• Marrying again after second Motion but before Divorce Decree & Quashing of FIR

Hi, The second motion in my divorce case has gone through with both sides submitting the divorce consent affidavits. However, no divorce decree has been issued yet and the FIR under section 498-A/323/354/406/34 is scheduled to get quashed in high court in May.The final installment of the settlement amount will also be paid then (May) before the quashing of the FIR.

Can I marry again in the meanwhile in April before the divorce decree has been issued & before the quashing of FIR as the divorce is all but done after the second motion and the court has received consent from other party about them agreeing for divorce. Is the decree only a formality and will there be any complications if I marry in April before getting the divorce decree in hand and before quashing of the FIR under 498-A/323/354/406/34?
Asked 4 years ago in Family Law
Religion: Hindu

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14 Answers

Marriage will be void and criminal offense. Decree is essential, every thing else is a formality.

Yogendra Singh Rajawat
Advocate, Jaipur
22648 Answers
31 Consultations

4.4 on 5.0

You can get married before the quashing of the FIR but not before the decree of divorce has been passed by the court. If you do so, you will be coming and offence of bigamy under section 494 of the Indian penal code and your second marriage would be void as per law.

Siddharth Jain
Advocate, New Delhi
6303 Answers
102 Consultations

5.0 on 5.0

you cannot remarry during subsistence of earlier marriage 

 

2) your second marriage would be illegal 

Ajay Sethi
Advocate, Mumbai
94781 Answers
7546 Consultations

5.0 on 5.0

Dear Sir/ Madam,

It is always advisable to abide by the due course of law and it is recommendable too. Before obtaining the Decree of Divorce , you should not take such steps of remarraige

Anand Shukla
Advocate, New Delhi
666 Answers
14 Consultations

4.9 on 5.0

No you cannot marry before the decree is issued as technically you are married till the issuance of the decree. She may take advantage of this fact and reveal this. Bigamy is an offence.

Rahul Mishra
Advocate, Lucknow
14088 Answers
65 Consultations

5.0 on 5.0

Legally before the decree of divorce is not drawn then the marriage is still  subsisting.

Therefore any marriage contracted during the subsistence of the marriage then it can be termed as an act of bigamy and an invalid marriage

You may wait for the decree of divorce is drawn by the court for marrying again.

 

T Kalaiselvan
Advocate, Vellore
84979 Answers
2204 Consultations

5.0 on 5.0

As per Hindu Personal laws a second marriage without ending the first marriage would be null and void.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

  1. No you cannot get married till the decree of divorce is pronounced by the family court. Marrying before that will attract prosecution for bigamy. 
  2. Though everything may have been finalized between you and your wife and consent terms may also been filed before the judge, still pronouncement of decree is not a mere formality, as you are falsely assuming. You are thinking in practical terms, but technically, it's not binding on the family court to pronounce a decree of divorce only, just because it's mutual consent divorce. The family court can pronounce any decree that appears just and proper to it. 
  3. Hence you must wait for pronouncement of judgement before re-marrying.

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1547 Answers
5 Consultations

4.4 on 5.0

1. Unless the decree of divorce is passed the marriage continues to subsist for all legal and practical reasons. Hence, you cannot remarry.

2. The decree is not a 'formality'. Remarriage before passing of decree of divorce will render the second marriage bigamous which is an offence.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

   There is an old saying "Jat Mara tab janiye jab     teravi hoi" .   In my opinion, you should wait till divorce decree is obtained and FIR is quashed.   Finish the old chapter first and then start afresh.  A spark is enough to lid fire.

Dalip Singh
Advocate, New Delhi
1084 Answers
36 Consultations

5.0 on 5.0

Dear Sir,

Although the Hindu Marriage Act prescribes that it shall be lawful to marry again only after dismissal of an appeal filed by aggrieved party against the decree of divorce, the Supreme Court, however, clarified that second marriage would not be void if solemnised during the pendency of appeal

Second marriage valid even if plea against divorce is pending: SC

Although the Hindu Marriage Act prescribes that it shall be lawful to marry again only after dismissal of an appeal filed by aggrieved party against the decree of divorce, the Supreme Court, however, clarified that second marriage would not be void if solemnised during the pendency of appeal.
Interpreting section 15 of Hindu Marriage Act, a bench of Justices S A Bobde and L Nageswara Rao said that incapacity for second marriage for a certain period of time (during the pendency of appeal against divorce )did not have the effect of treating the former marriage as subsisting and that a marriage contracted during that period will not be void because it was contracted under an incapacity.

Section 15 says 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. Section 5(1) of the Act says a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage.

The apex court set aside Delhi high court which had held that any marriage solemnized by a party during the pendency of the appeal wherein the operation of the decree of divorce was stayed, would be in contravention of Section 5 (i) of the Act. It passed the order on an appeal filed by a man challenging HC verdict which had declared his second marriage void on a plea of his second wife.

 

The man got married the second time when his appeal against divorce from his first wife was pending in HC. During pendency of his plea, he had settled the dispute with his first wife and filed an application for accepting the divorce and sought withdrawal of his appeal. But a fortnight before the HC passed the formal order allowing him to withdraw his appeal, he got married for the second time.

His second marriage also did not turn out to be blissful and matrimonial discord between the couple led his second wife to challenge validity of the marriage saying that it was void as it was solemnised during the pendency of case in HC. A family court dismissed her plea but the HC gave verdict in her favour and declared the marriage void.
The apex court, after hearing both the sides came to the conclusion that violation of section 15 did not render marriage void and said “if a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity”.
“The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The Act intends to bring about social reforms. It is well known that this court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone,” the bench said.

 

It is really a funny decision. If for any reason the divorce does not go through what will be the option, will it be according to H M Act or will be treated otherwise. Or is the Court hoping tha..

 

 


“The dissolution of the marriage is complete once the decree is made, subject of course to appeal. This court also decided that incapacity for second marriage for a certain period of time does not have the effect of treating the former marriage as subsisting and the expression ‘spouse’ would not include within its meaning the expression former spouse,” the bench said while referring to its 1978 verdict.
“Whenever a statute prohibits a certain thing being done thereby making it unlawful without providing for consequence of the breach, it is not legitimate to say that such a thing when done is void because that would tantamount to saying that every unlawful act is void... Consequences of treating a marriage void are so serious and far reaching and are likely to affect innocent persons such as children born during the period anterior to the date of the decree annulling the marriage that it has always been considered not safe to treat a marriage void unless the law so enacts or the inference of the marriage being treated void is either inescapable or irresistible,” the bench said while quoting its earlier judgement.


Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

You can't marry before divorce decree but certainly can marry before quashing

Prashant Nayak
Advocate, Mumbai
31954 Answers
180 Consultations

4.1 on 5.0

1. Yes you can marry again even if the copy of divorce decree is not yet issued to you. 

2. No need to worry as this is mutual consent divorce and decree of divorce is granted on day of second motion and getting copy of decree is just a formality.

3. FIR will definitely get quashed in high court after mutual consent divorce.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

Yes, you can marry if the divorce case is too filed. there is on citation like this due to ling time is consumed in the court so it is acceptable.

Ganesh Kadam
Advocate, Pune
12930 Answers
255 Consultations

4.9 on 5.0

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