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HIGH COURT OF CALCUTTA
S. K. CHAKRAVARTY, S. K. DATTA
UMA CHARAN ROY - Appellant
Versus
KAJAL ROY - Respondent
A. F. O. D. 221 Of 1966
Decided On : SEPTEMBER 1, 1970
HINDU MARRIAGE ACT - NULLITY OF MARRIAGE - SPOUSE LIVING - SPECIAL MARRIAGE ACT - CONDITIONS FOR MARRIAGE - INTERPRETATION OF STATUTES - SECTION 15 OF THE HINDU MARRIAGE ACT - SECTION 4 (A) OF THE SPECIAL MARRIAGE ACT - EFFECT OF DECREE OF DIVORCE ON SUBSISTING MARRIAGE - APPLICABILITY OF SECTION 15 OF THE HINDU MARRIAGE ACT TO MARRIAGES UNDER THE SPECIAL MARRIAGE ACT - MEANING OF 'SPOUSE' IN SECTION 4 (A) OF THE SPECIAL MARRIAGE ACT - EFFECT OF SECTION 29 (4) OF THE HINDU MARRIAGE ACT ON SECTION 15 - DISTINCTION BETWEEN DECREE OF NULLITY AND DECREE OF DIVORCE - RELEVANCE OF DECISIONS UNDER THE INDIAN DIVORCE ACT TO MARRIAGES UNDER THE HINDU MARRIAGE ACT AND THE SPECIAL MARRIAGE ACT.
Fact of the Case:
The appellant, a Hindu, married Susama in 1959 under the Hindu Marriage Act. In 1963, he filed a suit for dissolution of marriage with Susama on the ground of venereal disease. While the suit was pending, he filed a notice of marriage with Kajal under the Special Marriage Act. The marriage with Susama was dissolved by a decree of divorce on March 23, 1964. On April 21, 1964, the appellant and Kajal were married under the Special Marriage Act. Kajal filed a suit for a declaration of nullity of her marriage with the appellant on the ground that it was void as the appellant's marriage with Susama was continuing on the date of the marriage. The trial court granted a decree of nullity.
Finding of the Court:
The court held that the marriage between the appellant and Kajal was null and void as the appellant had a spouse living on the date of the marriage. The court interpreted Section 15 of the Hindu Marriage Act and Section 4 (a) of the Special Marriage Act and held that the effect of a decree of divorce under the Hindu Marriage Act was that the marriage continued for a period of one year from the date of the decree and that, therefore, Susama was a spouse of the appellant on the date of his marriage with Kajal. The court also held that Section 15 of the Hindu Marriage Act applied to marriages under the Special Marriage Act and that the meaning of 'spouse' in Section 4 (a) of the Special Marriage Act included a spouse of an earlier marriage under the Hindu Marriage Act. The court further held that Section 29 (4) of the Hindu Marriage Act did not affect the applicability of Section 15 to marriages under the Special Marriage Act.
Issues: 1. Whether the marriage between the appellant and Kajal was null and void as the appellant had a spouse living on the date of the marriage? 2. Whether Section 15 of the Hindu Marriage Act applied to marriages under the Special Marriage Act? 3. Whether the meaning of 'spouse' in Section 4 (a) of the Special Marriage Act included a spouse of an earlier marriage under the Hindu Marriage Act? 4. Whether Section 29 (4) of the Hindu Marriage Act affected the applicability of Section 15 to marriages under the Special Marriage Act?
Ratio Decidendi: 1. The court held that the marriage between the appellant and Kajal was null and void as the appellant had a spouse living on the date of the marriage. The court interpreted Section 15 of the Hindu Marriage Act and Section 4 (a) of the Special Marriage Act and held that the effect of a decree of divorce under the Hindu Marriage Act was that the marriage continued for a period of one year from the date of the decree and that, therefore, Susama was a spouse of the appellant on the date of his marriage with Kajal. 2. The court held that Section 15 of the Hindu Marriage Act applied to marriages under the Special Marriage Act. The court held that the provisions of the Hindu Marriage Act shall, under its Section 29 (4), affect only the provisions of marriage under the Special Marriage Act and nothing beyond, and certainly cannot be extended to exclude application of Section 15 which does not by itself relate to the provisions with respect to marriage between Hindus under the Special Marriage Act. 3. The court held that the meaning of 'spouse' in Section 4 (a) of the Special Marriage Act included a spouse of an earlier marriage under the Hindu Marriage Act. The court held that the words 'spouses' in the said sections has been used without any qualification, meaning that the spouse contemplated in the said provision would include a spouse of any valid marriage. 4. The court held that Section 29 (4) of the Hindu Marriage Act did not affect the applicability of Section 15 to marriages under the Special Marriage Act. The court held that Section 29 (4) only makes this provision that the conditions of marriage under this Act shall not be imported or treated as conditions of a marriage under the Special Marriage Act. It has no further restrictive power and certainly cannot be extended to exclude application of Section 15 which does not by itself relate to the provisions with respect to marriage between Hindus under the Special Marriage Act.
Final Decision: The appeal was dismissed.
( 1 ) THIS is an appeal at the instance of a husband against whom a decree of nullity of his marriage with the respondent has been passed by a learned Additional District Judge at Alipore. The appellant seems to be rather unfortunate in his matrimonial ventures. He was first married with one Durga Bala Roy in or about 1947, and on the 2nd of October, 1958. Durga Eaja died leaving five issues. In less than three and half months from the date of the death of Durga Bala the appellant married again one Susama, to be precise, on the 15th of January, 1959. On the 11th of September, 1963. he filed a suit for dissolution of his marriage with Susama on the ground that she had been suffering from venereal disease in a communicable form for a period of not less than three years immediately preceding the presentation of the petition. It would further appear that before this suit was filed he and the present respondent Kajal fell in love with each other. The suit for dissolution of the marriage was decreed on the 23rd of March, 1964, under Section 13 (1) (v) of the Hindu Marriage Act (Ext. B ). Admittedly the appellant Susama as also Kajal are all Hindus. On the 18th of March, 1964, that is to say five days before the appellant got his decree of divorce of the marriage with Susama he filed a notice of marriage with Kajal before the Marriage Officer for Calcutta and 24 Parganas District (Ext. 2 ). On the 21st of April, 1964, the appellant and Kajal were married under the Special Marriage Act and exhibit 3 is the certificate of marriage. On the 17th of June, 1964. Kajal filed the instant suit mainly on the allegation that her marriage with the appellant was void as the appellant's marriage with Susama was continuing upto the date of the marriage or, in other words, as her marriage with the appellant contravened the provision of Clause (a) of Section 4 of the Special Marriage Act. She had also made allegations in her petition that by fraud and misrepresentation she was induced to enter into this form of marriage and she was actually not aware of the fact that the appellant had a wife living on that date. But the appellant contested that suit and denied these charges of fraud and misrepresentation and further alleged that Kajal was aware of everything and that as a matter of fact it was she who induced him to enter into this marriage. He further contended that in no view of the law could Susama be considered as his spouse on the date of his marriage with Kajal and as such the marriage was not a nullity. The learned Additional District Judge was of the opinion that in view of Clause (4) of Section 29 of the Hindu Marriage Act, Section 15 of the Hindu Marriage Act did not apply to the instant impugned marriage but he held that the marriage is bad in view of Section 30 of the Special Marriage Act and granted a decree of nullity. Hence this appeal by the husband.
( 2 ) THE first point that is pressed by Mr. Himangshu Kumar Bose, the learned Advocate for the appellant, is to the effect that the learned Judge erred in applying Section 30 of the Special Marriage Act to this impugned marriage. In our view, he is quite justified in this criticism of the learned Judge's judgment. Section 30 of the Special Marriage Act, as it stands, would apply to the dissolution of a marriage under the Special Marriage Act. Here the marriage with Susama was dissolved, not under the Special Marriage Act, but under Section 13 (1) (v) of the Hindu Marriage Act.
( 3 ) MR. Amarendra Mohan Mitra, learned Advocate appearing on behalf of the respondent, however submits that Section 15 of the Hindu Marriage Act would also apply and that accordingly the marriage between the appellant and Susama must be deemed to be subsisting on the 21st of April. 1964, when the appellant and Kajal entered into a marriage under the provisions of the Special Marriage Act. Section 15 of the Hindu Marriage Act stands as follows:--"when a marriage has been dissolved by a dec
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