2018 Supreme(SC) 849

SUPREME COURT OF INDIA
S.A. BOBDE, L. NAGESWARA RAO, JJ.
MR. ANURAG MITTAL – APPELLANT(S)
Versus
MRS. SHAILY MISHRA MITTAL – RESPONDENT(S)
Civil Appeal No.18312 of 2017
Decided On : 24-08-2018

IMPORTANT POINTS
Decree of divorce is a judgment in rem.
A marriage in contravention of the proviso to Section 15 is not void.
Restriction placed on a second marriage in Section 15 till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.
Withdrawal of a suit or application is complete with filing the application/suit for withdrawal – Order of the court is not necessary. Order of the court is necessary only where plaintiff seeks liberty to institute a fresh suit.
Beneficial legislation requires purposive interpretation.

Headnote:Per L. NAGESWARA RAO, J.

       (a) Hindu Marriage Act, 1955 – Section 11 – Decree of divorce is a judgment in rem. (Para 5)

       1945 AC 271 – Referred

       (b) Hindu Marriage Act, 1955 – Section 15 Proviso – Marriage of a divorced person – Proviso prescribing that ‘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of such marriage at least one year has elapsed from the date of the decree in the Court of first instance’ – Proviso repealed in 976 – A marriage in contravention of the proviso to Section 15 is not void. (Para 8)

       (1978) 3 SCC 258 – Relied upon

       (c) Code of Civil Procedure, 1908 – Order XXI Rule 89, Order XXI Rule 90 and Order XXIII Rule 1 (1) – Withdrawal of a suit or application – Complete with filing the application/suit for withdrawal – Order of the court is not necessary – Order of the court is necessary only where plaintiff seeks liberty to institute a fresh suit. (Para 10, 11, 12)

       (1975) 1 SCC 405; (2000) 5 SCC 458; (1962) 2 SCR 538 – Relied upon

       AIR 2003 Bom. 238 – Cited with approval

       (d) Interpretation of statute – Beneficial legislation – Purposive interpretation. (Para 14)

       (1996) 4 SCC 76; (2011) 11 SCC 1; (2016) 3 SCC 619; (1965) 1 SCR 220 – Relied upon

       [1897] AC 22; AG, [1975] AC 591 – Referred

       (e) Hindu Marriage Act, 1955 – Section 15 – Purpose – 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 – Section 15 primarily protects a person who is contesting the decree of divorce – Instantly appellant appealing against divorce and obtaining stay – By filing application for withdrawal of appeal against divorce he made his intention clear not to contest divorce – Held, he did not have to wait for a formal order permitting withdrawal – Held, restriction placed on a second marriage in Section 15 till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal. (Para 18, 19)

       Per S.A. BOBDE, J.

       (f) Hindu Marriage Act, 1955 – Section 15, Proviso – Notwithstanding words of proviso being prohibitory, it has been held that incapacity to marry imposed by the proviso did not lead to an inference of nullity – Nullity cannot be inferred after deletion of the Proviso – 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. (Para 21)

       Facts of the case:

       The marriage of Ms. Rachna Aggarwal and the Appellant was dissolved. 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 was stayed by the High Court. This appeal was withdrawn by the appellant in pursuance of a compromise arrived at with Ms. Rachna Aggarwal.

       In the meanwhile, the Appellant married the Respondent. Matrimonial discord between the Appellant and the Respondent led to the filing of a petition by the Respondent for declaring the marriage as void. The Family Court dismissed the petition filed by the Respondent. The Respondent challenged the judgment of the Family Court in the High Court. 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 as null and void. Aggrieved by the judgment of the High Court, the Appellant has approached this Court.

       The points that arise 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 during the pendency of the appeal against the decree of divorce is void?

       Finding of the Court;

       Restriction placed on a second marriage in Section 15 till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.

       Result : Appeal allowed.