Section 15 of the Hindu Marriage Act, 1955, which allows either party to remarry after a decree of divorce, also applies to cases where the marriage has been annulled.

R.P.SETHI, J.

1. Alleging her to be impotent the respondent-husband filed a petition and obtained a decree for annulment of the marriage against the appellant-wife. Her appeal filed in this Court was dismissed as having become infructuous on the ground of the respondent-husband solemnising the second marriage after obtaining the degree. Vide judgement impugned in this appeal, the learned single Judge relying upon the earlier judgment of this Court entitled Promod Sharma V/s. Smt. Radha, AIR 1976 Punj and Har 355 ; Karam Singh V/s. Smt. Amro, (1970) 72 Pun LR 503 and Smt. Lalita Gupta V/s. Parveen Kumar Mahajan, 1991 (1) 99 Pun LR 638 held that provisions of Sec. 15 of the Hindu Marriage Act, 1955 (for short the Act) were not applicable in the case where the marriage has been dissolved by a decree of annulment and that if the other party solemnises the second marriage, his or her appeal would be deemed to have become infructuous.

2. The facts giving rise to the filing of the present appeal are that the marriage between the parties was solemnised at Ludhiana on 26-2-1976. The husband allege that on the very first night of the marriage he discovered that the appellant-wife was incapable of sexual intercourse rendering the marriage nullity. The wife on the other hand pleaded that it was the husband who failed to consummate the marriage for want of erection of his penis. She further submitted that on the first night after their marriage the petitioner had feigned that he was suffering from head-ache and had excused himself from having any sexual intercourse. Even on the following night he did not oblige the wife for sex again and later admitted that he was not capable of having sexual intercourse but assured the wife that he would get himself medically examined and by getting adequate treatment may be in a position to consummate the marriage. The trial Court vide its judgment delivered on 22-9-1983 allowed the application of the husband and annulled the marriage between the parties. The wife filed F.A.O. No. 162-M of 1983 in this Court praying for setting aside the judgment and decree of the trial Court. During the pendency of the appeal, the husband filed Civil Misc. No. 4642-CII of 1984 praying that the appeal be dismissed as having become infructuous which was accepted vide judgment impugned in this appeal. Section 15 of the Act provides:

"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."

3. While interpreting the ambit and scope of S. 15 of the Act, a Division Bench of this Court in Promod Sharmas case (supra) came to the conclusion that the second marriage solemnised after the passing of the decree of nullity under S.12 of the Act before the issuance of any stay order rendered the appeal of the wife against the judgment of nullity infructuous. Similarly, another Division Bench of this Court in Lalita Guptas case (1991 (1) Pun LR 638) followed the earlier judgment and held as under:

".... Sec. 15 of the Act provides that 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 any 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. However, there is no such provision if the marriage has bean declared to be a nullity as provided under S. 12 of the Act."

4. It appears that in Promod Sharmas case (supra) and Lalita Guptas case (supra) this Court did not take note of the provisions of Secs. 23 and 28 of the Act. Sec. 23 of the Act unambiguously provides that no party to the Hindu Marriag