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Title POST DIVORCE MARRIAGES PENDING APPEAL
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Article by Chadalavada Raghuraman
Category Faculties of Law
Content

JOURNAL

OF THE

INDIAN LAW INSTITUTE

 

 

(REPRINT)

VOL. 45 Nos. 3&4 July – December 2003   ISSN 0019-5731

 

 

              

           

POST DIVORCE MARRIAGES PENDING APPEAL

 

C.S. RAGHURAMAN*

 

IN RECENT times the legal validity of ‘post divorce marriages pending appeal’ has come up for decision before the apex court in some cases. This problem arises when a successful spouse in divorce proceedings solemnizes his or her second marriage immediately after divorce has been granted by the lower court. They do so without inquiring whether or not an appeal was submitted, despite the fat that the unsuccessful spouse has a right to prefer an appeal in the high court including the right to bring this matter before the Supreme Court in some exceptional circumstances.

 

                The right of appeal is given in section 28(4) of the Hindu Marriage Act, 1955 and the appeal has to be filed within 30 days of the decree of divorce.

 

                The right to re-marriage is given in section 15 of the above Act. The proviso to the section declares: “it shall not be lawful for the respective parties to marry again unless one year has expired from the date of the decree of divorce passed by the lower court on the first occasion”.

 

                The legislature has put in a period of one year as waiting period for the divorced persons to marry again by adding the proviso to section 15, with the hope that by that time the unsuccessful spouse may exhaust all the appeals available to him or her and the divorce proceedings would have reached their finality.

 

 

 

 

 

 

 

 

                The parties then will completely be free from the earlier marriage leading them safely to their second marriage.

 

                This was the legal rule prior to the amendment to section 15 of the Act.

 

                But for reasons best known to the Parliament, the proviso was completely dropped in 1976 thereby enabling the successful spouse to go in for a second marriage without finding out whether or not an appeal is pending in the appellate court.

 

                In recent times, there appears to be undue haste in having the second marriage solemnized (remarriage) by divorced males or females without waiting for the reaction of the spouse not in favour of the decree of divorce already passed by the lower court.

 

 

  • Lecturer, Pendekati Law College, Safilguda, Hyderabad.

 

 

                Finally, the legal validity of such second marriages has engaged the attention of the hon’ble judges of the Supreme Court, resulting in sharp conflict of legal opinions expressed by the justices on this issue, when appeals were brought forward by unsuccessful spouses in the years 1967,1 1978,2 1988,3 1995,4 1997,5 and 20026 in challenging the lower court orders. This will form the main issue of this legal note.

 

                The first two cases in their chronological order were decided earlier to the amendment to section 15 of the Hindu Marriage Act, 1955 [hereinafter referred to as the Act in this regard] in the year 1976. But the legal principles evolved in the judgements are relevant and also important even subsequent to the amendment to have a thorough grasp of the subject matter of this legal note.

 

                A decree of divorce may be passed on merits on a petition being filed by the husband or the wife, as the case may be, under section 137 or jointly by both of them under section 13B8 of the act.

 

It must also be noted down first that:9

                [N]o court shall take up a petition for divorce under this Act unless at least one year of matrimonial life has been completed between the spouses save when the petition is permitted to be presented even earlier than one year under the proviso to section 14 of the act.

 

Sections 28 (4) and 15 of the Act are most important in this regard. Section 28(4) gives us an idea about filing of appeal to challenge any decree or order passed by the lower court under the Act.

 

The text of section 28(4) gives us ;an idea about filing of appeal to challenge any decree or order passed by the lower court under the Act.

 

The text of section 28(4) is as follows:  

                Section 28 Appeals from decrees and orders.

 

                Section 28(40. Every appeal under this section shall be preferred within a period

                of thirty days from the date of the decree or order.

 

The complete text section 15, prior to the amendment in the year 1976, was as follows:

 

  1. Chandra Mohini Srivastava v. Avinash Prasad Srivastava, AIR 1967 SC 581
  2. Lila Gupta v. Laxshmi Narain and others, AIR 1978 SC 1351
  3. Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839
  4. Prakash Chandra Sharma v. Vimlesh, 1995 (4) SCC (Suppl.) 642
  5. Ashok Hurra v. Bipin Chandra Zaveri, 1997 (4) SCC 230
  6. Savitri Pandey v. Prem Kumar Pandey, 2002 (2) SCC and Praveen Mehta Inderjit Mehta, 2002 (5) SCC 710.
  7. Divorce under s. 13 of the Hindu Marriage act, 1955.
  8. Id.. Divorce by Mutual Consent
  9. Id…s.14 – No Petition for divorce to be presented within one year of marriage.
  10. Id.S.28 This section has four sub-sections.

 

                Section 15. When Divorced Persons May Marry Again.

 

                When a marriage has been dissolved by a decree of divorce and 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 being presented, or an appeal has been

                presented but has been dismissed.

 

                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 first instance.

 

It is to be noted down that in 1976 that the above proviso to section 15 alone was dropped.11

 

                It is very important to note down the different dates as to when the petitions for divorce were filed, the first appeals were submitted in the high courts, the special leave petitions have been presented before the Supreme Court, and also when the second marriages have taken place in all these cases.

 

                It is very appeal preferred by Chandra Mohini in the year 1967 before the apex court, the facts were that her marriage with Avinash Srivastava took place on 27.5.1955. The husband filed a petition for divorce on the plea that his wife was living in ‘adultery’13 with Chandra Prakash who happened to be a close relative of his wife.14

 

                The lower court held that ‘she was not living in adultery as alleged by her husband since there was no proof that she was having any sexual relationship with Prakash’ and dismissed the petition.15

 

                Allowing the appeal preferred by the husband on 7.1.1964, the Allahabad High Court passed a decree of divorce16 on the ground of adultery of the wife on the strength of two letters written by Prakash to Mohini sometime in 1955 to infer that she was living in such a situation.

 

                On a request being made by the wife for ‘Special Leave’ on 7.4.1964, the Supreme Court granted ‘Special Leave’ to her on 25.8.1964.17

 

                The husband also filed an application making a request to the apex court that the ‘Special Leave’ granted should be revoked on the following reasons. Firstly, he pointed out that the high court has passed the order that the decree given in his favour shall take effect forthwith, resulting

 

 

  1. Marriage Laws (Amendment) Act, 1976.
  2. As an alternative relief, the husband also claimed for ‘Judicial Separation’
  3. S. 13(1)(i0 of the Hindu Marriage Act, 1955.
  4. Supra note 1 at 582 (para 1).
  5. Ibid. (para3).
  6. Divorce granted by invoking U.P. (Amendment) to s.13 (1)(viii).
  7. Supra note 1 at 582 (para 5).

 

 

In his marriage being dissolved when his appeal was allowed. Secondly, she did not communicate to him her intention to challenge the decree by obtaining special leave from the court.

 

                It was also pointed out that it was only on 9.9.1964 that he received notice that special leave was obtained by the appellant to file the appeal.18

 

                In the above circumstances and also as there was no ‘stay’ granted on the decree, it has been stressed that ‘the husband has believed that woman on 2.7.1964 and had a son’ and this was the main reason to request for dismissal of her appeal.19

 

                As against the above arguments of the respondent, it was submitted by the appellant that she ‘has no duty to communicate her intention to respondent before making a request for special leave to challenge the decree’ passed by the high court. It was also pointed out that even though notice was served on the respondent on 9.9.1964, the application praying for revocation of the special leave already granted to her was filed only on 15.9.1966.20

 

                K.N. Wanchoo and G.K. Mitter, JJ., after hearing the arguments, said that ‘Special Leave’ cannot be revoked on grounds put forward on behalf of the first respondent. Section 28 of the Act, inter alia. provides that all decrees and orders made by the court in any proceedings under the Act may be appealed from under any law for the time being in force as if they were decrees and orders of the court made in the exercise of its original civil jurisdiction. Then after referring to section 15 the justices have said that ‘these two sections make it clear that where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or if there is no right of appeal against the decree dissolving the marriage or if there is such a right of appeal, the time for filing the appeal has expired without an appeal having been presented, or if an appeal has been presented, it has been dismissed. It is true that section 15 does not in terms apply to a case of an application for special leave to the Supreme Court. Even so, the author is of the opinion that the party who has won in the high court, and got a decree of dissolution of marriage cannot marry immediately after the high court’s decree and thus take away from the losing party the chance of presenting an application for special leave. Even though section 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 high court to the apex court in this matter, the author still

 

 

  1. Ibid.
  2. Ibid.
  3. Ibid (para6)

 

 

 

Feels that it was for the first respondent to make sure whether an application for special leave had been filed in the 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 the highest court. If a person does so, he takes a risk and cannot ask the court to revoke the special leave on this ground.21

 

                As such, the justices have dismissed the application for revocation of special leave. Then coming to the merits of the appeal, the justices have declared that there was not adultery on part of wife and have declared:22

 

                We, therefore, allow the appeal, set aside the order of the High Court and restore

                that of the trial court rejecting the petition of the respondent.

 

                It is to be observed that in Chandra Mohini, the judges have not given a direct answer regarding the legal validity of the second marriage of the husband pending the appeal.

 

                From a reading of the above judgment, two contradictory views can be put forward. It can be argued in the husband’s favour that his second marriage may not be void in the light of the observations of the judges that ‘an appeal as of right to the court is not available’ and ‘it may not be unlawful for the respondent to marry immediately after the judgment of the High Court’.

 

                But it can also be argued in the wife’s favour that the husband’s second marriage is not valid since ‘the respondent did not make it sure whether an application for Special Leave has been filed in the court’ may be review not only immediately but if he does so he makes a risk and cannot ask the Court to revoke the Special Leave on this ground’.

 

                According to the author, the latter view is correct and the second marriage is void when it is observed that the court while restoring the order of the lower court in refusing to grant divorce has also cancelled the high court order in granting the divorce.

 

                The facts leading to the appeal being filed by Lila Gupta in the year 1978 before the Supreme Court were as follows:

 

                On 8.4.1963 the lower court passed a decree of divorce between Sarla Gupta and Rajendra Kumar. On 25.5.1963 Kumar had a second marriage with Lila Gupta. Kumar died on 7.5.1965. After Kumar’s death, Lila claiming to be the widow of Kumar asserted her rights in consolidation proceedings relating to some lands left by Kumar. She was successful before the deputy director general and the settlement officer under the relevant legislation.23

 

 

  1. Ibid. (para 7)
  2. Ibid. (para 14).
  3. Supra note 2 at 1351-1352 (para 2)

 

                But a single judge of the Allahabad High Court, in an appeal preferred by Laxmi Narain and others,24 reversed the orders passed by the settlement officer byu declaring that Lila Gupta’s marriage with Kumar being in violation of the proviso to section 15 was null and void. The division bench also confirmed the order of the single judge.25 She challenged the high court division bench judgment.

 

                While R.C. Pathak, J.. wrote a separate judgment, D.A. Desai, J., wrote for himself and for Y.V. Chandrachud, J., in allowing the appeal of Lila Gupta.

 

                Referring to sections 5,11, 12 of the Act, Desai and Chandrachud JJ., pointed out that section 11 declares that ‘any marriage solemnized in contravention of conditions laid down in clauses (i), (iv) and (v) of section 526 is declared as ‘void’27 while section 1228 declares that any marriage solemnized in contravention of the condition laid down in clause (ii) of section 5 only as ‘voidable’ and this indicates that only certain marriages are void while others are not as provided in the Act.29

 

                Then coming to the marriage solemnized in contravention of the condition laid down in clause (iii) of section5, the court declared that neither the marriage is void nor voidable in absence of any provision but section 1830 only prescribes simple punishment without declaring the marriages as ‘void’.    

 

                Then speaking about the second marriage of Kumar with Lila in contravention of the proviso to section 15, in the light of the above observations, the justices have declared that the proviso opens with a prohibition that it shall not be lawful etc. Is it an absolute prohibition, violation of which would render the marriage as a nullityu? While granting a decree of divorce the law prohibits a marriage for a period of one year from the date of the decree. But whenever a statute prohibits a certain thing being done thereby making it unlawful without providing for consequences of the breach, it is not legitimate to say that such a thing when done is void because that would be tantamount to saying that every unlawful act is void. Therefore, even thought 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.31

 

  1. Lakshminarain was the brother of Sri Kumar
  2. Supra note 2 at 1352 (para2)
  3. Supra note 13, s. 5 – Conditions for a Hindu Marriage’.
  4. Id., s. 11 – Void Marriages’.
  5. Id.S. 12 – ‘Voidable Marriages’.
  6. Supra note 2 at 1354.
  7. Supra note 13, s. 18 – Punishment for contravention of certain other conditions for a Hindu Marriage.
  8. Supra note 2 at 1355 (para 10).

 

 

 

                The justices have made a reference to the amendment to section 15 in 1976 to declare that ‘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 the period of appeal has expired.32

 

                R.C. Pathak, J., in his separate judgment, also allowed the appeal when he said that ‘a statutory provision may be construed as mandatory when the object underlying it would be defeated but for strict compliance with the provision. It is also noteworthy 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 finaldecree and merely attempts to postpone the remarriage. The defeasibility of the decree because an appeal has been provided is a matter with which the main provision of section 15 is concerned. Further evidence that the proviso to section 15 is directory only is provided by its deletion altogether by Parliament by the Marriage Laws Reforms Act, 1976.’33

 

                Pathak, J., further observed that ‘the right to marriage shall not be exercised before the decree of divorce has reached finality’34 and that ‘a marriage solemnized in violation of the main provision of section1 5 is a nullity cannot be summarily rejected’ (since” the question which arises before us in this case does not directly involve the construction of                                                                  any legal opinion on the validity of such a marriage.35

 

                No doubt that the above ruling of the court has turned upon the application and interpretation to be given to the proviso to section 15, yet the observations of Pathak, J., that ‘a marriage solemnized in violation of the main provision of Section 15 is nullity cannot be summarily rejected’ are very important despite the fact that he declined to express the legal opinion further since it will be only obiter in the case although he agreed with the majority in allowing the appeal for different reasons.

 

                Allowing Lila Gupta’s appeal the judges have said ‘as her marriage even though in contravention of the proviso to Section 15 is not void, she cannot be denied the status of wife and therefore, the widow of deceased Kumar and in that capacity as an heir to him’.36

 

                In 1998, when the appellant-wife, Tejinder Kaur appealed before the Punjab and Haryana High Court, challenging the decree of divorce already passed by the additional district judge on 29.3.1986,37 it was

 

 

  1. Ibid, (para 12).
  2. Id.At 1360 (para 25).
  3. Id.At 1361 (para 29, emphasis added)
  4. Id.At 1362 (para 30)
  5. Id.At 1359, 1362 (para 21 & 31), emphasis added).
  6. Supra note 3 at 839 (para 1).

 

                                                                   

 

 

 

Dismissed in limine on 16.7.1986,38 thereafter, immediately on 17.8.1986, the respondent-husband solemnized his second marriage.39

 

                Then she filed a special leave petition before the Supreme Court. The respondent raised a preliminary objection that as he had remarried, the special leave petition is not maintainable.

 

In rejecting the above objection, A.P. Sen and B.C. Ray, JJ., said40:

 

                [I]t 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 16.7.1986 the petitioner could have presented an appeal by special leave petition within 90 days therefrom under Article 133 © of the Limitation Act, 1963 till 14.9.1986. Till that period was over, it was not lawful for either party to marry again as provided by Section 15. It was 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 the Court had expired. We must accordingly overrule the preliminary objection following the views expressed in Chandra Mohini and Lila Gupta cases. 

 

It was also pointed that 41:

 

                [T]he section [Section 15] when it speaks of a case where there is a right of appeal does not in terms cover a case of an application for Special Leave to appeal to the Supreme Court under Article 136 of the Constitution.

 

                Then coming to the main issue regarding the husband’s remarriage, there appear to be no direct answer, as happened in Chandra Mohini, but the judges have indicated that ‘under the law laid down in this eanactment, monogamy is the rule and a party can only contract a valid second marriage after the first ceases to exist in themanner envisaged by section 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’.42

 

                The above observations make it clear that the husband’s second marriage is null and void. The fact that wife’s appeal was allowed also supports this view.

 

                Finally the apex court allowed the appeal declaring that ‘we must for this reason overrule this preliminary objection and direct the Special

 

 

  1. Ibid.
  2. Ibid.
  3. Id. At 841 (para 9).
  4. Ibid. (para 6 emphasis added).
  5. Id. At 840 (para 5).

 

 

 

 

Leave Petition to be placed for hearing’.43

 

                Coming to the year 1995, on Prakash Chandra Sharma’s request for divorce, on three different reasons of (i) desertion (ii) cruelty and (iii) unsoundness of mind of his wife, the trial court passed the decree of divorce only on first two reasons.44

 

                This decree was confirmed by the appellate court only on the reasons of ‘creulty’ on the part of wife.45

 

                But in the second appeal preferred by the wife, the high court reversed the decree by holding that husband failed to establish ‘cruelty’ on the part of wife.46

 

                The appellant-husband brought his case before the Supreme Court.

 

                An important relevant fact that was brought before the high court was that aft4er ‘the first appellate court has confirmed the decree of divorce on 29.8.1988 and after the second appeal was filed by wife, the husband married again on 21.11.1988 and has a child’.47

 

                Swarup, the learned lawyer for the appellant asked the court for confirmation of the decree already passed since his married life was irretrievably broken down, more so because he had contracted a second marriage. But the judges did not accede to this request.48

 

Both A.M. Ahmadi and B.L. Hansaria, JJ., declared: 49

 

                If the husband remarried in hot haste after the institution of the second appeal which was delayed by 3 days, we cannot see how that fact can come to his rescue. That is clearly opposed to                                                         which in tgerms states that when a marriage is dissolved by a decree of                                                                                                 of appeal against the decree or where there is such a right of appeal, the time for filing the appeal has expired or an appeal has been presented and has been dismissed, it shall be lawful for either party to the marriage to remarry. In the instant case, no doubt that 2nd appeal was delayed by 3 days but the fact is that it was instituted and was pending on the date of the 2nd marriage. Therefore the husband has acted in disregard of section 15 and cannot get the benedfit of his own wrong.

 

                From the above observations of the justices, Prakash Chandra’s second marriage on 21.11.1998 pending an appeal by his wife was clearly void when we refer to the last sentence in the above passage.

 

 

  1. Id. At 842 (para 10).
  2. Supra note 4 at 642 (para 1).
  3. Ibid.
  4. Ibid.
  5. Ibid. (emphasis added).
  6. Id. At 643 (para 4).
  7. Id. At 643 & 644.

 

 

                The husband’s appeal dismissed. This again supports the above legal position.

 

                In Ashok Hurra v. Rupa Bin Zaveri, setting aside the city civil judge’s order of 17.10.1986 in dismissing the petition50 for divorce by mutual consent on the reason that ‘since the wife withdrew her consent51 for a decree of divorce under mutual consent coming within Section 13B52, even befo0re the decree could be passed’,53 the single judge of Gujarat High Court granted divorce on 15.3.1986 by allowing the first appeal.54

 

                Ashok had his second marriage with Sonia on 18.8.1985.55

 

                But in the letters patent appeal by respondent, the division bench reversed the above order on 9.9.1996 by declaring that ‘the wife withdrew her consent even before the trial court could make an enquiry. The trial court was, therefore, right in dismissing the application submitted under section 13B of The act’.56

 

                The husband preferred an appeal in the Supreme Court. By invoking article 14257 of the Constitution the apex court granted divorce by declaring that the married life has completely broken down between the spouses. But the above orders have come about with a rider put in by the judges. Paripooman, J., writing the judgement with M.M. Punchhi, J., in agreement, declared that divorce is ‘conditional and it shall take legal effect only on payment or deposit of the amount in this Court of the entire sum of Rs.10 lakhs by appellant to the respondent.’58

 

The judges also issued the following orders:59

                [T]hat the proceedings initiated under Section 494 of The Indian Penal Code, 1860 read with Section 17 of The Act ‘shall stand terminated, but only on payment or deposit of the amounts ordered by us in this judgment. This is made clear.

 

                These directions have become necessary since the wife had filed a criminal complaint on 14.11.1994 against the appellant.60

 

 

  1. Petition for “Divorce by Mutual Consent’ preferred on 21 Aug 1984.
  2. On 27.3.1986, wife sought permission to withdraw her consent for divorce.
  3. On 4.4.1985, husband alone moved a ‘motion’ as required under s. 13(B)(2) of the Act for divorce.
  4. Supra note 5 at 230 (para 5, emphasis added).
  5. Id. At 231 (para 6).
  6. Ibid. (para 8).
  7. Ibid. (para 7, emphasis added).
  8. The appellant made a specific request to the Supreme Court to invoke art, 142 of the Constitution.
  9. Supra note 5 at 241 (para 26, emphasis added).
  10. Ibid. (emphasis added).
  11. Id. At 232 (para 9).

 

 

 

 

 

 

 

 

                The directions given above implicitly recognize that the first marriage of Ashok was dissolved, but his second marriage even when the appeal is pending will not attract criminal consequences provides the amount fixed by the court is paid to the first wife. Otherwise, the law will take its own course on the complaint already given against him.

 

                The true legal effect of termination of criminal proceedings clearly indicate that the second marriage of the appellant with Sonia was not bigamous despite the appeal preferred by the wife only when the amount is paid to the respondent.

 

                Indeed, this is an unusual decision of the apex court. In view of the peculiar circumstances of the case, it is very difficult to declare whether post divorce marriage pending appeal is valid or not.

 

                This appears to the first judgment of the court in matrimonial jurisprudence wherein criminal proceedings were terminated on payment of money to the opposite party.

               

                Two more appeals have come before the Supreme Court in 2002.

 

                Savitri Pandey filed the petition for divorce against her husband Prem Chand Pandey under Section1 3 of th Act alleging that he had deserted her. The family court passed a decree of divorce on 8.7.199661 accepting that husband has indeed deserted her.

 

                The husband filed the appeal on 19.1.1997 in the Allahabad High Court.62

 

                The wife had a second marriage with Sudhakar Pandey on 29.5.199763 as the high court did not grant a ‘stay’ on the decree already passed by the high court.

 

                The high court set aside the decree on 17.4.1998.64

 

                This order was questioned by the wife in the Supreme Court.

 

                The lawyer, appearing for the appellant, in claiming for confirmation of the decree already given by the family court, stressed on the fact of the second marriage of the appellant, as happened in Prakash Chandra Sharma case, to highlight that the earlier marriage has completely broken down between the parties although husband’s appeal was pending in the high court.65

 

                Speaking on the second marriage of Savitri, R.P. Sethi and Y.K. Sabharwal, JJ., in unanimous legal opinion have declared:66

 

                [A]s no stay was granted, the appellant solemnized the second marriage on 29.5.1997, admittedly during the pendency of the

 

 

  1. Savitri Pande, supra note 6 at 84 (para 15).
  2. Ibid.
  3. Ibid
  4. Id, at 73
  5. Id, at 83 (para 14).
  6. Id, at 84 (para 15).

 

appeal before the High Court. There is no denial of the fact that right of at least one appeal is a recognized right under all systems of the civilized jurisprudence. If despite the pendency of appeal, the appellant chose to solemnize the second marriage the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending the High Court. No person can be permitted to flout the course of justice by his or her overt or coverts acts.

 

                The above passage clearly indicate that Savitri’s second marriage with Sudhakar Pandey pending tha appeal before the high court is clearly void and produces the relevant legal consequences to be faced by her, giving them no legal status as husband and wife.

 

The judges further declared:67

 

                [T]he appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this Court under Article 142 of Indian Constitution for dissolving the marriage. Savitri’s appeal dismissed

 

                At the end of the decision, the justices, after pointing out that the period of 30 days already given in section 28(4) for preferring the appeal under section 28(1) as ‘apparently inadequate’, which facilitates the frustration of the marriage by the unscrupulous litigant spouses, have made a recommendation to the Law Ministry, after taking in many factors in giving their recommendation, to prescribe a minimum period of 90 days for filing the appeal.68

 

                While giving the above suggestion they have made a very important observation that ‘any marriage solemnized during the aforesaid period is deemed to be void’.69

 

 

 

                What cold be the legal impact of the above observation of the judges on her second marriage pending the appeal by husband.

 

                Can we assume that the words ‘aforesaid period’ in their opinion actually refer to the period of 30 days already available in section 28(4) or did they refer to the period of 90 days as suggested by the judges.

 

                The author firmly believes that the above two words shall only refer to 30 days as it exists today since unless and until the law is changed, the period prescribed in section 28(4) squarely applies in the matter of filing of appeals as the suggestion for 90 days is only obiter and any second marriage solemnized pending the appeal is naturally void.

 

 

  1. Id. At 85 (para 18, emphasis added.)
  2. Ibid, (para 19).
  3. Ibid. (emphasis added).

 

 

 

                Therefore, Savitri’s second marriage shall also be deemed to be void pending the appeal by her husband before the high court.

 

                The legal battle between Praveen Mehta and Inderjit Mehta was about the complete breakdown of married life between the husband and wife.

 

                The respondent-husband’s petition for divorce on the reasons of ‘cruelty’ and ‘desertion’ on the part of his wife was dismissed. But a single judge of the Punjab and Haryana High Court has allowed the husband’s appeal on 1.6.200070 by granting divorce. The judge also passed an order ‘directing the husband not to remarry till 30.9.2000’.71

 

                The appellant-wife’s letters patent appeal before the division bench was dismissed in limine on 8.8.2000.72

 

Finally the wife filed an appeal before the Supreme Court.

 

                D.P. Mohapatra and Brijesh Kumar, JJ., took note of the lawyer’s argument for respondent ‘that since the husband had remarried in December 2000, i.e., 4 months after the judgment by the Division Bench as an additional factor to press for confirmation of the Decree of Divorce’ and dismissed the appeal by pointing out that ‘the respondent has remarried in the year 2000. On this ground also the decision of the High Court in favour of the respondent’s prayer for dissolution of marriage should not be                                 ‘.73

 

                The apex court dismissed the appeal.

 

                The second marriage of the husband was not disturbed as it was valid as it had taken place after a period of 90 days.

 

 

                 The author, after careful perusal of the above rulings and observations of the hon’ble justices has come to the conclusion that A.M. Ahamadi, J., B.L. Hansaria, J., R.P. Sethi and Y.K. Sabarwal, JJ., have directly came to the opinion that a post divorce marriage pending appeal is not valid.

 

                K.N. Wanchoo, J., G.K. Mitter, J., A.P. Sen and B.C. Ray, JJ., have also, indirectly, voiced the same opinion.

 

                Paripoornan and M.M. Punchi, JJ., did not directly express any opinion on the legal validity of second marriage of Ashok pending the appeal in high court. But the justice have granted conditional divorce to Ashok and have declared that “The Criminal Proceedings pending against appellant for entertaining into bigamous marriage shall be terminated only on payment of the amount fixed by the court to the first wife and therefore his second marriage may fall either on the wrong or right side of law depending on payment.”

 

 

  1. Praveen Mehta, supra note 6 at 711 (para 10).
  2. Id. At 712. (emphasis added).
  3. Ibid. (para 11).
  4. Id. At 717 (para 24, emphasis added).

 

D.A. Desai and Y.V. Chandrachud, JJ., did not express any opinion at all in Lila Gupta case as the judgment turned upon the application of the proviso to section 15 to the facts. But R.C. pathak, J., in his passing comments merely observed that ‘a marriage solemnized in violation of the main provision of section 15 is a nullity cannot be summarily rejected’.

 

                D.P. Mohapatra and Brijeshkumar, JJ., did not find it necessary to go into this issue since Inderjit remarried after 90 days of the high court decision.

 

                Now let us have a very brief look at the legislative provisions in other Acts relating to filing the appeals: Sections 47 and 48 of the Parsi Marriage and Divorce Act, 1936.

 

                Section 47: Appeal to High Court

 

                An appeal shall lie in the High Court………….

 

                Provided that such appeal shall be instituted within three calendar months after the decision appealed from shall have been pronounced.

 

                Section 48: Liberty for parties to marry again.

 

                When the time limited for appealing against any decree granting a divorce or annulling or dissolving a marriage shall have expired, and no appeal shall have been presented against such decree, or when any such appeal has been dismissed, or when in the result of any appeal, divorce has been granted or a marriage has been declared to be annulled or dissolved, but not sooner, it shall be lawful for the respective parties thereto to marry again.

 

                Sections 56 and57 of the Divorce Act, 1869.

 

                Section 56 Appeal to the Supreme Court.

 

                Any person may appeal to the Supreme Court from any decree [other than decree nisi] or order under this Act of a High Court made on appeal or otherwise,

 

                And from any decree [other than a decree nisi] or order made in the exercise of original jurisdiction by Judge of a High Court or of  any Division Court from which an appeal shall not lie to the High Court,

 

                When High Court declares that the cae is a fit one for appeal to the Supreme Court.

 

                Section 57, Liberty to parties to marry again

 

                When a decree for dissolution or nullity of marriage has been passed and either the time for appeal has expired without an appeal having been presented to any court including the Supreme Court or an appeal has been presented but has been dismissed and the decree or dismissal has become final, it shall be lawful for either party to the marriage to marry again.

 

                Towards the end of this legal note, the author would like to suggest that the earlier deleted proviso to section 15 of the Act should be brought back into force with a small change in the text of the proviso. This suggestion is in addition to the recommendation already made to section 28(4) by the hon’ble judges in Savitri case.

 

                The proviso to section 15 should be on the following lines:

 

                Provided that it shall not be lawful for divorced male or female to marry again unless at the date of such marriage at least one year has expired from the date of divorce granted by the Court of First Instance and if any such marriage has taken place within the aforesaid period, shall be void and the criminal consequences, if any, shall ensue in such case.

 

                Explanation I It is necessary for the spouse going for a second marriage to serve a notice on the other spouse about such marriage on the expiry of one year provided in the Proviso.

 

                Explanation II. It is also necessary for the spouse going for a Special Leave Petition before the Supreme Court to serve notice on the other spouse.

 

JOURNAL

OF THE

INDIAN LAW INSTITUTE

 

 

(REPRINT)

VOL. 45 Nos. 3&4 July – December 2003   ISSN 0019-5731

 

 

              

           

POST DIVORCE MARRIAGES PENDING APPEAL

 

C.S. RAGHURAMAN*

 

IN RECENT times the legal validity of ‘post divorce marriages pending appeal’ has come up for decision before the apex court in some cases. This problem arises when a successful spouse in divorce proceedings solemnizes his or her second marriage immediately after divorce has been granted by the lower court. They do so without inquiring whether or not an appeal was submitted, despite the fat that the unsuccessful spouse has a right to prefer an appeal in the high court including the right to bring this matter before the Supreme Court in some exceptional circumstances.

 

                The right of appeal is given in section 28(4) of the Hindu Marriage Act, 1955 and the appeal has to be filed within 30 days of the decree of divorce.

 

                The right to re-marriage is given in section 15 of the above Act. The proviso to the section declares: “it shall not be lawful for the respective parties to marry again unless one year has expired from the date of the decree of divorce passed by the lower court on the first occasion”.

 

                The legislature has put in a period of one year as waiting period for the divorced persons to marry again by adding the proviso to section 15, with the hope that by that time the unsuccessful spouse may exhaust all the appeals available to him or her and the divorce proceedings would have reached their finality.

 

 

 

 

 

 

 

 

                The parties then will completely be free from the earlier marriage leading them safely to their second marriage.

 

                This was the legal rule prior to the amendment to section 15 of the Act.

 

                But for reasons best known to the Parliament, the proviso was completely dropped in 1976 thereby enabling the successful spouse to go in for a second marriage without finding out whether or not an appeal is pending in the appellate court.

 

                In recent times, there appears to be undue haste in having the second marriage solemnized (remarriage) by divorced males or females without waiting for the reaction of the spouse not in favour of the decree of divorce already passed by the lower court.

 

 

  • Lecturer, Pendekati Law College, Safilguda, Hyderabad.

 

 

                Finally, the legal validity of such second marriages has engaged the attention of the hon’ble judges of the Supreme Court, resulting in sharp conflict of legal opinions expressed by the justices on this issue, when appeals were brought forward by unsuccessful spouses in the years 1967,1 1978,2 1988,3 1995,4 1997,5 and 20026 in challenging the lower court orders. This will form the main issue of this legal note.

 

                The first two cases in their chronological order were decided earlier to the amendment to section 15 of the Hindu Marriage Act, 1955 [hereinafter referred to as the Act in this regard] in the year 1976. But the legal principles evolved in the judgements are relevant and also important even subsequent to the amendment to have a thorough grasp of the subject matter of this legal note.

 

                A decree of divorce may be passed on merits on a petition being filed by the husband or the wife, as the case may be, under section 137 or jointly by both of them under section 13B8 of the act.

 

It must also be noted down first that:9

                [N]o court shall take up a petition for divorce under this Act unless at least one year of matrimonial life has been completed between the spouses save when the petition is permitted to be presented even earlier than one year under the proviso to section 14 of the act.

 

Sections 28 (4) and 15 of the Act are most important in this regard. Section 28(4) gives us an idea about filing of appeal to challenge any decree or order passed by the lower court under the Act.

 

The text of section 28(4) gives us ;an idea about filing of appeal to challenge any decree or order passed by the lower court under the Act.

 

The text of section 28(4) is as follows:  

                Section 28 Appeals from decrees and orders.

 

                Section 28(40. Every appeal under this section shall be preferred within a period

                of thirty days from the date of the decree or order.

 

The complete text section 15, prior to the amendment in the year 1976, was as follows:

 

  1. Chandra Mohini Srivastava v. Avinash Prasad Srivastava, AIR 1967 SC 581
  2. Lila Gupta v. Laxshmi Narain and others, AIR 1978 SC 1351
  3. Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839
  4. Prakash Chandra Sharma v. Vimlesh, 1995 (4) SCC (Suppl.) 642
  5. Ashok Hurra v. Bipin Chandra Zaveri, 1997 (4) SCC 230
  6. Savitri Pandey v. Prem Kumar Pandey, 2002 (2) SCC and Praveen Mehta Inderjit Mehta, 2002 (5) SCC 710.
  7. Divorce under s. 13 of the Hindu Marriage act, 1955.
  8. Id.. Divorce by Mutual Consent
  9. Id…s.14 – No Petition for divorce to be presented within one year of marriage.
  10. Id.S.28 This section has four sub-sections.

 

                Section 15. When Divorced Persons May Marry Again.

 

                When a marriage has been dissolved by a decree of divorce and 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 being presented, or an appeal has been

                presented but has been dismissed.

 

                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 first instance.

 

It is to be noted down that in 1976 that the above proviso to section 15 alone was dropped.11

 

                It is very important to note down the different dates as to when the petitions for divorce were filed, the first appeals were submitted in the high courts, the special leave petitions have been presented before the Supreme Court, and also when the second marriages have taken place in all these cases.

 

                It is very appeal preferred by Chandra Mohini in the year 1967 before the apex court, the facts were that her marriage with Avinash Srivastava took place on 27.5.1955. The husband filed a petition for divorce on the plea that his wife was living in ‘adultery’13 with Chandra Prakash who happened to be a close relative of his wife.14

 

                The lower court held that ‘she was not living in adultery as alleged by her husband since there was no proof that she was having any sexual relationship with Prakash’ and dismissed the petition.15

 

                Allowing the appeal preferred by the husband on 7.1.1964, the Allahabad High Court passed a decree of divorce16 on the ground of adultery of the wife on the strength of two letters written by Prakash to Mohini sometime in 1955 to infer that she was living in such a situation.

 

                On a request being made by the wife for ‘Special Leave’ on 7.4.1964, the Supreme Court granted ‘Special Leave’ to her on 25.8.1964.17

 

                The husband also filed an application making a request to the apex court that the ‘Special Leave’ granted should be revoked on the following reasons. Firstly, he pointed out that the high court has passed the order that the decree given in his favour shall take effect forthwith, resulting

 

 

  1. Marriage Laws (Amendment) Act, 1976.
  2. As an alternative relief, the husband also claimed for ‘Judicial Separation’
  3. S. 13(1)(i0 of the Hindu Marriage Act, 1955.
  4. Supra note 1 at 582 (para 1).
  5. Ibid. (para3).
  6. Divorce granted by invoking U.P. (Amendment) to s.13 (1)(viii).
  7. Supra note 1 at 582 (para 5).

 

 

In his marriage being dissolved when his appeal was allowed. Secondly, she did not communicate to him her intention to challenge the decree by obtaining special leave from the court.

 

                It was also pointed out that it was only on 9.9.1964 that he received notice that special leave was obtained by the appellant to file the appeal.18

 

                In the above circumstances and also as there was no ‘stay’ granted on the decree, it has been stressed that ‘the husband has believed that woman on 2.7.1964 and had a son’ and this was the main reason to request for dismissal of her appeal.19

 

                As against the above arguments of the respondent, it was submitted by the appellant that she ‘has no duty to communicate her intention to respondent before making a request for special leave to challenge the decree’ passed by the high court. It was also pointed out that even though notice was served on the respondent on 9.9.1964, the application praying for revocation of the special leave already granted to her was filed only on 15.9.1966.20

 

                K.N. Wanchoo and G.K. Mitter, JJ., after hearing the arguments, said that ‘Special Leave’ cannot be revoked on grounds put forward on behalf of the first respondent. Section 28 of the Act, inter alia. provides that all decrees and orders made by the court in any proceedings under the Act may be appealed from under any law for the time being in force as if they were decrees and orders of the court made in the exercise of its original civil jurisdiction. Then after referring to section 15 the justices have said that ‘these two sections make it clear that where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or if there is no right of appeal against the decree dissolving the marriage or if there is such a right of appeal, the time for filing the appeal has expired without an appeal having been presented, or if an appeal has been presented, it has been dismissed. It is true that section 15 does not in terms apply to a case of an application for special leave to the Supreme Court. Even so, the author is of the opinion that the party who has won in the high court, and got a decree of dissolution of marriage cannot marry immediately after the high court’s decree and thus take away from the losing party the chance of presenting an application for special leave. Even though section 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 high court to the apex court in this matter, the author still

 

 

  1. Ibid.
  2. Ibid.
  3. Ibid (para6)

 

 

 

Feels that it was for the first respondent to make sure whether an application for special leave had been filed in the 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 the highest court. If a person does so, he takes a risk and cannot ask the court to revoke the special leave on this ground.21

 

                As such, the justices have dismissed the application for revocation of special leave. Then coming to the merits of the appeal, the justices have declared that there was not adultery on part of wife and have declared:22

 

                We, therefore, allow the appeal, set aside the order of the High Court and restore

                that of the trial court rejecting the petition of the respondent.

 

                It is to be observed that in Chandra Mohini, the judges have not given a direct answer regarding the legal validity of the second marriage of the husband pending the appeal.

 

                From a reading of the above judgment, two contradictory views can be put forward. It can be argued in the husband’s favour that his second marriage may not be void in the light of the observations of the judges that ‘an appeal as of right to the court is not available’ and ‘it may not be unlawful for the respondent to marry immediately after the judgment of the High Court’.

 

                But it can also be argued in the wife’s favour that the husband’s second marriage is not valid since ‘the respondent did not make it sure whether an application for Special Leave has been filed in the court’ may be review not only immediately but if he does so he makes a risk and cannot ask the Court to revoke the Special Leave on this ground’.

 

                According to the author, the latter view is correct and the second marriage is void when it is observed that the court while restoring the order of the lower court in refusing to grant divorce has also cancelled the high court order in granting the divorce.

 

                The facts leading to the appeal being filed by Lila Gupta in the year 1978 before the Supreme Court were as follows:

 

                On 8.4.1963 the lower court passed a decree of divorce between Sarla Gupta and Rajendra Kumar. On 25.5.1963 Kumar had a second marriage with Lila Gupta. Kumar died on 7.5.1965. After Kumar’s death, Lila claiming to be the widow of Kumar asserted her rights in consolidation proceedings relating to some lands left by Kumar. She was successful before the deputy director general and the settlement officer under the relevant legislation.23

 

 

  1. Ibid. (para 7)
  2. Ibid. (para 14).
  3. Supra note 2 at 1351-1352 (para 2)

 

                But a single judge of the Allahabad High Court, in an appeal preferred by Laxmi Narain and others,24 reversed the orders passed by the settlement officer byu declaring that Lila Gupta’s marriage with Kumar being in violation of the proviso to section 15 was null and void. The division bench also confirmed the order of the single judge.25 She challenged the high court division bench judgment.

 

                While R.C. Pathak, J.. wrote a separate judgment, D.A. Desai, J., wrote for himself and for Y.V. Chandrachud, J., in allowing the appeal of Lila Gupta.

 

                Referring to sections 5,11, 12 of the Act, Desai and Chandrachud JJ., pointed out that section 11 declares that ‘any marriage solemnized in contravention of conditions laid down in clauses (i), (iv) and (v) of section 526 is declared as ‘void’27 while section 1228 declares that any marriage solemnized in contravention of the condition laid down in clause (ii) of section 5 only as ‘voidable’ and this indicates that only certain marriages are void while others are not as provided in the Act.29

 

                Then coming to the marriage solemnized in contravention of the condition laid down in clause (iii) of section5, the court declared that neither the marriage is void nor voidable in absence of any provision but section 1830 only prescribes simple punishment without declaring the marriages as ‘void’.    

 

                Then speaking about the second marriage of Kumar with Lila in contravention of the proviso to section 15, in the light of the above observations, the justices have declared that the proviso opens with a prohibition that it shall not be lawful etc. Is it an absolute prohibition, violation of which would render the marriage as a nullityu? While granting a decree of divorce the law prohibits a marriage for a period of one year from the date of the decree. But whenever a statute prohibits a certain thing being done thereby making it unlawful without providing for consequences of the breach, it is not legitimate to say that such a thing when done is void because that would be tantamount to saying that every unlawful act is void. Therefore, even thought 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.31

 

  1. Lakshminarain was the brother of Sri Kumar
  2. Supra note 2 at 1352 (para2)
  3. Supra note 13, s. 5 – Conditions for a Hindu Marriage’.
  4. Id., s. 11 – Void Marriages’.
  5. Id.S. 12 – ‘Voidable Marriages’.
  6. Supra note 2 at 1354.
  7. Supra note 13, s. 18 – Punishment for contravention of certain other conditions for a Hindu Marriage.
  8. Supra note 2 at 1355 (para 10).

 

 

 

                The justices have made a reference to the amendment to section 15 in 1976 to declare that ‘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 the period of appeal has expired.32

 

                R.C. Pathak, J., in his separate judgment, also allowed the appeal when he said that ‘a statutory provision may be construed as mandatory when the object underlying it would be defeated but for strict compliance with the provision. It is also noteworthy 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 finaldecree and merely attempts to postpone the remarriage. The defeasibility of the decree because an appeal has been provided is a matter with which the main provision of section 15 is concerned. Further evidence that the proviso to section 15 is directory only is provided by its deletion altogether by Parliament by the Marriage Laws Reforms Act, 1976.’33

 

                Pathak, J., further observed that ‘the right to marriage shall not be exercised before the decree of divorce has reached finality’34 and that ‘a marriage solemnized in violation of the main provision of section1 5 is a nullity cannot be summarily rejected’ (since” the question which arises before us in this case does not directly involve the construction of                                                                  any legal opinion on the validity of such a marriage.35

 

                No doubt that the above ruling of the court has turned upon the application and interpretation to be given to the proviso to section 15, yet the observations of Pathak, J., that ‘a marriage solemnized in violation of the main provision of Section 15 is nullity cannot be summarily rejected’ are very important despite the fact that he declined to express the legal opinion further since it will be only obiter in the case although he agreed with the majority in allowing the appeal for different reasons.

 

                Allowing Lila Gupta’s appeal the judges have said ‘as her marriage even though in contravention of the proviso to Section 15 is not void, she cannot be denied the status of wife and therefore, the widow of deceased Kumar and in that capacity as an heir to him’.36

 

                In 1998, when the appellant-wife, Tejinder Kaur appealed before the Punjab and Haryana High Court, challenging the decree of divorce already passed by the additional district judge on 29.3.1986,37 it was

 

 

  1. Ibid, (para 12).
  2. Id.At 1360 (para 25).
  3. Id.At 1361 (para 29, emphasis added)
  4. Id.At 1362 (para 30)
  5. Id.At 1359, 1362 (para 21 & 31), emphasis added).
  6. Supra note 3 at 839 (para 1).

 

                                                                   

 

 

 

Dismissed in limine on 16.7.1986,38 thereafter, immediately on 17.8.1986, the respondent-husband solemnized his second marriage.39

 

                Then she filed a special leave petition before the Supreme Court. The respondent raised a preliminary objection that as he had remarried, the special leave petition is not maintainable.

 

In rejecting the above objection, A.P. Sen and B.C. Ray, JJ., said40:

 

                [I]t 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 16.7.1986 the petitioner could have presented an appeal by special leave petition within 90 days therefrom under Article 133 © of the Limitation Act, 1963 till 14.9.1986. Till that period was over, it was not lawful for either party to marry again as provided by Section 15. It was 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 the Court had expired. We must accordingly overrule the preliminary objection following the views expressed in Chandra Mohini and Lila Gupta cases. 

 

It was also pointed that 41:

 

                [T]he section [Section 15] when it speaks of a case where there is a right of appeal does not in terms cover a case of an application for Special Leave to appeal to the Supreme Court under Article 136 of the Constitution.

 

                Then coming to the main issue regarding the husband’s remarriage, there appear to be no direct answer, as happened in Chandra Mohini, but the judges have indicated that ‘under the law laid down in this eanactment, monogamy is the rule and a party can only contract a valid second marriage after the first ceases to exist in themanner envisaged by section 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’.42

 

                The above observations make it clear that the husband’s second marriage is null and void. The fact that wife’s appeal was allowed also supports this view.

 

                Finally the apex court allowed the appeal declaring that ‘we must for this reason overrule this preliminary objection and direct the Special

 

 

  1. Ibid.
  2. Ibid.
  3. Id. At 841 (para 9).
  4. Ibid. (para 6 emphasis added).
  5. Id. At 840 (para 5).

 

 

 

 

Leave Petition to be placed for hearing’.43

 

                Coming to the year 1995, on Prakash Chandra Sharma’s request for divorce, on three different reasons of (i) desertion (ii) cruelty and (iii) unsoundness of mind of his wife, the trial court passed the decree of divorce only on first two reasons.44

 

                This decree was confirmed by the appellate court only on the reasons of ‘creulty’ on the part of wife.45

 

                But in the second appeal preferred by the wife, the high court reversed the decree by holding that husband failed to establish ‘cruelty’ on the part of wife.46

 

                The appellant-husband brought his case before the Supreme Court.

 

                An important relevant fact that was brought before the high court was that aft4er ‘the first appellate court has confirmed the decree of divorce on 29.8.1988 and after the second appeal was filed by wife, the husband married again on 21.11.1988 and has a child’.47

 

                Swarup, the learned lawyer for the appellant asked the court for confirmation of the decree already passed since his married life was irretrievably broken down, more so because he had contracted a second marriage. But the judges did not accede to this request.48

 

Both A.M. Ahmadi and B.L. Hansaria, JJ., declared: 49

 

                If the husband remarried in hot haste after the institution of the second appeal which was delayed by 3 days, we cannot see how that fact can come to his rescue. That is clearly opposed to                                                         which in tgerms states that when a marriage is dissolved by a decree of                                                                                                 of appeal against the decree or where there is such a right of appeal, the time for filing the appeal has expired or an appeal has been presented and has been dismissed, it shall be lawful for either party to the marriage to remarry. In the instant case, no doubt that 2nd appeal was delayed by 3 days but the fact is that it was instituted and was pending on the date of the 2nd marriage. Therefore the husband has acted in disregard of section 15 and cannot get the benedfit of his own wrong.

 

                From the above observations of the justices, Prakash Chandra’s second marriage on 21.11.1998 pending an appeal by his wife was clearly void when we refer to the last sentence in the above passage.

 

 

  1. Id. At 842 (para 10).
  2. Supra note 4 at 642 (para 1).
  3. Ibid.
  4. Ibid.
  5. Ibid. (emphasis added).
  6. Id. At 643 (para 4).
  7. Id. At 643 & 644.

 

 

                The husband’s appeal dismissed. This again supports the above legal position.

 

                In Ashok Hurra v. Rupa Bin Zaveri, setting aside the city civil judge’s order of 17.10.1986 in dismissing the petition50 for divorce by mutual consent on the reason that ‘since the wife withdrew her consent51 for a decree of divorce under mutual consent coming within Section 13B52, even befo0re the decree could be passed’,53 the single judge of Gujarat High Court granted divorce on 15.3.1986 by allowing the first appeal.54

 

                Ashok had his second marriage with Sonia on 18.8.1985.55

 

                But in the letters patent appeal by respondent, the division bench reversed the above order on 9.9.1996 by declaring that ‘the wife withdrew her consent even before the trial court could make an enquiry. The trial court was, therefore, right in dismissing the application submitted under section 13B of The act’.56

 

                The husband preferred an appeal in the Supreme Court. By invoking article 14257 of the Constitution the apex court granted divorce by declaring that the married life has completely broken down between the spouses. But the above orders have come about with a rider put in by the judges. Paripooman, J., writing the judgement with M.M. Punchhi, J., in agreement, declared that divorce is ‘conditional and it shall take legal effect only on payment or deposit of the amount in this Court of the entire sum of Rs.10 lakhs by appellant to the respondent.’58

 

The judges also issued the following orders:59

                [T]hat the proceedings initiated under Section 494 of The Indian Penal Code, 1860 read with Section 17 of The Act ‘shall stand terminated, but only on payment or deposit of the amounts ordered by us in this judgment. This is made clear.

 

                These directions have become necessary since the wife had filed a criminal complaint on 14.11.1994 against the appellant.60

 

 

  1. Petition for “Divorce by Mutual Consent’ preferred on 21 Aug 1984.
  2. On 27.3.1986, wife sought permission to withdraw her consent for divorce.
  3. On 4.4.1985, husband alone moved a ‘motion’ as required under s. 13(B)(2) of the Act for divorce.
  4. Supra note 5 at 230 (para 5, emphasis added).
  5. Id. At 231 (para 6).
  6. Ibid. (para 8).
  7. Ibid. (para 7, emphasis added).
  8. The appellant made a specific request to the Supreme Court to invoke art, 142 of the Constitution.
  9. Supra note 5 at 241 (para 26, emphasis added).
  10. Ibid. (emphasis added).
  11. Id. At 232 (para 9).

 

 

 

 

 

 

 

 

                The directions given above implicitly recognize that the first marriage of Ashok was dissolved, but his second marriage even when the appeal is pending will not attract criminal consequences provides the amount fixed by the court is paid to the first wife. Otherwise, the law will take its own course on the complaint already given against him.

 

                The true legal effect of termination of criminal proceedings clearly indicate that the second marriage of the appellant with Sonia was not bigamous despite the appeal preferred by the wife only when the amount is paid to the respondent.

 

                Indeed, this is an unusual decision of the apex court. In view of the peculiar circumstances of the case, it is very difficult to declare whether post divorce marriage pending appeal is valid or not.

 

                This appears to the first judgment of the court in matrimonial jurisprudence wherein criminal proceedings were terminated on payment of money to the opposite party.

               

                Two more appeals have come before the Supreme Court in 2002.

 

                Savitri Pandey filed the petition for divorce against her husband Prem Chand Pandey under Section1 3 of th Act alleging that he had deserted her. The family court passed a decree of divorce on 8.7.199661 accepting that husband has indeed deserted her.

 

                The husband filed the appeal on 19.1.1997 in the Allahabad High Court.62

 

                The wife had a second marriage with Sudhakar Pandey on 29.5.199763 as the high court did not grant a ‘stay’ on the decree already passed by the high court.

 

                The high court set aside the decree on 17.4.1998.64

 

                This order was questioned by the wife in the Supreme Court.

 

                The lawyer, appearing for the appellant, in claiming for confirmation of the decree already given by the family court, stressed on the fact of the second marriage of the appellant, as happened in Prakash Chandra Sharma case, to highlight that the earlier marriage has completely broken down between the parties although husband’s appeal was pending in the high court.65

 

                Speaking on the second marriage of Savitri, R.P. Sethi and Y.K. Sabharwal, JJ., in unanimous legal opinion have declared:66

 

                [A]s no stay was granted, the appellant solemnized the second marriage on 29.5.1997, admittedly during the pendency of the

 

 

  1. Savitri Pande, supra note 6 at 84 (para 15).
  2. Ibid.
  3. Ibid
  4. Id, at 73
  5. Id, at 83 (para 14).
  6. Id, at 84 (para 15).

 

appeal before the High Court. There is no denial of the fact that right of at least one appeal is a recognized right under all systems of the civilized jurisprudence. If despite the pendency of appeal, the appellant chose to solemnize the second marriage the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending the High Court. No person can be permitted to flout the course of justice by his or her overt or coverts acts.

 

                The above passage clearly indicate that Savitri’s second marriage with Sudhakar Pandey pending tha appeal before the high court is clearly void and produces the relevant legal consequences to be faced by her, giving them no legal status as husband and wife.

 

The judges further declared:67

 

                [T]he appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this Court under Article 142 of Indian Constitution for dissolving the marriage. Savitri’s appeal dismissed

 

                At the end of the decision, the justices, after pointing out that the period of 30 days already given in section 28(4) for preferring the appeal under section 28(1) as ‘apparently inadequate’, which facilitates the frustration of the marriage by the unscrupulous litigant spouses, have made a recommendation to the Law Ministry, after taking in many factors in giving their recommendation, to prescribe a minimum period of 90 days for filing the appeal.68

 

                While giving the above suggestion they have made a very important observation that ‘any marriage solemnized during the aforesaid period is deemed to be void’.69

 

 

 

                What cold be the legal impact of the above observation of the judges on her second marriage pending the appeal by husband.

 

                Can we assume that the words ‘aforesaid period’ in their opinion actually refer to the period of 30 days already available in section 28(4) or did they refer to the period of 90 days as suggested by the judges.

 

                The author firmly believes that the above two words shall only refer to 30 days as it exists today since unless and until the law is changed, the period prescribed in section 28(4) squarely applies in the matter of filing of appeals as the suggestion for 90 days is only obiter and any second marriage solemnized pending the appeal is naturally void.

 

 

  1. Id. At 85 (para 18, emphasis added.)
  2. Ibid, (para 19).
  3. Ibid. (emphasis added).

 

 

 

                Therefore, Savitri’s second marriage shall also be deemed to be void pending the appeal by her husband before the high court.

 

                The legal battle between Praveen Mehta and Inderjit Mehta was about the complete breakdown of married life between the husband and wife.

 

                The respondent-husband’s petition for divorce on the reasons of ‘cruelty’ and ‘desertion’ on the part of his wife was dismissed. But a single judge of the Punjab and Haryana High Court has allowed the husband’s appeal on 1.6.200070 by granting divorce. The judge also passed an order ‘directing the husband not to remarry till 30.9.2000’.71

 

                The appellant-wife’s letters patent appeal before the division bench was dismissed in limine on 8.8.2000.72

 

Finally the wife filed an appeal before the Supreme Court.

 

                D.P. Mohapatra and Brijesh Kumar, JJ., took note of the lawyer’s argument for respondent ‘that since the husband had remarried in December 2000, i.e., 4 months after the judgment by the Division Bench as an additional factor to press for confirmation of the Decree of Divorce’ and dismissed the appeal by pointing out that ‘the respondent has remarried in the year 2000. On this ground also the decision of the High Court in favour of the respondent’s prayer for dissolution of marriage should not be                                 ‘.73

 

                The apex court dismissed the appeal.

 

                The second marriage of the husband was not disturbed as it was valid as it had taken place after a period of 90 days.

 

 

                 The author, after careful perusal of the above rulings and observations of the hon’ble justices has come to the conclusion that A.M. Ahamadi, J., B.L. Hansaria, J., R.P. Sethi and Y.K. Sabarwal, JJ., have directly came to the opinion that a post divorce marriage pending appeal is not valid.

 

                K.N. Wanchoo, J., G.K. Mitter, J., A.P. Sen and B.C. Ray, JJ., have also, indirectly, voiced the same opinion.

 

                Paripoornan and M.M. Punchi, JJ., did not directly express any opinion on the legal validity of second marriage of Ashok pending the appeal in high court. But the justice have granted conditional divorce to Ashok and have declared that “The Criminal Proceedings pending against appellant for entertaining into bigamous marriage shall be terminated only on payment of the amount fixed by the court to the first wife and therefore his second marriage may fall either on the wrong or right side of law depending on payment.”

 

 

  1. Praveen Mehta, supra note 6 at 711 (para 10).
  2. Id. At 712. (emphasis added).
  3. Ibid. (para 11).
  4. Id. At 717 (para 24, emphasis added).

 

D.A. Desai and Y.V. Chandrachud, JJ., did not express any opinion at all in Lila Gupta case as the judgment turned upon the application of the proviso to section 15 to the facts. But R.C. pathak, J., in his passing comments merely observed that ‘a marriage solemnized in violation of the main provision of section 15 is a nullity cannot be summarily rejected’.

 

                D.P. Mohapatra and Brijeshkumar, JJ., did not find it necessary to go into this issue since Inderjit remarried after 90 days of the high court decision.

 

                Now let us have a very brief look at the legislative provisions in other Acts relating to filing the appeals: Sections 47 and 48 of the Parsi Marriage and Divorce Act, 1936.

 

                Section 47: Appeal to High Court

 

                An appeal shall lie in the High Court………….

 

                Provided that such appeal shall be instituted within three calendar months after the decision appealed from shall have been pronounced.

 

                Section 48: Liberty for parties to marry again.

 

                When the time limited for appealing against any decree granting a divorce or annulling or dissolving a marriage shall have expired, and no appeal shall have been presented against such decree, or when any such appeal has been dismissed, or when in the result of any appeal, divorce has been granted or a marriage has been declared to be annulled or dissolved, but not sooner, it shall be lawful for the respective parties thereto to marry again.

 

                Sections 56 and57 of the Divorce Act, 1869.

 

                Section 56 Appeal to the Supreme Court.

 

                Any person may appeal to the Supreme Court from any decree [other than decree nisi] or order under this Act of a High Court made on appeal or otherwise,

 

                And from any decree [other than a decree nisi] or order made in the exercise of original jurisdiction by Judge of a High Court or of  any Division Court from which an appeal shall not lie to the High Court,

 

                When High Court declares that the cae is a fit one for appeal to the Supreme Court.

 

                Section 57, Liberty to parties to marry again

 

                When a decree for dissolution or nullity of marriage has been passed and either the time for appeal has expired without an appeal having been presented to any court including the Supreme Court or an appeal has been presented but has been dismissed and the decree or dismissal has become final, it shall be lawful for either party to the marriage to marry again.

 

                Towards the end of this legal note, the author would like to suggest that the earlier deleted proviso to section 15 of the Act should be brought back into force with a small change in the text of the proviso. This suggestion is in addition to the recommendation already made to section 28(4) by the hon’ble judges in Savitri case.

 

                The proviso to section 15 should be on the following lines:

 

                Provided that it shall not be lawful for divorced male or female to marry again unless at the date of such marriage at least one year has expired from the date of divorce granted by the Court of First Instance and if any such marriage has taken place within the aforesaid period, shall be void and the criminal consequences, if any, shall ensue in such case.

 

                Explanation I It is necessary for the spouse going for a second marriage to serve a notice on the other spouse about such marriage on the expiry of one year provided in the Proviso.

 

                Explanation II. It is also necessary for the spouse going for a Special Leave Petition before the Supreme Court to serve notice on the other spouse.

 

JOURNAL

OF THE

INDIAN LAW INSTITUTE

 

 

(REPRINT)

VOL. 45 Nos. 3&4 July – December 2003   ISSN 0019-5731

 

 

              

           

POST DIVORCE MARRIAGES PENDING APPEAL

 

C.S. RAGHURAMAN*

 

IN RECENT times the legal validity of ‘post divorce marriages pending appeal’ has come up for decision before the apex court in some cases. This problem arises when a successful spouse in divorce proceedings solemnizes his or her second marriage immediately after divorce has been granted by the lower court. They do so without inquiring whether or not an appeal was submitted, despite the fat that the unsuccessful spouse has a right to prefer an appeal in the high court including the right to bring this matter before the Supreme Court in some exceptional circumstances.

 

                The right of appeal is given in section 28(4) of the Hindu Marriage Act, 1955 and the appeal has to be filed within 30 days of the decree of divorce.

 

                The right to re-marriage is given in section 15 of the above Act. The proviso to the section declares: “it shall not be lawful for the respective parties to marry again unless one year has expired from the date of the decree of divorce passed by the lower court on the first occasion”.

 

                The legislature has put in a period of one year as waiting period for the divorced persons to marry again by adding the proviso to section 15, with the hope that by that time the unsuccessful spouse may exhaust all the appeals available to him or her and the divorce proceedings would have reached their finality.

 

 

 

 

 

 

 

 

                The parties then will completely be free from the earlier marriage leading them safely to their second marriage.

 

                This was the legal rule prior to the amendment to section 15 of the Act.

 

                But for reasons best known to the Parliament, the proviso was completely dropped in 1976 thereby enabling the successful spouse to go in for a second marriage without finding out whether or not an appeal is pending in the appellate court.

 

                In recent times, there appears to be undue haste in having the second marriage solemnized (remarriage) by divorced males or females without waiting for the reaction of the spouse not in favour of the decree of divorce already passed by the lower court.

 

 

  • Lecturer, Pendekati Law College, Safilguda, Hyderabad.

 

 

                Finally, the legal validity of such second marriages has engaged the attention of the hon’ble judges of the Supreme Court, resulting in sharp conflict of legal opinions expressed by the justices on this issue, when appeals were brought forward by unsuccessful spouses in the years 1967,1 1978,2 1988,3 1995,4 1997,5 and 20026 in challenging the lower court orders. This will form the main issue of this legal note.

 

                The first two cases in their chronological order were decided earlier to the amendment to section 15 of the Hindu Marriage Act, 1955 [hereinafter referred to as the Act in this regard] in the year 1976. But the legal principles evolved in the judgements are relevant and also important even subsequent to the amendment to have a thorough grasp of the subject matter of this legal note.

 

                A decree of divorce may be passed on merits on a petition being filed by the husband or the wife, as the case may be, under section 137 or jointly by both of them under section 13B8 of the act.

 

It must also be noted down first that:9

                [N]o court shall take up a petition for divorce under this Act unless at least one year of matrimonial life has been completed between the spouses save when the petition is permitted to be presented even earlier than one year under the proviso to section 14 of the act.

 

Sections 28 (4) and 15 of the Act are most important in this regard. Section 28(4) gives us an idea about filing of appeal to challenge any decree or order passed by the lower court under the Act.

 

The text of section 28(4) gives us ;an idea about filing of appeal to challenge any decree or order passed by the lower court under the Act.

 

The text of section 28(4) is as follows:  

                Section 28 Appeals from decrees and orders.

 

                Section 28(40. Every appeal under this section shall be preferred within a period

                of thirty days from the date of the decree or order.

 

The complete text section 15, prior to the amendment in the year 1976, was as follows:

 

  1. Chandra Mohini Srivastava v. Avinash Prasad Srivastava, AIR 1967 SC 581
  2. Lila Gupta v. Laxshmi Narain and others, AIR 1978 SC 1351
  3. Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839
  4. Prakash Chandra Sharma v. Vimlesh, 1995 (4) SCC (Suppl.) 642
  5. Ashok Hurra v. Bipin Chandra Zaveri, 1997 (4) SCC 230
  6. Savitri Pandey v. Prem Kumar Pandey, 2002 (2) SCC and Praveen Mehta Inderjit Mehta, 2002 (5) SCC 710.
  7. Divorce under s. 13 of the Hindu Marriage act, 1955.
  8. Id.. Divorce by Mutual Consent
  9. Id…s.14 – No Petition for divorce to be presented within one year of marriage.
  10. Id.S.28 This section has four sub-sections.

 

                Section 15. When Divorced Persons May Marry Again.

 

                When a marriage has been dissolved by a decree of divorce and 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 being presented, or an appeal has been

                presented but has been dismissed.

 

                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 first instance.

 

It is to be noted down that in 1976 that the above proviso to section 15 alone was dropped.11

 

                It is very important to note down the different dates as to when the petitions for divorce were filed, the first appeals were submitted in the high courts, the special leave petitions have been presented before the Supreme Court, and also when the second marriages have taken place in all these cases.

 

                It is very appeal preferred by Chandra Mohini in the year 1967 before the apex court, the facts were that her marriage with Avinash Srivastava took place on 27.5.1955. The husband filed a petition for divorce on the plea that his wife was living in ‘adultery’13 with Chandra Prakash who happened to be a close relative of his wife.14

 

                The lower court held that ‘she was not living in adultery as alleged by her husband since there was no proof that she was having any sexual relationship with Prakash’ and dismissed the petition.15

 

                Allowing the appeal preferred by the husband on 7.1.1964, the Allahabad High Court passed a decree of divorce16 on the ground of adultery of the wife on the strength of two letters written by Prakash to Mohini sometime in 1955 to infer that she was living in such a situation.

 

                On a request being made by the wife for ‘Special Leave’ on 7.4.1964, the Supreme Court granted ‘Special Leave’ to her on 25.8.1964.17

 

                The husband also filed an application making a request to the apex court that the ‘Special Leave’ granted should be revoked on the following reasons. Firstly, he pointed out that the high court has passed the order that the decree given in his favour shall take effect forthwith, resulting

 

 

  1. Marriage Laws (Amendment) Act, 1976.
  2. As an alternative relief, the husband also claimed for ‘Judicial Separation’
  3. S. 13(1)(i0 of the Hindu Marriage Act, 1955.
  4. Supra note 1 at 582 (para 1).
  5. Ibid. (para3).
  6. Divorce granted by invoking U.P. (Amendment) to s.13 (1)(viii).
  7. Supra note 1 at 582 (para 5).

 

 

In his marriage being dissolved when his appeal was allowed. Secondly, she did not communicate to him her intention to challenge the decree by obtaining special leave from the court.

 

                It was also pointed out that it was only on 9.9.1964 that he received notice that special leave was obtained by the appellant to file the appeal.18

 

                In the above circumstances and also as there was no ‘stay’ granted on the decree, it has been stressed that ‘the husband has believed that woman on 2.7.1964 and had a son’ and this was the main reason to request for dismissal of her appeal.19

 

                As against the above arguments of the respondent, it was submitted by the appellant that she ‘has no duty to communicate her intention to respondent before making a request for special leave to challenge the decree’ passed by the high court. It was also pointed out that even though notice was served on the respondent on 9.9.1964, the application praying for revocation of the special leave already granted to her was filed only on 15.9.1966.20

 

                K.N. Wanchoo and G.K. Mitter, JJ., after hearing the arguments, said that ‘Special Leave’ cannot be revoked on grounds put forward on behalf of the first respondent. Section 28 of the Act, inter alia. provides that all decrees and orders made by the court in any proceedings under the Act may be appealed from under any law for the time being in force as if they were decrees and orders of the court made in the exercise of its original civil jurisdiction. Then after referring to section 15 the justices have said that ‘these two sections make it clear that where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or if there is no right of appeal against the decree dissolving the marriage or if there is such a right of appeal, the time for filing the appeal has expired without an appeal having been presented, or if an appeal has been presented, it has been dismissed. It is true that section 15 does not in terms apply to a case of an application for special leave to the Supreme Court. Even so, the author is of the opinion that the party who has won in the high court, and got a decree of dissolution of marriage cannot marry immediately after the high court’s decree and thus take away from the losing party the chance of presenting an application for special leave. Even though section 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 high court to the apex court in this matter, the author still

 

 

  1. Ibid.
  2. Ibid.
  3. Ibid (para6)

 

 

 

Feels that it was for the first respondent to make sure whether an application for special leave had been filed in the 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 the highest court. If a person does so, he takes a risk and cannot ask the court to revoke the special leave on this ground.21

 

                As such, the justices have dismissed the application for revocation of special leave. Then coming to the merits of the appeal, the justices have declared that there was not adultery on part of wife and have declared:22

 

                We, therefore, allow the appeal, set aside the order of the High Court and restore

                that of the trial court rejecting the petition of the respondent.

 

                It is to be observed that in Chandra Mohini, the judges have not given a direct answer regarding the legal validity of the second marriage of the husband pending the appeal.

 

                From a reading of the above judgment, two contradictory views can be put forward. It can be argued in the husband’s favour that his second marriage may not be void in the light of the observations of the judges that ‘an appeal as of right to the court is not available’ and ‘it may not be unlawful for the respondent to marry immediately after the judgment of the High Court’.

 

                But it can also be argued in the wife’s favour that the husband’s second marriage is not valid since ‘the respondent did not make it sure whether an application for Special Leave has been filed in the court’ may be review not only immediately but if he does so he makes a risk and cannot ask the Court to revoke the Special Leave on this ground’.

 

                According to the author, the latter view is correct and the second marriage is void when it is observed that the court while restoring the order of the lower court in refusing to grant divorce has also cancelled the high court order in granting the divorce.

 

                The facts leading to the appeal being filed by Lila Gupta in the year 1978 before the Supreme Court were as follows:

 

                On 8.4.1963 the lower court passed a decree of divorce between Sarla Gupta and Rajendra Kumar. On 25.5.1963 Kumar had a second marriage with Lila Gupta. Kumar died on 7.5.1965. After Kumar’s death, Lila claiming to be the widow of Kumar asserted her rights in consolidation proceedings relating to some lands left by Kumar. She was successful before the deputy director general and the settlement officer under the relevant legislation.23

 

 

  1. Ibid. (para 7)
  2. Ibid. (para 14).
  3. Supra note 2 at 1351-1352 (para 2)

 

                But a single judge of the Allahabad High Court, in an appeal preferred by Laxmi Narain and others,24 reversed the orders passed by the settlement officer byu declaring that Lila Gupta’s marriage with Kumar being in violation of the proviso to section 15 was null and void. The division bench also confirmed the order of the single judge.25 She challenged the high court division bench judgment.

 

                While R.C. Pathak, J.. wrote a separate judgment, D.A. Desai, J., wrote for himself and for Y.V. Chandrachud, J., in allowing the appeal of Lila Gupta.

 

                Referring to sections 5,11, 12 of the Act, Desai and Chandrachud JJ., pointed out that section 11 declares that ‘any marriage solemnized in contravention of conditions laid down in clauses (i), (iv) and (v) of section 526 is declared as ‘void’27 while section 1228 declares that any marriage solemnized in contravention of the condition laid down in clause (ii) of section 5 only as ‘voidable’ and this indicates that only certain marriages are void while others are not as provided in the Act.29

 

                Then coming to the marriage solemnized in contravention of the condition laid down in clause (iii) of section5, the court declared that neither the marriage is void nor voidable in absence of any provision but section 1830 only prescribes simple punishment without declaring the marriages as ‘void’.    

 

                Then speaking about the second marriage of Kumar with Lila in contravention of the proviso to section 15, in the light of the above observations, the justices have declared that the proviso opens with a prohibition that it shall not be lawful etc. Is it an absolute prohibition, violation of which would render the marriage as a nullityu? While granting a decree of divorce the law prohibits a marriage for a period of one year from the date of the decree. But whenever a statute prohibits a certain thing being done thereby making it unlawful without providing for consequences of the breach, it is not legitimate to say that such a thing when done is void because that would be tantamount to saying that every unlawful act is void. Therefore, even thought 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.31

 

  1. Lakshminarain was the brother of Sri Kumar
  2. Supra note 2 at 1352 (para2)
  3. Supra note 13, s. 5 – Conditions for a Hindu Marriage’.
  4. Id., s. 11 – Void Marriages’.
  5. Id.S. 12 – ‘Voidable Marriages’.
  6. Supra note 2 at 1354.
  7. Supra note 13, s. 18 – Punishment for contravention of certain other conditions for a Hindu Marriage.
  8. Supra note 2 at 1355 (para 10).

 

 

 

                The justices have made a reference to the amendment to section 15 in 1976 to declare that ‘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 the period of appeal has expired.32

 

                R.C. Pathak, J., in his separate judgment, also allowed the appeal when he said that ‘a statutory provision may be construed as mandatory when the object underlying it would be defeated but for strict compliance with the provision. It is also noteworthy 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 finaldecree and merely attempts to postpone the remarriage. The defeasibility of the decree because an appeal has been provided is a matter with which the main provision of section 15 is concerned. Further evidence that the proviso to section 15 is directory only is provided by its deletion altogether by Parliament by the Marriage Laws Reforms Act, 1976.’33

 

                Pathak, J., further observed that ‘the right to marriage shall not be exercised before the decree of divorce has reached finality’34 and that ‘a marriage solemnized in violation of the main provision of section1 5 is a nullity cannot be summarily rejected’ (since” the question which arises before us in this case does not directly involve the construction of                                                                  any legal opinion on the validity of such a marriage.35

 

                No doubt that the above ruling of the court has turned upon the application and interpretation to be given to the proviso to section 15, yet the observations of Pathak, J., that ‘a marriage solemnized in violation of the main provision of Section 15 is nullity cannot be summarily rejected’ are very important despite the fact that he declined to express the legal opinion further since it will be only obiter in the case although he agreed with the majority in allowing the appeal for different reasons.

 

                Allowing Lila Gupta’s appeal the judges have said ‘as her marriage even though in contravention of the proviso to Section 15 is not void, she cannot be denied the status of wife and therefore, the widow of deceased Kumar and in that capacity as an heir to him’.36

 

                In 1998, when the appellant-wife, Tejinder Kaur appealed before the Punjab and Haryana High Court, challenging the decree of divorce already passed by the additional district judge on 29.3.1986,37 it was

 

 

  1. Ibid, (para 12).
  2. Id.At 1360 (para 25).
  3. Id.At 1361 (para 29, emphasis added)
  4. Id.At 1362 (para 30)
  5. Id.At 1359, 1362 (para 21 & 31), emphasis added).
  6. Supra note 3 at 839 (para 1).

 

                                                                   

 

 

 

Dismissed in limine on 16.7.1986,38 thereafter, immediately on 17.8.1986, the respondent-husband solemnized his second marriage.39

 

                Then she filed a special leave petition before the Supreme Court. The respondent raised a preliminary objection that as he had remarried, the special leave petition is not maintainable.

 

In rejecting the above objection, A.P. Sen and B.C. Ray, JJ., said40:

 

                [I]t 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 16.7.1986 the petitioner could have presented an appeal by special leave petition within 90 days therefrom under Article 133 © of the Limitation Act, 1963 till 14.9.1986. Till that period was over, it was not lawful for either party to marry again as provided by Section 15. It was 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 the Court had expired. We must accordingly overrule the preliminary objection following the views expressed in Chandra Mohini and Lila Gupta cases. 

 

It was also pointed that 41:

 

                [T]he section [Section 15] when it speaks of a case where there is a right of appeal does not in terms cover a case of an application for Special Leave to appeal to the Supreme Court under Article 136 of the Constitution.

 

                Then coming to the main issue regarding the husband’s remarriage, there appear to be no direct answer, as happened in Chandra Mohini, but the judges have indicated that ‘under the law laid down in this eanactment, monogamy is the rule and a party can only contract a valid second marriage after the first ceases to exist in themanner envisaged by section 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’.42

 

                The above observations make it clear that the husband’s second marriage is null and void. The fact that wife’s appeal was allowed also supports this view.

 

                Finally the apex court allowed the appeal declaring that ‘we must for this reason overrule this preliminary objection and direct the Special

 

 

  1. Ibid.
  2. Ibid.
  3. Id. At 841 (para 9).
  4. Ibid. (para 6 emphasis added).
  5. Id. At 840 (para 5).

 

 

 

 

Leave Petition to be placed for hearing’.43

 

                Coming to the year 1995, on Prakash Chandra Sharma’s request for divorce, on three different reasons of (i) desertion (ii) cruelty and (iii) unsoundness of mind of his wife, the trial court passed the decree of divorce only on first two reasons.44

 

                This decree was confirmed by the appellate court only on the reasons of ‘creulty’ on the part of wife.45

 

                But in the second appeal preferred by the wife, the high court reversed the decree by holding that husband failed to establish ‘cruelty’ on the part of wife.46

 

                The appellant-husband brought his case before the Supreme Court.

 

                An important relevant fact that was brought before the high court was that aft4er ‘the first appellate court has confirmed the decree of divorce on 29.8.1988 and after the second appeal was filed by wife, the husband married again on 21.11.1988 and has a child’.47

 

                Swarup, the learned lawyer for the appellant asked the court for confirmation of the decree already passed since his married life was irretrievably broken down, more so because he had contracted a second marriage. But the judges did not accede to this request.48

 

Both A.M. Ahmadi and B.L. Hansaria, JJ., declared: 49

 

                If the husband remarried in hot haste after the institution of the second appeal which was delayed by 3 days, we cannot see how that fact can come to his rescue. That is clearly opposed to                                                         which in tgerms states that when a marriage is dissolved by a decree of                                                                                                 of appeal against the decree or where there is such a right of appeal, the time for filing the appeal has expired or an appeal has been presented and has been dismissed, it shall be lawful for either party to the marriage to remarry. In the instant case, no doubt that 2nd appeal was delayed by 3 days but the fact is that it was instituted and was pending on the date of the 2nd marriage. Therefore the husband has acted in disregard of section 15 and cannot get the benedfit of his own wrong.

 

                From the above observations of the justices, Prakash Chandra’s second marriage on 21.11.1998 pending an appeal by his wife was clearly void when we refer to the last sentence in the above passage.

 

 

  1. Id. At 842 (para 10).
  2. Supra note 4 at 642 (para 1).
  3. Ibid.
  4. Ibid.
  5. Ibid. (emphasis added).
  6. Id. At 643 (para 4).
  7. Id. At 643 & 644.

 

 

                The husband’s appeal dismissed. This again supports the above legal position.

 

                In Ashok Hurra v. Rupa Bin Zaveri, setting aside the city civil judge’s order of 17.10.1986 in dismissing the petition50 for divorce by mutual consent on the reason that ‘since the wife withdrew her consent51 for a decree of divorce under mutual consent coming within Section 13B52, even befo0re the decree could be passed’,53 the single judge of Gujarat High Court granted divorce on 15.3.1986 by allowing the first appeal.54

 

                Ashok had his second marriage with Sonia on 18.8.1985.55

 

                But in the letters patent appeal by respondent, the division bench reversed the above order on 9.9.1996 by declaring that ‘the wife withdrew her consent even before the trial court could make an enquiry. The trial court was, therefore, right in dismissing the application submitted under section 13B of The act’.56

 

                The husband preferred an appeal in the Supreme Court. By invoking article 14257 of the Constitution the apex court granted divorce by declaring that the married life has completely broken down between the spouses. But the above orders have come about with a rider put in by the judges. Paripooman, J., writing the judgement with M.M. Punchhi, J., in agreement, declared that divorce is ‘conditional and it shall take legal effect only on payment or deposit of the amount in this Court of the entire sum of Rs.10 lakhs by appellant to the respondent.’58

 

The judges also issued the following orders:59

                [T]hat the proceedings initiated under Section 494 of The Indian Penal Code, 1860 read with Section 17 of The Act ‘shall stand terminated, but only on payment or deposit of the amounts ordered by us in this judgment. This is made clear.

 

                These directions have become necessary since the wife had filed a criminal complaint on 14.11.1994 against the appellant.60

 

 

  1. Petition for “Divorce by Mutual Consent’ preferred on 21 Aug 1984.
  2. On 27.3.1986, wife sought permission to withdraw her consent for divorce.
  3. On 4.4.1985, husband alone moved a ‘motion’ as required under s. 13(B)(2) of the Act for divorce.
  4. Supra note 5 at 230 (para 5, emphasis added).
  5. Id. At 231 (para 6).
  6. Ibid. (para 8).
  7. Ibid. (para 7, emphasis added).
  8. The appellant made a specific request to the Supreme Court to invoke art, 142 of the Constitution.
  9. Supra note 5 at 241 (para 26, emphasis added).
  10. Ibid. (emphasis added).
  11. Id. At 232 (para 9).

 

 

 

 

 

 

 

 

                The directions given above implicitly recognize that the first marriage of Ashok was dissolved, but his second marriage even when the appeal is pending will not attract criminal consequences provides the amount fixed by the court is paid to the first wife. Otherwise, the law will take its own course on the complaint already given against him.

 

                The true legal effect of termination of criminal proceedings clearly indicate that the second marriage of the appellant with Sonia was not bigamous despite the appeal preferred by the wife only when the amount is paid to the respondent.

 

                Indeed, this is an unusual decision of the apex court. In view of the peculiar circumstances of the case, it is very difficult to declare whether post divorce marriage pending appeal is valid or not.

 

                This appears to the first judgment of the court in matrimonial jurisprudence wherein criminal proceedings were terminated on payment of money to the opposite party.

               

                Two more appeals have come before the Supreme Court in 2002.

 

                Savitri Pandey filed the petition for divorce against her husband Prem Chand Pandey under Section1 3 of th Act alleging that he had deserted her. The family court passed a decree of divorce on 8.7.199661 accepting that husband has indeed deserted her.

 

                The husband filed the appeal on 19.1.1997 in the Allahabad High Court.62

 

                The wife had a second marriage with Sudhakar Pandey on 29.5.199763 as the high court did not grant a ‘stay’ on the decree already passed by the high court.

 

                The high court set aside the decree on 17.4.1998.64

 

                This order was questioned by the wife in the Supreme Court.

 

                The lawyer, appearing for the appellant, in claiming for confirmation of the decree already given by the family court, stressed on the fact of the second marriage of the appellant, as happened in Prakash Chandra Sharma case, to highlight that the earlier marriage has completely broken down between the parties although husband’s appeal was pending in the high court.65

 

                Speaking on the second marriage of Savitri, R.P. Sethi and Y.K. Sabharwal, JJ., in unanimous legal opinion have declared:66

 

                [A]s no stay was granted, the appellant solemnized the second marriage on 29.5.1997, admittedly during the pendency of the

 

 

  1. Savitri Pande, supra note 6 at 84 (para 15).
  2. Ibid.
  3. Ibid
  4. Id, at 73
  5. Id, at 83 (para 14).
  6. Id, at 84 (para 15).

 

appeal before the High Court. There is no denial of the fact that right of at least one appeal is a recognized right under all systems of the civilized jurisprudence. If despite the pendency of appeal, the appellant chose to solemnize the second marriage the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending the High Court. No person can be permitted to flout the course of justice by his or her overt or coverts acts.

 

                The above passage clearly indicate that Savitri’s second marriage with Sudhakar Pandey pending tha appeal before the high court is clearly void and produces the relevant legal consequences to be faced by her, giving them no legal status as husband and wife.

 

The judges further declared:67

 

                [T]he appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this Court under Article 142 of Indian Constitution for dissolving the marriage. Savitri’s appeal dismissed

 

                At the end of the decision, the justices, after pointing out that the period of 30 days already given in section 28(4) for preferring the appeal under section 28(1) as ‘apparently inadequate’, which facilitates the frustration of the marriage by the unscrupulous litigant spouses, have made a recommendation to the Law Ministry, after taking in many factors in giving their recommendation, to prescribe a minimum period of 90 days for filing the appeal.68

 

                While giving the above suggestion they have made a very important observation that ‘any marriage solemnized during the aforesaid period is deemed to be void’.69

 

 

 

                What cold be the legal impact of the above observation of the judges on her second marriage pending the appeal by husband.

 

                Can we assume that the words ‘aforesaid period’ in their opinion actually refer to the period of 30 days already available in section 28(4) or did they refer to the period of 90 days as suggested by the judges.

 

                The author firmly believes that the above two words shall only refer to 30 days as it exists today since unless and until the law is changed, the period prescribed in section 28(4) squarely applies in the matter of filing of appeals as the suggestion for 90 days is only obiter and any second marriage solemnized pending the appeal is naturally void.

 

 

  1. Id. At 85 (para 18, emphasis added.)
  2. Ibid, (para 19).
  3. Ibid. (emphasis added).

 

 

 

                Therefore, Savitri’s second marriage shall also be deemed to be void pending the appeal by her husband before the high court.

 

                The legal battle between Praveen Mehta and Inderjit Mehta was about the complete breakdown of married life between the husband and wife.

 

                The respondent-husband’s petition for divorce on the reasons of ‘cruelty’ and ‘desertion’ on the part of his wife was dismissed. But a single judge of the Punjab and Haryana High Court has allowed the husband’s appeal on 1.6.200070 by granting divorce. The judge also passed an order ‘directing the husband not to remarry till 30.9.2000’.71

 

                The appellant-wife’s letters patent appeal before the division bench was dismissed in limine on 8.8.2000.72

 

Finally the wife filed an appeal before the Supreme Court.

 

                D.P. Mohapatra and Brijesh Kumar, JJ., took note of the lawyer’s argument for respondent ‘that since the husband had remarried in December 2000, i.e., 4 months after the judgment by the Division Bench as an additional factor to press for confirmation of the Decree of Divorce’ and dismissed the appeal by pointing out that ‘the respondent has remarried in the year 2000. On this ground also the decision of the High Court in favour of the respondent’s prayer for dissolution of marriage should not be                                 ‘.73

 

                The apex court dismissed the appeal.

 

                The second marriage of the husband was not disturbed as it was valid as it had taken place after a period of 90 days.

 

 

                 The author, after careful perusal of the above rulings and observations of the hon’ble justices has come to the conclusion that A.M. Ahamadi, J., B.L. Hansaria, J., R.P. Sethi and Y.K. Sabarwal, JJ., have directly came to the opinion that a post divorce marriage pending appeal is not valid.

 

                K.N. Wanchoo, J., G.K. Mitter, J., A.P. Sen and B.C. Ray, JJ., have also, indirectly, voiced the same opinion.

 

                Paripoornan and M.M. Punchi, JJ., did not directly express any opinion on the legal validity of second marriage of Ashok pending the appeal in high court. But the justice have granted conditional divorce to Ashok and have declared that “The Criminal Proceedings pending against appellant for entertaining into bigamous marriage shall be terminated only on payment of the amount fixed by the court to the first wife and therefore his second marriage may fall either on the wrong or right side of law depending on payment.”

 

 

  1. Praveen Mehta, supra note 6 at 711 (para 10).
  2. Id. At 712. (emphasis added).
  3. Ibid. (para 11).
  4. Id. At 717 (para 24, emphasis added).

 

D.A. Desai and Y.V. Chandrachud, JJ., did not express any opinion at all in Lila Gupta case as the judgment turned upon the application of the proviso to section 15 to the facts. But R.C. pathak, J., in his passing comments merely observed that ‘a marriage solemnized in violation of the main provision of section 15 is a nullity cannot be summarily rejected’.

 

                D.P. Mohapatra and Brijeshkumar, JJ., did not find it necessary to go into this issue since Inderjit remarried after 90 days of the high court decision.

 

                Now let us have a very brief look at the legislative provisions in other Acts relating to filing the appeals: Sections 47 and 48 of the Parsi Marriage and Divorce Act, 1936.

 

                Section 47: Appeal to High Court

 

                An appeal shall lie in the High Court………….

 

                Provided that such appeal shall be instituted within three calendar months after the decision appealed from shall have been pronounced.

 

                Section 48: Liberty for parties to marry again.

 

                When the time limited for appealing against any decree granting a divorce or annulling or dissolving a marriage shall have expired, and no appeal shall have been presented against such decree, or when any such appeal has been dismissed, or when in the result of any appeal, divorce has been granted or a marriage has been declared to be annulled or dissolved, but not sooner, it shall be lawful for the respective parties thereto to marry again.

 

                Sections 56 and57 of the Divorce Act, 1869.

 

                Section 56 Appeal to the Supreme Court.

 

                Any person may appeal to the Supreme Court from any decree [other than decree nisi] or order under this Act of a High Court made on appeal or otherwise,

 

                And from any decree [other than a decree nisi] or order made in the exercise of original jurisdiction by Judge of a High Court or of  any Division Court from which an appeal shall not lie to the High Court,

 

                When High Court declares that the cae is a fit one for appeal to the Supreme Court.

 

                Section 57, Liberty to parties to marry again

 

                When a decree for dissolution or nullity of marriage has been passed and either the time for appeal has expired without an appeal having been presented to any court including the Supreme Court or an appeal has been presented but has been dismissed and the decree or dismissal has become final, it shall be lawful for either party to the marriage to marry again.

 

                Towards the end of this legal note, the author would like to suggest that the earlier deleted proviso to section 15 of the Act should be brought back into force with a small change in the text of the proviso. This suggestion is in addition to the recommendation already made to section 28(4) by the hon’ble judges in Savitri case.

 

                The proviso to section 15 should be on the following lines:

 

                Provided that it shall not be lawful for divorced male or female to marry again unless at the date of such marriage at least one year has expired from the date of divorce granted by the Court of First Instance and if any such marriage has taken place within the aforesaid period, shall be void and the criminal consequences, if any, shall ensue in such case.

 

                Explanation I It is necessary for the spouse going for a second marriage to serve a notice on the other spouse about such marriage on the expiry of one year provided in the Proviso.

 

                Explanation II. It is also necessary for the spouse going for a Special Leave Petition before the Supreme Court to serve notice on the other spouse.

 

 
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