Judgment

SEN, J. - In this special leave petition by the wife against the decree for dissolution of marriage granted by Additional District Judge, Patiala dated 29th March, 1986 on the ground of cruelty under S. 13(ia) of the Hindu Marriage Act, 1955, against which the petitioner-wife had preferred an appeal to the Punjab and Haryana High Court and which the High Court by its order dated 16th July, 1986 dismissed in limine, a preliminary objection is raised that the petition has become infructuous inasmuch as the respondent-husband has in the meanwhile married again on 17th August, 1986 i.e. just after a month of the dismissal of her appeal.

2. It is not necessary to state the facts in any detail. It is enough to say that the learned District Judge held the wife guilty of mental cruelty for having voluntarily deprived the husband of her society and cohabitation for a long period as, according to him, marriage without sex is an anathema. He further held that the wife had falsely charged the husband with adultery. It is quite evident on these facts that the marriage has irretrievably broken.

3. We heard learned counsel for the parties and the question is whether the condition pre-requisite before a lawful marriage can take place after a decree for dissolution of marriage under S. 15 of the Act has been fulfilled. Prior to its amendment by the Marriage Laws (Amendment) Act, 1976 by which the proviso was deleted, S. 15 was in these terms :

"15. 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 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.

Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of the first instance."

Emphasis supplied

4. Prior to the Amendment Act of 1976, the proviso to S. 15 laid down a period of waiting of one year between the passing of a decree for divorce by the Court of first instance and the remarriage of any of the spouses. The Allahabad High Court in Lila Gupta v. Laxminarayan, ILR (1969) 1 All 92 and the Calcutta High Court in Uma Charan Roy v. Smt. Kajal Roy, AIR 1971 Cal 307 held that such period of waiting was enjoined on the parties in the interests of public policy and morality so as to discourage divorcees from entering into fresh matrimony and to avoid confusion of parentage. It was pointed out that even in Mohammadan law a divorced wife is expected to marry any other man only after the expiry of the period of iddat to avoid a danger of confusion of paternity. It was accordingly held that the prohibition being mandatory, if any divorced party married again within a period of one year, such marriage was nullity. That view however did not find favour with this Court in Lila Gupta v. Laxmi Narain (1978) 3 SCR 922 and it was held that a marriage contracted in contravention of the rule relating to one year laid down in the proviso would not be void. The Court referred to the following observations of Dr. Lushington in Catterall v. Sweetman (1845) 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. It 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 been a decision where words in a statute relating to marriage, though prohibitory and negative, have been held to infer