Sathish Ninan, J.

1. The original petition seeking declaration of marital status and paternity, was decreed by the Family Court. The first respondent, who is the rival claimant, is in appeal.

2. For the sake of convenience, the parties are hereinafter referred to as per their status before the Family Court.

3. According to the petitioners, the marriage between the first petitioner and late Ayyappan was solemnised on 20.03.1977. Petitioners 2 to 4 were born in the wedlock. Ayyappan had instituted OP(HMA) 5/1988 against the first petitioner, seeking divorce. Though the original petition was allowed dissolving the marriage, the decree was reversed in appeal filed by the first petitioner. The first respondent claims that after the dissolution of marriage of Ayyappan with the first petitioner, he had married the first respondent on 30.01.1991, in which a son was born. With regard to the claim over retirement benefits of late Ayyappan, there has arisen disputes between the petitioners and the first respondent, thus leading to the litigation.

4. The family court allowed the original petition.

5. We have heard Smt.M.Hemalatha, the learned counsel appearing on behalf of the appellant-first respondent and Sri.G.S.Reghunath, the learned counsel appearing for respondents 1 to 4/petitioners.

6. The marriage between the first petitioner and late Ayyappan was solemnised on 20.03.1977. The original petition seeking divorce was allowed by the Court on 13.06.1990. Challenging the decree, an appeal was filed by the first petitioner before this Court on 10.07.1990 as MFA 667/1990. Thereafter, on 30.01.1991, Ayyappan married the first respondent. The short question is, whether the marriage of Ayyappan with the first respondent, which was held pending the appeal, is valid or not.

7. Section 5 of the Hindu Marriage Act (herein after referred to as “the HM Act”) prescribes the conditions for a valid marriage. Section 5(i) ensures monogamy. In terms of Section 11 of the Act, contravention of Section 5(i) renders the marriage null and void. The argument of the learned counsel for the appellant is that, in the present case the marriage was after the decree of the trial court dissolving the marriage. Though an appeal had been pending there were no interdictory orders. Reliance is placed on the judgment of the Apex Court in Lila Gupta v. Laxmi Narain 1978 (3) SCC 258 to contend that, by virtue of the decree for divorce which was in operation at the time of marriage, the appellant got conferred with the status of wife.

8. We are unable to agree with the argument of the learned counsel. An appeal is the continuation of the original proceeding. The respondent in an appeal cannot be heard to say that by virtue of his conduct pending the appeal, the appeal has become infructuous. Acts done pending the appeal are subject to the outcome of the appeal lest, it would be easy to defeat an appeal. Section 28 of the HM Act vests the aggrieved party with a right of appeal. Section 15 imposes a restriction on the right to marry during a certain period as specified therein. The Section reads thus: -

                  “15. Divorced person when may marry again— 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.”

                  Originally, the Section had a proviso which reads thus: -

                  “Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of first instance.”

                  In Lila Gupta's case (supra) the Apex Court was dealing with a question whether a marriage solemnised during the one year period stipulated under the proviso is void or not. In that case, one Rajendra Kumar had contracted a marriage with one Sarla Gupta. The marriage was dissolved as per the decree of divorce on 08.04.1963. Immediately thereafter on 25.05.1963 Rejendran Kumar entered into marriage with Lila Gupta. Thereafter Rejendra Kumar expired on 07.05.1975. Disputes arose between Lila Gupta and the brothers of Rejendra Kumar with regard to succession to the rights of Rejendra Kumar. The brothers of Rejendra Kumar contended that the marriage of Lila Gupta was held during the one year prohibitory period and hence is void. The Apex Court after detailed consideration of the relevant provisions of the HM Act held that violation of the proviso does not render the marriage void under the scheme of the Act. It was held that Lila Gupta has the status of the widow of Rajendra Kumar.

9. It is important to notice that in Lila Gupta's case, the Apex Court had underscored that such marriage in violation of Section 15 would be subject to the result of an appeal. The Apex Court referred to the judgment of the Privy Council in Marsh v. Marsh AIR 1945 PC 188 wherein, negativing the plea that the marriage held during the prohibitory period is void, it was observed,

                  “It is a judgment in rem and unless and until a court of appeal reversed it, the marriage for all purposes is at an end”.

                  The significance of the right of appeal and the ultimate outcome of the appeal were duly taken note of by the court. The Apex Court held,

                  “The dissolution is complete once the decree is made, subject of course, to appeal”.

                  Here, as noticed supra, the first petitioner had, challenging the decree of divorce filed MFA 667 of 1990 within a period of thirty days, ie., well within the period of limitation. In the light of the pendency of the appeal, the contention that since Sri.Ayyappan had contracted the second marriage after the decree of divorce by the original court and is hence valid, has no force.

10. The learned counsel for the appellant would also contend that, the notice in the appeal was served only much subsequent to the second marriage and hence the marriage is saved. In Smt.Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and another (AIR 1967 SC 581) the Apex court was dealing with a case where, immediately after the decree of divorce by the High Court, the second marriage was contracted by one of the parties. The contesting party approached the Apex Court with a Special Leave Petition. The Apex Court held that, though there is no statutory appeal and Section 15 of the HM Act may not apply, before entering into the second marriage the party ought to have made sure whether an application for Special Leave have been filed before the Apex Court. It was held that if he failed to do so, it was at his risk. The relevant portion of the Apex Court judgment reads thus: -

                  “..... Even so, we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's decree and thus take away from the losing party the chance of presenting an application for special leave. Even though S. 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Court's decree, for no appeal as of right lies from the decree of the High Court to this Court in this matter, we still think that it was for the first respondent to make sure whether an application for special leave had been filed in this Court and he could not by marrying immediately after the High Court's decree deprive the appellant of the chance to present a special leave petition to this Court. If a person does so, he takes a risk and cannot ask this Court to revoke the special leave on this ground. …..”

                  The above was relied on by the Apex Court in Lila Gupta's case (supra) and Tejinder Kaur v. Gurmit Singh AIR 1988 (SC) 839. In Anurag Mittal v. Shaily Mishra Mittal (2018) 9 SCC 691 the Apex Court observed that, in case of dissolution of marriage, a second marriage shall be lawful only after dismissal of the appeal, if any. It was observed: -

                  “..... In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. …..”

11. Though the appellant placed reliance on the judgment of the Apex Court in Krishnaveni Rai v. Pankaj Rai 2020 (2) KLT 256 (SC) to contend that the second marriage held after a decree of dissolution of marriage is not rendered void by filing of an appeal, that was a case where a belated appeal was filed. Therein the Apex Court observed: -

                  “37. It could never have been the legislative intent that a marriage validly contracted after the divorce and after expiry of the period of limitation to file an appeal from the decree of divorce should be rendered void on the filing of a belated appeal.”

                  The appeal against the decree of divorce granted by the original court was allowed by this Court in MFA 667/1990 and the decree was reversed. Therefore, the tie of marriage between the 1st petitioner and Ayyappan remained unbroken. Consequently, the marriage of Ayyappan with the appellant is in contravention of Section 5(1) of the Hindu Marriage Act and is void. There is no reason to interfere with the decree of the Family Court.

                  The appeal fails and is dismissed.