Dismissed for Default and Respondent Remarried: Madurai Bench Holds Divorce Appeal Infructuous Under Section 15 HMA

The Madurai Bench of Madras High Court dismissed a husband's appeal against a divorce decree as infructuous after the wife had already remarried, and called for an amendment to Section 15 of the Hindu Marriage Act requiring appellants to obtain an interim stay within two months of filing.

A Division Bench of the Madurai Bench of Madras High Court, comprising Justice G.R. Swaminathan and Justice M.D. Sumathi, has dismissed a civil miscellaneous appeal filed by a husband against a Family Court divorce decree, holding the proceedings infructuous because the respondent-wife had remarried during the pendency of the appeal. The bench, in a judgment delivered on 13 August 2026, also upheld the Family Court's findings of cruelty and constructive desertion against the husband. Going further, the bench observed that Section 15 of the Hindu Marriage Act, 1955, requires legislative attention, and suggested that an appellant who does not obtain an interim stay of the divorce decree within two months of filing the appeal should lose the protection that Section 15 presently extends.

The Marriage, the Divorce Petition, and the Family Court's Order

The parties married on 3 June 2001 at Ramanathapuram according to Hindu rites. The respondent-wife, J.R. Lekha @ Vennila, is the appellant-husband R. Muthukumar's maternal uncle's daughter. There is an age gap of eleven years between them; at the time of marriage, the wife was in her first year of college. Two children were born out of the wedlock — a girl on 13 January 2004 and a boy on 8 May 2006.

While the husband became a Group IV government employee, the wife pursued her studies alongside raising the children. She obtained an M.Tech (IT) qualification and joined as an Assistant Professor in a private engineering college. The wife left the matrimonial home on 15 August 2015, taking the children with her. She filed H.M.O.P. No. 361 of 2017 before the Family Court, Tiruchirappalli, on 10 October 2017, seeking divorce on the grounds of cruelty under Section 13(1)(i-a) and desertion under Section 13(1)(i-b) of the Hindu Marriage Act, 1955.

The husband filed a counter. After recording evidence — the wife examined herself as PW.1 and marked Exhibits P1 to P5; the husband examined himself as RW.1 — the Family Court allowed the petition and passed a decree of divorce on 3 March 2021. The husband filed the present appeal before the Madurai Bench.

Cruelty by Suspicion and Constructive Desertion

The bench examined whether the Family Court was right to grant divorce on the grounds of cruelty and desertion. Justice G.R. Swaminathan, who authored the judgment, referred to the conduct documented in the husband's own counter-affidavit and the trial court's findings.

In paragraph 14(d) of his counter, the husband had alleged that the wife used to speak to someone on phone continuously, and that he made enquiries with their daughter about the person she was speaking with. He also made enquiries about the wife with the security guard of their residential quarters. When the wife left for Chennai on 13 August 2015, the husband quarrelled with her parents and made enquiries at her college.

The bench held that doubting a spouse's character constitutes cruelty within Section 13(1)(i-a), and that such doubt need not be explicit — it can operate by insinuation. The averments in the counter reflected a suspicion about the wife's conduct that, in the bench's assessment, made conjugal company incompatible.

On desertion under Section 13(1)(i-b), the bench noted that the husband had not issued any communication or legal notice asking the wife to return, had not taken any step toward reunion or reconciliation, and had not adduced any evidence to support his bald claim that the wife's parents had prevented him from meeting the children. The bench observed that a husband who doubts his wife's chastity, remains indifferent, and fails to maintain the children cannot avoid a finding of constructive desertion. The Family Court's order dated 3 March 2021 was accordingly confirmed on both grounds.

The Remarriage and the Question of Infructuousness

The second, and ultimately dispositive, issue arose from a submission by the respondent's counsel that she had remarried one Guhan Ramasamy on 27 August 2021 as per Hindu rites, with the marriage registered before the Registrar of Marriage, Peenya, Bangalore on 2 September 2021. Counsel argued that the appeal had consequently become infructuous.

The bench traced the procedural history of the appeal carefully. The appeal was filed within time. It was listed on 9 August 2021 but there was no representation for the appellant. Notice was ordered on 11 August 2021. No interim stay of the divorce decree was ever obtained. The matter was taken up again on 15 October 2025 and adjourned to 22 October 2025. The appeal was dismissed for non-prosecution on 5 November 2025. It was restored to file on 30 March 2026 and finally heard in August 2026.

The bench turned to Section 15 of the Hindu Marriage Act, which governs when a divorced person may remarry. Section 15 permits remarriage once a divorce decree is passed and either no appeal right exists, the time to appeal has expired without an appeal being filed, or an appeal has been presented but dismissed. A proviso that required at least one year to elapse from the date of the decree before remarriage was deleted by Act 68 of 1976.

The bench referred to the Supreme Court's ruling in N. Rajendran v. S. Valli (2025) 3 SCC 801, which clarified that “presenting the appeal” means filing it within the limitation period, with the period spent obtaining a certified copy excluded for computing limitation. The bench also noted Latha Kamath v. Vilas (1989) 2 SCC 613, which extended Section 15 to void marriages, and Krishnaveni Rai v. Pangaj Rai (2020) 11 SCC 253, which held that the bar under Section 15 applies only where an appeal is filed within limitation — not to a belated appeal filed on condonation of delay — unless the divorce decree has been stayed or the parties have been restrained from remarrying.

The bench also examined Lila Gupta v. Laxmi Narain (1978) 3 SCC 258, where the Supreme Court held that a marriage solemnised in breach of Section 15 is neither void nor voidable. The Madurai Bench observed the tension this creates: if such a marriage is not void or voidable, it can only be valid — and yet it remains subject to the uncertain outcome of an appeal that may take years to conclude. The bench found this inequitable but acknowledged that it could not rewrite the statute by reading in a clause that the appeal must also be accompanied by an interim stay.

Default Dismissal Extinguishes Section 15's Sting

The bench drew a specific conclusion from the procedural history. The appellant had not been present when the matter was listed for admission. He allowed the appeal to be dismissed for default on 5 November 2025. It was restored without the court being informed that the respondent had already remarried. The bench held that once an appeal is dismissed for default, Section 15 loses its effect. The expression “dismissed” in Section 15 includes dismissal for default or non-prosecution. When an application for restoration is taken up and it becomes apparent that the respondent has remarried, the appeal must be dismissed as infructuous — irrespective of when the remarriage occurred.

The bench also cited the right to marry as a human right, subject to conditions, and reasoned that because Section 15 restricts this right, it must be construed strictly.

A Call for Legislative Amendment

The bench referred to an article titled “Post Divorce Marriages Pending Appeal” published in 45 JILI (2003) 456 by Shri C.S. Raghuraman, which surveyed the case law and concluded that most judges had taken the view that a post-divorce marriage during a pending appeal is not valid. The bench noted that a quarter century had since elapsed and that changing social mores must be taken into account.

The bench made a specific legislative suggestion: Section 15 of the Hindu Marriage Act should be amended so that it is not enough for an appeal to be presented within time. The appellant must also obtain an interim stay of the divorce decree within two months of filing the appeal. Without such a stay obtained within that period, the protection afforded by Section 15 should not operate to render a subsequent remarriage invalid or to keep the appeal alive.

Outcome

The Division Bench dismissed C.M.A.(MD) No. 672 of 2021 with the observations set out above. The Family Court's decree of divorce dated 3 March 2021 in H.M.O.P. No. 361 of 2017 stands. A copy of the judgment was directed to the Judge, Family Court, Trichy.