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PETITIONER: TEJINDER KAUR

       Vs.

RESPONDENT: GURMIT SINGH

DATE OF JUDGMENT23/02/1988

BENCH: SEN, A.P. (J) BENCH: 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.

HEADNOTE: %      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

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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 JUDGMENT: 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

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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

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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

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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  therefrom  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

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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. N.P.V 1106