Hindu Marriage Act, 1955: ss.5, 11, 15 – Claim for maintenance by appellant-wife – Plea of respondent-husband that appellant was not entitled to maintenance since their marriage was a nullity having taken place while an appeal by appellant against decree of divorce against her first husband was still pending – The said appeal by wife against first husband was filed almost one year after the expiry of limitation period – Whether second marriage performed during the pendency of an appeal from a decree of divorce a nullity, even though there were no stay of operation of the decree – Held: s.15 specifies that when a marriage has been dissolved by a decree of divorce, and 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 preferred, or an appeal has been presented but the same has been dismissed, it shall be lawful for either party to the marriage to marry again – 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 rendered void on the filing of a belated appeal – The bar of s.15 is not at all attracted in the facts and circumstances of this case, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal – Maintenance application remitted to the Family Court for determination of maintenance amount – In the meanwhile, respondent directed to pay Rs.20,000 as was directed by the Family Court.
Allowing the appeal, the Court
HELD: 1. A careful reading of Sections 5, 11 and 15 makes it amply clear that while Section 5 specifies the conditions on which a marriage may be solemnized between two Hindus, only contravention of some of those conditions render a marriage void. Marriage in contravention of Section 5(i) of the Hindu Marriage Act, that is, where either party or both have a spouse living at the time of marriage is void. [Paras 28-29] [690-B-C]
2. Section 15 clarifies that when a marriage has been dissolved by a decree of divorce, and 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 preferred, or an appeal has been presented but the same has been dismissed, it shall be lawful for either party to the marriage to marry again. The bar of Section 15 is not at all attracted in the facts and circumstances of this case, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal. The bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal. The appeal was infructuous for all practical purposes, from the inception, since the Appellant’s exhusband had lawfully remarried after expiry of the period of limitation for filing an appeal, there being no appeal till then. [Paras 31, 34-36][690-E-F; 692-D, F-G]
Anurag Mittal v. Shaily Mishra Mittal (2018) 9 SCC
691 : [2018] 10 SCR 123; Leela Gupta v. Laxmi Narain & Ors. (1978) 3 SCC 258 : [1978] 3 SCR 922 –
referred to
3. 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. If the marriage of the Appellant’s ex-husband in 2006 was a valid marriage in law recognizing that he had no living spouse, the subsequent re-marriage of the Appellant could also not be void. The maintenance application is remitted to the appropriate Court having jurisdiction for determination of the Appellant’s claim to maintenance. In the meanwhile, the Respondent No.1 shall pay to the Appellant maintenance of Rs.20,000/- per month, as directed by the Family Court without prejudice to the rights and contentions of either party, until further orders of the appropriate Court/Family Court in the application under Section 125 of the Cr.P.C., or in the suit. [Paras 37, 40][692-H; 693-A, E-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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