2018 (8) TMI 1983 - SC - Indian Laws

Maintainability of appeal - Decree of Divorce - Whether the dismissal of the appeal relates back to the date of filing of the application for withdrawal? - Whether the marriage dated 06.12.2011 between the Appellant and the Respondent during the pendency of the appeal against the decree of divorce is void? HELD THAT - 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 incapacity imposed by negative language such as it shall not be lawful or an incapacity imposed by positive language like it shall be lawful (in certain conditions, in the absence of which it is impliedly unlawful) . It would thus appear that the law is already settled by this Court that a marriage contracted during a prescribed period will not be void because it was contracted under an incapacity. Obviously, this would have no bearing on the other 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.

Summary

Issues Involved:
1. Whether the dismissal of the appeal relates back to the date of filing of the application for withdrawal?
2. Whether the marriage dated 06.12.2011 between the Appellant and the Respondent during the pendency of the appeal against the decree of divorce is void?

Detailed Analysis:

1. Whether the dismissal of the appeal relates back to the date of filing of the application for withdrawal?

The Family Court initially ruled that the decree of divorce dated 31.08.2009 was a judgment in rem, which was neither reversed nor set aside by a superior court. The decree remained effective despite the stay by the High Court. The High Court, however, focused on whether the Appellant could contract a second marriage during the pendency of the appeal against the divorce decree. The Supreme Court examined Order XXI Rule 89 (2) of the Code of Civil Procedure (CPC) and the precedent set in Shiv Prasad v. Durga Prasad, concluding that the act of withdrawal is complete as soon as the applicant intimates the court of their intention to withdraw. Therefore, the appeal is deemed withdrawn on the date the application for withdrawal was filed, i.e., 28.11.2011. Consequently, on 06.12.2011, the date of the Appellant's second marriage, Ms. Rachna Aggarwal was not considered a living spouse, and Section 5(i) of the Hindu Marriage Act was not attracted.

2. Whether the marriage dated 06.12.2011 between the Appellant and the Respondent during the pendency of the appeal against the decree of divorce is void?

Section 15 of the Hindu Marriage Act stipulates that a second marriage is lawful only after the dismissal of an appeal against the decree of divorce. The Supreme Court noted that the purpose of Section 15 is to prevent complications arising from a second marriage during the pendency of an appeal, particularly if the decree of divorce is reversed. The Court emphasized a purposive interpretation of the Act, highlighting that the restriction on second marriages during the appeal does not apply if the parties have settled and decided not to pursue the appeal. The Appellant's intention to accept the decree of divorce was clear from his application to withdraw the appeal. The Court concluded that the marriage on 06.12.2011 was not void, and the High Court's judgment declaring it void was erroneous.

Conclusion:

The Supreme Court held that the appeal's dismissal relates back to the date of filing the withdrawal application, making the marriage on 06.12.2011 lawful. The judgment of the High Court was set aside, and the appeal was allowed. The Court reaffirmed that a marriage contracted during a prescribed period of incapacity is not void in the absence of an express provision declaring it null. This interpretation aligns with the precedent set in Lila Gupta v. Laxmi Narain, ensuring that the Appellant's marriage was valid and lawful.