The short question in this appeal is, whether
the Appellant could have been denied maintenance under Section
125 of the Cr.P.C. on the ground that her marriage with the
Respondent No.1 was a nullity, just because the marriage had taken
place while an appeal filed by the Appellant against a decree of
dissolution of marriage with her first husband was still pending. In
other words, is a second marriage performed during the pendency of
an appeal from a decree of divorce a nullity, even though there were
no stay of operation of the decree.
In any case, the bar of Section 15 of Hindu marriage Act is not at all attracted in the
facts and circumstances of this case, where the appeal from the
decree of divorce had been filed almost a year after expiry of the
period of limitation for filing an appeal. Section 15 permits a
marriage after dissolution of a marriage if there is no right of appeal
against the decree, or even if there is such a right to appeal, the time
of appealing has expired without an appeal having been presented, or
the appeal has been presented but has been dismissed. In this case
no appeal had been presented with the period prescribed by
limitation.
35. The bar, if any, under Section 15 of the Hindu Marriage Act
applies only if there is an appeal filed within the period of limitation,
and not afterwards upon condonation of delay in filing an appeal
unless of course, the decree of divorce is stayed or there is an interim
order of Court, restraining the parties or any of them from remarrying
during the pendency of the appeal.
36. As observed above, the appeal was infructuous for all practical
purposes, from the inception, since the Appellant’s ex-husband had
lawfully remarried after expiry of the period of limitation for filing an
appeal, there being no appeal till then.
37. It could never have been the legislative intent that a marriage
validly contracted after the divorce and after expiry of the period of
limitation to file an appeal from the decree of divorce should rendered
void on the filing of a belated appeal. If the marriage of the
Appellant’s ex-husband in 2006 was a valid marriage in law
recognizing that he had no living spouse, the subsequent re-marriage
of the Appellant could also not be void. We are in full agreement
with the view of this Court in Leela Gupta (supra) that the effect of
the prohibition against one of the parties from contracting a second
marriage for a certain period is not to nullify the divorce and continue
the dissolved marriage, as if the same were subsisting.
38. Learned counsel appearing on behalf of the Appellant has also
argued that maintenance cannot be refused on the ground of nullity
of marriage, until there is a declaration of nullity of marriage by a
competent Court, in appropriate proceedings under Section 11 of the
Hindu Marriage Act. We need not go into this question in view of our
finding that a marriage contracted during the pendency of an appeal
from a decree is not ab initio void, and certainly not when such an
appeal is filed after expiry of the period of limitation.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 321 OF 2020
Krishnaveni Rai Vs Pankaj Rai
Indira Banerjee, J.
Dated:FEBRUARY 19, 2020
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