Did a second marriage performance during the pendency of an appeal against divorce decree would amount to civil contempt?

At this juncture, it is necessary to refer to Section 15 of the Act 1955, which reads thus:

Section 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.”

In the light of the above discussion, I am of the considered view that the expression ‘willful disobedience of process of a Court’ used under Section 2(b) of the Act, 1971, must also be related to disobedience of some command issued by the Court during the process of a Court which includes various stages between filing of any proceeding to final decision by the Court. During these stages various commands need to be issued by the Court, like issuance of summons, deposit of cost, compelling appearance of any expert or person as a witness, production of documents or record etc., disobedience of any such command may come within the ambit of ‘willful disobedience of other process of a Court’ as provided in Clause (b) of Section 2 of the Act, 1971. But at any stretch of imagination it cannot be said that contravention of provision of Section 15, amounts to willful disobedience of ‘other process of a Court’ under the provisions of the Act, 1971.

35. In the said backdrop, I am of the considered view that performance of a second marriage during the pendency of appeal would be a contravention or a breach of prohibition stipulated under Section 15 of the Act, 1955, but in any case, it would not amount to disobedience of any command of the Court consequently such act would not fall within the ambit of the expression ‘willful disobedience of other process of a Court’ under Clause (b) of Section 2 of the Act, 1971.

 In the High Court of Bombay

(Before A.S. Kilor, J.)

Kanchan Vs Prashant Manikrao Bagade 

Contempt Petition No. 239 of 2017 and Second Appeal No. 11 of 2016

Citation: 2020 SCC OnLine Bom 911 : (2020) 5 AIR Bom R 606

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Supreme Court: Marriage during pendency of Appeal against Divorce Decree not Void, if Appeal filed beyond time

 Section 15 clarifies that when a marriage has been dissolved by a decree of divorce, and 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 preferred, or an appeal has been presented but the same has been dismissed, it shall be lawful for either party to the marriage to marry again. Had it been the legislative intent that a marriage during the pendency of an appeal should be declared void, Section 11 would expressly have provided so.

32. As held by this Court in Anurag Mittal v. Shaily Mishra Mittal reported in MANU/SC/0903/2018 : (2018) 9 SCC 691, the object of Section 15 is to provide protection to the person who had filed an appeal against the decree of dissolution of marriage and to ensure that such appeal was not frustrated. The protection afforded by Section 15 is primarily to a person contesting the decree of divorce. As observed by Bobde, J. in his concurring judgment in Anurag Mittal (supra):

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 [Lila Gupta v. Laxmi Narain, MANU/SC/0515/1978 : (1978) 3 SCC 258]. 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 [Lila Gupta v. Laxmi Narain, MANU/SC/0515/1978 : (1978) 3 SCC 258]. 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 and 10 of Lila Gupta case...

.......... 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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 321 of 2020 

Decided On: 19.02.2020

 Krishnaveni Rai  Vs.  Pankaj Rai and Ors.

Hon'ble Judges/Coram:

Indira Banerjee and M.R. Shah, JJ.

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Whether marriage performed when appeal period for filing appeal against Divorce is not expired is void?

Hindu Marriage Act, 1955-s. 15, scope of--Whether a marriage contracted, in contravention of or in violation of the proviso to s. 15 of the Act is void or merely invalid not affecting the core of marriage and the parties are subject to a binding the of wedlock flowing from the marriage.

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 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'.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 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 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.

IN THE SUPREME COURT OF INDIA

Civil Appeals Nos. 2585 and 2590 of 1969

Decided On: 04.05.1978

Lila Gupta  Vs. Laxmi Narain and Ors.

Hon'ble Judges/Coram:

Y.V. Chandrachud, C.J., D.A. Desai and R.S. Pathak, JJ.

Equivalent citations: 1978 AIR 1351, 1978 SCR (3) 922

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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.

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Whether wife can be restrained from performing re-marriage after decree of nullity is passed in her favour?

Family - Limitation on Re-marriage - Section 15 of Hindu Marriage Act, 1955 - Trial Court dismissed husband's suit for restitution of conjugal rights but decreed suit of wife annulling marriage between parties on ground of former's impotency since marriage - Husband filed appeal during pendency of which wife got re-married and thereafter, applied for dismissal of appeals as infructuous - Appellant prayed status quo till final decision of appeals - Held, there was no legal incompetency in Respondent wife for contracting re-marriage once her marriage with Appellant had been annulled by a decree of nullity - Marriage between Appellant and Respondent having been annulled, their status as husband and wife of each other had ceased to exist - If Appellant wanted status quo to be preserved till final decision of appeals, he should have applied for prohibitory order restraining Respondent from marrying again till appeals filed by him had been decided - In absence of any such order, Respondent was no more wife of Appellant and there was no provision in law which created any impediment to her re-marriage - Re-marriage was thus valid marriage, it was neither void nor voidable - It could not be annulled or dissolved for reason that it was contracted during pendency of appeals, nor could it be affected by ultimate decision of appeals, even if it went in favour of Appellant - Limitations to re-marriage provided by Section 15 have no application to decree of nullity - Respondent cannot revert to her status as wife of Appellant even if his appeals succeed, because her re-marriage, under law, is neither void nor voidable, but valid and irrevocable - Appeals became infructuous and were liable to be dismissed - Appeal dismissed.

Madhya Pradesh High Court

Mohanmurari vs Smt. Kusumkumari on 22 December, 1964

Equivalent citations: AIR 1965 MP 194

Bench: T Naik, S Dayal

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When court should not condone delay for setting aside divorce decree?

 From the above said decisions, it emerges that a spouse who is successful of having a decree for divorce in his or her favour, has to wait for a statutory period as stipulated in Section 15 of the Hindu Marriage Act and if an appeal is filed beyond the period as contemplated in the provision, the second marriage contracted after such statutory period, cannot be held to be a void one. It is also settled proposition of law that the rights conferred upon a spouse by virtue of Section 15 of the Act cannot be defeated by condoning the delay, when no sufficient cause is shown for the said purpose.

Madras High Court

Vijayalakshmi vs Kannappan on 17 November, 2009

Citation: 2010(2)CTC654, (2010)4MLJ651, 2011(2)RCR(Civil)368

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