LILA GUPTA Vs LAXMI NARAIN & ORS
Supreme Court of India (Full Bench (FB)- Three Judge)
Appeal (Civil), 2585 of 1969, Judgment Date: May 04, 1978
HELD :
(1) Examining the matter from all possible angles and keeping in view the fact that the scheme of the Act provides for, treating certain marriages void and simultaneously some
marriages which are made punishable yet not void and no consequences having been provided for in respect of the marriage in contravention of the proviso to s. 15 of the Hindu Marriage Act, 1955 it cannot be said that such marriage would be void. In the instant case, as the marriage of the appellant, even though in contravention of the provisions of Section 15 is not void, she cannot be denied the status of wife and, therefore the widow of
deceased Rajendra Kumar and in that capacity as an heir to him. [937 D-F]
(2)A comprehensive review of the relevant provisions of the Act unmistakably manifests the legislative thrust that every marriagesolemnised in contraventionor one of other condition prescribed for valid marriage is not void. These express provisions in the Act would show that Parliament was aware about treating any specific marriage void and only specific marriages punishable. This express provision prima facie would go a long way to negative any suggestion of a marriage being void though not covered by s. 11 such as in breach of proviso to S. 15 as being void by necessary implication. The net effect of it is that at any rate Parliament did not think fit to treat such marriage void or that it ’is so opposed to public policy as to make it punishable. [929 A-B, F-G] 923
(3) While enacting the legislation the framers had in mind, the question of treating certain marriages void and provided for the same. Itwould, 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 s. 5, each of the six conditions was not considered as sacrosanct as to render marriage in breach of each of it void. Even where a marriage in breach of a certain condition is made punishable under s. 18 of the Act, yet the law does not treat it as void. The marriage in breach of the proviso is neither punishable nor does s. 11 treat it as void. It would not be fair to attribute the 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 validness 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. [930 D-E, G-H. 931 A] In the Act 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 riot possible to infer nullity in respect of a marriage contracted by a person under incapacity prescribed by the proviso. [931 D-E]
(5) Undoubtedly, the proviso opens with a prohibition that "It shall not be lawful" etc. It is not an absolute prohibition violation of which would render the Actanullity. 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 marriage for a period of one year from the date of the decree of divorce. The inhibition for a period does not 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. [931 F-G]
(6)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 donetherebymaking it unlawful without providing for consequence of the breach,it is not legitimate to say that such a thing when done is voidbecausethat would tantamount to saying that every unlawful act is void. [931 G-H, 932 A]
(7)Undoubtedly, where a prohibition is enacted in public interest its violation should not be treated lightly. A valid Hindu marriage subsists duringthelife time of either party to the marriage until it is dissolved by a decree of divorce at the instance of either party to the marriage. A decree of divorce break-. the marriage tie. Incapacity for marriage of such persons whose marriage is dissolved by a decree of divorce for a period of one year was presumably enacted to allay apprehension that divorce was sought only for contracting another marriage or to avoid dispute about the parentage of children. There was some such time lag provided in comparable divorce laws and possibly such a proviso was, therefore, considered proper and that appears to be the purpose ofobject behind enacting the proviso to s. 15. It appears to be purely a regulatory measure for avoiding a possible confusion. If it was so sacrosanct that
its violation would render the marriage void, it is riot possible to appreciate why the Parliament completely dropped it The proviso to s. 15 is deleted by s. 9 of the Marriage Laws (Amendment) Act, 1976. The net result is that now since the amendment parties whose marriage is dissolved by a decree of divorce can contract marriage soon thereafter provided of
course the period of appeal has expired. This will reinforce the contention that such marriage is not void. The fact that neither spouse could until the time for appealing had expired, in no way affects the fall operation of the decree. It is a judgment in rem unless and until a court of appeal reversed it, the marriage for all purposesis at an end. [932 C-H, 933 A, E-F]
Chandra Mohini Srivastava v. Avinash Prasad
Srivastava & Anr. [1967] 1 SCR 864; Marsh v.
Marsh, AIR 1945 PC 188 referred to.
(8)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 mention. 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 s. 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 them being a 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 thataccount it cannot be said that the marriage subsists beyond the date of decree of divorce. Section 13 which provides for divorce terms says thata, 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. [933 F-H,934 A]
(9) An incapacity forsecond marriage for a certain period does not haveeffect of treating the former marriage as subsisting. During the period ofincapacity the parties
cannot be said to be the spouses within the meaning of cl.
(i),sub-s. (1) of s. 5. The ’spouse’ has been understood to
connote a husband or a wife which term itself postulates a
subsisting marriage. The ’spouse’ in sub-section (1) of s.
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
(cl) (i),sub-s. (1) of s. 5 by its very context would not
include within its meaning the expression ’former spouse’.
[934 B-C]
(10)A mere glance at s. 15 of the Act and s. 57 of the
Indian Divorce Act would clearly show that the provisions
are not in pari materia. [935 E]
Warter v. Warter, [1890] 15 Probate Division
152; J. Battie v. G. E. Brown, AIR 1916 Madras
847; Turner v. Turner, A.I.R. 1921 Cal. 517;
Jackson v. Jackson, ILR 34 Allahabad 203
explained, Uma Charan Roy v. Smt. Kajal Roy,
AIR 1971 Cal. 307 overhead.
(11)UndertheMohammadan law after the divorce the
traditional law did not permit a divorced wife to contract
second marriage during the period of Iddat and in thepast
such marriage was considered void. The discernible public
policy behind treating such marriage void was confusion
about the parentage of thechild, if the woman was pregnant
at the time of divorce. The marriage was treated void
interpreting a certain text of the Hanafi law.Recent
trend, however, is that under theMohmadan Law a marriage of
a woman undergoing iddat is not void but merely irregular.
[936 F-H]
If public policy behind prohibiting marriage of a woman
undergoing iddat and persons who are prohibited from
marrying for a period of one year from the date of the
decree dissolving their marriage is the same, viz., to avoid
confusion about the parentage of the child which may have
been conceived or the divorce sought to be obtained only for
contracting second marriage, then the same conclusion may
follow that such regulatory prohibition if violated or
contravened could not render the marriage void. [937 B-C]
925
Muhammad Hayat v. Muhammad Nawaz, [1935] 17 L.R. Lah. 48
followed.
(12)Voidness of marriage unless statutorily Provided for is
not to be inferred. A reference to Child Marriage Restraint
Act would also show that the child Marriages Restraint Act
was enacted to carry forward the reformist movement of
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provision of the Child Marriage Restraint Act punishable,
simultaneously it did not render the marriage void. [937 C-
D]
Pathak, J (concurring) :
(1)No doubt. the question of the validity of a marriage
deserves an especial care and the greatest caution must be
exercised before a marriage is declared void. The
contention that unless the statute specifically declares a
marriage to be a nullity, it cannot be pronounced so by the
Courtsis not correct. The intrinsic evidence provided by
the language of. the statute the context in which the
provision findsplace and the object intended to be served
is of equal validity. [938 G-H, 939 A]
The argument that the proviso to s. 15 of the Hindu Marriage
Act is directory and not mandatory because a marriage
solemnised in violation of it has not been declared a
nullity by the statue cannot be accepted. [939 F]
Catterall v. Sweetman, (1845) 9 Jur. 951, 954;
Chichester v. Mure (falsely called
Chichester), (1863)3, Sw. & Tr., 223; Rogers,
otherwise Briscoe (falsely called Halmshaw) v.
Halmshaw, (1864)3, Sw. & Tr. 509; explained
and distinguished.
(i)A marriage performed in violation of the proviso to s.
15 of the Hindu Marriage Act is not void. [940 D]
(a)The object behind the restraint imposed by the proviso
to s. 15 is to provide a disincentive to a hasty action for
divorce by a husband anxious to marry another woman, and
also the desire to avoid the possibility of confusion in
parentage of the child by her husband under the earlier
marriage. [939 G-H]
59th Report of Law Commission of India P. 29 referred to.
(b)A statutory provision may be construed as mandatory
when the object underlying it would be defeated but for
strict compliance with the pro"vision. No serious
discouragement is provided by the proviso to s. 15 to a
husband anxious to marry another woman, The impediment
provided by the proviso to s. 15 is a temporary one and
ceases on the expiration of the period of one year. The
proviso proceeds on the assumption that the decree
dissolving the marriage is a final decree, and merely
attempts to postpone the remarriage. It does not take into
account the defensibility of the decree in virtue of an
appeal. The defensibility of thedecreebecause an appeal
has been provided is a matter with which the main provisions
of s. 15 is concerned. Further evidence that the
proviso to s. 15 is directory only is provided by its
deletion altogether by Parliament by the Marriage Laws
Reforms Act, 1976. [940 A-C]
Umacharan Roy v. Smt. Kajal Roy, AIR 1971 Cal. 307
disapproved.
(b)The intention to safeguard against a confusion in
parentage is perhaps based on the principle in Mahommedan
Law which places a ban on marriage with a divorced or
widowed woman before the completion of her iddat. A
marriage performed during the period of Iddat is an
irregular marriage only andnota void marriage. In the
instant case, the marriage of Rajendra Kumar with the
appellant is not void and she is entitled to be considered
as his wife. [940 C-D & F]
926
Mohammad Hayat v. Mahammad Nawaz, (1935) 17 L.R. 17 Lah. 48
applied.
(iii)The two tests sought to be employed in the
construction of the proviso to s. 15, that istosay that a
marriage although in violation of. the statute is not void
because the legislature has not expressly declared it to be
so and also because the legislature has made no provision
for legitimating the offspring of such a marriage need to be
viewed with caution. These are tests which could equally be
invokedto the construction of the main provision of section
15. The conclusion that provision is directory and not
mandatory does not necessarily follow. [940 G-H]
The main provision’ of s. 15 provides that when a marriage
has been dissolved by a decree of divorce, either party to
the marriage may marryagain, if there is no legal 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 having been presented
has been dismissed. In other words, the right to remarriage
shall not be exercised before the decree of divorce has
reached finality. The English Law and the decisions of the
Australian High Court and Indian High Courts which involved
the application of s. 57 Indian DivorceActindicate that a
marriagesolemnised before the expiry of the period of
limitation for presenting an appeal or where an appeal has
been presented, during the pendency oftheappealmust be
regarded as a void marriage. [941 A-B]
The main provision of s. 15 of the Hindu Marriage Act, which
bearsalmost identical resemblance to the relevant statutory
provisionsinthecases ’mentioned above, would perhaps
attract a similar conclusion in regard to its construction.
At the lowest, there is good ground for saying that a
contention that a marriage solemnized in violation of the
main provision of s. 15 is a nullity cannot be summarily
rejected. [942 E-F]
Chichester v. Mure (falsely called Chichester)
(1863) 3, SW. & Tr., 223,Warter v. Warter,
(1890) 15 P., 152; Le Mesurier v. Le
Mesuricer, (1929) 46 T.L.R., 203;Doettcher v.
Doettcher, (1949) Weekly Notes, 83; Miller v.
Teale, (1954-55) 92 C.L.R. 406; J. S. Batt’ v.
G. E. Brown, AIR 1916 Mad. 847; Turner v.
Turner, AIR 1921 Cal. 517; Jackson v. Jackson,
ILR 34 All. 203; referred to.
LILA GUPTA Vs LAXMI NARAIN & ORS