Lila Gupta Vs. Laxmi Narain & Ors
[1978] INSC 103 (4 May 1978)
DESAI, D.A.
DESAI, D.A.
CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S.
CITATION: 1978 AIR 1351 1978 SCR (3) 922 1978
SCC (3) 258
CITATOR INFO :
RF 1988 SC 535 (24) R 1988 SC 839 (4)
ACT:
Hindu Marriage Act, 1955-s. 15, scope
of--Whether a marriage contracted, in contravention of or in violation of the
proviso to s. 15 of the Act is void of merely invalid not affecting the core of
marriage and the parties are subject to a binding the of wedlock flowing from
the marriage.
HEADNOTE:
The husband of the appellant-late Rajendra
Kumar had earlier to the marriage with her, contracted a marriage with one
Sarla Gupta. Both Rajendra Kumar and Sarla Gupta, filed suits against each
other praying for a decree of divorce, which were decreed on April 8, 1963
granting the divorce.
The marriagewith the appellant Lila Gupta was
solemnised on May 25, 1963 i.e. after a month and 17 days from the date of the
decree divorce. Rajendra Kumar expired on May 7, 1965. Disputes arose in
consolidation proceedings between the appellant claiming as widow of Rajendra.
Kumar and respondents who were brothers and brothers' sons of Rajendra Kumar
about succession to the Bhumidari rights in respect of certain plots of land
enjoyed by Rajendra Kumar in his life time, the latter challenging the status
of the appellant to be the widow of Rajendra Kumar on the ground that her
marriage with Rajendra Kumar was void having been contracted in violation of
the provisions contained in the proviso to s. 15 of the Hindu Marriage Act,
1955. The final authority Deputy Director of Consolidation upheld the claim of
the appellant and this decision was challenged by the respondents in six
petitions filed under Article 227 of the Constitution in the High Court of
Allahabad. The learned Single Judge before whom the petitions came up for
hearing was of the opinion that the marriage of Rajendra kumar with the present
appellant on May 25, 1963, being in contravention of the proviso to s. 15 was
null and void and accordingly allowed the writ petitions. The division Bench
dismissed the further appeals by the. appellant, confirmed the order of the
learned single Judge and granted a certificate under Article 133(1)(c).
Allowing the appeals, the Court
HELD : (1) Examining the matter from all
possible angles and keeping in view the fact that the scheme of the Act
provides for, treating certain marriages void and simultaneously some marriages
which are made punishable yet not void and no consequences having been provided
for in respect of the marriage in contravention of the proviso to s. 15 of the Hindu
Marriage Act, 1955 it cannot be said that such marriage would be void. In the
instant case, as the marriage of the appellant, even though in contravention of
the provisions of Section 15 is not void, she cannot be denied the status of
wife and, therefore the widow of deceased Rajendra Kumar and in that capacity
as an heir to him. [937 D-F] (2)A comprehensive review of the relevant
provisions of the Act unmistakably manifests the legislative thrust that every
marriage solemnised in contravention or one of other condition prescribed for
valid marriage is not void. These express provisions in the Act would show that
Parliament was aware about treating any specific marriage void and only
specific marriages punishable. This express provision prima facie would go a
long way to negative any suggestion of a marriage being void though not covered
by s. 11 such as in breach of proviso to S. 15 as being void by necessary
implication. The net effect of it is that at any rate Parliament did not think
fit to treat such marriage void or that it 'is so opposed to public policy as
to make it punishable. [929 A-B, F-G] 923 (3) While enacting the legislation
the framers had in mind, the question of treating certain marriages void and
provided for the same. It would, therefore be fair, to infer as legislative
exposition that a marriage in breach of other conditions the legislature did
not intend to treat as void while prescribing conditions for valid marriage in
s. 5, each of the six conditions was not considered as sacrosanct as to render
marriage in breach of each of it void. Even where a marriage in breach of a
certain condition is made punishable under s. 18 of the Act, yet the law does
not treat it as void. The marriage in breach of the proviso is neither
punishable nor does s. 11 treat it as void. It would not be fair to attribute
the intention to the legislature that by necessary implication in casting the
proviso in the negative expression, the prohibition was absolute and the breach
of it would render the marriage void. If void marriages were specifically
provided for it is not proper to infer that in some cases express provision is
made and in some other cases validness had to be inferred by necessary
implication. It would be all the more hazardous in the case of marriage laws to
treat a marriage in breach of a certain condition void even though the law does
not expressly provide for it. [930 D-E, G-H. 931 A] In the Act there is a
specific provision for treating certain marriages contracted in breach of
certain conditions prescribed for valid marriage in the same Act as void and
simultaneously no specific provision having been made for treating certain
other marriages in breach of certain conditions as void. In this background
even though the proviso is couched in prohibitory and negative language, in the
absence of an express provision it is riot possible to infer nullity in respect
of a marriage contracted by a person under incapacity prescribed by the
proviso. [931 D-E] (5) Undoubtedly, the proviso opens with a prohibition that
"It shall not be lawful" etc. It is not an absolute prohibition
violation of which would render the Act a nullity. A person. whose marriage is
dissolved by a decree of divorce suffers an incapacity for a period of one year
for contracting second marriage. For such a person it shall not be lawful to
contract a second marriage within a period of one year from the date of the
decree of the Court of first instance. While granting a decree for divorce, the
law interdicts and prohibits marriage for a period of one year from the date of
the decree of divorce. The inhibition for a period does not indicate that such
marriage would be void. While there is a disability for a time suffered by a
party from contracting marriage, every such disability does not render the
marriage void. [931 F-G] (6)The interdict of law is that it shall not be lawful
for a certain party to do a certain thing which would mean that if that act is
done it would be unlawful. But whenever a statute prohibits a certain thing
being done there by making it unlawful without providing for consequence of the
breach it is not legitimate to say that such a thing when done is void because that
would tantamount to saying that every unlawful act is void. [931 G-H, 932 A]
(7)Undoubtedly, where a prohibition is enacted in public interest its violation
should not be treated lightly. A valid Hindu marriage subsists during the life
time of either party to the marriage until it is dissolved by a decree of
divorce at the instance of either party to the marriage. A decree of divorce
break-. the marriage tie. Incapacity for marriage of such persons whose
marriage is dissolved by a decree of divorce for a period of one year was
presumably enacted to allay apprehension that divorce was sought only for
contracting another marriage or to avoid dispute about the parentage of
children. There was some such time lag provided in comparable divorce laws and
possibly such a proviso was, therefore, considered proper and that appears to
be the purpose of object behind enacting the proviso to s. 15. It appears to be
purely a regulatory measure for avoiding a possible confusion. If it was so
sacrosanct that its violation would render the marriage void, it is riot
possible to appreciate why the Parliament completely dropped it The proviso to
s. 15 is deleted by s. 9 of the Marriage Laws (Amendment) Act, 1976. The net
result is that now since the amendment parties whose marriage is dissolved by a
decree of divorce can contract marriage soon thereafter provided of 924 course
the period of appeal has expired. This will reinforce the contention that such
marriage is not void.
The fact that neither spouse could until the
time for appealing had expired, in no way affects the fall operation of the
decree. It is a judgment in rem unless and until a court of appeal reversed it,
the marriage for all purposes is at an end. [932 C-H, 933 A, E-F] Chandra
Mohini Srivastava v. Avinash Prasad Srivastava & Anr. [1967] 1 SCR 864;
Marsh v.
Marsh, AIR 1945 PC 188 referred to.
(8)To say that such provision continues the
marriage tie even after the decree of divorce for the period of incapacity is
to attribute a certain status to the parties whose marriage is already
dissolved by divorce and for which there is' no legal mention. A decree of
divorce breaks the marital tie and the parties forfeit the status of husband
and wife in relation to each other. Each one becomes competent to contract
another marriage as provided by s. 15.
Merely because each one of them is prohibited
from contracting a second marriage for a certain period it could not be said
that despite them being a decree of divorce for certain purposes the first
marriage subsists or is presumed to subsist. Some incident of marriage does
survive the decree of divorce; say, liability to pay permanent alimony but on
that account it cannot be said that the marriage subsists beyond the date of
decree of divorce. Section 13 which provides for divorce terms says that a,
marriage solemnised may on a petition presented by the husband or the wife be
dissolved by a decree of divorce on one or more of the grounds mentioned in
that section. The dissolution is complete once the decree is made, subject of
course, to appeal. But a final decree of divorce in terms dissolves the
marriage. No incident of such dissolved marriage can bridge and bind the
parties whose marriage is dissolved by divorce at a time posterior to the date
of decree. [933 F-H, 934 A] (9) An incapacity for second marriage for a certain
period does not have effect of treating the former marriage as subsisting.
During the period of incapacity the parties cannot be said to be the spouses
within the meaning of cl. (i), sub-s. (1) of s. 5. The 'spouse' has been
understood to connote a husband or a wife which term itself postulates a
subsisting marriage. The 'spouse' in sub-section (1) of s. 5 cannot be
interpreted to mean a former spouse because even after the divorce when a
second marriage is contracted if the former spouse is living that would not
Prohibit the parties from contracting the marriage within the meaning of (cl)
(i), sub-s. (1) of s. 5 by its very context would not include within its
meaning the expression 'former spouse'.
[934 B-C] (10)A mere glance at s. 15 of the
Act and s. 57 of the Indian Divorce Act would clearly show that the provisions
are not in pari materia. [935 E] Warter v. Warter, [1890] 15 Probate Division
152; J. Battie v. G. E. Brown, AIR 1916 Madras 847; Turner v. Turner, A.I.R.
1921 Cal. 517;
Jackson v. Jackson, ILR 34 Allahabad 203
explained, Uma Charan Roy v. Smt. Kajal Roy, AIR 1971 Cal. 307 overhead.
(11)Under the Mohammadan law after the
divorce the traditional law did not permit a divorced wife to contract second
marriage during the period of Iddat and in the past such marriage was
considered void. The discernible public policy behind treating such marriage
void was confusion about the parentage of the child, if the woman was pregnant
at the time of divorce. The marriage was treated void interpreting a certain
text of the Hanafi law. Recent trend, however, is that under the Mohmadan Law a
marriage of a woman undergoing iddat is not void but merely irregular.
[936 F-H] If public policy behind prohibiting
marriage of a woman undergoing iddat and persons who are prohibited from
marrying for a period of one year from the date of the decree dissolving their
marriage is the same, viz., to avoid confusion about the parentage of the child
which may have been conceived or the divorce sought to be obtained only for
contracting second marriage, then the same conclusion may follow that such
regulatory prohibition if violated or contravened could not render the marriage
void. [937 B-C] 925 Muhammad Hayat v. Muhammad Nawaz, [1935] 17 L.R. Lah. 48
followed.
(12)Voidness of marriage unless statutorily
Provided for is not to be inferred. A reference to Child Marriage Restraint Act
would also show that the child Marriages Restraint Act was enacted to carry
forward the reformist movement of provision of the Child Marriage Restraint Act
punishable, simultaneously it did not render the marriage void. [937 C- D] Pathak,
J (concurring) :
(1)No doubt. the question of the validity of
a marriage deserves an especial care and the greatest caution must be exercised
before a marriage is declared void. The contention that unless the statute
specifically declares a marriage to be a nullity, it cannot be pronounced so by
the Courts is not correct. The intrinsic evidence provided by the language of.
the statute the context in which the provision finds place and the object
intended to be served is of equal validity. [938 G-H, 939 A] The argument that
the proviso to s. 15 of the Hindu Marriage Act is directory and not mandatory
because a marriage solemnised in violation of it has not been declared a
nullity by the statue cannot be accepted. [939 F] Catterall v. Sweetman, (1845)
9 Jur. 951, 954;
Chichester v. Mure (falsely called
Chichester), (1863)3, Sw. & Tr., 223; Rogers, otherwise Briscoe (falsely
called Halmshaw) v. Halmshaw, (1864)3, Sw. & Tr. 509; explained and
distinguished.
(i)A marriage performed in violation of the
proviso to s. 15 of the Hindu Marriage Act is not void. [940 D] (a)The object
behind the restraint imposed by the proviso to s. 15 is to provide a
disincentive to a hasty action for divorce by a husband anxious to marry
another woman, and also the desire to avoid the possibility of confusion in
parentage of the child by her husband under the earlier marriage. [939 G-H]
59th Report of Law Commission of India P. 29 referred to.
(b)A statutory provision may be construed as
mandatory when the object underlying it would be defeated but for strict
compliance with the pro"vision. No serious discouragement is provided by
the proviso to s. 15 to a husband anxious to marry another woman, The
impediment provided by the proviso to s. 15 is a temporary one and ceases on
the expiration of the period of one year. The proviso proceeds on the
assumption that the decree dissolving the marriage is a final decree, and
merely attempts to postpone the remarriage. It does not take into account the
defensibility of the decree in virtue of an appeal. The defensibility of the decree
because an appeal has been provided is a matter with which the main provisions
of s. 15 is concerned. Further evidence that the proviso to s. 15 is directory
only is provided by its deletion altogether by Parliament by the Marriage Laws
Reforms Act, 1976. [940 A-C] Umacharan Roy v. Smt. Kajal Roy, AIR 1971 Cal. 307
disapproved.
(b)The intention to safeguard against a
confusion in parentage is perhaps based on the principle in Mahommedan Law
which places a ban on marriage with a divorced or widowed woman before the
completion of her iddat. A marriage performed during the period of Iddat is an
irregular marriage only and not a void marriage. In the instant case, the
marriage of Rajendra Kumar with the appellant is not void and she is entitled
to be considered as his wife. [940 C-D & F] 926 Mohammad Hayat v. Mahammad
Nawaz, (1935) 17 L.R. 17 Lah. 48 applied.
(iii)The two tests sought to be employed in
the construction of the proviso to s. 15, that is to say that a marriage
although in violation of. the statute is not void because the legislature has
not expressly declared it to be so and also because the legislature has made no
provision for legitimating the offspring of such a marriage need to be viewed
with caution. These are tests which could equally be invoked to the
construction of the main provision of section
15. The conclusion that provision is
directory and not mandatory does not necessarily follow. [940 G-H] The main
provision' of s. 15 provides that when a marriage has been dissolved by a
decree of divorce, either party to the marriage may marry again, if there is no
legal 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 having been presented has been dismissed. In other
words, the right to remarriage shall not be exercised before the decree of
divorce has reached finality. The English Law and the decisions of the
Australian High Court and Indian High Courts which involved the application of
s. 57 Indian Divorce Act indicate that a marriage solemnised before the expiry
of the period of limitation for presenting an appeal or where an appeal has
been presented, during the pendency of the appeal must be regarded as a void
marriage. [941 A-B] The main provision of s. 15 of the Hindu Marriage Act,
which bears almost identical resemblance to the relevant statutory provisions
in thecases 'mentioned above, would perhaps attract a similar conclusion in
regard to its construction.
At the lowest, there is good ground for
saying that a contention that a marriage solemnised in violation of the main
provision of s. 15 is a nullity cannot be summarily rejected. [942 E-F]
Chichester v. Mure (falsely called Chichester) (1863) 3, SW. & Tr., 223,
Warter v. Warter, (1890) 15 P., 152; Le Mesurier v. Le Mesuricer, (1929) 46
T.L.R., 203; Doettcher v. Doettcher, (1949) Weekly Notes, 83; Miller v. Teale,
(1954-55) 92 C.L.R. 406; J. S. Batt' v. G. E. Brown, AIR 1916 Mad. 847; Turner
v.
Turner, AIR 1921 Cal. 517; Jackson v.
Jackson, ILR 34 All. 203; referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 2585-2590/ 69.
From the Judgment and Order dated 6-5-1968 of
the Allahabad High Court in Special Appeals Nos. 374-379 of 1967.
S. N. Andley, Uma Dutta and Brij Bhushan for
the Appellant.
V. S. Desai and Promod Swarup for Respondent
No. 2 in C.A., Nos. 2585, 2586, 2588, 2589, 2590/69 and Lrs. Nos. 2, 6, 7 and 8
of Respondent No. 1 in all the appeals.
The following Judgments of the Court were
delivered by DESAI, J.-A very interesting and to some extent hitherto un-
explored question under the Hindu Marriage Act, 1955, arises in this group of
six appeals by certificate granted by the Allahabad High Court under Article
133 (1) (c) of. the Constitution. Appellant in all the appeals is the same
person and a common question of law is raised in all these appeals and, therefore,
they were heard together and are being disposed of by this common judgment.
One Rajendra Kumar whose widow appellant Smt.
Lila Gupta claims to be, had contracted a marriage with one Sarla Gupta. Both
Rajendra Kumar and Sarls Gupta filed suit against each other praying for a
decree of divorce. These suits ended in a decree of divorce on 927 :April 8,
1963. Soon thereafter, on May 25, 1963, Rajendra Kumar contracted second
marriage with appellant Smt. Lila Gupta. Unfortunately, Rajendra Kumar expired
on May 7, 1965. Disputes arose 'in consolidation proceedings between the
appellant claiming as widow of deceased Rajendra Kumar and Respondents who are
brothers and brother's sons of Rajendra Kumar about succession to the Bhumidhar
rights in respect of certain plots of land enjoyed by Rajendra Kumar in his
life time, the latter challenging the status of the appellant to be the' widow
of Rajendra Kumar on the ground that her marriage with Rajendra Kumar was void
having been contracted in violation of the provision contained in the proviso
to Section 15 of the Hindu Marriage Act, 1955 ('Act' for 'short). The final
authority Deputy Director of Consolidation upheld the claim of the appellant
and this decision was challenged by the Respondents in six petitions filed under
Article 22, of the Constitution in the High Court of Allahabad. The learned
single Judge before whom these petitions came up for hearing was lot the
opinion that the marriage of Rajendra Kumar with the present appellant on May
25, 1963, being in contravention of the provision to s. 15 was null and void,
and accordingly allowed the writ petitions 'and quashed the orders of the
Settlement Officer (Consolidation) an( of the Deputy Director of Consolidation
and restored the order of the Consolidation Officer. The appellant preferred
six different appeals under the Letters Patent. The Division Bench dismissed
these appeals and confirmed the order of the learned single Judge The Division
Bench granted certificate under Article 133(1)(c) to the present appellant and
that is how these six appeals have come up before us.
Even though the appeals were argued on a
wider canvass, the short and narrow question which would go to the root of the
matter is : Whether a marriage contracted in contravention of or violation of
the proviso to s. 15 of the Act is void or merely invalid not affecting the
core of marriage and the parties are subject to a binding tie of wedlock
flowing from the marriage ? At the outset it would be advantageous to have a
clear picture of the scheme of the Act. Section 5 prescribes the conditions for
a valid Hindu marriage that may be solemnised after the commencement of the
Act. They are six in number.
Condition No. (1) ensures monogamy. Condition
No. (ii) refers to the mental capacity of one of the other person contracting
the marriage and prohibits an idiot of 'lunatic from contracting the marriage.
Condition (iii) prescribe,, minimum age for the bride and the bridegroom for
contracting marriage. This condition incidentally provides for consent of the
bride and the bridegroom to the marriage as the law treats them mature at a
certain age, Condition (iv) forbids marriage of parties within the degrees of
prohibited relationship unless the custom or usage. governing each of them
permits of a marriage between the two, Condition No:
(v) is similar with this difference that it
prohibits marriage between two sapient, Condition (vi) is a corollary to
condition (iii) in that 'where the bride has not attained the minimum age as
prescribed in condition (iii), the marriage will nonetheless be valid if the
consent of 928 her guardian has been obtained for the marriage. Section 6
specifies guardians in marriage who would be competent to give consent as
envisaged by S. 5 (vi)Section 11 is material. It provides that any marriage
solemnisedafter the commencement of the Act shall be null and void and may ona
petition presented by either party thereto be so declared by a decree of
nullity if it contravenes any one of the conditions specified in clauses (i),
(iv) and (v) of S. 5. Incidentally at this stage it may be noted that S. II
does not render a marriage solemnised in violation of conditions (ii), (iii)
and (vi) void, all of which prescribe personal incapacity for marriage. Section
18 provides that certain marriages shall be voidable and may be annulled a
decree of nullity on any of the grounds mentioned in the section. Clause (h) of
sub-s. (1) inter alia provides that the marriage in contravention of condition
specified in clause (ii) of S. 5 will be voidable. Similarly, sub-clause (c)
provides that the consent of the petitioner or where consent of the guardian in
marriage is required under S. 5 and such consent were obtained by force or
fraud, the marriage shall be voidable. Section 13 provides for dissolution of marriage
by divorce on any of the grounds mentioned in the section. Section 14 prohibits
a petition for divorce being presented by any party to the marriage within a
period of three years from the date of the marriage which period has been
reduced to one year by S. 9 of the Marriage Laws (Amendment) Act, 1976. Then
comes S. 15 as it stood at the relevant time, which is material for the purpose
of this judgment and may be reproduced in extension.
"15. When a marriage has been dissolved
by 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;
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 the first
instance".
The substantive part of s. 15 enables
divorced persons to marry gain. The proviso prescribes a time limit within
which such divorced persons cannot contract marriage and the time prescribed is
a period one year from the date of the decree in the Court of the first
instance. Section 16 confers status of legitimacy on a child who but for, the
provision would be treated illegitimate. If a marriage is annulled a decree of
nullity, the legal consequence would be that in the eye law there was no
marriage at all even though the parties contracting marriage might have gone
through some form of marriage but as were not bound by a valid binding wedlock,
the child conceived begotten before the decree of nullity would nonetheless be
illegitimate. The law steps in and provides that such child shall be
legitimates principle discernible is that innocent person shall not 'suffer.
929 Section 17 provides for punishment for
bigamy. Section 18 prescribes punishment for contravention of some of the
conditions prescribed for valid marriage in s. 5. Contravention of conditions
(iii), (IV), (v) and (vi) of s. 5 is made punishable under s. 18.
A comprehensive review of the relevant
provisions of the Act unmistakably manifests the legislative thrust that every
marriage solemnised in contravention of one or other condition prescribed for
valid marriage is not void.
Section 5 prescribes six conditions for valid
marriage.
Section 11 renders marriage solemnised in
contravention of conditions (i), (iv) and (v) of s. 5 only, void. Two incontrovertible
propositions emerge from a combined reading of ss. 5 and 11 and other
provisions of the Act, that the Act specifies conditions for valid marriage and
a marriage contracted in breach of some but not all of them renders the
marriage void. The statute thus prescribes conditions for valid marriage and
also does not leave it to inference that each one of such conditions is
mandatory and a contravention, violation or breach of any one of them would be
treated as a breach of a prerequisite for a valid marriage rendering it void.
The law while prescribing conditions for valid marriage simultaneously
prescribes that breach of some of the conditions but not all would render the
marriage void. Simultaneously, the Act is conspicuously silent on the effect on
a marriage solemnised in contravention or breach of the time bound prohibition
enacted is. 15. A further aspect that stares into the face is that while a
marriage solemnised in contravention of clauses (iii), (iv), (v) and (vi) of s.
5 is made penal, a marriage in contravention of the prohibition prescribed by
the proviso does not attract any penalty. The Act is suggestively silent on the
question as to what is the effect on the marriage contracted by two persons one
or both of whom were incapacitated from contracting marriage at the time when
it was contracted in view of the fact that a period of one year had not elapsed
since the dissolution of their earlier marriage by a decree of divorce granted
by the Court of first instance. Such a marriage is not expressly declared void
nor made punishable though marriages in breach of conditions Nos. (i), (iv) and
(v) are expressly declared void and marriages in breach of conditions Nos.
(iii), (iv), (v) and (vi) of s. 5 are specifically made punishable by s. 18. These
express provisions would show that Parliament was aware about treating any
specific marriage void and only specific marriages punishable. This express
provision prima facie would go a long way to negative any suggestion of
marriage being void though not covered by s. 1 1 such as in breach of proviso
to s. 15 as being void by necessary implication. The net effect of it is that
at any rate Parliament did not think fit to treat such marriage void or that it
is as opposed to public policy as to make it punishable.
Parliament while providing that a marriage in
contravention of conditions (i), (iv) and (v) would be initio void which would
mean that the parties did not acquire the status of husband and wife
comprehensively provided for its impact on a child born of such marriage. If
any child is born to them before the marriage is annulled by a decree of
nullity, indisputably such a child would be illegitimate but s. 16 confers the
status of legitimacy on such children. A child 930 born to parties who had gone
through a form of marriage which is either void under s. 11 or voidable under
S. 12, before the decree is made would be illegitimate, the law nonetheless
treats it as legitimate even if the marriage is annulled by a decree of nullity
and such child shall always be deemed to be a legitimate child notwithstanding
the decree of nullity. Therefore, the Parliament was conscious of the fact that
in view of the provisions contained in ss.
11 and 12 and its legal consequence a
situation is bound to arise where a child begotten or conceived while the
marriage was subsisting would be illegitimate if annulled because such marriage
would be initio void. Look at the impact of a marriage in violation of proviso
to S. 15 on child born of such marriage. Section 16 does not come to its
rescue.
If the marriage is to be void as contended
the child would be illegitimate. A status of legitimacy is not conferred by any
provision of the Act on a child begotten or conceived to a woman who had
contracted marriage and the marriage was in contravention of the proviso to S.
15. No intelligible explanation is offered for such a gross discriminatory
treatment. The thrust of these provisions would assist in deciding whether the
marriage in contravention of provisions to s. 15 is void as was contended on
behalf of the respondents.
Did the framers of law intend that a marriage
contracted in violation of the provision contained in the proviso to s. 15 to
be void? While enacting the legislation, the framers had in mind the question of
treating certain marriages void and provided for the same. It would, therefore,
be fair to infer as legislative exposition that a marriage in breach of other
conditions the legislature did not intend to treat as void. While prescribing
conditions for valid marriage in s. 5 each of the six conditions was not
considered so sacrosanct as to render marriage in breach of each of. it void.
This becomes manifest from a combined reading of ss. 5 and 1 1 of the Act. if
the provision in the proviso is interpreted to mean personal incapacity for
marriage, for a certain period and, therefore, the marriage during that period
was by a person who had not the requisite capacity to contract the marriage and
hence void, the same consequence must follow where there is breach of condition
(iii) of s. 5 which also provides for personal incapacity to contract marriage
for a certain period. When minimum age of the bride and the bridegroom for a
valid marriage is prescribed in condition (iii) of S. 5 it would only mean
personal incapacity for a period because every day the person grows and would
acquire the necessary capacity on reaching the minimum age. Now, before
attaining the minimum age if a marriage is contracted S. 11 does not render it
void even though s. 18 makes it punishable. Therefore, even where a marriage in
that reach of a certain condition is made punishable yet the law does not treat
it as void. The marriage in breach of the proviso is neither punishable nordoes
s. 11 treat it void. Would it then be fair to attribute an intention to the
legislature that by necessary implication in casting the proviso in the
negative expression, the prohibition was absolute and the breach of it would
render them. marriage void ? If void marriages were specifically provided for
it is not proper to infer that in some cases express provision is made 931 and
in some other cases voidness had to be inferred by necessary implication. It
would be, all the more hazardous in the case of marriage laws to treat a
marriage in breach of a certain condition void even though the law does not
expressly provide for it. Craies on Statute Law, 6th Edn., pages 263 and 264
may be referred to with advantage "The words in this section are negative
words, and are clearly prohibitory of the marriage being had without the
prescribed requisites, but whether the marriage itself is void... is a question
of very great difficulty. It is to be recollected that there are no words in
the Act rendering the marriage void, and I have sought in vain for any case in
which a marriage has been declared null and void unless there were words in the
statute expressly so declaring it (emphasis supplied).
From this examination of these Acts, I draw
two conclusions. First, that there never appears to have been a decision where
words in a statute relating to marriage, though prohibitory and negative, have
been held to infer a nullity unless such nullity was declared in the Act.
Secondly, that, viewing the successive marriage Acts, it appears that.
prohibitory words, without a declaration of
nullity, were not considered by the legislature to create a nullity".
In the Act under discussion there is a
specific provision for 'treating certain marriages contracted in breach of
certain conditions prescribed for valid marriage in the same Act as void and
simultaneously no specific provision have been made for treating certain other
marriages in breach of certain conditions as void. In this background even
though the proviso is couched in prohibitory and negative language, in the
absence of an express provision it is not possible to infer nullity in respect
of a marriage contracted by a person under incapacity prescribed by the
proviso.
Undoubtedly, the proviso opens with a
prohibition that : 'It shall not be lawful' etc. Is it an absolute prohibition
violation of which would render the act a nullity? A person whose marriage is
dissolved by a decree of divorce suffers an incapacity for a period of one year
for contracting- second marriage. For such a person it shall not be lawful to
contract a second marriage within a period of one year from the date of the
decree of the Court of first instance, While granting a decree for divorce, the
law interdicts and prohibits a marriage for a period of one year from the date
at the decree of divorce. Does the inhibition for a period indicate that such
marriage would be void ? While there is a disability for a time suffered by a
party from contracting marriage, every such disability does not render the
marriage void. A submission that the proviso is directory or at any rate not
mandatory and decision bearing on the point need not detain us because the
interdict of law is that it shall not be lawful for a certain party lo do a
certain thing which would mean that if that act is done it would be unlawful.
But whenever a statute prohibits a certain thing being done thereby making 932
it unlawful without providing for consequence of the breach, it is not
legitimate to say that such a thing when done is void because that would
tantamount to saying that every unlawful act is void. As pointed out earlier,
it would be all the more inadvisable in the field of marriage laws.
Consequences of treating a marriage void are
so serious and far reaching and are likely to affect innocent persons such as
children born during the period anterior to the date of the decree annulling
the marriage that it has always been considered not safe to treat a marriage
void unless the law so enacts or the inference of the marriage being treated
void is either inescapable or irresistible. Therefore, even though the proviso
is couched in a language prohibiting a certain thing being done, that by itself
is not sufficient to treat the marriage contracted in contravention of it as
void.
Undoubtedly, where a prohibition is enacting
in public interest its violation should not be treated lightly. That
necessitates examination of the object and purpose behind enacting the proviso.
Till recent past a valid Hindu marriage among the twice born class in which
customary divorce was not permissible could only be broken by the death of
either party. Subsequently the concept of divorce was introduced. Therefore, a
valid Hindu marriage subsists during the life time of either party to the
marriage until it is dissolved by a decree of divorce at the instance of either
party to the marriage. A decree of divorce breaks the marriage tie. Incapacity
for marriage of such persons whose marriage is dissolved by a decree of divorce
for a period of one year was presumably enacted to allay apprehension that
divorce was sought only for contracting another marriage or to avoid dispute
about the parentage of children. At the time of the divorce the wife may be
pregnant. She may give birth to a child after the decree.
If a marriage is contracted soon after the
divorce a question might arise as to who is the father of the child viz., the
former husband or the husband of the second marriage. There was some such time
lag provided in comparable divorce, laws and possibly such a proviso was,
therefore, considered proper and that appears to be the purpose or object
behind enacting the proviso to S. 15. Is such public policy of paramount
consideration as to render the marriage in breach of it void ? It appears to be
purely a regulatory measure for avoiding a possible confusion.
If it was so sacrosanct that its violation
would render the marriage void, it is not possible to appreciate why the
Parliament completely dropped it. The proviso to s. 15 is deleted by S. 9 of
the Marriage Laws (Amendment) Act, 1976.
The net result is that now since the
amendment parties whose marriage is dissolved by a decree of divorce can
contract marriage soon thereafter provided of course the period of appeal has
expired. This will reinforce the contention that such marriage is not void. But
we would like to reaffirm the warning voiced in Chandra Mohini Srivastava v.
Avinash Prasad Srivastava & Anr.(1), In that case the decree of divorce was
(1) [1967] 1 SCR 864.
933 granted by the High Court reversing the
dismissal of the petition of the husband by the trial Court. Soon thereafter,
the husband contracted second marriage. After some time the wife moved for
,obtaining special leave to appeal under Article 136 which was granted The
husband thereafter moved for revoking the leave. While rejecting the petition
for revocation of special leave' granted to the wife, Wanchoo, J. (as he then
was), speaking for the Court, observed that even though it may not have been
unlawful for- the husband 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, still it was for the 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 wife of the chance of
presenting a special leave, petition to this Court. If a person does so, he
takes a risk and could not ask the Court to revoke the special leave on that
ground. But apart from the caution, any marriage now contracted by a person whose
marriage is dissolved by a decree of divorce soon, after the decree, if
otherwise valid under s. 5, would not attract any other consequence. This
deletion clearly negatives any suggestion of any Important public policy behind
the prohibition enacted in the proviso which, if contravened, would lead to the
only consequences of, rendering the marriage void. In contract it would be
profitable to refer to Marsh v. Marsh.(1). The statute prohibited marriage by
parties whose marriage was dissolved by a decree of divorce during the period
of limitation prescribed for appeal. The contention was that such marriage in
violation of a statutory prohibition is void.
Negativing this contention it was held that
the decree absolute was a valid decree and it dissolved the marriage, from the
moment it was pronounced and at the date when the appeal by the intervener
abated, it stood un-reversed. The fact that neither spouse could remarry until
the time for appealing had expired, in no way affect,, the full operation of
the decree. 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.
To say that such provision continues the
marriage tie even after the decree of divorce for the period of incapacity is
to attribute a certain status to the parties whose marriage is already
dissolved by divorce and for which there is no legal sanction. A decree of
divorce breaks the marital tie and the parties forfeit the status of husband
and wife in relation to each other. Each one becomes competent to contract
another marriage as provided by s. 15. Merely because each one of them is
prohibited from contracting a second marriage for a certain period it could not
be said that despite there being a decree of divorce for certain purposes the
first manage subsists or is presumed to subsist. Some incident of marriage does
survive the decree of divorce; say, liability to pay permanent alimony but on
that account it cannot be said that the marriage subsists beyond the date of
decree of divorce. Section 13 which pro- vides for divorce in terms says, that
a marriage solemnised may on (1) AIR 1945 PC 188.
934 a petition presented by the husband or
the wife are dissolved by a decree of divorce on one or more of the grounds
mentioned in that section. The dissolution is complete once the decree is made,
subject of course, to appeal. But a final decree of divorce in terms dissolves
the marriage.
No, incident of such dissolved marriage can
bridge and bind the parties whose marriage is dissolved by divorce at a time
posterior to the date of decree. An incapacity for second marriage for a
certain period does not have effect of treating the former marriage as
subsisting. During the period of incapacity the parties cannot be said to be
the spouses within the, meaning of cl. (i), sub-s. (1) of s. 5.
The word 'spouse' has been understood to
connote a husband or a wife which term itself postulates a subsisting marriage.
The word 'spouse' in sub-section (1) of s. 5 cannot be interpreted to mean a
former spouse because even after the divorce when a second marriage is
contracted if the former spouse is living that would not prohibit the parties
from contracting the marriage- within the meaning of cl. (i) of sub-s. (1) of
s. 5. The expression 'spouse' in cl. (i), sub-s. (1) of s. 5 by its very
context would not include within its meaning the expression 'former spouse'..
It was, however, said that an identical
provision in s. 57 of the Indian Divorce Act, 1869, has been consistently
interpreted to mean that a marriage contracted during the period prescribed in
the fifth paragraph of s. 57 after a decree dissolving the marriage would be
void. The Indian Divorce Act provides for the divorce of persons professing
Christian religion. Section 57 provides for liberty to parties whose marriage
is dissolved by a decree of divorce to marry again. Section 57 reads as under :
"57. When six months after the date of
an order of a High Court confirming the decree for a dissolution of marriage
made by a District Judge have expired, or when six months after the date of any
decree of a High Court dissolving a marriage have expired, and no appeal has
been presented against such decree to the High Court in its appellate
jurisdiction, or when any such appeal has been dismissed.
or when in the result of any such appeal any
marriage is declared to be dissolved, but not sooner, it shall be lawful for
the respective parties to the marriage to marry again, as if the prior marriage
had been dissolved by death :
Provided that no appeal to the Supreme Court
has been presented against any such order or decree.
When such appeal has been dismissed, or when
in the result thereof the marriage is declared to be dissolved, but not sooner,
it shall be lawful for the respective parties to the marriage to marry again as
if the prior marriage had been dissolved by death." 935 We would presently
examine the scheme of s. 57 to appreciate the contention that the section is in
pari materia with s. 15 of the Act. Section 57 grants liberty to the parties
whose marriage is dissolved by a decree of divorce to marry, but prohibits them
from marrying again within the prescribed period. The question in terms raised
was whether a marriage during the period of prohibition was void. Undoubtedly,
consistently such marriage has been held to be void following- the earliest
decision in Warter v. Warter(1). In that case the matter came before the court
on a petition for probate of a will made by one Colonel Henry De Grey Warter
who had contracted marriage with one Mrs. Tayloe on February 3, 1880, whose
former marriage, with Mr. Tayloe was dissolved by a decree absolute of November
27, 1879. He made his will on February 6, 1880. Subsequently on legal advice
both of them went through a second form of marriage on April 2, 1881.' The
contention was that by the second marriage the Will was revoked and that is how
the validity of the first marriage was put in issue. Upholding the contention
it was held that Mrs. Tayloe could only contract a valid second marriage by
showing that the incapacity arising from her previous marriage had been
effectually removed by the proceedings taken under that law. This could not be
done, as the Indian law, like the English law, does not completely dissolve the
tie of marriage until the lapse of a specific time after the decree. The
prescribed period was held as ,in integral part of the proceedings by which
alone both parties could be released from their incapacity to contract a fresh
marriage. Thus the previous marriage was held to be void and of no consequence
in law. This decision in Warter v. Warter was followed in J. S. Battie v. G. E.
Brown ;(2) Turner v. Turner;(3) Jackson v. Jackson(4). If provision contained
in s. 15 along with its proviso was in pari materia with s. 57 of tile Indian
Divorce Act, it would have become necessary for us to examine the correctness
of the ratio in aforementioned decisions. But a mere glance at s. 15 of the Act
and s. 57 of the, Indian Divorce Act would clearly show that the provisions are
not in pari materia.
Under the Indian Divorce Act a decree nisi
has to be passed and unless confirmed by High Court it is not effective and in
the proceedings for confirmation, the decree nisi can be questioned. No such
requirement is to be found under the Act. Further, under s. 15 the period of
one year is to be computed from the date of decree of the Court of first instance
which means. that a decree of divorce is made by the Court of first instance
while under s. 57 of the Indian Divorce Act the period of six months is to be
computed from the date of an order of the High Court confirming the decree for
dissolution of a marriage made by a District Judge or when an appeal has been
preferred in the appellate jurisdiction of the High Court when the appeal is
dismissed and the parties even cannot marry if ,in appeal has been presented to
the Supreme Court. Under s. 15 if the decree of divorce is granted not by the
Court of first instance but by the appellate Court the proviso would not be
attracted.
There is thus a mate- (1) [ 1 890] 1 5
4Probate Division 152.
(2) AIR 1916 Madras 847.
(3) AIR 1921 Cal. 517.
(4) ILR 34 Allahabad [203.
9 36 rial difference in respect of the
starting point of the period under s, 57. If thus apart from the scheme of the
two statutes, the relevant provisions are so materially different, the
decisions interpreting s. 57 cannot be bodily followed-to hold that the same
consequences should follow if the proviso is contravened.
It was, however, said that apart from the
decisions under the Indian Divorce Act the decision of the Calcutta High Court
in Uma Charan Roy v. Smt. Kajal Roy,(") on a correct interpretation of the
proviso of S. 15 lays down that the marriage in breach of the proviso is void.
It is a decision of the Division Bench and both the members constituting the
Bench have written separate but concurring judgments. The question came before
the Court on a petition made by one Smt. Kajal Roy for annulment of her
marriage with Uma Charan Roy alleging that the latter contracted the marriage
within a period of one year from the date of dissolution of his marriage with
one Sushma and, therefore, it was in contravention of the proviso to S. 15 and
the marriage was void. S. K. Chakravarti, J. in paragraph 12 has observed that
: "as already pointed out the marriage is null and void even if Kajal bad
acquiesced in it". We minutely went through the earlier paragraphs of the
judgment but except referring to the decisions under the Indian Divorce Act
there is no discussion or reasoning or analysis which led the learned Judge to
come to the conclusion that marriage in contravention of S. 15 is null and
void. Salil Kumar Datta, J. in his judgment, after referring to the decisions
under the Indian Divorce Act, merely observed that the principles enunciated in
those decisions should also be made applicable to the marriages under Hindu
Marriage Act with which he was concerned. The learned judge resorted to a
fiction observing that the former marriage despite the decreeof divorce
subsists for a period at least of one year from the dateof such decree in the
Court of the first instance. No attempt ismade to scan and analyse the scheme
of Indian Divorce Act and more particularly the provision contained in S. 57,
nor before accepting the decision under s. 57 an attempt was made to compare
the two provisions. With respect, it is difficult to accept this reasoning and,
therefore, it is not possible to accept the aforementioned decision as laying
down the correct law.
If a reference to the parallel provisions in
the Indian Divorce Act is helpful and of some assistance, it would also be
profitable to look slightly in another direction. Under the Mohammedan law
after the divorce the traditional law did root permit a divorced wife to
contract second marriage during the period of Iddat and in the past such
marriage was considered void. The discernible public policy behind treating
such marriage void was confusion about the parentage of the child if the woman
was pregnant at the time of divorce. The marriage was treated void interpreting
a certain text of the Hanafi Law. Recent trend of decisions quoted in Mulla's
Principles of Mahomedan Law, 17th Edn., edited by M. Hidayatullah, former Chief
Justice of India, clearly bear out the proposition that under the Mohammedan
law a marriage of a woman undergoing iddat is not void but merely irregular. At
page 252 it is stated as under (1) AIR 1971 Cal. 307.
9 37 "A marriage with a woman before
completion of her iddat is irregular, not void. The Lahore, High Court at one
time treated such marriages as void [Jhandu v. Mst. Hussain Bibi, (1923) 4 Lah.
1921; but in a later decision held that such a marriage is irregular and the
children legitimate [Muhammad Hayat v. Muhammad Nawaz, (1935) 17 Lah.
48]".
In support of this proposition, Muhammad
Hayat v. Muhammad Navaz,(1) is relied upon. If public policy behind prohibiting
marriage of a woman undergoing iddat and persons who are prohibited from
marrying for a period of one year from the date of the decree dissolving their
marriage is the same, viz., to avoid confusion about the parentage of the child
which may have been conceived or the divorce sought to be obtained only for
contracting second marriage, then the same conclusion may follow that such
regulatory prohibition if violated or contravened would not render the marriage
void.
Similarly, a reference to Child Marriage
Restraint Act would also show that the Child Marriage Restraint Act was enacted
to carry forward the reformist movement of prohibiting child marriages and
while it made marriage in contravention of the provisions of the Child Marriage
Restraint Act punishable, simultaneously it did not render the marriage void.
It would thus appear that voidness of marriage unless statutorily provided for
is not to be readily inferred.
Thus, examining the matter from all possible
angles and keeping in view the fact that the scheme of the Act provides for
treating certain marriages void and simultaneously some marriages which are
made punishable yet not void and no consequences having been provided for in
respect of the marriage in contravention of the proviso to s. 15, it cannot be
said that such marriage would be void.
The appellant was denied the status of the
wife of Rajendra Kumar and, therefore, his widow, and an heir to him on his
death on the only ground that her marriage with Rajendra Kumar was void, being
in contravention of the proviso to s. 15. As her marriage, even though in
contravention of the provisions of s. 15, is not void, she cannot be denied the
status of wife and, therefore, the widow of deceased Rajendra Kumar and in that
capacity as an heir to him.
These appeals are accordingly allowed and the
decision of the High Court in Special Appeals Nos. 374, 375, 376, 377, 378 and
379 of 1967 is set aside as also the decision of the High Court before the
learned single judge in Civil Misc.
Writ Petitions Nos. 4083, 4084, 4085, 4086,
4087, 4088 of 1966 is quashed and set aside and the writ petitions are
dismissed. The respondents shall pay the, costs of the appellant in this Court
in one set.
PATHAK, J.-I agree that the appeals should be
allowed, but I would prefer to rest the decision on the reasons which I now set
forth. The facts have already been set out by my brother Desai.
(1) (1 835) 17 Lah. 48.
9329 SCI/78 938 The question is whether a
remarriage solemnised before the expiry of the period of one year specified in
the proviso to Section 15 of the Hindu Marriage Act is a void marriage or
merely irregular. Section 15 of the Hindu Marriage Act provides :
"15. When a marriage has been dissolved
by a decree of divorce and either there is no legal right of appeal against the
decree or, if there is such a right of appeal, the time 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 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 the first instance." It is urged on
behalf of the appellant that the proviso to Section 15 is directory in nature,
and therefore a marriage effected in violation of the time-period specified
there is not void. The principal argument in support of the submission is that
whenever the statute intends to treat a marriage as a nullity it specifically
so provides. We have been referred to the observations of Dr. Lushingt on in
Catterall v. Sweetman(1) "The words in this section are negative words,
and are clearly prohibitory of the marriage being had without the, prescribed
requisites, but whether the marriage itself is void . . .
is a question of very great difficulty. IL is
to be recollected that there are no words in the Act rendering the marriage
void, and I have sought in vain for any case in which a marriage has been
declared null and void unless there were words in the statute expressly so
declaring it...... From this examination of these Acts I draw two conclusions
First, that there never appears to have beer, a decision where words in a
statute relating to marriage, though prohibitory and negative, have been held
to infer a nullity, unless such nullity was declared in the Act.
Secondly, that, viewing, the successive
marriage Acts, it appears that prohibitory words, without a declaration of
nullity, were not considered by the legislature to create, a nullity." It
is contended that the question whether a marriage is a nullity invites
particular considerations, and the ordinary norms of construction will not
suffice. I find it difficult to dispute that the question of the validity of a
marriage deserves an especial care, and the greatest caution must be exercised
before a marriage is declared void. But I do not find it possible to admit that
unless the statute specifically declares a marriage to be a nullity, it cannot
be pronounced so by the courts. To my mind, the intrinsic evidence provided by
the language of the statute, the context in which the provision finds place,.
and the (1)(18 4) 9 Jur. 951, 954.
939 object intended to be served is of equal
validity. Dr. Lushington relied on the absence of any decision laying down that
the nullity of a marriage could be inferred by statutory construction. It was
not long after that his observations were considered in Chichester v. Mure
(falsely called Chichester) (1) by a Court consisting of Williams, J.
and Channell, B. Williams, J., who delivered
the judgment of the Court, noted the argument of counsel "that the statute
contained no words nullifying,-that is, expressly declaring a marriage
contracted and celebrated within the prohibited time null and void; 'and that
in construing a statute which relates to a contract of marriage, a different
rule of construction ought to prevail from that which might properly enough be
applied to statutes relating to a subject-matter other than a contract of
marriage; and that, in construing a statute relating to a contract of marriage,
it is not enough to invalidate the marriage to show a disregard of enactments
merely negative and prohibitory, but the marriage must be held good, unless
there are words expressly declaring that it shall be null and void."
The,learned Judges pointed out that Catterall (supra) was distinguishable and
the observations of Dr. Lushington must be read in relation to the facts of the
case before him. It was a case where a marriage, if good before the Act under
consideration was passed would not be rendered void by the statute, but if not
good before would not be aided by_it, and where the object of the statute was
not to make any marriage void that would have been valid without its aid. The
validity of the marriage was to be judged in law independently of the statute.
It was in that content that Dr. Lushington observed that there was no provision
in the Act which expressly nullified the marriage. Having dealt with those
observations, the learned Judges then said :
"It is, however, quite a different
question, whether, in construing a' statute which gives the very right to
contract at all, we are then to hold that the marriage is good, notwith-
standing a disregard of words negative and prohibitory, which relate to the
very capacity to contract, because there are no words expressly nullifying the
contract." Notwithstanding that there was no express ion nullifying the marriage,
the Court held the marriage void. Chichester (supra) was followed in Rogers,
otherwise Briscoe (falsely called Halmshaw v. Halmshaw(2). To my mind, the
argument that the proviso to Section 15 is directory and mandatory because a
marriage solemnised 'in violation of it has not been declared a nullity by the
statute does not carry conviction.
But the appellant is entitled to succeed in
her contention on another ,ground. The object behind the restraint imposed by
the proviso to Section 15 is to provide a disincentive to a hasty action for
divorce, by a husband anxious to marry another woman, and also the desire to
avoid the possibility of confusion in parentage where the wife has become
pregnant by her husband under the earlier marriage(s). A (1) (1 863) 3, Sw.
& Tr., 223.
(2) (1864) 3, Sw. & Tr. 509.
(3) 59th Report or the Law Commission of
India : P. 29 para 2.32.
940 statutory provision may be construed as
mandatory when the object underlying it would be defeated but for strict
compliance with the provision. It does not seem to me that any very serious
discouragement is provided by the proviso to Section- 15 to a husband anxious
to marry another woman.
It is also worthy of note that the impediment
to the remarriage provided by the proviso to Section 15 is a temporary one and
ceases on the expiration of the period of one year. The proviso proceeds on the
assumption that the decree dissolving the marriage is a final decree, and
merely attempts to postpone the re-marriage. It does not take into account the
defensibility of the decree in virtue of an appeal. The defensibility of the
decree because an appeal has been provided is a matter with which the main
provision of Section 15 is concerned. So far as the intention to safeguard
against a confusion in parentage is concerned, one is reminded of the principle
in Mahommedan Law which places a ban on marriage with a divorced or widowed
woman before the completion of her Iddat. It has now been held in Muhammad
Hayat v. Muhammad Nawaz,(1)overruling the earlier view on the point, that a
marriage performedduring the period of Iddat is an irregular marriage only and
not a void marriage. Further evidence that the proviso to Section 15is
directory only is provided by its deletion altogether by Parliamentby the
Marriage Laws Reforms Act, 1976. Accordingly, I am unable to endorse the view
taken by the Calcutta High Court in Uma Charan Roy v. Smt. Kajal Roy.(2) In my
opinion, a marriage performed in violation of the proviso to Section 15 of the Hindu
Marriage Act is not void.
It has also been urged on behalf of the
appellant that if Parliament intended that a marriage in violation of the
proviso to Section 15 should be a nullity, it would have made express provision
for legitimating the offspring of such a marriage. The absence of such a
provision, it is said, points to the conclusion that the proviso to Section 15
is 'directory. I refrain from expressing any opinion on the validity of that
argument, when the appellant succeeds on the considerations to which I have
adverted.
I hold that the marriage of Rajendra Kumar
with the appellant is not void, and she is entitled to be considered as his
wife.
At this stage, it is appropriate to mention
that the two tests sought to be employed in the construction of the proviso to
Section 15, that is to say that a marriage, although in violation of the
statute, is not void because the legislature has not expressly declared it to
be so, and also because. the legislature has made no provision for legitimating
the offspring of such a marriage, need to be viewed with caution. These are
tests which could equally be invoked to the construction of the main provision
of Section
15. And, as I shall endeavour to show, the
conclusion that that provision is, directory and not mandatory does not
necessarily follow.
(1)(193 5) 17 L.R. Lah. 48.
(2)A.I.R. 1971 Cal. 307.
941 The main provision of Section 15 provides
that when a marriage has been dissolved by a decree of divorce, either party to
the marriage may marry again, if there is no legal 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 having been
presented has been dismissed. In other words, the right to remarriage shall not
be exercised before the decree of divorce has reached finality. Similar
provision is contained in the English statutes. The Courts in England have
consistently taken the view that the right to remarry pertains to the capacity
of the parties to enter into marriage, and when a limitation in point of time
is placed on the exercise of the right it is regarded as a qualification of the
right itself. and a remarriage effected in violation of the time limitation has
been held to be a void marriage. See, Chichester (supra).
In India, among the earliest enactments
relevant to our purpose is the Indian Divorce Act 1869, Section 57 of which
provides :
"57. When six months after the date of
an order of a High Court confirming the decree for a dissolution of marriage
made by a District Judge have expired, or when six months after the date of any
decree of a High Court dissolving a marriage have expired, and no appeal has
been presented against such decree to the High Court in its appellate
jurisdiction.
or when any such appeal has been dismissed,
or when in the result of any such appeal any marriage is declared to be
dissolved, but not sooner, it shall be lawful for the respective parties to the
marriage to marry again, as if the prior marriage had been dissolved by death :
Provided that no appeal to the Supreme Court
has been presented against any such order or decree.
When such appeal has been dismissed, or when
in the result thereof the marriage is declared to be dissolved, but not sooner,
it shall be lawful for the respective parties to the marriage to marry again as
if the prior marriage had been dissolved by death." The section was construed
in Warter v. Warter,(1) which in turn influenced the decision in Le Mesurier v.
Le Mesurier(2) and Boettcher v. Boettcher(3). These cases were considered with
approval by the High Court of Australia in Miller v. Teale(4). In India, Warter
(supra) has been followed in J. S. Battie v. G. E. Brown,(5) Turner v.Turner(6)
and Jackson v. Jackson,(7) cases which involved the (1) (1 890) 15 Pr bate
Division., 152.
(2) (1929) 46 T.L.R., 203.
(3) (1949) Weekly Notes, 83.
(4) (1954-55) 92 C.L.R., 406.
(5) A.I.R. 1916 Madras, 847.
(6) A.I.R. 1921 Cal., 517.
(7) I.L.R. 34 Allahabad, 203.
942 application of Section 57 of the Indian
Divorce Act.
Judicial opinion, appearing from those decisions,
seems to be that a marriage solemnised before the expiry of the period of
limitation for presenting an appeal or, where an appeal has been presented,
during the pendency of that appeal must be regraded as a void marriage. The law
in this regard was precisely stated in Miller (supra), where Dixon, C.J.
pointed out .lm15 " In English Law a restraint on remarriage so as to
allow time for appealing appears to be regarded as designed to give a
provisional or tentative character to the decree dissolving the marriage so
that it does not yet take effect in all respects. It is regarded as ancillary
to the provision of the law which for a comparatively brief time makes the
decree absolute for dissolution contingently defensible in the event of appeal.
It is as if there is a rasidual incapacity to remarry arising out of the
previous marriage and not yet removed by the process provided for dissolving
it." In the same case, Kitto, J. said " Whatever' be the law by which
a person's general capacity to marry is to be determined according to the rules
applied by the English Courts, if he is a divorced person those Courts will
recognize an incapacity to remarry which is imposed upon him by the law of the
country in which his former marriage was dissolved, provided that the
incapacity is imposed incidentally to the provision of a right of appeal
against the judgment of dissolution." The main provision of Section 15 of
the Hindu Marriage Act, which, bears almost identical resemblance to the
relevant statutory provisions in the cases mentioned above, would perhaps
attract a similar conclusion in regard to its construction. At the lowest,
there is good ground for saying that a contention that a marriage solemnised in
violation of the main', provision of Section 15 is a nullity cannot be
summarily rejected. The question which arises before us in this case does not
directly involve the construction of the main provision of Section 15 and,
therefore, I refrain from expressing any opinion on the validity of such a
marriage.
The appeals are allowed, the judgment of the
Division Bench of the High Court in Special Appeals Nos. 374 to 379 of 1967 as
well as of the learned single Judge in Writ Petitions Nos. 4083 to 4088 of 1966
are set aside and the writ petitions are dismissed. The respondent shall pay
the costs of the appellant in this Court in one set.
S. R. Appeals allowed.
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