal of the husband at an interim stage.

Case Title: Akash Kanwarlal Kamal v.Himani Akash Kamal