Remarriage after Divorce: Section 30, Special Marriage Act

A decree of divorce dissolves the marriage, but a party who remarries while the decree can still be overturned on appeal risks entering a bigamous marriage. Section 30 of the Special Marriage Act therefore fixes when a divorced person may marry again: only when the decree has become final. This note explains the three situations in which that happens, the appeal period, and the consequences of remarrying too early.

1. The Rule

When a divorced party may marry again

Figure 1: When a divorced party may marry again

Text, s.30. Where 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, the time for appealing has expired without an appeal, or an appeal has been presented but has been dismissed, either party may marry again.
Appeal period. An appeal under s.39 lies within ninety days from the date of the decree (s.39(4)); the right to remarry ordinarily arises when that period expires without an appeal (Topic 24)
Either party. The right belongs to both spouses, including the respondent against whom the decree was passed.
No other waiting period. Once the decree is final, there is no further statutory waiting period before remarriage.

2. Remarriage before Finality

Risk. If a party remarries while an appeal is possible or pending, and the decree is later reversed, the earlier marriage revives and the second marriage may be void as bigamous under s.4(a) and s.24, with penal consequences.
Anurag Mittal v Shaily Mishra Mittal (2018). Under the parallel s.15 of the Hindu Marriage Act, the Supreme Court held that a marriage contracted during the pendency of an appeal against a divorce decree was not void where the appeal was later withdrawn. The bar exists to protect the appellant, and once the appeal is withdrawn the purpose no longer survives.
Prudence. Parties should wait until the decree is final, or obtain a clear withdrawal or dismissal of any appeal, before remarrying.

3. Related Points

Nullity. Section 30 speaks of divorce. After a decree of nullity, the parties were never validly married (void) or the marriage is annulled (voidable), and they may marry subject to the general conditions in s.4.
Same spouse. Divorced spouses may remarry each other under the Act, by giving fresh notice and satisfying s.4.
Remarriage and alimony. Remarriage of a wife who receives permanent alimony allows the husband to seek variation or rescission of the order (s.37(3); Topic 22)

⚠ Exam trap

Under s.30, either party may remarry only when the divorce decree is final: where there is no right of appeal, the ninety-day appeal period under s.39(4) has expired without appeal, or the appeal has been dismissed. Remarriage earlier risks a void and bigamous marriage if the decree is reversed. Under the parallel Hindu provision, a marriage during a pending appeal that was later withdrawn was upheld (Anurag Mittal, 2018). Remarriage of a wife allows variation of permanent alimony (s.37(3)).

4. Frequently Asked Questions

When can a divorced party remarry under the Special Marriage Act?

When the decree of divorce has become final: where there is no right of appeal against it, where the ninety-day period for appeal has expired without an appeal being filed, or where an appeal has been filed and dismissed.

Is a marriage during the pendency of an appeal against divorce void?

It is risky. If the decree is reversed, the earlier marriage revives and the second may be void. But under the parallel Hindu law provision, the Supreme Court in Anurag Mittal (2018) upheld a marriage contracted during a pending appeal that was later withdrawn.

5. Related Topics

Topic 24: Appeals, Enforcement and Transfer. The appeal period.
Topic 25: Bigamy and False Declarations. Consequences of a premature remarriage.