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PETITIONER: LILA GUPTA

       Vs.

RESPONDENT: LAXMI NARAIN & ORS.

DATE OF JUDGMENT04/05/1978

BENCH: DESAI, D.A. BENCH: 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 amonth  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  con travention  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).

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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

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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 therebymaking it  unlawful  without  providing  for  consequence  of   the breach,it is not legitimate to say that such a thing when done is void becausethat  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

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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

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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

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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 appealmust    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.

JUDGMENT: 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

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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 marriagewho would be competent to give  consent  as  envisaged  by  S.  5  (vi)Section  11  is

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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  was  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.

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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  so  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  ab  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 ab initio void.  Look at the  impact

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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 certaincondition  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 the. 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

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             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  legis-               lature 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

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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

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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 unreversed.   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 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.  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

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             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

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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

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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  ap- pellant in this Court in one set.

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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.  Lushington  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

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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

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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

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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

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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 capa- city  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. 94 3