Monday, September 24, 2018

Alleged adultery on husband by wife not proved/ divorce granted on grounds of cruelty.


 Prior to the 1976 amendment to the Hindu Marriage Act 1955, cruelty was not a ground for grant of divorce. It was only a ground for judicial separation under Section 10 thereto. However, with the amendment in the year 1976, cruelty was incorporated as a ground for dissolution of the Hindu Marriage. Simultaneously, the words "as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to the petitioner to live with the other party" has been deleted. The statute no longer requires that proof. In a matrimonial dispute, the same set of facts may lead to different conclusions because the interpretation would depend upon the context of N.G. Dastane(Dr) .v S. Dastane (1975)2 SCC 326 Manisha Tyagi v Deepak Kumar (2010)4 SCC 339 the parties and the complexion of the case. The Courts are not to search for a standard in life to determine cruelty in a complaint of cruel treatment by one spouse against the other spouse or his/her relatives. A set of facts stigmatized as cruelty in one case is so in another case. Cruelty may allegedly depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their cultural orientation and the human values in which they are imbued.


The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health 9 Vijaykumar Ramchandra Bhat v Neela Vijaykumar Bhate (2003)6 SCC 334 of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."


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                            IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                Reserved on: 08.05.2014
                                              Pronounced on: 21.08.2014
+      FAO NO.295/2000, CMs. 1065-67/2000, 740/2001, 7490/2006,
       4499/2009 & 20065/2010

       MRS. ANIL SINGH                            ..... Appellant
                                                                         Through:        Mr. R.K. Gupta with  Singh, Advs.
                         versus
       DR. NARENDER SINGH                          ….. Through:          Mr. Rajiv Bahl, Advocate
       CORAM:
       HON'BLE MR. JUSTICE NAJMI WAZIRI
    MR. JUSTICE NAJMI WAZIRI
1. The present appeal challenges the judgment and decree dated 7.2.2000 of the Additional District Judge ("Trial Court") whereby the respondent's ("husband") petition for dissolution of marriage against the appellant ( "wife") under sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act ( the " Act") was allowed and the marriage was accordingly dissolved.
2. The facts leading to the present appeal are that the parties got married on 16.10.1988, a son viz. Master Amit was born to them in 1991. They lived in their matrimonial house, which was allotted to the husband by virtue of his being the Chief Medical Officer, CGHS, Delhi. The wife is employed with the National Airport Authority. Presently only the wife and their son live in the matrimonial house. It is stated that the parties could not live together after 5.5.1992. These facts remain uncontroverted.
3. It is the case of the husband that the wife treated him and his family members with repeated cruelty and failed to perform her duties as a wife, hence dissolution of the marriage was sought. The attempts to reconciliation failed. The husband alleged that one day the wife's behaviour became unbearable as a result of which he left the matrimonial house but only for that day. When he tried re-entering the house, the wife refused to let him in. She also did not allow the husband to meet or spend any time with their son. In reply, the wife denied all these allegations. She alleged that it was the husband who abandoned her alongwith their son, without assigning any reason therefor and further that the husband alongwith his family members was cruel towards her.

4. The Trial Court recorded in detail the various acts and instances of cruelty committed by the wife against the husband and his family; of the several attempts at reconciliation which failed and that the wife withdrew herself from the company of her husband and his family. It was also noted that the wife had filed a criminal complaint with the CAW Cell, which according to the husband, was only to harass him and his family. In her Written Statement (WS), the wife, while denying the allegations of desertion and cruelty, submitted that it was in fact the husband who had abandoned her and their minor son without any reason nor had he returned to the matrimonial house ever since; that the husband was committing adultery with his colleague at work, thereby subjecting the wife to unimaginable mental cruelty and furthermore, that the wife was threatened from disclosing this to any member of their family. The Written Statement however, denied all efforts as claimed to have been made by the husband towards reconciliation. Based on the submissions above mentioned, the Trial Court framed two issues being;
i. Whether the wife (appellant herein) treated the husband with cruelty;
ii. Whether the wife deserted the husband without any justifiable reason.
5. While adjudicating the first issue, the impugned order noted in detail the submissions of the husband, consisting of various instances including the dates, on which the wife was said to be cruel and negligent towards the husband and his family. It was submitted that the criminal complaint was filed with the CAW Cell after the filing the divorce petition and that a sum of Rs 8 lakhs was demanded from him in consideration for withdrawing the criminal complaint. It was noted that the wife had refused to have any sexual relations with respondent after the birth of their son. The Trial Court noted that during cross-examination, the wife did not put any questions to the husband pertaining to the allegations of her trying to immolate herself, or questions which would disprove the allegation of lock and denial of sexual relations between them. Admittedly the parties no longer live together in the matrimonial home and only the wife lives in it with the son. The accommodation was allotted to the husband. The appellant has failed to bring anything on record to show that she tried to reconcile her differences with the respondent. The Trial Court noted the submission of the wife that the parties lived together till 1993 was contradicted by the wife herself in the cross-examination, where it was said that there were no relations between the parties since 5 th May 1992. On a more serious allegation of adultery being levelled against the husband, the impugned order noted that the wife did not put any question to the respondent during his cross-examination to prove or strengthen the allegation. The Court noted that apart from mere allegations in the Written Statement, no evidence was brought forward by the appellant, to prove adultery by the husband. The Court noted that a mere statement that the respondent seemed to be in the company of the colleague often, does not establish the allegation of adultery. The lack of evidence and the absence of any of the allegations of adultery led the Trial Court to conclude that the wife failed to make out a case of adultery by the husabnd.

6. The Court held that since the appellant admitted to existence of certain efforts by the husband, the argument of the appellant that the husband, after abandoning her and their son, made no effort to reconcile their differences, stood negated. Accordingly, this aspect was decided in favour of the husband. The Court held that the husband had mentioned several dates when the wife was said to have ill-treated him, these dates were neither refuted nor reasonably explained by the wife. The lack of denial thereof would amount to admitting such instances of cruelty, which only strengthened the case of the husband. Based on these findings, the Trial Court held that the answer to the first issue was in the affirmative i.e. there was cruelty towards the husband.
7. On the issue concerning desertion by the wife/ appellant, the Trial Court noticed that the respondent/ husband was forced to leave his matrimonial house given the prevailing circumstances. It was the case of the husband that he left the matrimonial house on 5.5.92 but was not allowed to re-enter it when he tried to as allegedly the house lock had been changed. This was denied by the appellant. In her Written Statement, she contended that they were not cohabiting since 1993. However, during cross examination, she admitted that they were not living together in the matrimonial house since 1992, thereby contradicting her own averments in the Written Statement. The Trial Court recorded that the appellant had failed to prove her case of living separately from her husband for justifiable reasons or that the husband was a consenting party to his living separately from his wife and their minor son. The Trial Court noted the contention of the husband, that the threat of the wife to commit suicide by immolating herself, had forced him to leave the matrimonial house. This allegation against the wife was remained uncontroverted by her, thereby leading the Court to conclude that she had admitted it. The Court further noted that the wife had agreed to live with the respondent after the death of his colleague, with whom he was allegedly being adulterous, only proves that she had herself wilfully distanced the respondent. The Trial Court concluded that she had intended to live separately from her husband much prior to 1993 and that she had no intention of living together in the matrimonial house anymore. Holding that the husband had made out a case of cruelty and desertion, which the wife was unable to disprove, the Trial Court passed an order dissolving their marriage under sections 13 (1)(i-a) and 13 (1)(i-b) of the Act. This appeal challenges the said dissolution order.

8. The learned counsel for the appellant/wife contended before this Court that the impugned order has failed to recognize the fact that it was the respondent/ husband who was cruel towards the appellant and it was the husband who deserted her and their minor son. The counsel contended that the Trial Court failed to take note that the respondent had alleged instances amounting to cruelty only after 1992 and that there was no case of cruelty or of desertion till 1992; and that the husband had failed to show the Court that there was cruelty towards him and desertion by the wife. He submits that the Trial Court fell into error by failing to notice that the husband's examination-in-chief was not corroborated; that failure of the wife's counsel to put suggestions to the husband in his cross- examination, for denying acts of cruelty and desertion alleged against the wife cannot be construed as a substitute for the burden of proof placed on the husband to prove his case. It was submitted that when the husband had condoned all acts of cruelty by the appellant, he cannot now claim dissolution of marriage on the same "condoned" grounds of cruelty and desertion; that this was a point in law which the Trial Court failed to take note of; that till date the appellant alongwith their son live in the matrimonial home at the expense of the respondent and continue to avail the residential benefits by virtue of her status as his wife, which only goes to show that the respondent has indeed forgiven and condoned the acts of the appellant. The learned counsel submits that in the circumstances, a petition for divorce was contradictory and not maintainable.
9. The learned counsel further contended that every method possible to reconcile differences between the parties was attempted, despite the husband committing adultery; that it was gross error on the part of the Trial Court to not take into consideration these efforts of reconciliation; that it was settled law that divorce could not be granted merely because the wife had failed to prove charges levelled by her in her Written Statement (WS); whereas it was for the husband to disprove the charges levelled in the wife's WS. The counsel relied on Naval Kishore Somani v. Poonam Somani1 in support of this submission. He argued that since the respondent has failed to disprove allegations of adultery, the respondent cannot be said to have discharged the burden of proof and the Trial Court fell into error in passing the decree of divorce. He also contended that the intervention of the police and issuance of summons of the husband does not constitute an act of cruelty per se and that the husband cannot quote such instances to build a case of cruelty against the wife. It was submitted that even if the wife had not shown a reasonable cause for her living apart from her husband, the latter is still required to show the Court that the desertion was without any justifiable cause.
10. The impugned judgment addresses the contentions raised and submissions made on the three issues in separate parts i.e., cruelty, desertion and adultery. In adjudicating the three issues, this Court has arrived at the following conclusion:
Cruelty
11. In a petition for divorce filed on grounds of cruelty, the petitioner is required to show that he/she was subjected to such conduct which was 1 AIR 1999 A.P 1 harmful to her/his existence. It is settled law that in matrimonial cases, the fact of cruelty would need to be assessed from the peculiar facts of each case. The Supreme Court has held that cruelty is a course or conduct of one, which adversely affects the other. Cruelty may be mental or physical, intentional or unintentional. The cruelty alleged may largely depend upon the type of life the parties are accustomed to; their economic and social conditions and the cultural and human values to which they are exposed or attach importance to. Each case has to be decided on its own merits.2 The term Cruelty, has not been defined in the Hindu Marriage Act, hence its contextual definition has evolved through judicial pronouncements. It is more than mere physical and mental cruelty. The facts shown by the petitioner must indicate to the Court, the existence of such behaviour which may be objectionable or that may cause discomfort in the marriage. It is settled law that so far as proving the facts/instances of cruelty alleged in the petition are concerned, the burden of proof lies on the one alleging it. The burden of proof will lie on the party who affirms a fact and not on the party which denies it. The petitioner must therefore prove that the respondent has treated him with cruelty under the Act.3

12. In the present instance, the husband alleged that the wife had treated him and his family with cruelty and ultimately deserted him without any reason. He gave an account of a series of instances with specific dates on which he was subject to cruelty. It is unnecessary to recount the facts again. However, it would be pertinent to note that the wife alleges the same acts of cruelty and desertion to have been inflicted upon her by the Naveen Kohli v. Neelu Kohli (2006)4 SCC 558 husband. The Court would be required to see what constitutes cruelty. Such determination will vary from case to case. Acts which are part of the wear and tear of the marital life cannot be defined as acts of cruelty. It has been held by the Supreme Court that there is no longer a standard required to classify an act as cruelty. It holds:
"27. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty." 4
13. Prior to the 1976 amendment to the Hindu Marriage Act 1955, cruelty was not a ground for grant of divorce. It was only a ground for judicial separation under Section 10 thereto. However, with the amendment in the year 1976, cruelty was incorporated as a ground for dissolution of the Hindu Marriage. Simultaneously, the words "as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to the petitioner to live with the other party" has been deleted. The statute no longer requires that proof. In a matrimonial dispute, the same set of facts may lead to different conclusions because the interpretation would depend upon the context of N.G. Dastane(Dr) .v S. Dastane (1975)2 SCC 326 Manisha Tyagi v Deepak Kumar (2010)4 SCC 339 the parties and the complexion of the case. The Courts are not to search for a standard in life to determine cruelty in a complaint of cruel treatment by one spouse against the other spouse or his/her relatives. A set of facts stigmatized as cruelty in one case is so in another case. Cruelty may allegedly depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their cultural orientation and the human values in which they are imbued.5
14. The husband had alleged acts of cruelty against the wife including her withdrawal from his company and also his family. The Trial Court was to examine this aspect. The wife in her WS had alleged adultery by the husband with his colleague. This allegation was never proved. It is a most severe allegation which, if false, by itself amounts to cruelty. The learned counsel for the respondent submits that the wife had consistently failed to perform her marital obligations, i.e., she had withdrawn from his society - more particularly keeping husband away from her society and company for years, and indeed did not allow him to meet their son on the latter's birthdays. These allegations were found by the Trial Court to be true. It is not always the harsh words or physical violence that only amounts to cruelty. Unspoken hostility or continued neglect, sullenness or indifferent coupled with the spouse refusing to cohabit or have any marital relationship with the other spouse could be termed as cruelty. Denying or abstaining from physical relations unilaterally without any justifiable reasons amounts to cruelty towards the other spouse. In the present case, the wife had failed to disprove the allegation made by the husband. On the 5 Shobha Rani vs. Madhukar Reddi, (1988) 1 SCC 105 contrary, her allegation of adultery remained unproved. Her allegations were false, it amounted to cruelty. Therefore, this Court is of the view that the Trial Court was right in concluding that the husband had been subjected to cruelty by the wife. There is no infirmity in the impugned order apropos the conclusion arrived at in this regard. Desertion
15. The husband had alleged desertion by the wife. He would also need to prove it. The concept of desertion has been explained in Halsbury's Laws of England as;
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.6"
Just as the incidence of cruelty, desertion too has to be proven by the spouse so alleging it against the other. In doing so, the factum and the intention of desertion have to be proved. Such desertion ought to be for continuous a period of two years prior to filing of the petition. It would need to be shown that such desertion was without justifiable cause for withdrawal from the society of the other spouse. The events narrated in the divorce petition indicated that the husband was made to leave the matrimonial house, since the wife was extending threats of committing suicide, only to implicate him. Furthermore, she did not permit the (3rd Edn) Vol 12 husband to re-enter the house when he tried to return back home immediately, after having left for a day on 5.5.1992. The husband only left the home with the intention of returning back. He showed that he left for temporarily, only to tide-over the threat extended to him; the temporary removal of his physical presence was merely in his own interest as well as in the interest of his family to overcome the momentary matrimonial upheaval occasioned by wife's threat to commit suicide. His having endeavoured to re-enter the house was thwarted by the wife as the house lock had been changed. This aspect remained uncontroverted by the wife. Therefore, the only conclusion would be that the wife had prevented the return of the husband. The husband could not be said to have deserted the wife. On the contrary, the wife had continued to keep him away from her society and company. Therefore, although the wife was residing in the accommodation allotted to the husband, she had deserted him. She had shown no reason why she did not allow the husband to return. The factum of her withdrawing from the society of the husband without reason and continued to do so for more than two years showed her intention and factum to desert the husband.
16. This Court notices that there are no averments as to the causes or reasons or events leading to the alleged desertion by the husband except for a bald averment or the assertion by the wife that the husband deserted her without any reason. There is no proof on the record to support the aforesaid bald averment. The lack of relevant and appropriate material or proof would only lead to the conclusion that there was no just reason for not allowing the husband to go into the matrimonial home and that the wife always intended to desert the husband. A mere counter-allegation will not suffice to make out a case of the desertion of the appellant. The Trial Court was therefore, right in holding and concluding that the husband had established desertion by the wife. This Court is of the view that the reason for and the conclusion arrived at by the Trial Court cannot be faulted.

Adultery

17. The wife had alleged adultery by the husband. This was never proved. She never filed any criminal case or complaint elsewhere nor had she mentioned such a serious matter, if it were so, to any member of the family. Logically then, only the appellant seemed to have knowledge of the said adultery. In the cross-examination no questions were put to the husband on the alleged adultery. The allegation was levelled only in the WS. It was a mere bald statement unsupported by any proof. Incidentally, a colleague with whom the adulterous relationship was alleged had passed away much prior to the filing of the divorce petition. Apart from the wife's statement in this regard, there was nothing on record either by way of document or in deposition or cross-examination to prove the allegation of adultery. Therefore, there was really nothing which the husband could be required to negate. The learned counsel for the appellant submitted that the wife having made the allegation of adultery, it was for the husband to have negated such an allegation. He relied upon Naval Kishore Somani v. Poonam Somani7 to contend that where the husband does not traverse the charges made by the wife in the AIR 1999 A.P.1 WS, he failed to discharge that burden. It is noteworthy that in the aforesaid case, the Court concluded that the allegation of adultery made in the counter affidavit or WS by the respondent, if unproven or found false and baseless would itself constitute cruelty against the other spouse. But to hold that simply because the husband had failed to disprove such charges made by the wife in her WS would be stretching the limit of reasonableness. For adultery to be proven, cogent and substantive evidence has to be brought on record by the parties alleging so. In the present case, no such evidence was brought on record by the wife. In Somani (supra), the appellant seemed to have merely rebutted the allegations with a bald statement during the appellant's examination in chief. Whereas the respondent therein had provided enough proof to substantiate her allegations. There is clear difference in the facts of that case and the present appeal. The Trial Court concluded that there was lack of evidence from the wife in proving an allegation of adultery against the husband. Allegations of adultery have a consequence of damaging one's reputation, taking away the dignity of that person in the eyes of his family, friends and the society. The burden of proving adultery is placed on the individual who makes such an allegation. In the absence of any proof in this regard, the Trial Court rightly concluded that the charge of adultery against the husband was not proven.
18. The learned counsel for the respondent relied upon Savitri Bulchandani v. Mulchand Bulchdani8 which was a wife's appeal against the Trial Court decision granting divorce to the husband on the ground of 8 AIR 1987 Delhi 52 the cruelty and desertion. The Trial Court had found various documents authored by the wife threatening the husband and accusing him of having a bad character. The Court held that inability of the wife to prove the allegation of adultery against the husband amounted to cruelty. It observed:

"(44) In view of what is stated above, I am of the view that the appellant wife has persistently made false and baseless defamatory allegations against the husband regarding illicit relations with other women. She has failed to prove any of her assertions in accordance with law. Her own testimony in this regard is unworthy of reliance, for the reasons already stated. In the circumstances I am of the view that these false and baseless allegations which have been made by the wife in the written statement are sufficient in themselves, to bring home the charge of her having been cruel to the husband. In my view the husband is entitled to a decree of divorce on this ground alone."
19. In an appeal9 filed by the husband against the decree of divorce granted to the wife, the Supreme Court looked into the allegations against the wife made by the husband in his WS. The Court held:
"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health 9 Vijaykumar Ramchandra Bhat v Neela Vijaykumar Bhate (2003)6 SCC 334 of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."
20. What emerges from the aforesaid discussion is that wherever adultery is alleged by one spouse against the other and the allegation remains unproven, it constitutes cruelty against the accused spouse, since the allegation was a concerted and deliberate action which had the capacity to tarnish the reputation and lower the dignity of the other spouse. It would also cause immense mental trauma and stress to the accused party. Therefore, insofar as the wife had been unable to prove the allegation of adultery as made in her WS, it would constitute cruelty against the husband and this alone would be a ground on which divorce could have been granted. Besides, the husband had shown that he was prevented from being in the society of his wife because of her lacking him out and otherwise threatening to commit suicide so as to implicate the husband. He had shown that he had no intention to desert the wife or his son since he returned to the matrimonial home immediately after having left, for a day, on 5.5.1992. The wife's refusal to matrimonial relations with the husband and her false allegations of adultery constitute cruelty. The husband's divorce petition was justly allowed. This Court finds that the impugned order does not suffer from any infirmity or material irregularity. The respondent had sufficiently shown cruelty and desertion by the wife. The appeal is without merit and is accordingly dismissed. No orders as to costs.

NAJMI WAZIRI (JUDGE) AUGUST 21, 2014

Tuesday, August 28, 2018

Second Marriage during pendency of divorce appeal valid ?

 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.
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
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
during the pendency of the appeal against
the decree of divorce is void?

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No.18312 of 2017

MR. ANURAG MITTAL …… APPELLANT (S)

Versus

MRS. SHAILY MISHRA MITTAL …….. RESPONDENT (S)

J U D G M E N T

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.
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
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
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
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
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.

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 Narain
3 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
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
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’.

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,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, Panvel 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
13
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
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
Interpretation 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 Lulla
11 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 Receiver
14
 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
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
20
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
21
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 18312 Of 2017
MR. ANURAG MITTAL ... APPELLANT(S)
Versus
MRS. SHAILY MISHRA MITTAL ... RESPONDENT(S)
J U D G M E N T
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

3