Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION  

Civil Appeal No.18312 of 2017

MR. ANURAG MITTAL        …… APPELLANT (S) Versus

MRS. SHAILY MISHRA MITTAL         …….. RESPONDENT (S)

J U D G M E N T

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.

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During the pendency of the Appeal,  the Appellant and

Ms.  Rachna Aggarwal  reached a settlement before the

Mediation Centre, Tis Hazari Court, Delhi.  According to

the  terms  of  the  settlement  dated  15.10.2011,  the

Appellant had to move an application for withdrawal of

the  Appeals  within  30  days.  The  Appellant  filed  an

application  to  withdraw  the  appeals  before  the  High

Court in terms of the settlement dated 15.10.2011 which

was 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  parties  before  the  Mediation

Centre,  Tis  Hazari  Court,  Delhi  and  listed  the  matter

before  the  Court  on  20.12.2011.   The  High  Court

dismissed  the  appeals  filed  by  the  Appellant  as

withdrawn in terms of the settlement by an order dated

20.12.2011.  In the meanwhile, the Appellant married the

Respondent  on  06.12.2011.   Matrimonial  discord

between the  Appellant  and the Respondent  led to  the

filing of a petition by the Respondent for declaring the

marriage as void under Section 5 (i) read with Section 11

of the Act.  The main ground in the petition was that the

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appeal  filed  by  the  Appellant  against  the  decree  of

divorce dated 31st August, 2009 was pending on the date

of  their  marriage  i.e. 06.12.2011.   The  Family  Court

dismissed  the  petition  filed  by  the  Respondent.   The

Respondent challenged the judgment of the Family Court

in the High Court.  By a judgment dated 10.08.2016, the

High Court set aside the judgment of the Family Court

and allowed the appeal of the Respondent and declared

the marriage between the Appellant and the Respondent

held on 06.12.2011 as null and void.  Aggrieved by the

judgment  of  the  High  Court,  the  Appellant  has

approached this Court.    2. As a pure question of law arises for our consideration

in this case, we make it  clear that we are not dealing

with the merits of the allegations made by both sides.

The points that arises for consideration are: a) Whether the dismissal of the appeal relates

back to the date of filing of the application for withdrawal?

b) Whether  the  marriage  dated  06.12.2011 between the Appellant and the Respondent

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during the pendency of the appeal against the decree of divorce is void?

3.     The Family Court framed only one substantial issue

as to whether the marriage between the parties was null

and void on account of the contravention of Section 5 (i)

of  the  Act.   It  was  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

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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 contravenes any 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

a spouse living at the time of the marriage.  Section 15 of

the Act which is relevant is as follows: “15.  Divorced  persons.  When  may  marry  again.- When  a  marriage  has  been  dissolved  by  a  decree  of divorce and either 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  having  been presented, or an appeal has been presented but has been dismissed,  it  shall  be  lawful  for  either  party  to  the marriage to marry again.”    

5. There  is  no  dispute  that  the  marriage  between  the

Appellant and the Respondent was held on 06.12.2011

during the pendency of the appeals filed by the Appellant

against  the decree of  divorce in  favour  of  Ms.  Rachna

Aggarwal.   It  is  also  clear  from  the  record  that  the

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appeals  were  dismissed  as  withdrawn  on  20.12.2011

pursuant to an application for withdrawal that was placed

before the Registrar on 28.11.2011.   The Family Court

has rightly held that the decree of divorce is a judgment

in rem.1     

6. It is pertinent to take note of the Proviso to Section 15

of the Act according to which it shall not be lawful for the

respective parties to marry again unless at the time of

such marriage at least one year has elapsed from the

date of the decree in the Court of first instance.   This

Proviso was repealed w.e.f. 27.05.1976.2   In Lila Gupta

v.  Laxmi Narain3,  Rajender  Kumar  contracted  second

marriage with Lila Gupta before the expiry of one year

from  the  date  of  decree  of  divorce.   This  Court  was

concerned with a point relating to the marriage between

Rajender Kumar and Lila Gupta being void having been

contracted in violation of the Proviso to Section 15 of the

Act.  In the said context this Court observed as follows:

“8. Did  the  framers  of  law  intend  that  a  marriage contracted in violation of  the provision contained in

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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the proviso to Section 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 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  not  treat  it  as  void.  The  marriage  in breach of the proviso is neither punishable nor does Section  11  treat  it  void.  Would  it  then  be  fair  to attribute  an  intention  to  the  legislature  that  by necessary  implication  in  casting  the  proviso  in  the negative expression, the prohibition was absolute and the breach of it  would render the marriage void? If void marriages were specifically provided for it is not proper to infer that in some cases express provision is made and in some other cases voidness had to be inferred by necessary implication. It would be all the more hazardous in the case of marriage laws to treat a marriage in breach of a certain condition void even though  the  law  does  not  expressly  provide  for  it. Craies on Statute Law, 7th Edn., P. 263 and 264 may be referred to with advantage:

“The  words  in  this  section  are  negative  words, and are clearly prohibitory of the marriage being had

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without  the  prescribed  requisites,  but  whether  the marriage itself is void ... is a question of very great difficulty.  It  is  to  be  recollected  that  there  are  no words in the Act rendering the marriage void, and I have sought in vain or any case in which a marriage has been declared null  and void  unless  there  were words  in  the  statute  expressly  so  declaring it (emphasis supplied). . . . From this examination of these Acts  I  draw two conclusions.  First,  that  there never appears to have been a decision where words in a statute relating to marriage, though prohibitory and negative, have been held to infer 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  legislature  to  create  a nullity  [Ed.  Quoting  Catterall v. Sweetman,  (1845)  9 Jur 951, 954] .” 9. 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 having 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.

10. 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  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

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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 without providing  for  consequence  of  the  breach,  it  is  not legitimate to say that such a thing when done is void because that would tantamount to saying that every unlawful act is void. As pointed out earlier, it would be all the more inadvisable in the field of marriage laws. Consequences  of  treating  a  marriage  void  are  so serious  and  far  reaching  and  are  likely  to  affect innocent  persons  such  as  children  born  during  the period anterior to the date of the decree annulling the marriage that it has always been considered not safe to treat a marriage void unless the law so enacts or the inference of  the marriage being treated void is either  inescapable  or  irresistible.  Therefore,  even though  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.”

7.  In the said judgment, this Court also had occasion to

deal with the continuance of the marital tie even after

the  decree  of  divorce  for  the  period  of  incapacity  as

provided in the Proviso to Section 15 of the Act.  In the

said context, this Court held as follows: “13. 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 Section 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

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decree  of  divorce  for  certain  purposes  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 it cannot be said that the marriage subsists beyond the date of decree of divorce. Section 13 which provides for  divorce  in  terms says that  a marriage solemnised may on a petition presented by the husband or the wife be dissolved by a decree of divorce on one or more of the grounds mentioned in that  section.  The  dissolution  is  complete  once the  decree  is  made,  subject  of  course,  to appeal. But  a  final  decree  of  divorce  in  terms 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”.

(underlining ours)

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 contravention of the proviso to

Section 15 is not void.  Referring to Sections 5 and 11 of

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the Act, this Court found that a marriage contracted in

breach  of  only  some  of  the  conditions  renders  the

marriage  void.   This  Court  was  also  conscious  of  the

absence of any penalty prescribed for contravention of

the proviso to Section 15 of the Act.  This Court referred

to the negative expression “it shall not be lawful” used in

proviso to Section 15 which indicates that the prohibition

was absolute.  In spite of the absolute prohibition, this

Court  was  of  the  view  that  a  marriage  contracted  in

violation of the proviso to Section 15 was not void.  There

was  a  further  declaration  that  the  dissolution  of  a

marriage is in rem and unless and until a Court of appeal

reversed it, marriage for all purposes was not subsisting.

The  dissolution  of  the  marriage  is  complete  once  the

decree is made, subject of course to appeal.  This Court

also decided that incapacity for  second marriage for  a

certain period of time does not have the effect of treating

the  former  marriage  as  subsisting  and  the  expression

‘spouse’  would  not  include  within  its  meaning  the

expression ‘former spouse’.    

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9. The majority judgment was concerned only with the

interpretation of proviso to Section 15 of the Act.  Justice

Pathak in his concurring judgment referred to Section 15,

but  refrained  from  expressing  any  opinion  on  its

interpretation.  Effective date of the Dismissal of Appeal    10.  In case of a dissolution of marriage, a second

marriage  shall  be  lawful  only  after  dismissal  of  the

appeal. Admittedly, the marriage between 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  was  filed  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 of the appeal relates back to the date of filing

of the application for withdrawal of the appeal.  Order XXI

Rule  89  (2)  of  the  Code  of  Civil  Procedure,  1908

(hereinafter  referred  to  as  “the  CPC”)  provides  that

unless an application filed under Order XXI Rule 90 of the

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CPC is withdrawn, a person shall not be entitled to make

or prosecute an application under Order XXI Rule 89 of

the  CPC.  In  Shiv  Prasad v.  Durga  Prasad,4 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, Panvel5 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 4 (1975) 1 SCC 405 5 AIR 2003 Bom. 238, 239

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complete  as  soon  as  the  plaintiff  files  his  purshis of

withdrawal.   

11. Order  XXIII  Rule  1  (1)  of  the  CPC  enables  the

plaintiff  to  abandon  his  suit  or  abandon  a  part  of  his

claim against all or any of the defendants.  Order XXIII

Rule  1  (3)  of  the  CPC  requires  the  satisfaction  of  the

Court for withdrawal of the suit by the plaintiff in case he

is  seeking  liberty  to  institute  a  fresh  suit.   While

observing that the word abandonment in Order XXIII Rule

1  (1)  of  the  CPC  is  “absolute  withdrawal”  which  is

different from the withdrawal after taking permission of

the court, this Court held as follows6:

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

(a) a plaintiff can abandon a suit or abandon a part of  his  claim  as  a  matter  of  right  without  the permission  of  the  court;  in  that  case  he  will  be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh  suit,  nor  can  the  defendant  insist  that  the plaintiff must be compelled to proceed with 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 liberty to sue afresh on the same cause of action. Such liberty being granted

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

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by the Court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC.”

12.  Order  XXIII  Rule  1  (1)  of  the  CPC  gives  an

absolute  right  to  the  plaintiff  to  withdraw  his  suit  or

abandon any part of his claim.  There is no doubt that

Order XXIII Rule 1 of the CPC is applicable to appeals as

well  and  the  Appellant  has  the  right  to  withdraw  his

appeal  unconditionally  and  if  he  makes  such  an

application to the Court, it has to grant it.7  Therefore, the

appeal is deemed to have been withdrawn on 28.11.2011

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 Appellant and the Respondent, Ms. Rachna

Aggarwal  cannot  be  considered  as  a  living  spouse.

Hence,  Section 5 (i)  is  not  attracted and the marriage

between the  Appellant  and the Respondent  cannot  be

declared as void.      13.  Sh.  Sakha Ram Singh,  learned Senior  Counsel

appearing  for  the  Respondent  placed  reliance  on  a

judgment of this Court in  Lila Gupta  (supra) to submit

that  the  marriage  between  the  Appellant  and  the 7 Bijayananda Patnaik v. Satrughna Sahu (1962) 2 SCR 538, 550

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Respondent  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 Interpretation8 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 minds. Interpretation is the process by which the  Court  determines  the  meaning  of  a  statutory

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

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provision for the purpose of applying it to the situation before it”.  

14. The  Hindu  Marriage  Act  is  a  social  welfare

legislation and a beneficent legislation and it has to be

interpreted in a manner which advances the object of the

legislation.   The  Act  intends  to  bring  about  social

reforms.9  It is well known that this Court cannot interpret

a  socially  beneficial  legislation  on  the  basis  as  if  the

words therein are cast in stone.10  

15. The  predominant  nature  of  the  purposive

interpretation was recognized by this Court in  Shailesh

Dhairyawan v. Mohan Balkrishna Lulla11 which is as

follows: “  33. We  may  also  emphasise  that  the  statutory interpretation  of  a  provision  is  never  static  but  is always  dynamic.  Though  the  literal  rule  of interpretation, till some time ago, was treated as the “golden rule”,  it  is  now the doctrine  of  purposive interpretation which is predominant, particularly in those  cases  where  literal  interpretation  may  not serve  the  purpose  or  may  lead  to  absurdity.  If  it brings about an end which is at variance with the purpose of  statute,  that  cannot  be  countenanced. Not  only  legal  process  thinkers  such  as  Hart  and Sacks rejected intentionalism as a grand strategy for statutory interpretation, and in its place they offered purposivism, this principle is now widely applied by

9 Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi (1996) 4 SCC 76, para 68 10 Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1, para 40 11 (2016) 3 SCC 619

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the courts not only 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 to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.”  

In  Black-Clawson International Ltd. v. Papierwerke

Waldhof-Aschaffenburg AG13, 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  the words which Parliament used.  We are seeking not what Parliament meant but the true meaning of what they said.”    

 17. It is also relevant to take note of Dy. Custodian

v. Official Receiver14  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”.   

12 [1897] AC 22 at 38 13 [1975] AC 591, p. 613 14 (1965) 1 SCR 220 at 225 F - G

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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 arise due to a second marriage during the

pendency of the appeal, in case the decree of dissolution

of marriage is reversed.  The protection that is afforded

by Section 15 is primarily to a person who is contesting

the decree of divorce.   

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19. Aggrieved by the decree of divorce, the Appellant

filed  an  appeal  and  obtained  a  stay  of  the  decree.

During  the  pendency  of  the  appeal,  there  was  a

settlement  between       him and his  former spouse.

After  entering  into  a  settlement,  he  did  not  intend  to

contest the decree of divorce.  His intention was made

clear by filing of the application for withdrawal.  It cannot

be said that he has to wait till a formal order is passed in

the appeal, or otherwise his marriage dated 06.12.2011

shall  be unlawful.  Following the principles of purposive

construction,  we are of the opinion that the restriction

placed on a second marriage in Section 15 of the Act till

the  dismissal  of  an  appeal  would  not  apply  to  a  case

where parties have settled and decided not to pursue the

appeal.   

20. It  is  not  the  case  of  the  Appellant  that  the

marriage  dated  06.12.2011  is  lawful  because  of  the

interim order that was passed in the appeals filed by him

against the decree of divorce.  He rested his case on the

petition filed for withdrawal of the appeal.  The upshot of

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the above discussion would be that the denouement of

the Family Court is correct and upheld, albeit for different

reasons.   The  conclusion  of  the  High  Court  that  the

marriage dated 06.12.2011 is void is erroneous.  Hence,

the judgment of the High Court is set aside.       21. Accordingly, the Appeal is allowed.    

……….……..J. [S.A. BOBDE]

………..………………..J.  [L. NAGESWARA RAO]    

NEW DELHI, August 24th 2018

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 18312 Of 2017

MR. ANURAG MITTAL                    ... APPELLANT(S)

Versus

MRS. SHAILY MISHRA MITTAL                 ... RESPONDENT(S)

J U D G M E N T

S.A.BOBDE, J.

1. I am in agreement with the view taken by Nageswara Rao J.

but it is necessary to state how the question before us has already

been settled by the decision in Lila Gupta v. Laxmi Narain and Ors.1.

Even when the words of the proviso were found to be prohibitory in

clear negative terms – “it shall not be lawful” etc., this Court held that

the incapacity to marry imposed by the proviso did not lead to an

inference of nullity, vide para 9 of Lila Gupta (supra).  It is all the

more difficult to infer nullity when there is no prohibition; where there

are no negative words but on the other hand positive words like “it

shall  be  lawful.”  Assuming  that  a  marriage  contracted  before  it

became  lawful  to  do  so  was  unlawful  and  the  words  create  a

disability, it is not possible to infer a nullity or voidness vide paras 9

1 (1978) 3 SCC 258 1

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.  

2. The  observations  in  Lila  Gupta’s  case  are  wide.   They  are

undoubtedly  made in  the  context  of  the  proviso  to  sec  15 of  the

Hindu Marriage (Amendment) Act, 19762, 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  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 2 Act 68 of 1976

2

have no bearing on the other conditions of a valid marriage.  The

decision in Lila Gupta case thus covers the present case on law.

3. In  any event,  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.

          .....................………J.                                                      [ S.A. BOBDE ]

NEW DELHI,    AUGUST  24, 2018

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