TMI Blog1978 (5) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ended in a decree of divorce on :April 8, 1963. Soon thereafter, on May 25, 1963, Rajendra Kumar contracted second marriage with appellant Smt. Lila Gupta. Unfortunately, Rajendra Kumar expired on May 7, 1965. Disputes arose 'in consolidation proceedings between the appellant claiming as widow of deceased Rajendra Kumar and Respondents who are brothers and brother's sons of Rajendra Kumar about succession to the Bhumidhar rights in respect of certain plots of land enjoyed by Rajendra Kumar in his life time, the latter challenging the status of the appellant to be the' widow of Rajendra Kumar on the ground that her marriage with Rajendra Kumar was void having been contracted in violation of the provision contained in the proviso to Section 15 of the Hindu Marriage Act, 1955 ('Act' for 'short). The final authority Deputy Director of Consolidation upheld the claim of the appellant and this decision was challenged by the Respondents in six petitions filed under Article 22, of the Constitution in the High Court of Allahabad. The learned single Judge before whom these petitions came up for hearing was lot the opinion that the marriage of Rajendra Kumar with the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commencement of the Act shall be null and void and may ona petition presented by either party thereto be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of S. 5. Incidentally at this stage it may be noted that S. II does not render a marriage solemnised in violation of conditions (ii), (iii) and (vi) void, all of which prescribe personal incapacity for marriage. Section 18 provides that certain marriages shall be voidable and may be annulled a decree of nullity on any of the grounds mentioned in the section. Clause (h) of sub-s. (1) inter alia provides that the marriage in contravention of condition specified in clause (ii) of S. 5 will be voidable. Similarly, sub-clause (c) provides that the consent of the petitioner or where consent of the guardian in marriage is required under S. 5 and such consent was obtained by force or fraud, the marriage shall be voidable. Section 13 provides for dissolution of marriage by divorce on any of the grounds mentioned in the section. Section 14 prohibits a petition for divorce being presented by any party to the marriage within a period of three years from the date of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined reading of ss. 5 and 11 and other provisions of the Act, that the Act specifies conditions for valid marriage and a marriage contracted in breach of some but not all of them renders the marriage void. The statute thus prescribes conditions for valid marriage and also does not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would be treated as a breach of a prerequisite for a valid marriage rendering it void. The law while prescribing conditions for valid marriage simultaneously prescribes that breach of some of the conditions but not all would render the marriage void. Simultaneously, the Act is conspicuously silent on the effect on a marriage solemnised in contravention or breach of the time bound prohibition enacted is. 15. A further aspect that stares into the face is that while a marriage solemnised in contravention of clauses (iii), (iv), (v) and (vi) of s. 5 is made penal, a marriage in contravention of the prohibition prescribed by the proviso does not attract any penalty. The Act is suggestively silent on the question as to what is the effect on the marriage contracted by two persons one or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended the child would be illegitimate. A status of legitimacy is not conferred by any provision of the Act on a child begotten or conceived to a woman who had contracted marriage and the marriage was in contravention of the proviso to S. 15. No intelligible explanation is offered for such a gross discriminatory treatment. The thrust of these provisions would assist in deciding whether the marriage in contravention of provisions to s. 15 is void as was contended on behalf of the respondents. Did the framers of law intend that a marriage contracted in violation of the provision contained in the proviso to s. 15 to be void ? While enacting the legislation, the framers had in mind the question of treating certain marriages void and provided for the same. It would, therefore, be fair to infer as legislative exposition that a marriage in breach of other conditions the legislature did not intend to treat as void. While prescribing conditions for valid marriage in s. 5 each of the six conditions was not considered so sacrosanct as to render marriage in breach of each of. it void. This becomes manifest from a combined reading of ss. 5 and 1 1 of the Act. if the provision in the proviso i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a nullity unless such nullity was declared in the Act. Secondly, that, viewing the successive marriage Acts, it appears that. prohibitory words, without a declaration of nullity, were not considered by the legis- lature to create a nullity . In the Act under discussion there is a specific provision for 'treating certain marriages contracted in breach of certain conditions prescribed for valid marriage in the same Act as void and simultaneously no specific provision have been made for treating certain other marriages in breach of certain conditions as void. In this background even though the proviso is couched in prohibitory and negative language, in the absence of an express provision it is not possible to infer nullity in respect of a marriage contracted by a person under incapacity prescribed by the proviso. Undoubtedly, the proviso opens with a prohibition that : 'It shall not be lawful' etc. Is it an absolute prohibition violation of which would render the act a nullity ? A person whose marriage is dissolved by a decree of divorce suffers an incapacity for a period of one year for contracting- second marriage. For such a person it shall not be lawful to contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such persons whose marriage is dissolved by a decree of divorce for a period of one year was presumably enacted to allay apprehension that divorce was sought only for contracting another marriage or to avoid dispute about the parentage of children. At the time of the divorce the wife may be pregnant. She may give birth to a child after the decree. If a marriage is contracted soon after the divorce a question might arise as to who is the father of the child viz., the former husband or the husband of the second marriage. There was some such time lag provided in comparable divorce, laws and possibly such a proviso was, therefore, considered proper and that appears to be the purpose or object behind enacting the proviso to S. 15. Is such public policy of paramount consideration as to render the marriage in breach of it void ? It appears to be purely a regulatory measure for avoiding a possible confusion. If it was so sacrosanct that its violation would render the marriage void, it is not possible to appreciate why the Parliament completely dropped it. The proviso to s. 15 is deleted by S. 9 of the Marriage Laws (Amendment) Act, 1976. The net result is that now since the amendment pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated, it stood unreversed. The fact that neither spouse could remarry until the time for appealing had expired, in no way affect,, the full operation of the decree. It is a judgment in rem and unless and until a court of appeal reversed it, the marriage for all purposes is at an end. To say that such provision continues the marriage tie even after the decree of divorce for the period of incapacity is to attribute a certain status to the parties whose marriage is already dissolved by divorce and for which there is no legal sanction. A decree of divorce breaks the marital tie and the parties forfeit the status of husband and wife in relation to each other. Each one becomes competent to contract another marriage as provided by s. 15. Merely because each one of them is prohibited from contracting a second marriage for a certain period it could not be said that despite there being a decree of divorce for certain purposes the first manage subsists or is presumed to subsist. Some incident of marriage does survive the decree of divorce; say, liability to pay permanent alimony but on that account it cannot be said that the marriage subsists beyond the date of decree of divorce. Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lawful for the respective parties to the marriage to marry again, as if the prior marriage had been dissolved by death : Provided that no appeal to the Supreme Court has been presented against any such order or decree. When such appeal has been dismissed, or when in the result thereof the marriage is declared to be dissolved, but not sooner, it shall be lawful for the respective parties to the marriage to marry again as if the prior marriage had been dissolved by death. We would presently examine the scheme of s. 57 to appreciate the contention that the section is in pari materia with s. 15 of the Act. Section 57 grants liberty to the parties whose marriage is dissolved by a decree of divorce to marry, but prohibits them from marrying again within the prescribed period. The question in terms raised was whether a marriage during the period of prohibition was void. Undoubtedly, consistently such marriage has been held to be void following- the earliest decision in Warter v. Warter([1890] 1 5 4Probate Division 152.). In that case the matter came before the court on a petition for probate of a will made by one Colonel Henry De Grey Warter who had contracted marriage wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in appeal has been presented to the Supreme Court. Under s. 15 if the decree of divorce is granted not by the Court of first instance but by the appellate Court the proviso would not be attracted. There is thus a material difference in respect of the starting point of the period under s, 57. If thus apart from the scheme of the two statutes, the relevant provisions are so materially different, the decisions interpreting s. 57 cannot be bodily followed-to hold that the same consequences should follow if the proviso is contravened. It was, however, said that apart from the decisions under the Indian Divorce Act the decision of the Calcutta High Court in Uma Charan Roy v. Smt. Kajal Roy, (AIR 1971 Cal. 307.) on a correct interpretation of the proviso of S. 15 lays down that the marriage in breach of the proviso is void. It is a decision of the Division Bench and both the members constituting the Bench have written separate but concurring judgments. The question came before the Court on a petition made by one Smt. Kajal Roy for annulment of her marriage with Uma Charan Roy alleging that the latter contracted the marriage within a period of one year from the date of dissolution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completion of her iddat is irregular, not void. The Lahore, High Court at one time treated such marriages as void [Jhandu v. Mst. Hussain Bibi, (1923) 4 Lah. 1921; but in a later decision held that such a marriage is irregular and the children legitimate [Muhammad Hayat v. Muhammad Nawaz, (1935) 17 Lah. 48] . In support of this proposition, Muhammad Hayat v. Muhammad Navaz,(1835) 17 Lah. 48.) is relied upon. If public policy behind prohibiting marriage of a woman undergoing iddat and persons who are prohibited from marrying for a period of one year from the date of the decree dissolving their marriage is the same, viz., to avoid confusion about the parentage of the child which may have been conceived or the divorce sought to be obtained only for contracting second marriage, then the same conclusion may follow that such regulatory prohibition if violated or contravened would not render the marriage void. Similarly, a reference to Child Marriage Restraint Act would also show that the Child Marriage Restraint Act was enacted to carry forward the reformist movement of prohibiting child marriages and while it made marriage in contravention of the provisions of the Child Marriage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge at least one year has elapsed from the date of the decree in the Court of the first instance. It is urged on behalf of the appellant that the proviso to Section 15 is directory in nature, and therefore a marriage effected in violation of the time-period specified there is not void. The principal argument in support of the submission is that whenever the statute intends to treat a marriage as a nullity it specifically so provides. We have been referred to the observations of Dr. Lushington in Catterall v. Sweetman((18 4) 9 Jur. 951, 954.) The words in this section are negative words, and are clearly prohibitory of the marriage being had without the, prescribed requisites, but whether the marriage itself is void . . . is a question of very great difficulty. IL is to be recollected that there are no words in the Act rendering the marriage void, and I have sought in vain for any case in which a marriage has been declared null and void unless there were words in the statute expressly so declaring it...... From this examination of these Acts I draw two conclusions First, that there never appears to have beer, a decision where words in a statute relating to marriage, though prohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but if not good before would not be aided by it, and where the object of the statute was not to make any marriage void that would have been valid without its aid. The validity of the marriage was to be judged in law independently of the statute. It was in that content that Dr. Lushington observed that there was no provision in the Act which expressly nullified the marriage. Having dealt with those observations, the learned Judges then said : It is, however, quite a different question, whether, in construing a' statute which gives the very right to contract at all, we are then to hold that the marriage is good, notwithstanding a disregard of words negative and prohibitory, which relate to the very capacity to contract, because there are no words expressly nullifying the contract. Notwithstanding that there was no express ion nullifying the marriage, the Court held the marriage void. Chichester (supra) was followed in Rogers, otherwise Briscoe (falsely called Halmshaw v. Halmshaw((1864) 3, Sw. Tr. 509.). To my mind, the argument that the proviso to Section 15 is directory and mandatory because a marriage solemnised 'in violation of it has not been declared a null ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fspring of such a marriage. The absence of such a provision, it is said, points to the conclusion that the proviso to Section 15 is 'directory. I refrain from expressing any opinion on the validity of that argument, when the appellant succeeds on the considerations to which I have adverted. I hold that the marriage of Rajendra Kumar with the appellant is not void, and she is entitled to be considered as his wife. At this stage, it is appropriate to mention that the two tests sought to be employed in the construction of the proviso to Section 15, that is to say that a marriage, although in violation of the statute, is not void because the legislature has not expressly declared it to be so, and also because. the legislature has made no provision for legitimating the offspring of such a marriage, need to be viewed with caution. These are tests which could equally be invoked to the construction of the main provision of Section 15. And, as I shall endeavour to show, the conclusion that that provision is, directory and not mandatory does not necessarily follow. The main provision of Section 15 provides that when a marriage has been dissolved by a decree of divorce, either pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n,( A.I.R. 1916 Madras, 847.) Turner v.Turner(A.I.R. 1921 Cal., 517.) and Jackson v. Jackson,( I.L.R. 34 Allahabad, 203.) cases which involved the application of Section 57 of the Indian Divorce Act. Judicial opinion, appearing from those decisions, seems to be that a marriage solemnised before the expiry of the period of limitation for presenting an appeal or, where an appeal has been presented, during the pendency of that appeal must be regraded as a void marriage. The law in this regard was precisely stated in Miller (supra), where Dixon, C.J. pointed out .lm15 In English Law a restraint on remarriage so as to allow time for appealing appears to be regarded as designed to give a provisional or tentative character to the decree dissolving the marriage so that it does not yet take effect in all respects. It is regarded as ancillary to the provision of the law which for a comparatively brief time makes the decree absolute for dissolution contingently defensible in the event of appeal. It is as if there is a rasidual incapacity to remarry arising out of the previous marriage and not yet removed by the process provided for dissolving it. In the same case, Kitto, J. said What ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
