Hindu Marriage Act, 1955 – s. 15 and 5(i) – Divorced persons, when may marry again – Marriage between the appellant and the respondent during the pendency of the appeal against the decree of divorce – Marriage was entered into after application for withdrawal of appeal, though before the order of withdrawal was passed – Validity of the second marriage – Held: Section 15 provides that the second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed – In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful – On facts, during the pendency of the appeal, there was a settlement between the appellant and his former spouse – After entering into a settlement, he did not intend to contest the decree of divorce – His intention was made clear by filing of the application for withdrawal – It cannot be said that he has to wait till a formal order is passed in the appeal – Following the principles of purposive construction, the restriction placed on a second marriage in s. 15 till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal – Appeal is deemed to have been withdrawn on the date of the filing of the application for withdrawal – On the date of the marriage between the appellant and the respondent, the former spouse of the appellant cannot be considered as a living spouse – Thus, s. 5(i) not attracted and the marriage between the parties not void.
Allowing the appeal, the Court
Per L. Nageswara Rao, J.
HELD: 1.1 In case of a dissolution of marriage, a second marriage shall be lawful only after dismissal of the appeal. Admittedly, the marriage between the appellant and the respondent was before the order of withdrawal was passed by the Court. The application for withdrawal of the appeal was filed prior to the date of the marriage. [Para 10] [134-C-D]
1.2 Order XXIII Rule 1 (1) gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. There is no doubt that Order XXIII Rule 1 is applicable to appeals as well and the appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. Therefore, the appeal is deemed to have been withdrawn on the date of the filing of the application for withdrawal. On the date of the marriage between the appellant and the respondent, first wife of the appellant cannot be considered as a living spouse. Hence, Section 5 (i) is not attracted and the marriage between the appellant and the respondent cannot be declared as void. [Para 12] [135-F-G]
1.3 Section 15 of the Hindu Marriage Act, 1955 provides that it shall be lawful for either party to marry again after dissolution of a marriage if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. 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. The purpose of Section 15 is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce. [Para 18] [137-H; 138-A-C]
1.4 Aggrieved by the decree of divorce, the appellant filed an appeal and obtained a stay of the decree. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal. It cannot be said that he has to wait till a formal order is passed in the appeal, or otherwise his marriage dated 06.12.2011 shall be unlawful. Following the principles of purposive construction, the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal. [Para 19] [138-D-E]
1.5 It is not the case of the appellant that the marriage is lawful because of the interim order that was passed in the appeals filed by him against the decree of divorce. He rested his case on the petition filed for withdrawal of the appeal. Thus, denouement of the Family Court is correct and upheld, albeit for different reasons. The conclusion of the High Court that the marriage is void is erroneous. The judgment of the High Court is set aside. [Para 20] [138-F-G]
Lila Gupta v. Laxmi Narain and Ors. (1978) 3 SCC
258 : [1978] 3 SCR 922 ; Shiv Prasad v. Durga Prasad (1975) 1 SCC 405 : [1975] 3 SCR 526 ; Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal Council, Panvel AIR 2003 Bom. 238 ; K. S. Bhoopathy v. Kokila (2000) 5 SCC 458 : [2000] 3 SCR 1168 ; Bijayananda Patnaik v. Satrughna Sahu [1962] 2 SCR
538 ; Paratabjabdutak Eravath Kanapravan Kalliani Amma v. K. Devi (1996) 4 SCC 76 : [1996] 2 Suppl. SCR 1 ; Revanasiddappa v. Mallikarjun (2011) 11 SCC
1 : [2011] 4 SCR 675 ; Shailesh Dhairyawan v. Mohan Balkrishna Lulla (2016) 3 SCC 619 : [2015] 12 SCR
70 ; Parayankandiayal Eravath Kanapravan Kalliani Amma v. K. Devi (1996) 4 SCC 76 : [1996] 2 Suppl. SCR 1 ; Revanasiddappa v. Mallikarjun (2011) 11 SCC 1 : [2011] 4 SCR 675 ; Dy. Custodian v. Official Receiver [1965] 1 SCR 220 – referred to.
Marsh v. Marsh 1945 AC 271 ; Salomon v. Salomon & Co. Ltd. (1897) AC 22 ; Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG
(1975) AC 591 – referred to.
Cross Statutory Interpretation, Ed. by Dr. John Bell & Sir George Ingale, Second Edn. (1987) – referred to. Per S. A. Bobde, J. ( Concurring)
1.1 If a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity. Quae incapacity imposed by statute, there is no difference between an incapacity imposed by negative language such as “it shall not be lawful” or an incapacity imposed by positive language like “it shall be lawful (in certain conditions, in the absence of which it is impliedly unlawful)”. It would thus, appear that a marriage contracted during a prescribed period will not be void because it was contracted under an incapacity. Obviously, this would have no bearing on the other conditions of a valid marriage. [Para 2] [139-F-H]
1.2 In any event, the appellant’s marriage was not subsisting when he married again. He had filed an application for withdrawal of his appeal against the decree for dissolution and had done nothing to contradict his intention to accept the decree of dissolution. [Para 3] [140-A-B]
Lila Gupta v. Laxmi Narain and Ors. (1978) 3 SCC
258 : [1978] 3 SCR 922 – relied on.
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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