Bombay high court has held that Remarriage during pendency of appeal against divorce not void:
Wife has remarried after period of 3 months of passing the divorce decree
no case of bigamy is made out
you do not gain any benefit
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Legal options post reversal of divorce decree by High Court
My wife obtained a divorce decree from the Family Court on 30th May 2024 under: Section 13(1)(ia) – cruelty Section 13(1)(ib) – desertion I reside abroad, so it took some time to coordinate with my counsel and file an appeal in the High Court. She was deliberately avoiding service of summons for several months, but on 20th May 2025, Dasti service was finally effected. Meanwhile, I recently came to know that she got remarried around 21st Nov 2024. My Question is Q. If she does not appear in High Court and for a moment assume High court does not find merit in cruelty and desertion and overturns the divorce decree by session court, what options do I have against her. a) I think, I can not make bigamy against her as she has married before any stay by High Court. But you can advise accordingly. b) Some lawyers have told me that I cannot even claim civil damages (e.g., defamation or malicious prosecution), as divorce proceedings are inherently civil in nature and "malice" is hard to establish. Is there any scope for a civil suit for damages or reputational harm, especially if the allegations (like cruelty) are found to be fabricated or baseless? It seems that even if I succeed in the High Court and the divorce decree is set aside, there is no real consequence for her. Even if her remarriage becomes null and void, what legal or practical benefit do I actually obtain?
Asked 6 months ago in Family Law
Religion: Hindu
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7 Answers
1. If , the decree was passed on 30.05.2024 then the appeal must be file before the High Court within a maximum period of 3 months
- Further , if no appeal filed by you within this period then she was having her legal right to re-marry.
- If 20th May she served with the notice then she will be given time of file the reply , however if none appeared on her behalf then the Court may pass its order to re-start trial in the family Court.
2. Yes , read Reply No.1
3. No defamation case is made out at this stage.
1. When a High Court sets aside a divorce decree in an appeal, and the respondent has remarried, the remarriage is generally considered invalid, and the first marriage is restored.
However, the situation can be complex, and the specific outcome depends on various factors, including the timing of the remarriage and the specific grounds for setting aside the divorce decree.
2.. It will be possible to file a defamation case if the High Court overturns a divorce decree based on allegations of cruelty, and you believe the wife's claims were defamatory.
A defamation case would need to demonstrate that the wife's statements were false, published, and caused you harm, and that she acted with malice or negligence.
To prove defamation, you would need to show that
a) The statement must be factually incorrect.
b)The statement must have been communicated to a third party.
c)The statement must have caused damage to your reputation.
d)In many cases, you would need to demonstrate that the defendant made the statement with knowledge of its falsity or with reckless disregard for its truth.
The High Court's decision overturning the divorce decree based on the lack of cruelty is relevant evidence that the allegations made against you were potentially false.
This evidence can be used to support a claim that the statements were defamatory.
These cases are very common in various Courts of India. I can understand your concern. It is unfortunate that you could not lead a happy married life. There are some incidents that happen in your life and those incidents are so strong that they change your DNA. They say marriages are made in heaven. But so is thunder and lightning. At times, despite our best efforts, life takes a turn for the worst. We may have wanted different things from life, but life’s got its own plan as well. A bad marriage is something which nobody hopes for, but at times, that’s exactly what we are given and forced to face head on. As you know that marriage doesn't guarantee that you will be together forever, it's only paper. It takes trust, respect, faith, friendship and understanding to make it last. Moreover a relationship without trust is like a car without gas, you can stay in it as long as you want but it won't go anywhere. Marriages are hard. Divorces…even harder. Nobody enters marriage thinking about a divorce in the end. If some are unable to cope with the harsh realities of marriage, the only viable option in front of them is to approach the Court and seek legal separation.
The divorce was granted on 30th May 2024 and she remarried around 21st November 2024. Section 15 of Hindu Marriage Act 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.
She was deliberately avoiding the service of summons and you have filed the appeal within the limitation period. Therefore, Court may set aside the marriage, however, the burden of proof is on you to state that she was deliberately avoid service. The "burden of proof" in the context of the Indian Evidence Act, 1872, essentially means the obligation of a party in a legal case to prove a particular fact in order for the court to consider it and potentially render a decision in their favor. You can initiate civil suit for recovery of damages. There are various cases in which Courts have granted compensation/damages to the husbands as well. Detailed discussion is required in such cases with complete documents.
You may contact my secretary to connect with me for clarification.
Gopal Verma
Advocate on Record
Supreme Court of India
Only her marriage will be null and void
Dear Client, the following points are to be noted.
The stay order issued "until the next date of hearing" continues in force indefinitely unless specifically vacated by the High Court. The 2024 SC judgment (cited in sources) made it clear that stay orders do not automatically expire after six months. It is to be noted that even if the opposite party does nothing regarding the stay order, the stay order in the case would still remain effective until the High Court rules on the issue at hand. Stay orders are not automatically vacated or ineffective. You are advised to submit a certified copy of the stay order from the High Court in the lower court. You can further also ask the lower court to recall the NBW and update the records by filing an application, quoting the stay. You can take proactive follow-up from the registry of the High Court to schedule the case for hearing in order to prevent open-ended delays in the case. In case the lower court disobeys the stay, you can choose to prosecute a contempt petition in the High Court for disobedience.
If the High Court reverses the divorce decree, your wife’s remarriage becomes technically void under Hindu law but not criminal, since there was no stay in place when she remarried. Therefore, bigamy charges under IPC Section 494 won’t apply. As for civil damages or defamation, courts generally do not allow such claims based on failed divorce grounds unless there was clear, malicious intent or false criminal allegations like 498A. While the reversal may not penalize her directly, it does help you retain legal marital status, protect your property and inheritance rights, and potentially challenge her remarriage through a declaration suit for nullity.
