TMI Blog2018 (8) TMI 1983X X X X Extracts X X X X X X X X Extracts X X X X ..... ther conditions of a valid marriage. In the present case we are satisfied that the Appellant's marriage was not subsisting when he married again. He had filed an application for withdrawal of his appeal against the decree for dissolution and had done nothing to contradict his intention to accept the decree of dissolution. - Civil Appeal No. 18312 of 2017 - - - Dated:- 24-8-2018 - S.A. Bobde And L. Nageswara Rao, JJ. For the Appellant : Party-in-Person For the Respondent : Sakha Ram Singh, Sr. Adv., Umang Shankar and Muztaba, Advs. JUDGMENT L. Nageswara Rao, J. 1. By a judgment dated 31.08.2009, the Additional District Judge, North, Tis Hazari Court, Delhi allowed the petition filed by Ms. Rachna Aggarwal Under Section 13(1)(i)(a) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) and dissolved the marriage between her and the Appellant. By the said judgment the petition filed Under Section 9 of the Act by the Appellant for restitution of conjugal rights was dismissed. The Appellant filed appeals against the said judgment and the operation of the judgment and decree dated 31.08.2009 was stayed by the High Court on 20.11.2009. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the Family Court that the judgment and decree of divorce dated 31.08.2009 is a judgment in rem which was neither reversed nor set aside by a superior court. As the judgment was confirmed by the High Court, the marriage between the parties stood dissolved w.e.f. 31.08.2009 itself. The Family Court also observed that there is no provision in the Act which declares a marriage in contravention of Section 15 to be void. It was further held by the Family Court that the effect of stay of the judgment by a superior court is only that the decree of divorce remained in abeyance but it did not become non-existent. On the other hand, the High Court framed a question whether the Appellant could have contracted a second marriage after the decree of divorce was passed on 31.08.2009 notwithstanding the operation of the decree being stayed. The High Court was of the opinion that any marriage solemnized by a party during the pendency of the appeal wherein the operation of the decree of divorce was stayed, would be in contravention of Section 5 (i) of the Act. 4. Section 11 of the Act provides that any marriage solemnized after commencement of the Act shall be null and void if it contraven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oid. While prescribing conditions for valid marriage in Section 5 each of the six conditions was not considered so sacrosanct as to render marriage in breach of each of it void. This becomes manifest from a combined reading of Sections 5 and 11 of the Act. If the provision in the proviso is interpreted to mean personal incapacity for marriage for a certain period and, therefore, the marriage during that period was by a person who had not the requisite capacity to contract the marriage and hence void, the same consequence must follow where there is breach of condition (iii) of Section 5 which also provides for personal incapacity to contract marriage for a certain period. When minimum age of the bride and the bridegroom for a valid marriage is prescribed in condition (iii) of Section 5 it would only mean personal incapacity for a period because every day the person grows and would acquire the necessary capacity on reaching the minimum age. Now, before attaining the minimum age if a marriage is contracted Section 11 does not render it void even though Section 18 makes it punishable. Therefore, even where a marriage in breach of a certain condition is made punishable yet the law does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proviso opens with a prohibition that: It shall not be lawful etc. Is it an absolute prohibition violation of which would render the act a nullity? A person whose marriage is dissolved by a decree of divorce suffers an incapacity for a period of one year for contracting second marriage. For such a person it shall not be lawful to contract a second marriage within a period of one year from the date of the decree of the Court of first instance. While granting a decree for divorce, the law interdicts and prohibits a marriage for a period of one year from the date of the decree of divorce. Does the inhibition for a period indicate that such marriage would be void? While there is a disability for a time suffered by a party from contracting marriage, every such disability does not render the marriage void. A submission that the proviso is directory or at any rate not mandatory and decision bearing on the point need not detain us because the interdict of law is that it shall not be lawful for a certain party to do a certain thing which would mean that if that act is done it would be unlawful. But whenever a statute prohibits a certain thing being done thereby making it unlawful withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms dissolves the marriage. No incident of such dissolved marriage can bridge and bind the parties whose marriage is dissolved by divorce at a time posterior to the date of decree. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting. During the period of incapacity the parties cannot be said to be the spouses within the meaning of Clause (i), Sub-section (1) of Section 5. The word spouse has been understood to connote a husband or a wife which term itself postulates a subsisting marriage. The word spouse in Sub-section (1) of Section 5 cannot be interpreted to mean a former spouse because even after the divorce when a second marriage is contracted if the former spouse is living that would not prohibit the parties from contracting the marriage within the meaning of Clause (i) of Sub-section (1) of Section 5. The expression spouse in Clause (i), Sub-section (1) of Section 5 by its very context would not include within its meaning the expression former spouse . 8. After a comprehensive review of the scheme of the Act and the legislative intent, this Court in Lila Gupta (supra) held that a marriage in contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asad v. Durga Prasad, (1975) 1 SCC 405 the contention of the Appellant therein that an application filed under the aforesaid Rule 90 does not stand withdrawn until an order to the effect is recorded by the Court, was not accepted. It was held that every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting the withdrawal of the application. This Court concluded that the act of withdrawal is complete as soon as the applicant intimates the Court that he intends to withdraw the application. The High Court of Bombay in Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal Council, Panvel AIR 2003 Bom. 238, 239 followed the judgment of this Court in Shiv Prasad (supra) and held that the said judgment is applicable to suits also. The High Court recognized the unconditional right of the Plaintiff to withdraw his suit and held that the withdrawal would be complete as soon as the Plaintiff files his purshis of withdrawal. 11. Order XXIII Rule 1(1) of the Code of Civil Procedure enables the Plaintiff to abandon his suit or abandon a part of his claim against all or any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent held on 06.12.2011 is void as it was in violation of Section 15 of the Act. He relied upon the concurring judgment of Justice Pathak in support of his submission that the findings pertaining to Proviso to Section 15 cannot be made applicable to Section 15. He submitted that there is a qualitative difference between the period of incapacity set out in the Proviso during which a second marriage cannot be contracted and the bar for another marriage during the pendency of an appeal. We have already noted that Justice Pathak refrained from expressing any view on the expression of Section 15 of the Act. However, the scope and purport of Section 15 of the Act arise for consideration in the present case. Interpretation of Section 15 Interpretation has been explained by Cross in Statutory Interpretation Cross Statutory Interpretation, Ed. Dr. John Bell Sir George Ingale, Second Edition (1987) as: The meaning that the Court ultimately attaches to the statutory words will frequently be that which it believes members of the legislature attached to them, or the meaning which they would have attached to the words had the situation before the Court been present to their mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (1965) 1 SCR 220 at 225 F-G in which it was declared that if it appears that the obvious aim and object of the statutory provisions would be frustrated by accepting the literal construction suggested by the Respondent, then it may be open to the Court to inquire whether an alternative construction which would serve the purpose of achieving the aim and object of the Act, is reasonably possible . 18. Section 15 of the Act provides that it shall be lawful for either party to marry again after dissolution of a marriage if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible to infer a nullity or voidness vide paras 9 and 10 of Lila Gupta case. The Court must have regard to the consequences of such an interpretation on children who might have been conceived or born during the period of disability. 23. The observations in Lila Gupta's case are wide. They are undoubtedly made in the context of the proviso to section 15 of the Hindu Marriage (Amendment) Act, 19768, since deleted. The proviso opened with the prohibition that it shall not be lawful. This Court considered the question whether a marriage contracted in violation of the proviso would be a nullity or void and came to the conclusion that though the proviso is couched in prohibitory and negative language, in the absence of an express provision it was not possible to infer nullity in respect of a marriage contracted by a person under incapacity prescribed by the proviso. What is held in essence is that if a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity. Quae incapacity imposed by statute, there is no difference between an incapac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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