MR. ANURAG MITTAL versus MRS. SHAILY MISHRA MITTAL on 24 August 2018

[2018] 10 S.C.R. 123

MR. ANURAG MITTAL

v.

MRS. SHAILY MISHRA MITTAL

(Civil Appeal No. 18312 of 2017)

AUGUST 24, 2018

[S. A. BOBDE AND L. NAGESWARA RAO, JJ.]

Hindu Marriage Act, 1955 – s. 15 and 5(i) – Divorcedpersons, when may marry again – Marriage between the appellantand the respondent during the pendency of the appeal against thedecree of divorce – Marriage was entered into after applicationfor withdrawal of appeal, though before the order of withdrawalwas passed – Validity of the second marriage – Held: Section 15provides that the second marriage by either party shall be lawfulonly after dismissal of an appeal against the decree of divorce, iffiled – In case an appeal is presented, any marriage before dismissalof the appeal shall not be lawful – On facts, during the pendencyof the appeal, there was a settlement between the appellant and hisformer spouse – After entering into a settlement, he did not intendto contest the decree of divorce – His intention was made clear byfiling of the application for withdrawal – It cannot be said that hehas to wait till a formal order is passed in the appeal – Followingthe principles of purposive construction, the restriction placed ona second marriage in s. 15 till the dismissal of an appeal would notapply to a case where parties have settled and decided not to pursuethe appeal – Appeal is deemed to have been withdrawn on the dateof the filing of the application for withdrawal – On the date of themarriage between the appellant and the respondent, the formerspouse of the appellant cannot be considered as a living spouse –Thus, s. 5(i) not attracted and the marriage between the parties notvoid.

Allowing the appeal, the Court

Per L. Nageswara Rao, J.

HELD: 1.1 In case of a dissolution of marriage, a secondmarriage shall be lawful only after dismissal of the appeal.Admittedly, the marriage between the appellant and the

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Arespondent was before the order of withdrawal was passed bythe Court. The application for withdrawal of the appeal was filedprior to the date of the marriage. [Para 10] [134-C-D]

1.2 Order XXIII Rule 1 (1) gives an absolute right to theplaintiff to withdraw his suit or abandon any part of his claim.BThere is no doubt that Order XXIII Rule 1 is applicable to appealsas well and the appellant has the right to withdraw his appealunconditionally and if he makes such an application to the Court,it has to grant it. Therefore, the appeal is deemed to have beenwithdrawn on the date of the filing of the application for withdrawal.On the date of the marriage between the appellant and theCrespondent, first wife of the appellant cannot be considered as aliving spouse. Hence, Section 5 (i) is not attracted and themarriage between the appellant and the respondent cannot bedeclared as void. [Para 12] [135-F-G]

1.3 Section 15 of the Hindu Marriage Act, 1955 providesDthat it shall be lawful for either party to marry again afterdissolution of a marriage if there is no right of appeal against thedecree. A second marriage by either party shall be lawful onlyafter dismissal of an appeal against the decree of divorce, if filed.If there is no right of appeal, the decree of divorce remains finalEand that either party to the marriage is free to marry again. Incase an appeal is presented, any marriage before dismissal of theappeal shall not be lawful. The object of the provision is to provideprotection to the person who has filed an appeal against the decreeof dissolution of marriage and to ensure that the said appeal isnot frustrated. The purpose of Section 15 is to avert complicationsFthat would arise due to a second marriage during the pendencyof the appeal, in case the decree of dissolution of marriage isreversed. The protection that is afforded by Section 15 is primarilyto a person who is contesting the decree of divorce.[Para 18] [137-H; 138-A-C]G

1.4 Aggrieved by the decree of divorce, the appellant filedan appeal and obtained a stay of the decree. During the pendencyof the appeal, there was a settlement between him and his formerspouse. After entering into a settlement, he did not intend tocontest the decree of divorce. His intention was made clear by H

filing of the application for withdrawal. It cannot be said that hehas to wait till a formal order is passed in the appeal, or otherwisehis marriage dated 06.12.2011 shall be unlawful. Following theprinciples of purposive construction, the restriction placed on asecond marriage in Section 15 of the Act till the dismissal of anappeal would not apply to a case where parties have settled anddecided not to pursue the appeal. [Para 19] [138-D-E]

1.5 It is not the case of the appellant that the marriage islawful because of the interim order that was passed in the appealsfiled by him against the decree of divorce. He rested his case onthe petition filed for withdrawal of the appeal. Thus, denouementof the Family Court is correct and upheld, albeit for differentreasons. The conclusion of the High Court that the marriage isvoid is erroneous. The judgment of the High Court is set aside.[Para 20] [138-F-G]

Lila Gupta v. Laxmi Narain and Ors. (1978) 3 SCC258 : [1978] 3 SCR 922 ; Shiv Prasad v. Durga Prasad(1975) 1 SCC 405 : [1975] 3 SCR 526 ; Anil DinmaniShankar Joshi v. Chief Officer, Panvel MunicipalCouncil, Panvel AIR 2003 Bom. 238 ; K. S. Bhoopathyv. Kokila (2000) 5 SCC 458 : [2000] 3 SCR 1168 ;Bijayananda Patnaik v. Satrughna Sahu [1962] 2 SCR538 ; Paratabjabdutak Eravath Kanapravan KallianiAmma v. K. Devi (1996) 4 SCC 76 : [1996] 2 Suppl.SCR 1 ; Revanasiddappa v. Mallikarjun (2011) 11 SCC1 : [2011] 4 SCR 675 ; Shailesh Dhairyawan v. MohanBalkrishna Lulla (2016) 3 SCC 619 : [2015] 12 SCR70 ; Parayankandiayal Eravath Kanapravan KallianiAmma v. K. Devi (1996) 4 SCC 76 : [1996] 2 Suppl.SCR 1 ; Revanasiddappa v. Mallikarjun (2011) 11SCC 1 : [2011] 4 SCR 675 ; Dy. Custodian v. OfficialReceiver [1965] 1 SCR 220 – referred to.

Marsh v. Marsh 1945 AC 271 ; Salomon v. Salomon &Co. Ltd. (1897) AC 22 ; Black-Clawson InternationalLtd. v. Papierwerke Waldhof-Aschaffenburg AG(1975) AC 591 – referred to.

Cross Statutory Interpretation, Ed. by Dr. John Bell &Sir George Ingale, Second Edn. (1987) – referred to.

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126SUPREME COURT REPORTS

APer S. A. Bobde, J. ( Concurring)

1.1 If a provision of law prescribes an incapacity to marryand yet the person marries while under that incapacity, themarriage would not be void in the absence of an express provisionthat declares nullity. Quae incapacity imposed by statute, thereBis no difference between an incapacity imposed by negativelanguage such as “it shall not be lawful” or an incapacity imposedby positive language like “it shall be lawful (in certain conditions,in the absence of which it is impliedly unlawful)”. It would thus,appear that a marriage contracted during a prescribed period willnot be void because it was contracted under an incapacity.CObviously, this would have no bearing on the other conditions ofa valid marriage. [Para 2] [139-F-H]

1.2 In any event, the appellant’s marriage was notsubsisting when he married again. He had filed an application forwithdrawal of his appeal against the decree for dissolution andDhad done nothing to contradict his intention to accept the decreeof dissolution. [Para 3] [140-A-B]

Lila Gupta v. Laxmi Narain and Ors. (1978) 3 SCC258 : [1978] 3 SCR 922 – relied on.

Case Law ReferenceE

Judgment of Hon’ble Justice L. Nageswara Rao Judgment of Hon’ble Justice S.A. Bobde [1978] 3 SCR 922 referred toPara 1

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 18312of 2017.

From the Judgment and Order dated 10.08.2016 of the High Courtof Delhi at New Delhi in Matrimonial Appeal (FC) No. 94 of 2015.

Anurag Mittal, Appellant-in-person.

Sakha Ram Singh, Sr. Adv., Umang Shankar, Mohd. Muztaba,Advs. for the Respondent.

The Judgments of the Court were delivered by

L. NAGESWARA RAO, J. 1. By a judgment dated31.08.2009, the Additional District Judge, North, Tis Hazari Court, Delhiallowed the petition filed by Ms. Rachna Aggarwal under Section 13 (1)(i) (a) of the Hindu Marriage Act, 1955 (hereinafter referred to as “theAct’) and dissolved the marriage between her and the Appellant. By thesaid judgment the petition filed under Section 9 of the Act by the Appellantfor restitution of conjugal rights was dismissed. The Appellant filed appealsagainst the said judgment and the operation of the judgment and decreedated 31.08.2009 was stayed by the High Court on 20.11.2009. Duringthe pendency of the Appeal, the Appellant and Ms. Rachna Aggarwalreached a settlement before the Mediation Centre, Tis Hazari Court,Delhi. According to the terms of the settlement dated 15.10.2011, theAppellant had to move an application for withdrawal of the Appealswithin 30 days. The Appellant filed an application to withdraw the appealsbefore the High Court in terms of the settlement dated 15.10.2011 whichwas taken up on 28.11.2011 by the Registrar of the High Court of Delhi.He recorded that there was a settlement reached between the partiesbefore the Mediation Centre, Tis Hazari Court, Delhi and listed the matterbefore the Court on 20.12.2011. The High Court dismissed the appealsfiled by the Appellant as withdrawn in terms of the settlement by anorder dated 20.12.2011. In the meanwhile, the Appellant married theRespondent on 06.12.2011. Matrimonial discord between the Appellantand the Respondent led to the filing of a petition by the Respondent fordeclaring the marriage as void under Section 5 (i) read with Section 11of the Act. The main ground in the petition was that the appeal filed by A

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Athe Appellant against the decree of divorce dated 31[st] August, 2009 waspending on the date of their marriage i.e. 06.12.2011. The Family Courtdismissed the petition filed by the Respondent. The Respondentchallenged the judgment of the Family Court in the High Court. By ajudgment dated 10.08.2016, the High Court set aside the judgment of theBFamily Court and allowed the appeal of the Respondent and declaredthe marriage between the Appellant and the Respondent held on06.12.2011 as null and void. Aggrieved by the judgment of the HighCourt, the Appellant has approached this Court.

2. As a pure question of law arises for our consideration in thisCcase, we make it clear that we are not dealing with the merits of theallegations made by both sides. The points that arises for considerationare:

a) Whether the dismissal of the appeal relates back to the date offiling of the application for withdrawal?

Db) Whether the marriage dated 06.12.2011 between theAppellant and the Respondent during the pendency of theappeal against the decree of divorce is void?

3. The Family Court framed only one substantial issue as to whetherthe marriage between the parties was null and void on account of theEcontravention of Section 5 (i) of the Act. It was held by the FamilyCourt that the judgment and decree of divorce dated 31.08.2009 is ajudgment in rem which was neither reversed nor set aside by a superiorcourt. As the judgment was confirmed by the High Court, the marriagebetween the parties stood dissolved w.e.f. 31.08.2009 itself. TheFamily Court also observed that there is no provision in the Act whichFdeclares a marriage in contravention of Section 15 to be void. It wasfurther held by the Family Court that the effect of stay of the judgmentby a superior court is only that the decree of divorce remained inabeyance but it did not become non-existent. On the other hand, theHigh Court framed a question whether the Appellant could haveGcontracted a second marriage after the decree of divorce was passedon 31.08.2009 notwithstanding the operation of the decree being stayed.The High Court was of the opinion that any marriage solemnized by aparty during the pendency of the appeal wherein the operation of thedecree of divorce was stayed, would be in contravention of Section 5 (i)of the Act.H

4. Section 11 of the Act provides that any marriage solemnizedafter commencement of the Act shall be null and void if it contravenesany of the conditions specified in Clauses (i), (iv) and (v) of Section 5.Clause (i) of Section 5 places a bar on marriage by a person who has aspouse living at the time of the marriage. Section 15 of the Act which isrelevant is as follows:

“15. Divorced persons. When may marry again.- When amarriage has been dissolved by a decree of divorce and eitherthere is no right of appeal against the decree or, if there is such aright of appeal, the time for appealing has expired without anappeal having been presented, or an appeal has been presentedbut has been dismissed, it shall be lawful for either party to themarriage to marry again.”

5. There is no dispute that the marriage between the Appellantand the Respondent was held on 06.12.2011 during the pendency of theappeals filed by the Appellant against the decree of divorce in favour ofMs. Rachna Aggarwal. It is also clear from the record that the appealswere dismissed as withdrawn on 20.12.2011 pursuant to an applicationfor withdrawal that was placed before the Registrar on 28.11.2011. TheFamily Court has rightly held that the decree of divorce is a judgment inrem.[1]

6. It is pertinent to take note of the Proviso to Section 15 of theAct according to which it shall not be lawful for the respective parties tomarry again unless at the time of such marriage at least one year haselapsed from the date of the decree in the Court of first instance. ThisProviso was repealed w.e.f. 27.05.1976.[2] In Lila Gupta v. LaxmiNarain[3], Rajender Kumar contracted second marriage with Lila Guptabefore the expiry of one year from the date of decree of divorce. ThisCourt was concerned with a point relating to the marriage betweenRajender Kumar and Lila Gupta being void having been contracted inviolation of the Proviso to Section 15 of the Act. In the said context thisCourt observed as follows:

“8. Did the framers of law intend that a marriage contracted inviolation of the provision contained in the proviso to Section 15 to 1 Marsh v. Marsh 1945 AC 271

2 Hindu Marriage (Amendment ) Act, 1976, Act 68 of 1976

3 (1978) 3 SCC 258

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be void? While enacting the legislation, the framers had in mindthe question of treating certain marriages void and provided forthe same. It would, therefore, be fair to infer as legislativeexposition that a marriage in breach of other conditions thelegislature did not intend to treat as void. While prescribingconditions for valid marriage in Section 5 each of the six conditionswas not considered so sacrosanct as to render marriage in breachof each of it void. This becomes manifest from a combined readingof Sections 5 and 11 of the Act. If the provision in the proviso isinterpreted to mean personal incapacity for marriage for a certainperiod and, therefore, the marriage during that period was by aperson who had not the requisite capacity to contract the marriageand hence void, the same consequence must follow where thereis breach of condition (iii) of Section 5 which also provides forpersonal incapacity to contract marriage for a certain period. Whenminimum age of the bride and the bridegroom for a valid marriageis prescribed in condition (iii) of Section 5 it would only meanpersonal incapacity for a period because every day the persongrows and would acquire the necessary capacity on reaching theminimum age. Now, before attaining the minimum age if a marriageis contracted Section 11 does not render it void even though Section18 makes it punishable. Therefore, even where a marriage inbreach of a certain condition is made punishable yet the law doesnot treat it as void. The marriage in breach of the proviso is neitherpunishable nor does Section 11 treat it void. Would it then be fairto attribute an intention to the legislature that by necessaryimplication in casting the proviso in the negative expression, theprohibition was absolute and the breach of it would render themarriage void? If void marriages were specifically provided for itis not proper to infer that in some cases express provision is madeand in some other cases voidness had to be inferred by necessaryimplication. It would be all the more hazardous in the case ofmarriage laws to treat a marriage in breach of a certain conditionvoid even though the law does not expressly provide for it. Craieson Statute Law, 7th Edn., P. 263 and 264 may be referred to withadvantage:

“The words in this section are negative words, and are clearlyprohibitory of the marriage being had without the prescribed requisites, but whether the marriage itself is void ... is a questionof very great difficulty. It is to be recollected that there are nowords in the Act rendering the marriage void, and I have soughtin vain or any case in which a marriage has been declarednull and void unless there were words in the statute expresslyso declaring it (emphasis supplied). . . . From this examinationof these Acts I draw two conclusions. First, that there neverappears to have been a decision where words in a statute relatingto marriage, though prohibitory and negative, have been held toinfer a nullity unless such nullity was declared in the Act.Secondly, that, viewing the successive marriage Acts, it appearsthat prohibitory words, without a declaration of nullity, were notconsidered by the legislature to create a nullity [Ed. QuotingCatterall v. Sweetman, (1845) 9 Jur 951, 954] .”

9. In the Act under discussion there is a specific provision fortreating certain marriages contracted in breach of certainconditions prescribed for valid marriage in the same Act as voidand simultaneously no specific provision having been made fortreating certain other marriages in breach of certain conditions asvoid. In this background even though the proviso is couched inprohibitory and negative language, in the absence of an expressprovision it is not possible to infer nullity in respect of a marriagecontracted by a person under incapacity prescribed by theproviso.

10. Undoubtedly the proviso opens with a prohibition that: “It shallnot be lawful” etc. Is it an absolute prohibition violation of whichwould render the act a nullity? A person whose marriage isdissolved by a decree of divorce suffers an incapacity for aperiod of one year for contracting second marriage. For such aperson it shall not be lawful to contract a second marriage withina period of one year from the date of the decree of the Court offirst instance. While granting a decree for divorce, the lawinterdicts and prohibits a marriage for a period of one year fromthe date of the decree of divorce. Does the inhibition for a periodindicate that such marriage would be void? While there is adisability for a time suffered by a party from contractingmarriage, every such disability does not render the marriage void.

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A submission that the proviso is directory or at any rate notmandatory and decision bearing on the point need not detain usbecause the interdict of law is that it shall not be lawful for acertain party to do a certain thing which would mean that if thatact is done it would be unlawful. But whenever a statute prohibitsa certain thing being done thereby making it unlawful withoutproviding for consequence of the breach, it is not legitimate to saythat such a thing when done is void because that wouldtantamount to saying that every unlawful act is void. As pointedout earlier, it would be all the more inadvisable in the field ofmarriage laws. Consequences of treating a marriage void are soserious and far reaching and are likely to affect innocent personssuch as children born during the period anterior to the date of thedecree annulling the marriage that it has always been considerednot safe to treat a marriage void unless the law so enacts or theinference of the marriage being treated void is either inescapableor irresistible. Therefore, even though the proviso is couched in alanguage prohibiting a certain thing being done, that by itself is notsufficient to treat the marriage contracted in contravention of itas void.”

7. In the said judgment, this Court also had occasion to deal withthe continuance of the marital tie even after the decree of divorce forthe period of incapacity as provided in the Proviso to Section 15 of theAct. In the said context, this Court held as follows:

“13. To say that such provision continues the marriage tie evenafter the decree of divorce for the period of incapacity is toattribute a certain status to the parties whose marriage is alreadydissolved by divorce and for which there is no legal sanction. Adecree of divorce breaks the marital tie and the parties forfeit thestatus of husband and wife in relation to each other. Each onebecomes competent to contract another marriage as provided bySection 15. Merely because each one of them is prohibited fromcontracting a second marriage for a certain period it could not besaid that despite there being a decree of divorce for certainpurposes the first marriage subsists or is presumed to subsist.Some incident of marriage does survive the decree of divorce;say, liability to pay permanent alimony but on that account itcannot be said that the marriage subsists beyond the date of

decree of divorce. Section 13 which provides for divorce in termssays that a marriage solemnised may on a petition presented bythe husband or the wife be dissolved by a decree of divorce onone or more of the grounds mentioned in that section. Thedissolution is complete once the decree is made, subject ofcourse, to appeal.But a final decree of divorce in termsdissolves the marriage. No incident of such dissolved marriagecan bridge and bind the parties whose marriage is dissolved bydivorce at a time posterior to the date of decree. An incapacityfor second marriage for a certain period does not have effect oftreating the former marriage as subsisting. During the period ofincapacity the parties cannot be said to be the spouses within themeaning of clause (i), sub-section (1) of Section 5. The word“spouse” has been understood to connote a husband or a wifewhich term itself postulates a subsisting marriage. The word“spouse” in sub-section (1) of Section 5 cannot be interpreted tomean a former spouse because even after the divorce when asecond marriage is contracted if the former spouse is living thatwould not prohibit the parties from contracting the marriage withinthe meaning of clause (i) of sub-section (1) of Section 5. Theexpression “spouse” in clause (i), sub-section (1) of Section 5 byits very context would not include within its meaning theexpression “former spouse”.

(underlining ours)

8. After a comprehensive review of the scheme of the Act andthe legislative intent, this Court in Lila Gupta (supra) held that amarriage in contravention of the proviso to Section 15 is not void.Referring to Sections 5 and 11 of the Act, this Court found that amarriage contracted in breach of only some of the conditions rendersthe marriage void. This Court was also conscious of the absence of anypenalty prescribed for contravention of the proviso to Section 15 of theAct. This Court referred to the negative expression “it shall not belawful” used in proviso to Section 15 which indicates that the prohibitionwas absolute. In spite of the absolute prohibition, this Court was of theview that a marriage contracted in violation of the proviso to Section 15was not void. There was a further declaration that the dissolution of amarriage is in rem and unless and until a Court of appeal reversed it,marriage for all purposes was not subsisting. The dissolution of the AB

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Amarriage is complete once the decree is made, subject of course toappeal. This Court also decided that incapacity for second marriage fora certain period of time does not have the effect of treating the formermarriage as subsisting and the expression ‘spouse’ would not includewithin its meaning the expression ‘former spouse’.B9. The majority judgment was concerned only with theinterpretation of proviso to Section 15 of the Act. Justice Pathak in hisconcurring judgment referred to Section 15, but refrained fromexpressing any opinion on its interpretation.

Effective date of the Dismissal of Appeal C

Effective date of the Dismissal of Appeal C

10. In case of a dissolution of marriage, a second marriage shallbe lawful only after dismissal of the appeal. Admittedly, the marriagebetween the Appellant and the Respondent was on 06.12.2011 i.e.before the order of withdrawal was passed by the Court on 20.12.2011.There is no dispute that the application for withdrawal of the appeal wasDfiled on 28.11.2011 i.e. prior to the date of the marriage on 06.12.2011.We proceed to consider the point that whether the date of dismissal ofthe appeal relates back to the date of filing of the application forwithdrawal of the appeal. Order XXI Rule 89 (2) of the Code of CivilProcedure, 1908 (hereinafter referred to as “the CPC”) provides thatunless an application filed under Order XXI Rule 90 of the CPC isEwithdrawn, a person shall not be entitled to make or prosecute anapplication under Order XXI Rule 89 of the CPC. In Shiv Prasad v.Durga Prasad,[4] the contention of the Appellant therein that anapplication filed under the aforesaid Rule 90 does not stand withdrawnuntil an order to the effect is recorded by the Court, was not accepted.FIt was held that every applicant has a right to unconditionally withdrawhis application and his unilateral act in that behalf is sufficient. No orderof the Court is necessary permitting the withdrawal of the application.This Court concluded that the act of withdrawal is complete as soon asthe applicant intimates the Court that he intends to withdraw theapplication. The High Court of Bombay in Anil Dinmani ShankarGJoshi v. Chief Officer, Panvel Municipal Council, Panvel[5] followedthe judgment of this Court in Shiv Prasad (supra) and held that the saidjudgment is applicable to suits also. The High Court recognized theunconditional right of the plaintiff to withdraw his suit and held that the 4 (1975) 1 SCC 405H5 AIR 2003 Bom. 238, 239

withdrawal would be complete as soon as the plaintiff files his purshisof withdrawal.

11. Order XXIII Rule 1 (1) of the CPC enables the plaintiff toabandon his suit or abandon a part of his claim against all or any of thedefendants. Order XXIII Rule 1 (3) of the CPC requires thesatisfaction of the Court for withdrawal of the suit by the plaintiff incase he is seeking liberty to institute a fresh suit. While observing thatthe word abandonment in Order XXIII Rule 1 (1) of the CPC is“absolute withdrawal” which is different from the withdrawal aftertaking permission of the court, this Court held as follows[6]:

“12. The law as to withdrawal of suits as enacted in the presentRule may be generally stated in two parts:

(a) a plaintiff can abandon a suit or abandon a part of his claim asa matter of right without the permission of the court; in that casehe will be precluded from suing again on the same cause ofaction. Neither can the plaintiff abandon a suit or a part of the suitreserving to himself a right to bring a fresh suit, nor can thedefendant insist that the plaintiff must be compelled to proceedwith the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule(3), be permitted by the court to withdraw from a suit with libertyto sue afresh on the same cause of action. Such liberty beinggranted by the Court enables the plaintiff to avoid the bar inOrder II Rule 2 and Section 11 CPC.”

12. Order XXIII Rule 1 (1) of the CPC gives an absolute right tothe plaintiff to withdraw his suit or abandon any part of his claim. Thereis no doubt that Order XXIII Rule 1 of the CPC is applicable to appealsas well and the Appellant has the right to withdraw his appealunconditionally and if he makes such an application to the Court, it has togrant it.[7] Therefore, the appeal is deemed to have been withdrawn on28.11.2011 i.e. the date of the filing of the application for withdrawal.On 06.12.2011 which is the date of the marriage between the Appellantand the Respondent, Ms. Rachna Aggarwal cannot be considered as aliving spouse. Hence, Section 5 (i) is not attracted and the marriagebetween the Appellant and the Respondent cannot be declared as void.

6 K.S. Bhoopathy v. Kokila (2000) 5 SCC 458

7 Bijayananda Patnaik v. Satrughna Sahu (1962) 2 SCR 538, 550

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A 13. Sh. Sakha Ram Singh, learned Senior Counsel appearing forthe Respondent placed reliance on a judgment of this Court in Lila Gupta(supra) to submit that the marriage between the Appellant and theRespondent held on 06.12.2011 is void as it was in violation of Section15 of the Act. He relied upon the concurring judgment of Justice Pathakin support of his submission that the findings pertaining to Proviso toBSection 15 cannot be made applicable to Section 15. He submitted thatthere is a qualitative difference between the period of incapacity set outin the Proviso during which a second marriage cannot be contracted andthe bar for another marriage during the pendency of an appeal. Wehave already noted that Justice Pathak refrained from expressing anyCview on the expression of Section 15 of the Act. However, the scopeand purport of Section 15 of the Act arise for consideration in the presentcase.

Interpretation of Section 15

Interpretation has been explained by Cross in StatutoryDInterpretation[8] as:

“The meaning that the Court ultimately attaches to thestatutory words will frequently be that which it believesmembers of the legislature attached to them, or the meaningwhich they would have attached to the words had thesituation before the Court been present to their minds.EInterpretation is the process by which the Court determinesthe meaning of a statutory provision for the purpose ofapplying it to the situation before it”.

14. The Hindu Marriage Act is a social welfare legislation and abeneficent legislation and it has to be interpreted in a manner whichFadvances the object of the legislation. The Act intends to bring aboutsocial reforms.[9] It is well known that this Court cannot interpret asocially beneficial legislation on the basis as if the words therein are castin stone.[10]

15. The predominant nature of the purposive interpretation wasGrecognized by this Court in Shailesh Dhairyawan v. Mohan Balkrishna Lulla[11]which is as follows:

8Cross Statutory Interpretation, Ed. Dr. John Bell & Sir George Ingale, SecondEdition (1987)

9 Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi (1996) 4 SCC 76,para 6810 Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1, para 40H11 (2016) 3 SCC 619

“ 33. We may also emphasise that the statutory interpretation ofa provision is never static but is always dynamic. Though theliteral rule of interpretation, till some time ago, was treated as the“golden rule”, it is now the doctrine of purposive interpretationwhich is predominant, particularly in those cases where literalinterpretation may not serve the purpose or may lead to absurdity.If it brings about an end which is at variance with the purpose ofstatute, that cannot be countenanced. Not only legal processthinkers such as Hart and Sacks rejected intentionalism as a grandstrategy for statutory interpretation, and in its place they offeredpurposivism, this principle is now widely applied by the courts notonly in this country but in many other legal systems as well.”

16. In Salomon v. Salomon & Co Ltd.[12], Lord Watson observed that :

“In a Court of Law or Equity, what the legislature intended tobe done or not to be done can only be legitimatelyascertained from that which it has chosen to enact, either inexpress words or by reasonable and necessary implication.”

In Black-Clawson International Ltd. v. PapierwerkeWaldhof-Aschaffenburg AG[13], Lord Reid held that:

“We often say that we are looking for the intention of Parliament,but that is not quite accurate. We are seeking the meaning of thewords which Parliament used. We are seeking not whatParliament meant but the true meaning of what they said.”

17. It is also relevant to take note of Dy. Custodian v. OfficialReceiver[14]in which it was declared that “if it appears that theobvious aim and object of the statutory provisions would befrustrated by accepting the literal construction suggested by theRespondent, then it may be open to the Court to inquire whether analternative construction which would serve the purpose ofachieving the aim and object of the Act, is reasonably possible”.

18. Section 15 of the Act provides that it shall be lawful for eitherparty to marry again after dissolution of a marriage if there is no right of 12 [1897] AC 22 at 3813 [1975] AC 591, p. 61314 (1965) 1 SCR 220 at 225 F - G

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Aappeal against the decree. A second marriage by either party shall belawful only after dismissal of an appeal against the decree of divorce, iffiled. If there is no right of appeal, the decree of divorce remains finaland that either party to the marriage is free to marry again. In case anappeal is presented, any marriage before dismissal of the appeal shallnot be lawful. The object of the provision is to provide protection to theBperson who has filed an appeal against the decree of dissolution ofmarriage and to ensure that the said appeal is not frustrated. Thepurpose of Section 15 of the Act is to avert complications that wouldarise due to a second marriage during the pendency of the appeal, incase the decree of dissolution of marriage is reversed. The protectionCthat is afforded by Section 15 is primarily to a person who is contestingthe decree of divorce.

19. Aggrieved by the decree of divorce, the Appellant filed anappeal and obtained a stay of the decree. During the pendency of theappeal, there was a settlement between him and his former spouse.DAfter entering into a settlement, he did not intend to contest the decreeof divorce. His intention was made clear by filing of the application forwithdrawal. It cannot be said that he has to wait till a formal order ispassed in the appeal, or otherwise his marriage dated 06.12.2011 shallbe unlawful. Following the principles of purposive construction, we areEof the opinion that the restriction placed on a second marriage in Section15 of the Act till the dismissal of an appeal would not apply to a casewhere parties have settled and decided not to pursue the appeal.

20. It is not the case of the Appellant that the marriage dated06.12.2011 is lawful because of the interim order that was passed in theFappeals filed by him against the decree of divorce. He rested his caseon the petition filed for withdrawal of the appeal. The upshot of theabove discussion would be that the denouement of the Family Court iscorrect and upheld, albeit for different reasons. The conclusion of theHigh Court that the marriage dated 06.12.2011 is void is erroneous. Hence,the judgment of the High Court is set aside.G

21. Accordingly, the Appeal is allowed.

21. Accordingly, the Appeal is allowed.

S. A. BOBDE, J. 1. I am in agreement with the view taken byNageswara Rao J. but it is necessary to state how the question beforeus has already been settled by the decision in Lila Gupta v. Laxmi Narainand Ors.[1]. Even when the words of the proviso were found to beprohibitory in clear negative terms – “it shall not be lawful” etc., thisCourt held that the incapacity to marry imposed by the proviso did notlead to an inference of nullity, vide para 9 of Lila Gupta (supra). It is allthe more difficult to infer nullity when there is no prohibition; wherethere are no negative words but on the other hand positive words like “itshall be lawful.” Assuming that a marriage contracted before it becamelawful to do so was unlawful and the words create a disability, it is notpossible to infer a nullity or voidness vide paras 9 and 10 of Lila Guptacase. The Court must have regard to the consequences of such aninterpretation on children who might have been conceived or born duringthe period of disability.

2. The observations in Lila Gupta’s case are wide. They areundoubtedly made in the context of the proviso to sec 15 of the HinduMarriage (Amendment) Act, 1976[2], since deleted. The proviso openedwith the prohibition that “it shall not be lawful.” This Court consideredthe question whether a marriage contracted in violation of the provisowould be a nullity or void and came to the conclusion that though theproviso is couched in prohibitory and negative language, in the absenceof an express provision it was not possible to infer nullity in respect of amarriage contracted by a person under incapacity prescribed by theproviso.

What is held in essence is that if a provision of law prescribes anincapacity to marry and yet the person marries while under that incapacity,the marriage would not be void in the absence of an express provisionthat declares nullity. Quae incapacity imposed by statute, there is nodifference between an incapacity imposed by negative language suchas “it shall not be lawful” or an incapacity imposed by positive languagelike “it shall be lawful (in certain conditions, in the absence of which it isimpliedly unlawful)”. It would thus appear that the law is already settledby this Court that a marriage contracted during a prescribed period willnot be void because it was contracted under an incapacity. Obviously,this would have no bearing on the other conditions of a valid marriage.The decision in Lila Gupta case thus covers the present case on law.

1 (1978) 3 SCC 258

2 Act 68 of 1976

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140SUPREME COURT REPORTS

[2018] 10 S.C.R.

A3. In any event, in the present case we are satisfied that theappellant’s marriage was not subsisting when he married again. He hadfiled an application for withdrawal of his appeal against the decree fordissolution and had done nothing to contradict his intention to accept thedecree of dissolution.

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Nidhi Jain

Appeal allowed.

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