Saturday, 25 August 2018

Whether one spouse can perform second marriage even if his appeal against divorce is pending?

Section 15 of the Act provides that it shall be
lawful for either party to marry again after dissolution of
a marriage if there is no right of appeal against the
decree. A second marriage by either party shall be
lawful only after dismissal of an appeal against the
decree of divorce, if filed. If there is no right of appeal,
the decree of divorce remains final and that either party
to the marriage is free to marry again. In case an appeal
is presented, any marriage before dismissal of the appeal
shall not be lawful. The object of the provision is to
provide protection to the person who has filed an appeal
against the decree of dissolution of marriage and to
ensure that the said appeal is not frustrated. The
purpose of Section 15 of the Act is 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. The protection that is afforded
by Section 15 is primarily to a person who is contesting
the decree of divorce.

19. Aggrieved by the decree of divorce, the Appellant
filed an appeal and obtained a stay of the decree.
During the pendency of the appeal, there was a
settlement between him and his former spouse.
After entering into a settlement, he did not intend to
contest the decree of divorce. His intention was made
clear by filing of the application for withdrawal. It cannot
be said that he has to wait till a formal order is passed in
the appeal, or otherwise his marriage dated 06.12.2011
shall be unlawful. Following the principles of purposive
construction, we are of the opinion that the restriction
placed on a second marriage in Section 15 of the Act till
the dismissal of an appeal would not apply to a case
where parties have settled and decided not to pursue the
appeal.

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.18312 of 2017

 ANURAG Vs SHAILY 

Dated:AUGUST 24, 2018

L. NAGESWARA RAO, J.
1. By a judgment dated 31.08.2009, the Additional
District Judge, North, Tis Hazari Court, Delhi allowed the
petition filed by Ms. Rachna Aggarwal under Section 13
(1) (i) (a) of the Hindu Marriage Act, 1955 (hereinafter
referred to as “the Act’) and dissolved the marriage
between her and the Appellant. By the said judgment
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 dated
31.08.2009 was stayed by the High Court on 20.11.2009.
1
During the pendency of the Appeal, the Appellant and
Ms. Rachna Aggarwal reached a settlement before the
Mediation Centre, Tis Hazari Court, Delhi. According to
the terms of the settlement dated 15.10.2011, the
Appellant had to move an application for withdrawal of
the Appeals within 30 days. The Appellant filed an
application to withdraw the appeals before the High
Court in terms of the settlement dated 15.10.2011 which
was taken up on 28.11.2011 by the Registrar of the High
Court of Delhi. He recorded that there was a settlement
reached between the parties before the Mediation
Centre, Tis Hazari Court, Delhi and listed the matter
before the Court on 20.12.2011. The High Court
dismissed the appeals filed by the Appellant as
withdrawn in terms of the settlement by an order dated
20.12.2011. In the meanwhile, the Appellant married the
Respondent on 06.12.2011. Matrimonial discord
between the Appellant and the Respondent led to the
filing of a petition by the Respondent for declaring the
marriage as void under Section 5 (i) read with Section 11
of the Act. The main ground in the petition was that the
2
appeal filed by the Appellant against the decree of
divorce dated 31st August, 2009 was pending on the date
of their marriage i.e. 06.12.2011. The Family Court
dismissed the petition filed by the Respondent. The
Respondent challenged the judgment of the Family Court
in the High Court. By a judgment dated 10.08.2016, 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
held on 06.12.2011 as null and void. Aggrieved by the
judgment of the High Court, the Appellant has
approached this Court.
2. As a pure question of law arises for our consideration
in this case, we make it clear that we are not dealing
with the merits of the allegations made by both sides.
The points that arises 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
3
during the pendency of the appeal against
the decree of divorce is void?
3. The Family Court framed only one substantial issue
as to whether the marriage between the parties was null
and void on account of the contravention of Section 5 (i)
of the Act. It was held by the Family Court that the
judgment and decree of divorce dated 31.08.2009 is a
judgment in rem which was neither reversed nor set
aside by a superior court. As the judgment was
confirmed by the High Court, the marriage between the
parties stood dissolved w.e.f. 31.08.2009 itself. The
Family Court also observed that there is no provision in
the Act which declares a marriage in contravention of
Section 15 to be void. It was further held by the Family
Court that the effect of stay of the judgment by a
superior court is only that the decree of divorce remained
in abeyance but it did not become non-existent. On the
other hand, the High Court framed a question whether
the Appellant could have contracted a second marriage
after the decree of divorce was passed on 31.08.2009
notwithstanding the operation of the decree being
4
stayed. The High Court was of the opinion that any
marriage solemnized by a party during the pendency
of the appeal wherein the operation of the decree of
divorce was stayed, would be in contravention of Section
5 (i) of the Act.
4. Section 11 of the Act provides that any marriage
solemnized after commencement of the Act shall be null
and void if it contravenes any of the conditions specified
in Clauses (i), (iv) and (v) of Section 5. Clause (i) of
Section 5 places a bar on marriage by a person who has
a spouse living at the time of the marriage. Section 15 of
the Act which is relevant is as follows:
“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 been
dismissed, it shall be lawful for either party to the
marriage to marry again.”
5. There is no dispute that the marriage between the
Appellant and the Respondent was held on 06.12.2011
during the pendency of the appeals filed by the Appellant
against the decree of divorce in favour of Ms. Rachna
Aggarwal. It is also clear from the record that the
5
appeals were dismissed as withdrawn on 20.12.2011
pursuant to an application for withdrawal that was placed
before the Registrar on 28.11.2011. The Family Court
has rightly held that the decree of divorce is a judgment
in rem.1
6. It is pertinent to take note of the Proviso to Section 15
of the Act according to which 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. This
Proviso was repealed w.e.f. 27.05.1976.2 In Lila Gupta
v. Laxmi Narain3, Rajender Kumar contracted second
marriage with Lila Gupta before the expiry of one year
from the date of decree of divorce. This Court was
concerned with a point relating to the marriage between
Rajender Kumar and Lila Gupta being void having been
contracted in violation of the Proviso to Section 15 of the
Act. In the said context this Court observed as follows:
“8. Did the framers of law intend that a marriage
contracted in violation of the provision contained in
1 Marsh v. Marsh 1945 AC 271
2 Hindu Marriage (Amendment ) Act, 1976, Act 68 of 1976
3 (1978) 3 SCC 258
6
the proviso to Section 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 Section 5 each of the six conditions was
not considered so sacrosanct as to render marriage in
breach of each of it void. This becomes manifest from
a combined reading of Sections 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 Section 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 Section 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 Section 11
does not render it void even though Section 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
Section 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 is
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 provide for it.
Craies on Statute Law, 7th Edn., P. 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 or 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 [Ed. Quoting Catterall v. Sweetman, (1845) 9
Jur 951, 954] .”
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 for 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 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.”
7. In the said judgment, this Court also had occasion to
deal with the continuance of the marital tie even after
the decree of divorce for the period of incapacity as
provided in the Proviso to Section 15 of the Act. In the
said context, this Court held as follows:
“13. 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 sanction. 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 Section
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 there 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 that account it cannot be said that the marriage
subsists beyond the date of decree of divorce. Section
13 which provides for divorce in terms says that a
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. An incapacity for second marriage
for a certain period does not have effect of treating
the former marriage as subsisting. During the period
of incapacity the parties cannot be said to be the
spouses within the meaning of clause (i), sub-section
(1) of Section 5. The word “spouse” has been
understood to connote a husband or a wife which
term itself postulates a subsisting marriage. The word
“spouse” in sub-section (1) of Section 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 clause (i) of sub-section (1) of
Section 5. The expression “spouse” in clause (i), subsection
(1) of Section 5 by its very context would not
include within its meaning the expression “former
spouse”.
(underlining ours)
8. After a comprehensive review of the scheme of the Act
and the legislative intent, this Court in Lila Gupta (supra)
held that a marriage in contravention of the proviso to
Section 15 is not void. Referring to Sections 5 and 11 of
10
the Act, this Court found that a marriage contracted in
breach of only some of the conditions renders the
marriage void. This Court was also conscious of the
absence of any penalty prescribed for contravention of
the proviso to Section 15 of the Act. This Court referred
to the negative expression “it shall not be lawful” used in
proviso to Section 15 which indicates that the prohibition
was absolute. In spite of the absolute prohibition, this
Court was of the view that a marriage contracted in
violation of the proviso to Section 15 was not void. There
was a further declaration that the dissolution of a
marriage is in rem and unless and until a Court of appeal
reversed it, marriage for all purposes was not subsisting.
The dissolution of the marriage is complete once the
decree is made, subject of course to appeal. This Court
also decided that incapacity for second marriage for a
certain period of time does not have the effect of treating
the former marriage as subsisting and the expression
‘spouse’ would not include within its meaning the
expression ‘former spouse’.
11
9. The majority judgment was concerned only with the
interpretation of proviso to Section 15 of the Act. Justice
Pathak in his concurring judgment referred to Section 15,
but refrained from expressing any opinion on its
interpretation.
Effective date of the Dismissal of Appeal
10. In case of a dissolution of marriage, a second
marriage shall be lawful only after dismissal of the
appeal. Admittedly, the marriage between the Appellant
and the Respondent was on 06.12.2011 i.e. before the
order of withdrawal was passed by the Court on
20.12.2011. There is no dispute that the application for
withdrawal of the appeal was filed on 28.11.2011 i.e.
prior to the date of the marriage on 06.12.2011. We
proceed to consider the point that whether the date of
dismissal of the appeal relates back to the date of filing
of the application for withdrawal of the appeal. Order XXI
Rule 89 (2) of the Code of Civil Procedure, 1908
(hereinafter referred to as “the CPC”) provides that
unless an application filed under Order XXI Rule 90 of the

CPC is withdrawn, a person shall not be entitled to make
or prosecute an application under Order XXI Rule 89 of
the CPC. In Shiv Prasad v. Durga Prasad,4 the
contention of the Appellant therein that an application
filed under the aforesaid Rule 90 does not stand
withdrawn until an order to the effect is recorded by the
Court, was not accepted. It was held that every
applicant has a right to unconditionally withdraw his
application and his unilateral act in that behalf is
sufficient. No order of the Court is necessary permitting
the withdrawal of the application. This Court concluded
that the act of withdrawal is complete as soon as the
applicant intimates the Court that he intends to withdraw
the application. The High Court of Bombay in Anil
Dinmani Shankar Joshi v. Chief Officer, Panvel
Municipal Council, Panvel5 followed the judgment of
this Court in Shiv Prasad (supra) and held that the said
judgment is applicable to suits also. The High Court
recognized the unconditional right of the plaintiff to
withdraw his suit and held that the withdrawal would be
4 (1975) 1 SCC 405
5 AIR 2003 Bom. 238, 239

complete as soon as the plaintiff files his purshis of
withdrawal.
11. Order XXIII Rule 1 (1) of the CPC enables the
plaintiff to abandon his suit or abandon a part of his
claim against all or any of the defendants. Order XXIII
Rule 1 (3) of the CPC requires the satisfaction of the
Court for withdrawal of the suit by the plaintiff in case he
is seeking liberty to institute a fresh suit. While
observing that the word abandonment in Order XXIII Rule
1 (1) of the CPC is “absolute withdrawal” which is
different from the withdrawal after taking permission of
the court, this Court held as follows6:
“12. The law as to withdrawal of suits as enacted in
the present Rule may be generally stated in two parts:
(a) a plaintiff can abandon a suit or abandon a part
of his claim as a matter of right without the
permission of the court; in that case he will be
precluded from suing again on the same cause of
action. Neither can the plaintiff abandon a suit or a
part of the suit reserving to himself a right to bring a
fresh suit, nor can the defendant insist that the
plaintiff must be compelled to proceed with the suit;
and
(b) a plaintiff may, in the circumstances mentioned
in sub-rule (3), be permitted by the court to
withdraw from a suit with liberty to sue afresh on
the same cause of action. Such liberty being granted
6 K.S. Bhoopathy v. Kokila (2000) 5 SCC 458

by the Court enables the plaintiff to avoid the bar in
Order II Rule 2 and Section 11 CPC.”
12. Order XXIII Rule 1 (1) of the CPC gives an
absolute right to the plaintiff to withdraw his suit or
abandon any part of his claim. There is no doubt that
Order XXIII Rule 1 of the CPC is applicable to appeals as
well and the Appellant has the right to withdraw his
appeal unconditionally and if he makes such an
application to the Court, it has to grant it.7 Therefore, the
appeal is deemed to have been withdrawn on 28.11.2011
i.e. the date of the filing of the application for withdrawal.
On 06.12.2011 which is the date of the marriage
between the Appellant and the Respondent, Ms. Rachna
Aggarwal cannot be considered as a living spouse.
Hence, Section 5 (i) is not attracted and the marriage
between the Appellant and the Respondent cannot be
declared as void.
13. Sh. Sakha Ram Singh, learned Senior Counsel
appearing for the Respondent placed reliance on a
judgment of this Court in Lila Gupta (supra) to submit
that the marriage between the Appellant and the
7 Bijayananda Patnaik v. Satrughna Sahu (1962) 2 SCR 538, 550
15
Respondent held on 06.12.2011 is void as it was in
violation of Section 15 of the Act. He relied upon the
concurring judgment of Justice Pathak in support of his
submission that the findings pertaining to Proviso to
Section 15 cannot be made applicable to Section 15. He
submitted that there is a qualitative difference between
the period of incapacity set out in the Proviso during
which a second marriage cannot be contracted and the
bar for another marriage during the pendency of an
appeal. We have already noted that Justice Pathak
refrained from expressing any view on the expression of
Section 15 of the Act. However, the scope and purport of
Section 15 of the Act arise for consideration in the
present case.
Interpretation of Section 15
Interpretation has been explained by Cross in Statutory
Interpretation8 as:
"The meaning that the Court ultimately attaches to the
statutory words will frequently be that which it
believes members of the legislature attached to them,
or the meaning which they would have attached to the
words had the situation before the Court been present
to their minds. Interpretation is the process by which
the Court determines the meaning of a statutory
8 Cross Statutory Interpretation, Ed. Dr. John Bell & Sir George Ingale, Second
Edition (1987)
16
provision for the purpose of applying it to the situation
before it”.
14. The Hindu Marriage Act is a social welfare
legislation and a beneficent legislation and it has to be
interpreted in a manner which advances the object of the
legislation. The Act intends to bring about social
reforms.9 It is well known that this Court cannot interpret
a socially beneficial legislation on the basis as if the
words therein are cast in stone.10
15. The predominant nature of the purposive
interpretation was recognized by this Court in Shailesh
Dhairyawan v. Mohan Balkrishna Lulla11 which is as
follows:
“ 33. We may also emphasise that the statutory
interpretation of a provision is never static but is
always dynamic. Though the literal rule of
interpretation, till some time ago, was treated as the
“golden rule”, it is now the doctrine of purposive
interpretation which is predominant, particularly in
those cases where literal interpretation may not
serve the purpose or may lead to absurdity. If it
brings about an end which is at variance with the
purpose of statute, that cannot be countenanced.
Not only legal process thinkers such as Hart and
Sacks rejected intentionalism as a grand strategy for
statutory interpretation, and in its place they offered
purposivism, this principle is now widely applied by
9 Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi (1996) 4 SCC 76, para 68
10 Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1, para 40
11 (2016) 3 SCC 619
17
the courts not only in this country but in many other
legal systems as well.”
16. In Salomon v. Salomon & Co Ltd.12, Lord
Watson observed that :
“In a Court of Law or Equity, what the legislature
intended to be done or not to be done can only be
legitimately ascertained from that which it has chosen
to enact, either in express words or by reasonable and
necessary implication.”
In Black-Clawson International Ltd. v. Papierwerke
Waldhof-Aschaffenburg AG13, Lord Reid held that:
“We often say that we are looking for the intention of
Parliament, but that is not quite accurate. We are
seeking the meaning of the words which Parliament
used. We are seeking not what Parliament meant but
the true meaning of what they said.”
17. It is also relevant to take note of Dy. Custodian
v. Official Receiver14 in which it was declared that “if it
appears that the obvious aim and object of the statutory
provisions would be frustrated by accepting the literal
construction suggested by the Respondent, then it may
be open to the Court to inquire whether an alternative
construction which would serve the purpose of achieving
the aim and object of the Act, is reasonably possible” .
12 [1897] AC 22 at 38
13 [1975] AC 591, p. 613
14 (1965) 1 SCR 220 at 225 F - G
18
18. Section 15 of the Act provides that it shall be
lawful for either party to marry again after dissolution of
a marriage if there is no right of appeal against the
decree. A second marriage by either party shall be
lawful only after dismissal of an appeal against the
decree of divorce, if filed. If there is no right of appeal,
the decree of divorce remains final and that either party
to the marriage is free to marry again. In case an appeal
is presented, any marriage before dismissal of the appeal
shall not be lawful. The object of the provision is to
provide protection to the person who has filed an appeal
against the decree of dissolution of marriage and to
ensure that the said appeal is not frustrated. The
purpose of Section 15 of the Act is 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. The protection that is afforded
by Section 15 is primarily to a person who is contesting
the decree of divorce.

19. Aggrieved by the decree of divorce, the Appellant
filed an appeal and obtained a stay of the decree.
During the pendency of the appeal, there was a
settlement between him and his former spouse.
After entering into a settlement, he did not intend to
contest the decree of divorce. His intention was made
clear by filing of the application for withdrawal. It cannot
be said that he has to wait till a formal order is passed in
the appeal, or otherwise his marriage dated 06.12.2011
shall be unlawful. Following the principles of purposive
construction, we are of the opinion that the restriction
placed on a second marriage in Section 15 of the Act till
the dismissal of an appeal would not apply to a case
where parties have settled and decided not to pursue the
appeal.
20. It is not the case of the Appellant that the
marriage dated 06.12.2011 is lawful because of the
interim order that was passed in the appeals filed by him
against the decree of divorce. He rested his case on the
petition filed for withdrawal of the appeal. The upshot of

the above discussion would be that the denouement of
the Family Court is correct and upheld, albeit for different
reasons. The conclusion of the High Court that the
marriage dated 06.12.2011 is void is erroneous. Hence,
the judgment of the High Court is set aside.
21. Accordingly, the Appeal is allowed.
……….……..J.
[S.A. BOBDE]
………..………………..J.
[L. NAGESWARA RAO]
NEW DELHI,
August 24th 2018

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 18312 Of 2017
 ANURAG Vs SHAILY 
S.A.BOBDE, J.
1. I am in agreement with the view taken by Nageswara Rao J.
but it is necessary to state how the question before us has already
been settled by the decision in Lila Gupta v. Laxmi Narain and Ors.1.
Even when the words of the proviso were found to be prohibitory in
clear negative terms – “it shall not be lawful” etc., this Court held that
the incapacity to marry imposed by the proviso did not lead to an
inference of nullity, vide para 9 of Lila Gupta (supra). It is all the
more difficult to infer nullity when there is no prohibition; where there
are no negative words but on the other hand positive words like “it
shall be lawful.” Assuming that a marriage contracted before it
became lawful to do so was unlawful and the words create a
disability, it is not possible to infer a nullity or voidness vide paras 9
1 (1978) 3 SCC 258
1
and 10 of Lila Gupta case. The 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.
2. The observations in Lila Gupta’s case are wide. They are
undoubtedly made in the context of the proviso to sec 15 of the
Hindu Marriage (Amendment) Act, 19762, since deleted. The proviso
opened with the prohibition that “it shall not be lawful.” This Court
considered the question whether a marriage contracted in violation of
the proviso would be a nullity or void and came to the conclusion that
though the proviso is couched in prohibitory and negative language,
in the absence of an express provision it was not possible to infer
nullity in respect of a marriage contracted by a person under
incapacity prescribed by the proviso.
What is held in essence is that if a provision of law prescribes
an incapacity to marry and yet the person marries while under that
incapacity, the marriage would not be void in the absence of an
express provision that declares nullity. Quae incapacity imposed by
statute, there is no difference between an incapacity imposed by
negative language such as “it shall not be lawful” or an incapacity
imposed by positive language like “it shall be lawful (in certain
conditions, in the absence of which it is impliedly unlawful)”. It would
thus appear that the law is already settled by this Court that a
marriage contracted during a prescribed period will not be void
because it was contracted under an incapacity. Obviously, this would
2 Act 68 of 1976

have no bearing on the other conditions of a valid marriage. The
decision in Lila Gupta case thus covers the present case on law.
3. In any event, in the present case we are satisfied that the
appellant’s marriage was not subsisting when he married again. He
had filed an application for withdrawal of his appeal against the
decree for dissolution and had done nothing to contradict his
intention to accept the decree of dissolution.
.....................………J.
[ S.A. BOBDE ]
NEW DELHI,
AUGUST 24, 2018

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