In the case at hand, the petitioner-husband
solemnized his second marriage only after obtaining a decree of
divorce. When he solemnized his second marriage after the
decree of divorce, the second marriage, notwithstanding the
fact that the ex parte decree of divorce has, now, been set
aside, cannot be treated as a nullity. In fact, even when a
person solemnizes his second marriage, before the expiry of
the statutory period of appeal, his second marriage is still not a
nullity inasmuch as Section 5 of the Hindu Marriage, Act, 1955,
permits solemnization of marriage between two Hindus if
neither party has „spouse’ living at the time of marriage. In
order to, therefore, treat the subsequent marriage a nullity, it
will have to be presumed that the parties to the divorce are still
spouses even when their marriage has been dissolved by a
decree of divorce. This is legally not permissible inasmuch as a
decree of divorce, unless stayed by an order of superior court,
snaps the relationship between the parties and, hence, they are
not treated as spouse or else, such second marriage, prior to
expiry of appeal period, would have rendered the subsequent
marriage void under Section 11 of the Hindu Marriage Act,
1955.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Review No.4 of 2016
IN
MA 513 of 2009
Sri Rajesh Kumar
Versus
Smt. Pushpa Rani
Citation: 2016 SCC OnLine Pat 4639
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. NILU AGRAWAL
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date: 16-09-2016
Whether dismissal of a Special Leave Petition by
the Supreme Court against an order, passed in an appeal
arising out of a decree granted for judicial separation, bar a
petition for review of the appellate decree, whereby the
decree for judicial separation stood set aside? Subsequent to
the granting of decree for judicial separation, when a
marriage is dissolved by a decree of divorce and one of the
parties after the decree of divorce had solemnized his
marriage and fathered children, whether these facts are
relevant for consideration at the time, when an appellate
Court considers the sustainability of the decree for judicial
separation? What are the fall out or the effect, when a
person, having received the decree for judicial separation
applies, for divorce, the decree for dissolution is granted and
he remarries and fathers children? Whether these facts are
relevant for consideration, in an appeal, which arises out of
the decree for judicial separation, and whether these facts, if
relevant, have a bearing on outcome of appeal? Whether such
a development, which is subsequent to the granting of a
decree for judicial separation, is an aspect, which must
necessarily be taken into account by appellate Court before it
chooses to interfere with the decree for judicial separation?
These are, amongst others, some of the important questions,
which the present review petition has raised.
2. The material facts, which have given rise to the
present review application, may, in brief, be set out as under:
(i) The petitioner-husband made an
application, under Section 13 of the Hindu Marriage Act, 1955
(hereinafter referred to as „the Act‟), seeking a decree of
divorce on the ground of cruelty and desertion. This
application gave rise to Matrimonial Case No. 567 of 2007, in
the Family Court, Patna. Attempts made for conciliation,
during the course of matrimonial proceeding having failed on
25.04.2008, the learned Principal Judge, Family Court, Patna,
made, on 22.07.2008, an interim order restraining the parties,
i.e., the petitioner-husband and the respondent-wife, from
visiting each other‟s house during the pendency of the
matrimonial proceeding unless they allow each other‟s visit to
their respective houses with free consent.
(ii) The respondent-wife herein challenged the
order, dated 22.07.2008, before this Court in Civil Revision
No.1181 of 2008. However, this Court, on 12.01.2009, while
declining to interfere with the order, dated 22.07.2008,
directed the learned Principal Judge, Family Court, Patna, to
dispose of the matrimonial proceedings within three months.
(iii) Finally, the matrimonial proceedings
culminated into a decree, dated 11.08.2009, for judicial
separation instead of dissolution of marriage. As many as 14
(fourteen) instances of cruelty by the wife were cited in the
matrimonial proceedings and 6 (six) more grounds of cruelty
were evinced during the course of the evidence in support of
the order of judicial separation passed by the learned Principal
Judge, Family Court, Patna. The respondent-wife, thereafter,
filed Misc. Appeal No.513 of 2009 against the decree for
judicial separation, dated 11.08.2009. During the pendency of
Misc. Appeal No.513 of 2009, this Court, too, made efforts for
reconciliation in Misc. Appeal No. 513 of 2009, but the same
failed.
(iv) A period of one year having elapsed since
the decree for judicial separation had been passed and as
there was no resumption of cohabitation between the parties
to the marriage for a period of one year since after passing of
the decree for judicial separation, the petitioner-husband
instituted Matrimonial Case No. 646 of 2010, in the Family
Court, Patna, seeking a decree for dissolution of marriage
under Section 13(1-A)(i) of the Act on the ground that there
was no cohabitation between the parties for the past one year
since after the decree for judicial separation was passed.
(v) At the instance of the respondent-wife, the
said Matrimonial Case No.646 of 2010 was transferred to the
Court of learned Principal Judge, Family Court, Allahabad.
Though it was at the instance of the respondent-wife that the
Matrimonial Case No.646 of 2010 had been transferred to the
learned Principal Judge, Family Court, Allahabad, the
respondent wife had appeared in Matrimonial Case No.646 of
2010 and filed a written statement, but she, thereafter,
abstained from the proceeding and the case, thus, remained
unattended. Since respondent-wife defaulted in pursuing her
case after having filed written statement, the learned Principal
Judge, Family Court, Allahabad, proceeded ex parte in
Matrimonial Case No. 646 of 2010. By the ex parte judgment
and decree, dated 24.01.2013, the learned Principal Judge,
Family Court, Allahabad, dissolved the marriage on the ground
that by order, dated 11.08.2009, passed by the learned
Principal Judge, Family Court, Patna, in Misc. Case No.513 of
2009, both the parties stood judicially separated for more
than one year.
(vi) Thereafter, the petitioner-husband
remarried, on 12.05.2013, after the expiry of the period of
limitation for filing appeal, as envisaged by Section 28 of the
Hindu Marriage Act, 1955, was over. From the marriage,
which so took place, two children were born.
(vii) Aggrieved by the ex parte judgment and
decree, dated 24.01.2013, the respondent wife filed Misc.
Case No.11 of 2013, under Order 9 Rule 13 of the Code of
Civil Procedure, in the Family Court, Allahabad. Following this
application, the earlier ex parte judgment and decree for
dissolution of marriage, dated 24.01.2013, aforementioned,
came to be set aside by order, dated 18.10.2013, which, at
the instance of petitioner-husband, has been impugned in the
First Appeal No.100 of 2014 in the High Court of Allahabad,
inasmuch as the decree for dissolution of marriage came to be
set aside after the petitioner had, as already indicated above,
remarried.
(viii) However, the Misc. Appeal No. 513 of
2009, which had arisen out of decree for judicial separation,
was heard and by order, dated 23.07.2015, the decree for
judicial separation granted on the ground of cruelty, by the
learned Principal Judge, Family Court, Patna, was set aside.
(ix) Aggrieved by the order, dated 23.07.2015,
passed by this Court, in Misc. Appeal No. 513 of 2009, the
petitioner-husband preferred an appeal before the Supreme
Court through Special Leave Petition (Civil) No.29992 of 2015,
which was dismissed, on 30.10.2015, without assigning any
reason therefore.
(x) The petitioner-husband has, now, filed this
petition seeking review of the order, dated 23.07.2015,
passed in Matrimonial Appeal No. 513 of 2009.
3. Broadly speaking, the petitioner-husband
has sought for review of the order, dated 23.07.2015,
aforementioned, primarily, on the ground that while hearing
the appeal, it escaped the attention of the Court that the
period of limitation for preferring appeal against the decree for
dissolution of marriage having elapsed, the petitioner-husband
had already remarried and had two children from his second
marriage. These were such facts, which could not have been
ignored inasmuch as any interference with the decree for
judicial separation would not put the parties, to the decree for
judicial separation, in the same position in which they were
before the decree for judicial separation, was granted
inasmuch as the parties to the decree for judicial separation,
on the date of decree for judicial separation, were married to
each other, whereas, since after the passing of the decree for
judicial separation, a third party had entered the scene, third
party being petitioner-husband‟s second wife and her two
children. When Court cannot put the parties in the same
position in which they were, if the decree for judicial
separation is interfered with and set aside, it makes the
appeal infructuous and the Court should not, it is contended,
interfere with such a decree for judicial separation; more so,
when there was no order of stay against the decree for judicial
separation restraining the petitioner-husband or causing any
impediment on his right to apply for divorce, though the
question, whether he was entitled to the divorce or not, is
altogether a different question. This apart, interference with
the decree would not only render the second marriage illegal,
but also render the two children, who where otherwise
legitimate, as illegal children, causing, thus, irreparable harm
and damage to two minor children, who are innocent and,
secondly, there was enough material showing that the
petitioner-husband had been subjected to mental cruelty by
his wife and, therefore, on this ground, too, the order, dated
23.07.2015, allowing the Misc. Appeal No. 513 of 2009, needs
to be reviewed.
4. We make it clear that we do not deem it
proper to review judgment and decree, dated 23.07.2015,
aforementioned, on the ground that there was enough
materials proving that the respondent-wife had subjected the
petitioner-husband to cruelty inasmuch as re-examination of
the evidence for the purposes of determining if our finding, on
the question of cruelty, had been correctly reached or not,
would amount to rehearing of the appeal, which is not
permissible in law. The only ground, therefore, of seeking
review of the decree dated 23.07.2015, is: Whether this
Court, in the light of the developments, which had taken place
subsequent to granting of the decree for judicial separation,
ought to have held that since there was no order of stay
against the decree for judicial separation and, on the basis of
this decree, the marriage having been dissolved by a decree
of divorce, the petitioner-husband having already re-married,
he having children, the appeal, in question, became
infructuous.
5. We have heard Mr. Y.V. Giri, learned Senior
Counsel, appearing for the petitioner-husband, and Mr. S.D.
Sanjay, learned Senior Counsel, appearing for the wiferespondent.
6. Mr. S.D. Sanjay, learned Senior Counsel,
appearing for the wife-respondent, has opposed the
maintainability of the review application on the ground that
the Special Leave Petition (Civil) No. 29992 of 2015, which the
petitioner-husband had preferred against the order, dated
23.07.2015, passed in Misc. Appeal No.513 of 2009, setting
aside the decree for judicial separation, having been dismissed
by the Supreme Court on 30.10.2015, the order, dated
23.07.2015, passed in Misc. Appeal No. 513 of 2009, has
attained finality and cannot be re-opened inasmuch as the
order, dated 23.07.2015, has, according to Mr. S. D. Sanjay,
learned Senior Counsel, merged into the order, dated
30.10.2015, passed by the Supreme Court in Special Leave
Petition.
7. The resistance so offered at the threshold
has been seriously controverted by Mr. Y.V. Giri, learned
Senior Counsel, appearing on behalf of the petitionerhusband,
by contending that dismissal of Special Leave
Petition by the Supreme Court without assigning any reason
therefor does not bar filing of review petition against the
order, which was impugned in the Special Leave Petition
inasmuch as doctrine of merger, contends Mr. Giri, learned
Senior Counsel, does not apply to such a case. In support of
this submission, Mr. Giri, placed reliance on the decision in
Kunhayammed Vs. State of Kerala, reported in 2000(6)
SCC 359.
8. Reacting to what has been submitted by Mr.
Giri, learned Senior Counsel, to show that this review petition
is maintainable, Mr. S. D. Sanjay, learned Senior Counsel, has
referred to the decisions, in Meghmala and others Vs. G.
Narasimha Reddy and others, reported in (2010) 8 SCC
383, and also to the decision of the Supreme Court, dated
19th October, 2012, made in Khoday Distilleries Ltd. and
others Vs. Mahadeshwara S.S.K. Ltd. (Special Leave
Petition (Civil) No. 490 of 2012), wherein the Supreme
Court, having found that there are contradictory decisions on
the question of maintainability of review after dismissal of
Special Leave Petition, has referred the matter to a larger
Bench for authoritative pronouncement.
9. While considering the question as to whether
a review petition would stand barred if it is filed after
dismissal of the Special Leave Petition, the relevant
observations made, in Meghmala (supra), and relied upon by
Mr. S. D. Sanjay, learned Senior Counsel, appearing at
paragraph 25, are reproduced hereinbelow:
“25. Thus, the law on the issue stands
crystallized to the effect that in case a litigant
files a review petition before filing the special
leave petition before this Court and it remains
pending till the special leave petition stands
dismissed, the review petition deserves to be
considered. In case it is filed subsequent to
dismissal of the special leave petition, the
process of filing review application amounts to
abuse of process of the court.
10. What the decision, in Meghmala (supra),
thus, lays down that if review petition has been filed before
the Special Leave Petition is filed and dismissed, the review
petition still remains pending for consideration and deserves
to be considered. However, if such an application for review
was made after dismissal of the review petition, then, the
process of filing of such a review application would amount to
abuse of process of the Court and would, therefore, not be
possible. The conclusion, so arrived at, in Meghmala (supra),
runs contrary to the law laid in Kunhayammed (supra),
wherein the Court has held that if the leave to appeal has not
been granted at the very threshold without entering into the
appellate jurisdiction, the doctrine of merger would not apply
and, therefore, dismissal of the Special Leave Petition without
assigning any reason would not subsume the order against
which the Special Leave Petition was filed. Hence, in the light
of decision, in Kunhayammed (supra), notwithstanding the
dismissal of a Special Leave Petition, review petition is still
maintainable. The position of law, in this regard, has been
summed up, at paragraph 44, in Kunhayammed (supra), in
the following words:
“44. To sum up, our conclusions are :
(i) Where an appeal or revision is provided
against an decree passed by a court, tribunal
or any other authority before superior forum
and such superior forum modifies, reverses or
affirms the decision put in issue before it, the
decision by the subordinate forum merges in
the decision by the superior forum and it is
the latter which subsists, remains operative
and is capable of enforcement in the eye of
the law.
(ii) The jurisdiction conferred by Article 136 of
the Constitution is divisible into two stages.
The first stage is up to the disposal of prayer
for special leave to file an appeal. The second
stage commences if and when the leave to
appeal is granted and the special leave
petition is converted into an appeal.
(iii) The doctrine of merger is not a doctrine
of universal or unlimited application. It will
depend on the nature of jurisdiction exercised
by the superior forum and the content or
subject-matter of challenge laid or capable of
being laid shall be determinative of the
applicability of merger. The superior
jurisdiction should be capable of reversing,
modifying or affirming the decree put in issue
before it. Under Article 136 of the Constitution
the Supreme Court may reverse, modify or
affirm the judgment-decree or decree
appealed against while exercising its appellate
jurisdiction and not while exercising the
discretionary jurisdiction disposing of petition
for special leave to appeal. The doctrine of
merger can therefore be applied to the former
and not to the latter.”
11. There does exist a distinction between an
appeal and a leave to apply for appeal. When an appeal is
provided and the appeal is preferred, the appeal stands
instituted; but when a leave for appeal is applied, then, until
the leave is, in such a situation, granted, there is really no
appeal. Hence, the disposal of the Special Leave Petition or of
any petition for leave to appeal does not subsume the order
from which the appeal arose, for, with the rejection of the
petition for leave, no appeal survived. Article 136 of the
Constitution of India deals with 'special leave to appeal', which
may be granted by the Supreme Court. When special leave to
appeal is dismissed/disallowed by the Supreme Court with or
without a speaking order, the order from which the appeal
arose does not merge into such an order, for, as already
indicated hereinabove, with the dismissal of the Special Leave
Petition, no appeal survives and no appeal can be said to have
been borne and considered. In fact, when the special leave to
appeal is declined, there is no appeal. Hence, question of the
merger of the order into the order declining to grant special
leave to appeal would not, in the light of Kunhayammed
(supra), arise at all.
12. In the light of what have been held in
Kunhayammed (supra), the principles laid down there being
three Judge Bench is still binding on us inasmuch as the
reference, made to a larger Bench by the order passed by the
three Judge Bench in Khoday Distilleries Ltd. (supra), has
not laid down any law, as indicated above, and only referred
the matter to a larger Bench. The decision, in Meghmala
(supra), being a two Judge Bench, we are presently bound by
the decision in Kunhayammed (supra), which lays down that
if a Special Leave Petition is dismissed in limine without the
appeal having came into existence, because of the leave having
been declined, the doctrine of merger will not apply and,
therefore, a petition for review of the order of the High Court
remains open.
13. Situated thus, we are clearly of the view that
in the light of the decision in Kunhayammed (supra), this
Court does have the power to review if a case for review is
made out.
14. Let us, now, deal with the rival submissions
made by both the parties and determine the scope and ambit of
the power of review of the High Court.
15. Before we enter into the question as to
whether the judgment and order, under review, call for review,
apposite it is, in our considered view, to bear in mind, that the
scope of review, which has undergone, as the days have rolled
by, some significant changes inasmuch as there was a time,
when it was considered impermissible to review a judgment
and order unless a statute provides therefor; but, the Courts,
with the passage of time, have concluded that justice is, after
all, a virtue, which must prevail over all barriers and that the
rules, procedures or technicalities of law must, if necessary,
bend before justice and that such a situation may arise, when a
court finds that it has rendered a decision, which it would not
have rendered, but for an assumption of fact, which, in fact, did
not exist and its adherence to such a faulty decision would
result in miscarriage of justice. In such cases, nothing can
prevent a court from rectifying its own error, because the
doctrine of "actus curiae neminem gravabit", (i.e., an act of
court shall prejudice none), can be invoked, in such a case, for
correcting the error committed by the court.
16. Similarly, at one point of time, it was
considered to be a rule of universal application that review by a
court of its order is not possible except on three prescribed
grounds, namely, (i) discovery of new and important matter or
evidence, which, after the exercise of due diligence, was not
within the applicant's knowledge or could not be produced by
him at the time, when the decree or order was passed, (ii)
mistake or error apparent on the face of the record or (iii) any
such sufficient ground, which is analogous to the two grounds
aforementioned. However, it has, now, surfaced in the light of
the judicial pronouncements, that the expression, „any
sufficient ground’, must be analogous to the two grounds
aforementioned, is no longer a rule of universal application.
17. A review of a judgment and order is, therefore,
permissible, where a glaring omission or patent mistake or
grave error has crept in, because of judicial fallibility.
18. This Court must remain mindful of the basic
principle of review that a review is not a rehearing of a matter
on merits and cannot be lightly entertained by the Court.
Observed the Supreme Court, in Sow Chandra Kanta v. Sk.
Habib, reported in (1975) 1 SCC 674, thus:
“A review of a judgment is a serious
step and reluctant resort to it is proper only where
a glaring omission or patent mistake or like grave
error has crept in earlier by judicial fallibility. A
mere repetition, through different counsel, of old
and overruled arguments, a second trip over
ineffectually covered ground or minor mistakes of
inconsequential import are obviously insufficient.
The very strict need for compliance with these
factors is the rationale behind the insistence of
counsels certificate, which should be a routine affair
or a habitual step.”
19. Yet another principle of review is that the
power of review has to be exercised to prevent miscarriage of
justice or correct grave and palpable error. Laid down the
Supreme Court, in Aribam Tuleshwar Sharma v. Aibam
Pishak Sharma, reported in (1979) 4 SCC 389, following its
earlier decision in the case of Shivdeo Singh v. State of
Punjab (AIR 1963 SC 1009) as follows:
“There is nothing in Article 226 of the
Constitution to preclude a High Court from
exercising the power of review which inheres in
every court of plenary jurisdiction to prevent
miscarriage of justice or to correct grave and
palpable errors committed by it. But, there are
definitive limits to the exercise of the power of
review. The power of review may be exercised on
the discovery of new and important matter or
evidence which, after the exercise of due diligence
was not within the knowledge of the person seeking
the review or could not be produced by him at the
time when the order was made; it may be
exercised where some mistake or error apparent on
the face of the record is found; it may also be
exercised on the ground that the decision was
erroneous on merits. That would be the province of
a court of appeal. A power of review is not to be
confused with appellate powers, which may enable
an appellate court to correct all manner of errors
committed by the subordinate court.”
(Emphasis is supplied)
20. From the underlined portion, it becomes
transparent that while an appellate Court is empowered to
correct all matters of error committed by the subordinate court,
review can be allowed on limited grounds and that the review
cannot be sought for, much less allowed, on the ground that
the decision was erroneous on merits inasmuch as such an
aspect would be exclusively within the province of appellate
court. Dealing with this aspect of review jurisdiction, the
Supreme Court, in Northern India Caterers (India) Ltd. v.
Lt. Governor of Delhi (AIR 1980 SC 674), observed, thus:
“Whatever be the nature of the
proceeding, it is beyond dispute that a review
proceeding cannot be equated with the original
hearing of the case and the finality of the judgment
delivered by the Court will not be reconsidered
except where a glaring omission or patent
mistake or like grave error has crept in earlier
by judicial fallibility.”
(Emphasis is added)
21. It must be, however, kept in mind that the
above observations were made by the Supreme Court, while
considering the scope of Article 137 of the Constitution read
with Order 47 Rule 1 CPC and Order XL Rule 1 of the Supreme
Court Rules, and held, in Northern India Caterers (India)
Ltd.(supra), as follows:
“It is well settled that a party is not
entitled to seek a review of a judgment merely for
the purpose of a rehearing and a fresh decision of
the case. The general principle is that a judgment
pronounced by a court is final and departure from
this principle is justified only when circumstances of
a substantial and compelling character make it
necessary to do so”.
22. For instance, if the attention of the Court was
not drawn to a material statutory provision during the original
hearing, the Court will review its judgment. (See, Girdhari Lal
Gupta v. D. H. Mehta and Another (AIR 1971 SC 2162).
The Court may also reopen its judgment if a manifest wrong
has been done and it is necessary to pass an order to do full
and effective justice. (See, O.N. Mohindroo v. The District
Judge, Delhi and Another (AIR 1971 SC 107) and
Northern India Caterers (India) Ltd. (supra).
23. It follows, therefore, that the power of review
can be exercised for correction of a mistake, but not to
substitute a view. Such powers can be exercised within the
limits of the statute dealing with the exercise of power. A
review cannot be treated as an appeal in disguise. The mere
possibility of two views on the subject is not a ground for
review. Once a review petition is dismissed, no further petition
for review can be entertained.
24. While considering the scope of the power of
review, what needs to be noted is that under Section 114 of the
Code, any person, considering himself aggrieved by a decree or
order of a court from which appeal is allowed, but no appeal is
preferred, or where there is no provision for appeal against the
order or decree, may apply for review of the decree or order,
as the case may be, in the court, which made the order or
passed the decree.
25. Broadly speaking, thus, under Section 114 of
the Code, review of a decree or order is possible if no appeal is
provided against such a decree or order or where provisions for
appeal exist, but no appeal has been preferred. This is really
the substantive power of review. This substantive power of
review under Section 114 has not laid down any condition as a
condition precedent for exercise of the power of review nor has
Section 114 imposed any fetters on the court's power to review
its decision. No wonder, therefore, that the Supreme Court, in
Board of Control for Cricket, India and Another v. Netaji
Cricket Club and Others (AIR 2005 SC 592), observed:
“We are, furthermore, of the opinion
that the jurisdiction of the High Court in
entertaining a review application cannot be said to
be ex facie bad in law. Section 114 of the Code
empowers a court to review its order if the
conditions precedents laid down therein are
satisfied. The substantive provision of law does
not prescribe any limitation on the power of
the court except those, which are expressly
provided in Section 114 of the Code in terms
whereof, it is empowered to make such order
as it thinks fit.”
(Emphasis is added)
26. Lest the subtle but real distinction existing
between the power of review, on the one hand, and the power
of an appellate court, on the other, disappears completely,
Order 47, Rule 1 circumscribes a court's power of review by
specifying the three grounds on which review is possible, the
specific grounds being, (i) discovery of new and important
matter or evidence, which, after the exercise of due diligence,
was not within the applicant's knowledge or could not be
produced by him at the time, when the decree or order was
passed, (ii) mistake or error apparent on the face of the record
and (iii) for "any other sufficient reason".
27. Having taken into account the said three
grounds, which Order 47, Rule 1 embodies as the grounds for
review, the Supreme Court, in Moran Mar Basselios
Cathlicos v. Mar Poulose Athanasius reported in (2005) 4
SCC 741, held that power of review is circumscribed by the
three grounds, which have been specified in Order 47, Rule 1.
28. Explaining the scope of the third ground of
review mentioned in Order 47, Rule 1, namely, "any other
sufficient reason", the Supreme Court, in Moran Mar
Basselios Cathlicos (supra), held that "any other sufficient
reason" cannot be "any sufficient reason", but a reason, which
is "sufficient" and, at the same time, at least, "analogous" to
one of the two reasons as indicated hereinbefore, namely, (i)
discovery of new and important matter or evidence, which,
after the exercise of due diligence, was not within the
applicant's knowledge or could not be produced by him at the
time, when the decree or order was passed and (ii) mistake or
error apparent on the face of the record.
29. In short, thus, what Moran Mar Basselios
Cathlicos (supra) laid down was that the expression, "any
other sufficient reason", cannot be construed as "any sufficient
reason" and that "any sufficient reason" cannot become a
ground for review unless even such "sufficient reason" is
"analogous" to one of the other two grounds mentioned in
Order 47, Rule 1, namely, (i) discovery of new and important
matter or evidence, which, after the exercise of due diligence,
was not within the applicant's knowledge or could not be
produced by him at the time, when the decree was passed or
(ii) mistake or error apparent on the face of the record.
30. Board of Control for Cricket, India (supra)
is one of those cases, which has elaborately dealt with the
scope of the power of review, particularly, of the High Courts
and, having considered the case of Moran Mar Basselios
Cathlicos (supra), the Supreme Court has clarified, in no
uncertain words, in Board of Control for Cricket, India
(supra), that the rule that "any other sufficient ground" must
be "analogous" to the other two grounds, as mentioned in
Order 47, Rule 1, “is not a rule of universal application”. The
relevant observations, made, at paragraph 91, in Board of
Control for Cricket, India (supra), in this regard, read:
“91. It is true that in Moran Mar
Basselios Cathlicos v. Most Rev. Mar Poulose
Athanasius, MANU/SC/0003/ 1954 : [1955] 1
SCR 520, this court made observations as regards
limitations in the application of review of its order
stating: Before going into the merits of the case it
is as well to bear in mind the scope of the
application for review which has given rise to the
present appeal. It is needles to emphasise that the
scope of an application for review is much more
restricted than that of an appeal. Under the
provisions in the Travancore Code of Civil
procedure which is similar in terms of Order 47,
Rule 1 of our Code of Civil Procedure, 1908, the
court of review has only a limited jurisdiction
circumscribed by the definitive limits fixed by the
language used therein. It may allow a review on
three specified grounds, namely (i) discovery of
new and important matter or evidence which, after
the exercise of due diligence, was not within the
applicant's knowledge or could not be produced by
him at the time when the decree was passed, (ii)
mistake or error apparent on the face of the record,
and (iii) for any other sufficient reason. It has
been held by the Judicial Committee that the
words "any other sufficient reason" must
mean "a reason sufficient on grounds, at least
analogous to those specified in the rule", but
the said rule is not universal.
(Emphasis is supplied)
31. We may pause here to point out that when a
judgment of the Supreme Court is explained by a subsequent
Bench of the Supreme Court, such an explanation of its own
judgment by the Supreme Court carries the same authority as
does the decision, which has been explained by it. Hence, in
the face of the decision, rendered in Board of Control for
Cricket, India (supra), it cannot be contended that no ground,
other than the grounds mentioned in Moran Mar Basselios
Cathlicos (supra), can ever become a ground for review of an
order or decision by a High Court.
32. In fact, there is plethora of judicial
pronouncements of the Supreme Court, which shows that there
can be exceptional cases, where a deviation from the grounds
of review, as propounded in Moran Mar Basselios Cathlicos
(supra), is possible and one of such cases is the case of Lily
Thomas v. Union of India, reported in (2000) 6 SCC 224 :
2000 CriLJ 2433, wherein, having taken into account the facts
that (a) the power of review is a creation of statute and not an
inherent power, that (b) no power of review can be exercised if
not given to a court or Tribunal either specifically or by
necessary implication; and that (c) under the guise of review
jurisdiction, merit of a decision cannot really be examined, the
Supreme Court has, in unequivocal terms, pointed out that
justice is, after all, a virtue, which must prevail over all barriers
and that the rules, procedures or technicalities of law must, if
necessary, bend before justice and that such a situation may
arise, when a court finds that it has rendered a decision, which
it would not have rendered, but for an assumption of fact,
which, in fact, did not exist and its adherence to such a faulty
decision would result in miscarriage of justice. In such cases,
rules Lily Thomas (supra), nothing can prevent a court from
rectifying its own error, because the doctrine of "actus curiae
neminem gravabit", (i.e., an act of court shall prejudice none),
can be invoked, in such a case, for correcting the error
committed by the court.
33. The real theme of the Supreme Court's
decision, in Lily Thomas (supra), is that though the power of
review cannot be exercised by a court unless the statute
confers such a power and that a statutory power of review can
be exercised subject to such limitations as the statute may
impose, yet a court is not powerless, in an appropriate and
exceptional case, to rectify its error, because "an act of court
shall prejudice none" and, hence, in exceptional cases, a court
can invoke the doctrine of "actus curiae neminem gravabit" for
correcting an error committed by it.
34. In fact, from the decision in Municipal Board,
Pratabgarh v. Mahendra Singh Chawla, reported in (1982)
3 SCC 331: AIR 1982 SC 1493 , what clearly emerges is that
when a High Court acknowledges its error and rectifies its
error, which has crept in, what the High Court really does is
restore the rule of law and not defeat it. Points out the
Supreme Court, in Municipal Board, Pratabgarh (supra),
that laws cannot be interpreted and enforced divorced from
their effect on human beings for whom the laws are meant.
Further observed the Supreme Court, in Municipal Board,
Pratabgarh (supra), on this aspect of law, thus,
".... Undoubtedly, rule of law must
prevail but as is often said, 'rule of law must run
akin to rule of life. And life of law is not logic but
experience'. By pointing out the error, which
according to us crept into the High Court's
judgment, the legal position is restored and
the rule of law has been ensured its pristine
glory...".
(Emphasis is added)P
35. Thus, when a court discovers that a decision
rendered by it, was actually based on assumption of a fact,
which was non-existent, and that the court‟s adherence to such
a decision, which was based on non-existent fact, would result
in miscarriage of justice, the Court cannot be prevented from
rectifying its own error, because an act of court, it is trite, shall
prejudice none. In Board of Control for Cricket in India
(supra), the Supreme Court laid down that an application for
review will be maintainable if “sufficient reason” exist therefor
and what, in a given case, shall constitute “sufficient reason”
would be a question of fact and would depend on the facts and
circumstances of each case. In Board of Control for Cricket
in India (supra), it was also held that if as a result of
misunderstanding of fact or law by a court, a mistake has crept
in, which the court finds would cause or has caused miscarriage
of justice, such an error can and must be corrected by court by
exercising the power of review. A mistake, on the part of the
court, would include, according to the decision in Board of
Control for Cricket in India (supra), a mistake in the nature
of the undertaking, which may have been given by a counsel
meaning thereby that when a counsel, on a mistaken belief or
on an erroneous or incorrect instruction, make a statement and
the court acts on such a statement; but, on a review
application having been subsequently filed, the court finds that
it had misunderstood the counsel‟s submission or had got
misled by a counsel‟s submission or when the court finds that it
had proceeded on an assumption of fact, which did not really
exist, or when it finds that it had misinterpreted a provision of
law or had acted on a misconception of law and that the error,
so crept in, was, as a result of subsequent event or otherwise,
apparent on the face of the record, and that such error had
caused, or would cause, miscarriage of justice, such a reason
would be a „sufficient reason‟ calling for exercise of the power
of review.
36. The law, on the subject of review, may, in the
light of the discussions held, as a whole, be summarized thus:
(i) Ordinarily, a court or a tribunal cannot review
its order or decision if the statute does not confer on the court
or the tribunal, as the case may be, the power to review its
own order. This apart, whatever limitations are imposed by a
statute, while conferring the power of review on a court or a
tribunal, the court or the tribunal, as the case may be, must
adhere to the limitations, which the relevant statute may
impose on the exercise of such power. Section 114 CPC, which
embodies the substantive power of review of a civil court, does
not impose any limitations on the court's power to review its
order or decision; yet the power of review even by a civil court
cannot be unguided and uncanalised, for, Order 47, Rule 1
circumscribes the court's power of review.
(ii) Though, at one point of time, it was considered
to be a rule of universal application that review by a court of its
order is not possible except on three prescribed grounds,
namely, (i) discovery of new and important matter or evidence,
which, after the exercise of due diligence, was not within the
applicant's knowledge or could not be produced by him at the
time, when the decree or order was passed and (ii) mistake or
error apparent on the face of the record or (iii) any such
sufficient ground, which is analogous to the two grounds
aforementioned, the subsequent development of law, on the
subject of review, has shown that the grounds referred to,
namely, that any sufficient ground must be analogous to the
two sufficient grounds aforementioned is no longer a rule of
universal application.
(iii) One of the cases, which has helped in the
expansion of the court's power to review its order is the case of
Lily Thomas (supra) inasmuch as Lily Thomas (supra) ruled
that ordinarily, the power of review, being a creature of
statute, cannot be exercised as an inherent power, yet such
technicalities of law may have to be bent, in an appropriate
cases, for the purpose of correcting an order committed by the
court if such an error arises out of a presumption of fact, which
was nonexistent, and when the court finds that its refusal to
review its own error would cause, or has caused, grave
miscarriage of justice.
(iv) It is essentially the principle behind the
doctrine of "actus curiae neminem gravabit", which has made
the court hold, in Municipal Board, Pratabgarh (supra), that
when a court corrects and rectifies an error, it restores the rule
of law and not defeat it. Even Rajesh D. Darbar v.
Narasingrao Krishnaji Kulkarni, reported in (2003) 7 SCC
219, recognises that in an exceptional case, a court may have
to review its order by invoking the doctrine of "actus curiae
neminem gravabit".
37. It is in the backdrop of the above
developments of law on the scope of review, that this review
petition needs to be, now, dealt with and decided.
38. The contours of power of review which we have
discussed above, have been dealt with, and succinctly laid
down, by a Full Bench, speaking through one of us, the learned
Chief Justice, in The High Court of Judicature at Patna Vs.
Sri K.K. Pathak, reported in 2015 (4) PLJR 328.
39. As to whether a case for review has been made
out or not would, however, depend on the facts of a given case.
40. In the light of the law, which we have
discussed above, let us now revert to the case at hand. While
considering the present review petition, it needs to be noted
that Section 13 (1-A) of the Hindu Marriage Act, 1955, makes it
clear that if there has been no resumption of cohabitation
between the parties to the marriage, for a period of one year or
above, since after granting of the decree for judicial separation,
in a proceeding to which both, the husband as well as the wife,
were parties, a decree for dissolution of marriage of the parties
can be passed if either of the party to the decree for judicial
separation applies for divorce.
41. It is, therefore, clear that if, upon filing of an
appeal, seeking to get the decree for judicial separation set
aside, no order of stay against the decree for judicial separation
is made, the decree for judicial separation remains operative
and, continues to run and if, in such a circumstance, a party to
the decree for judicial separation applies to the Family Court
and establishes before the Court that since the date of grating
of decree for judicial separation, no resumption of cohabitation
has taken place between the parties concerned, there is no
legal impediment in granting the decree of divorce.
42. If a decree of divorce is granted, it is the
decree of divorce, which needs to be interfered with, if
appealed against, inasmuch as the appeal against the decree
for judicial separation, in the absence of an order of stay, would
become infructuous so long the decree for dissolution of
marriage remains in force. In such a case, the decree for
judicial separation cannot be interfered with in appeal inasmuch
as such interference would render the decree for dissolution of
marriage invalid, illegal, infructuous and ineffective. A Court
cannot pass a decree, which would not or cannot make the
parties concerned stand on the same position as they stood on
the date of institution of the appeal against the decree for
judicial separation.
43. When the appeal against the decree for judicial
separation came up for hearing before this Court, this Court,
inadvertently, did not take care to bear in mind that since after
the dissolution of marriage, in the present case, the petitionerhusband
was already married and he had fathered two children
and that these facts had become irreversible. In substance, the
parties to the decree for judicial separation could not have been
placed on the same footing, or in the same position, as they
stood at the time, when the appeal, against the decree for
judicial separation, had been filed.
44. The problem can be looked at from another
angle. After the dissolution of marriage by a decree of divorce,
the petitioner-husband had married and fathered two children
and, hence, third party right had been created in the whole
dispute. Therefore, interest of such a third party, who are
innocent, minor and legitimate children, could not have been
ignored. If, for any reason, interference with the decree for
judicial separation, in appeal, is actually made, it would render
the appeal of the petitioner-husband, against the order setting
aside the ex parte decree for dissolution of marriage, almost
redundant, infructuous and ineffective.
45. The above aspects were not considered by us
at the time, when the decree for judicial separation was
interfered with in appeal.
46. Though considerations for a review
application are very limited and exceptional, it is important to
note that the infringement of fundamental rights of a citizen or
statutory rights of a citizen may be a ground for reviewing an
order.
47. The above principle leads us to take into
account the rights of the second wife as well her children
fathered by the review petitioner before us. It is noticeable that
any judgment disturbing the decree for judicial separation has
an adverse impact on the enjoyment of statutory rights, if not
the fundamental rights, by the second wife, who entered the
marital ties only after passing of a decree of divorce. Every wife
and child of such a marriage enjoys certain rights under
different statutes, such as, under Hindu Marriage Act, 1955,
Hindu Succession Act, 1956, Hindu Minority and Guardianship
Act, 1956, Hindu Adoptions and Maintenance Act, 1956, etc.
48. This Court, while exercising the power of
review and keeping in mind the possible infringement of
statutory rights of those, who are not before this Court, needs
to act by reviewing the order passed earlier. The infringement
of statutory rights of wife and children from the second
marriage and the hardships that would follow from reversal of
the decree for judicial separation, had not been considered by
us. We are reminded of an old maxim, ACTUS CURIAE
NEMINEM GRAVABIT: which means “an act of the court shall
prejudice no man”. As soon as the decree for judicial separation
was set at naught, the act of the Court caused prejudice to the
second wife and her children.
49. Let us consider the above aspects from
another angle. We are to see as to what will be the fate of a
marriage, which is solemnized after passing of a decree of
divorce. When a decree of divorce is based on a decree for
judicial separation and the decree for judicial separation is
reversed, the question is whether, in such a situation, the
decree of divorce, too, automatically goes and the marriage
becomes a nullity. It is to be borne in mind that with the
passing of a decree of divorce, the marital ties between the
parties come to an end. The parties are no longer treated as
husband and wife and they are no longer successors of each
other under the law of succession. Their respective rights and
obligations, under different statues, as husband and wife, end.
Unless the decree of divorce is modified/reversed by a superior
court, it remains. After the period of appeal is over or if an
appeal is preferred, but is dismissed, the parties are free to go
for a second marriage. It takes us to Section 15 of the Hindu
Marriage Act, 1955, which reads:
Sec 15. Divorced persons when
may marry again.
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 dismissed, it
shall be lawful for either party to-the marriage to
marry again.
50. A decree for judicial separation merely lays
down the foundation for making an application for grant of a
decree of divorce. A decree for judicial separation does not give
entitlement to a decree of divorce unless and until the grounds
of divorce, as mentioned in Section 13 of Hindu Marriage Act,
1955, are in existence and proved by the party seeking such
decree. Once a decree of divorce is passed and unless there is
an appeal challenging the same, the decree subsists. Once
there is no appeal or the period, for preferring appeal, expires
or an appeal, having been preferred, is dismissed, the party
can go for second marriage without any legal obstacle. Such a
second marriage is always valid.
51. In the present case, the husband, having
married after the decree of divorce, his second marriage is
always legal. The decision of the Supreme Court, in the case of
Lila Gupta Vs Laxmi Narain, reported in AIR 1978 SC 1351,
is worth taking note of in this regard. The Supreme Court has
held, in Lila Gupta (supra), that even if the second marriage is
solemnized before the expiry the period of 1 (one) year (as it
then stood prior to amendment to Hindu Marriage Act in 1976),
its not a nullity. The second marriage will remain valid. The
decree of divorce once granted, correctly or incorrectly, puts an
end to the martial tie between the parties. That is why,
subsequent second marriage is not a nullity. The decree of
divorce, in the absence of any challenge to it or even when
there is an appeal but without an order of stay, the relationship
between the parties is not that of husband or wife. The relevant
observations appearing in Lila Gupta (supra), read as follows:
“8. Did the framers of law intend that a
marriage contracted in violation of provision
contained in the proviso to S. 15 to be void? While
enacting the legislation, the framers had in mind
the question of treating certain marriages void and
provided for the same. It would, 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 condition
was not considered so sacrosanct as to render
marriage in breach of each of it void. This becomes
manifest from a combined reading of Ss. 5 and 11
of the Act. If the provision in the proviso is
interpreted to mean personal incapacity for
marriage for a certain period and, therefore, the
marriage during that period was by a person who
had not the requisite capacity to contract the
marriage and hence void, the same consequence
must follow where there is breach of condition (iii)
of S. 5 which also provides for personal incapacity
to contract marriage for a certain period. When
minimum age of the bride and the bridegroom for a
valid marriage is prescribed in condition (iii) of S. 5
it would only mean personal incapacity for a period
because every day the person grows and would
acquire the necessary capacity on reaching the
minimum age. Now, before attaining the minimum
age if a marriage is contracted S. 11 does not
render it void even though S.18 makes it
punishable. Therefore, even where a marriage in
breach of a certain condition is made punishable
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 void. Would it then be fair to
attribute an 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 in made and in some other cases
voidness 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 provided for it. Craies on
Statute Law, 6th Edn. pages 263 and 264 may be
referred to with advantage;
"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 (emphasis
supplied) ... ... ... 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 a nullity unless
such nullity was declared in the Act. Secondly, that,
viewing the successive marriage Acts, it appears
that prohibitory words, without a declaration of
nullity, were not considered by the legislature to
create a nullity".
9. In the Act under discussion 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 not
possible to infer nullity in respect of a marriage
contracted by a person under incapacity prescribed
by the proviso.
10. Undoubtedly, the proviso opens
with a prohibition that : It shall not be lawful etc. Is
it an absolute prohibition violation of which would
render the act a nullity? 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
of divorce, the law interdicts and prohibits a
marriage for a period of one year from the date of
the decree of divorce. Does the inhibition for a
period 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. A
submission that the proviso is directory or at any
rate not mandatory and decision bearing on the
point need not detain us because 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 done thereby
making it unlawful without providing for
consequence of the breach, it is not legitimate to
say that such a thing when done is void because
that would be tantamount to saying that every
unlawful act is void. As pointed out earlier, it would
be all the more inadvisable in the field of marriage
laws. Consequences of treating a marriage void are
so serious and far reaching and are likely to affect
innocent persons such as children born during the
period anterior to the date of the decree annulling
the marriage that it has always been considered
not safe to treat a marriage void unless the law so
enacts or the inference of the marriage being
treated void is either inescapable or irresistible.
Therefore, even though the proviso is couched in a
language prohibiting a certain thing being done,
that by itself is not sufficient to treat the marriage
contracted in contravention of it as void.”
52. In the case at hand, the petitioner-husband
solemnized his second marriage only after obtaining a decree of
divorce. When he solemnized his second marriage after the
decree of divorce, the second marriage, notwithstanding the
fact that the ex parte decree of divorce has, now, been set
aside, cannot be treated as a nullity. In fact, even when a
person solemnizes his second marriage, before the expiry of
the statutory period of appeal, his second marriage is still not a
nullity inasmuch as Section 5 of the Hindu Marriage, Act, 1955,
permits solemnization of marriage between two Hindus if
neither party has „spouse’ living at the time of marriage. In
order to, therefore, treat the subsequent marriage a nullity, it
will have to be presumed that the parties to the divorce are still
spouses even when their marriage has been dissolved by a
decree of divorce. This is legally not permissible inasmuch as a
decree of divorce, unless stayed by an order of superior court,
snaps the relationship between the parties and, hence, they are
not treated as spouse or else, such second marriage, prior to
expiry of appeal period, would have rendered the subsequent
marriage void under Section 11 of the Hindu Marriage Act,
1955.
53. In the light of what has been discussed above,
as a whole, we arrive at the conclusion that this Court, having
not taken into account the impact of interference with the
decree for judicial separation while making the order under
review, has committed an error on the face of the record and,
for the reasons that we have assigned above, we are clearly of
the view that in the face of the fact that the review petitioner
had already married for the second time and had two children
from his second marriage, the appeal against the decree for
judicial separation, in the absence of any order of stay against
the decree for judicial separation, had became infructuous and
could not have been interfered with.
54. In the result and for the reasons discussed
above, we allow this review petition and set aside the order,
dated 23.07.2015, passed in Misc. Appeal No. 513 of 2009.
55. However, there shall be no order as to costs.
Nilu Agrawal, J:
Pawan/-
(I. A. Ansari, CJ)
I agree.
(Nilu Agrawal, J)
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