Tejinder
Kaur Vs. Gurmit Singh [1988] INSC 50 (23 February 1988)
Sen,
A.P. (J) Sen, A.P. (J) Ray, B.C. (J)
CITATION:
1988 SCR (2)1098 1988 SCC (2) 90 JT 1988 (1) 395 1988 SCALE (1)398
ACT:
Constitution
of India, 1950: Article 136-Decree for
dissolution of marriage-Upheld by High Court-Wife filing SLP-Husband
contracting second marriage one month after dismissal of appeal by High
Court-SLP whether rendered infructuous.
Hindu
Marriage Act, 1955: Section 15-Effect of deletion of proviso by Marriage Laws (Amendment)
Act, 1976-Decree for dissolution of marriage upheld by High Court-SLP under
Article 136 of Constitution of India filed by wife-Husband marrying again one
month after dismissal of High Court appeal-Preliminary objection that SLP
rendered infructuous- Whether maintainable.
Limitation
Act, 1963: Article 113(c)-Decree for dissolution of marriage-Upheld by High
Court-SLP-Filed within 90 days by wife-Husband meanwhile contracting second
marriage-Whether SLP rendered infructuous.
HEAD NOTE:
%
Section 15 of the Hindu Marriage Act, 1955 provided that when a marriage was
dissolved by a decree of divorce, it shall be lawful for either of the spouses
to marry again, where either there was no right of appeal or where there was
such a right of appeal, the time for appealing, had expired, without the appeal
being presented or the appeal having been presented, was dismissed. Proviso to
the section provided that it shall not be lawful for either of them to remarry
unless at the date of such marriage at least one year had elapsed from the date
of decree in the court of first instance. This proviso was deleted by the
Marriage Laws (Amendment) Act, 1976.
A
decree for dissolution of marriage was granted by the Additional District Judge
against the petitioner-wife on the ground of cruelty under s. 13(i-a) of the
Hindu Marriage Act, 1955. The petitioner-wife's appeal to the High Court was
dismissed in limine.
The
petitioner-wife filed a Special Leave Petition in this Court. A preliminary
objection was raised on behalf of the respondent-husband 1099 that the petition
had become infructuous inasmuch as the respondent-husband had meanwhile married
again on 17th August,
1986, just a month
after the dismissal of the petitioner's appeal by the High Court.
Over
ruling the preliminary objection and directing the Special Leave Petition to be
placed for hearing, ^
HELD:
Under the law laid down in the Hindu Marriage Act, 1955, monogamy is the rule
and a party can only contract valid second marriage after the first ceases to
exist in the manner envisaged by s. 15. This rule is an integral part of the
proceedings by which alone both the parties to the decree can be released from
their incapacity to contract a fresh marriage. [1102E-F] Prior to the Amendment
Act of 1976, the proviso to s. 15 laid down a period of waiting of one year
between the passing of a decree for divorce by the court of first instance and
the remarriage of any of the spouses. The deletion of this proviso, by the
Marriage Laws (Amendment Act), 1976 and doing away with the period of waiting
has given rise to a question of great difficulty. [1103A-B] The section, when
it speaks of a case where there is a "right of appeal" does not in
terms cover the case of an application for special leave to appeal to the
Supreme Court under Article 136 of the Constitution. [1103B-C] Under Article
133(c) of the Limitation Act, 1963 a special leave petition can be filed within
90 days from the date of the disposal of the appeal by the High Court.
Therefore,
a successful party cannot take away the right of presenting an application from
the other spouse by marrying immediately after the High Court's judgment and
must wait till that period was over and make sure whether an application for
special leave has been filed in the Supreme Court. [1103C-D] Chandra Mohini Srivastava
v. Avinash Prasad Srivastava Ors., [1978] 3 SCR 922, followed.
In the
instant case, the High Court having dismissed the appeal on 16th July, 1986,
the petitioner could have presented a special leave petition within ninety days
therefrom i.e. till 14th September, 1986. Till that period was over, it was not
lawful for either party to marry again as provided by s. 15. [1104C-D] 1100
Though the respondent has denied any knowledge of the filing of the appeal in
the High Court or of its dismissal, and has justified the second marriage on
August 17, 1986, this has been controverted by the petitioner, by filing a copy
of the registered notice dated May 31, 1986, intimating the respondent of the
filing of the appeal. It was, therefore, incumbent on the respondent to have
apprised himself as to whether the appeal in the High Court was still pending;
and if not, whether the period for filing a special leave petition to this
Court had expired. [1104A-C] Catterall v. Sweetman, [1845] 9 Jur. 951, 954,
referred to.
&
CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 13306 of 1986.
From
the Judgment and order dated 16.7.1986 of the High Court of Punjab and Haryana
in First Appeal from Order No. 110/M of 1986, and Civil Misc. No. 3087 C11 of
1986.
Mrs. Sarla
Chandra and Girish Chandra for the Petitioner.
Mukul Mudgal
and P.K. Jain for the Respondent.
The
Judgment of the Court was delivered by SEN, J. In this special leave petition
by the wife against the decree for dissolution of marriage granted by the
Additional District Judge, Patiala dated 29th March, 1986 on the ground of
cruelty under s. 13(ia) of the Hindu Marriage Act, 1955, against which the
petitioner-wife had preferred an appeal to the Punjab & Haryana High Court
and which the High Court by its order dated 16th July, 1986 dismissed in limine,
a preliminary objection is raised that the petition has become infructuous
inasmuch as the respondent-husband has in the meanwhile married again on 17th
August, 1986 i.e. just after a month of the dismissal of her appeal.
It is
not necessary to state the facts in any detail.
It is
enough to say that the learned District Judge held the wife guilty of mental
cruelty for having voluntarily deprived the husband of her society and
cohabitation for a long period as, according to him, marriage without sex is an
anathema. He further held that the wife had falsely charged the husband with
adultery. It is quite evident on these facts that the marriage has
irretrievably broken.
1101
We heard learned counsel for the parties and the question is whether the
condition pre-requisite before a lawful marriage can take place after a decree
for dissolution of marriage under s. 15 of the Act has been fulfilled. Prior to
its amendment by the Marriage Laws (Amendment) Act, 1976 by which the proviso
was deleted, s. 15 was in these terms:
"15.
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.
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." Emphasis supplied Prior to the
Amendment Act of 1976, the proviso to s. 5 laid down a period of waiting of one
year between the passing of a decree for divorce by the Court of first instance
and the remarriage of any of the spouses. The Allahabad High Court in Lila
Gupta v. Laxminarayan, ILR (1969) 1 All 92 and the Calcutta High Court in Uma Charan
Roy v. Smt. Kajal Roy, AIR (1971) Cal. 307 held that such period of waiting was
enjoined on the parties in the interests of public policy and morality so as to
discourage divorcees from entering into fresh matrimony and to avoid confusion
of parentage. It was pointed out that even in Mohammadan law a divorced wife is
expected to marry any other man only after the expiry of the period of iddat to
avoid a danger of confusion of paternity. It was accordingly held that the
prohibition being mandatory, if any divorced party married again within a
period of one year, such marriage was nullity. That view however did not find favour
with this Court in Lila Gupta v. Laxmi Narain & Ors., [1978] 3 SCR 922 and
it was held that a marriage contracted in contravention of the rule relating to
one year laid down in the proviso would not be void. The Court referred to the
following observations of Dr. Lushington in Catterall v. Sweetman, [1845] 9 Jur.
951, 954:
"The
words in this section are negative words, and are clearly prohibitory of the
marriage being had without the 1102 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 ....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." It was observed that a decree for divorce breaks the marital tie
and the parties forfeit the status of husband and wife in relation to each
other. But there was nothing in s. 15 of the Act to make that marriage a
nullity. The reason for this was an incapacity for second marriage for a
certain period does not have the effect of treating the former marriage as
subsisting.
Under
the law laid down in this enactment, monogamy is the rule and a party can only
contract a valid second marriage after the first ceases to exist in the manner
envisaged by s. 15. The rule laid down in this section is an integral part of
the proceedings by which alone both the parties to the decree of divorce can be
released from their incapacity to contract a fresh marriage. The Law Commission
in its 59th Report on Hindu Marriage Act, 1955 and Special Marriage Act, 1954
however suggested the deletion of the proviso to s. 15 which laid down 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, for the reason extracted below:
"The
consideration of the parties, freedom to marry and the inconvenience caused by
the prohibition to remarry, out-weighed the two-fold purpose, i.e. avoiding
confusion of parentage and checking an attempt to obtain divorce from one woman
with the specific object of marrying another woman." 1103 Parliament
accordingly by the Marriage Laws (Amendment) Act, 1976 has done away with the
period of waiting by deleting the proviso. In Lila Gupta's case, this Court
held that the effect of deleting the proviso is that parties whose marriage is
dissolved by a decree for divorce can contract marriage soon thereafter
provided, of course, the period of appeal has expired and that all pending
proceedings have to be decided as if the proviso had not been applicable. The
deletion of the proviso has given rise to a question of great difficulty. The
section when it speaks of a case where there is a 'right of appeal' does not in
terms cover a case of an application for special leave to appeal to the Supreme
Court under Art. 136 of the Constitution.
In
Chandra Mohini Srivastava v. Avinash Prasad Srivastava & Anr., [1967] 1 SCR
864, on somewhat similar facts it was held that though s. 15 in terms does not
apply to a case of special leave to appeal to the Supreme Court, a spouse who
has won in the High Court and got a decree of dissolution of marriage cannot by
marrying immediately after the High Court's Judgment take away the right of
presenting an application for special leave to appeal from the other spouse. It
was further held that the successful party must wait for a reasonable time and
make sure whether an application for special leave has been filed in this
Court.
Wanchoo,
J. speaking for a two-Judge Bench said:
"It
is true that s. 15 does not in terms apply to a case of an application for special
leave to this Court. 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 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." In the present case, the respondent in the counter-
affidavit has 1104 denied any knowledge of the fact that an appeal had been
preferred in the High Court or of its dismissal and therefore asserts that he
was justified in contracting a second marriage on 17th August, 1986 i.e.
immediately after the expiry of one month from the date of the decree of
dissolution of marriage passed by the learned Additional District Judge. This
fact is controverted by the petitioner in her affidavit-in-reply. She has
placed a copy of the registered notice dated 31st May, 1986 intimating the
respondent of the filing of the appeal.
In
view of this, it was incumbent on the respondent to have enquired about the
fate of the appeal. At any rate, the High Court having dismissed the appeal on 16th July, 1986 the petitioner could have presented
a special leave petition within ninety days there from under Art. 133(c) of the
Limitation Act, 1963 i.e. till 14th September, 1986. Till that period was over, it was not lawful for either party to marry
again as provided by s. 15. It was incumbent on the respondent, as observed in
Lila Gupta's case to have apprised himself as to whether the appeal in the High
Court was still pending; and if not, whether the period for filing a special
leave petition to this Court had expired. We must accordingly overrule the
preliminary objection following the views expressed in Chandra Mohini's and
Lila Gupta's cases.
We
wish to add that in the subsequent decision in Lila Gupta the Court while
dealing with the effect of deletion of the proviso observed:
"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." The Court adverted to the word of
caution administered by Wanchoo, J. in Chandra Mohini's case and reiterated:
"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." 1105 We must for this reason
overrule the preliminary objection and direct the special leave petition to be
placed for hearing. There shall be no order as to costs.
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