Report No. 15
Clause 33
The provisions relating to remarriage of divorced persons, as contained in the various Acts, vary in form and substance. For example-
(1) As regards the period.-In section 57 of the Divorce Act, the provision is that when six months after the dissolution of the marriage have expired, or (when an appeal has been presented to the High Court in its appellate jurisdiction) the appeal has been dismissed or the marriage is dissolved on appeal, the parties may re-marry, provided no further appeal has been presented. If there is any further appeal, the parties can re-marry after the further appeal is disposed of.
Section 15 of the Hindu Marriage Act allows remarriage where the marriage has been dissolved and either there is no right of appeal, or if there is a right of appeal, no appeal has been filed within the time or the appeal has been dismissed. The proviso, however, prescribes a minimum period of one year from the decree "in the court of the first instance".
Section 30 of the Special Marriage Act is to the same effect, but the period of one year has to be calculated, it would appear, from the date of the appellate decree (where there has been an appeal).
(ii) As regards the right.-The right of the parties to re-marry has been expressed in different terms in the various statutes. Section 57 of the Divorce Act says, "it shall be lawful to marry again as if the prior marriage had been dissolved by death".
Section 15 of the Hindu Marriage Act simply provides that "it shall be lawful to marry again".
Section 30 of the Special Marriage Act provides that "either party to the marriage may marry again".
(iii) As to the consequences of the violation of the prohibition.-Section 57 of the Divorce Act emphasises the mandatory character of the prohibition by adding the words "but not sooner".
Section 15 of the Hindu Marriage Act does not contain these words, but the words in the proviso-"it shall not be lawful" appear to have the same force.
Section 30 of the Special Marriage Act contains the words "but not sooner."
Course adopted.-The clause under discussion takes away any minimum period for remarriage after the final decree. In case of appeal, of course, the party has to wait until the appeal is dismissed. And in any case, the party has to wait until the time for appeal has expired. But once the proceedings finally end, there is no further waiting period.
The words "but not sooner" have been retained, to emphasise the mandatory character of the provision. The phraseology "either party may marry" etc., used in the Special Marriage Act, has been adopted as brief and simple.
Compare also section 13(1) of the (English) Matrimonial Causes Act, 1950.
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