'Marriage human right': Madras HC seeks change in Hindu Marriage Act

Chennai: The Madras High Court has said that the right to marry is a human right and that the possibility of remarriage should not remain uncertain for years merely because an appeal has been filed against a divorce decree. The court has suggested an amendment to Section 15 of the Hindu Marriage Act, proposing that a person challenging a divorce should be required to obtain an interim stay within two months.

A division bench comprising Justices G.R. Swaminathan and M.D. Sumathi observed while dismissing an appeal filed by a husband against a divorce granted by a family court. The couple had married in 2001 and had two children. The wife had obtained a divorce on the grounds of cruelty and desertion, following which the husband challenged the decree before the High Court.

The appeal was later dismissed for non-prosecution and subsequently restored. In the meantime, the wife remarried on August 27, 2021, while there was no interim stay against the divorce decree. The High Court consequently held that the appeal had become infructuous.

The court held that, in the circumstances of this case, the absence of a stay meant that the divorce decree remained in force and the wife was entitled to remarry. It also noted that the husband's appeal had been dismissed for default before it was later restored.

The bench expressed concern that matrimonial appeals can take years to conclude, leaving a valid remarriage dependent on the uncertain outcome of prolonged litigation. It is therefore suggested that Section 15 be amended so that merely filing an appeal within the prescribed period would not indefinitely prevent remarriage, while making clear that the proposed two-month stay requirement would require legislative action rather than being a rule created by the court.