The Supreme Court recently clarified that divorcees are free to enter into a subsequent marriage under the Hindu Marriage Act, 1965, once it is clear that they will not contest their divorce decree..In this context, appeals preferred by divorcees against a divorce decree would be treated as dismissed from the date on which the divorcee applies to withdraw his appeal, with the intent of absolutely abandoning such appeal..The Bench of Justices L Nageswara Rao and SA Bobde rendered the judgment in an appeal against a Delhi High Court verdict which had declared the second marriage of the appellant/divorcee husband void..The second marriage in question had taken place on December 6, 2012..This marriage was solemnised after the husband filed an application to withdraw his appeal against a 2009 divorce decree granted in respect of his first marriage..The withdrawal application was filed on November 28, 2011. However, the appeal itself was formally declared dismissed as withdrawn by the Court only on December 20, 2012, i.e. two weeks after his second marriage was solemnised..Marital discord prompted his second wife/respondent to filed an application to nullify their marriage in a family court in 2016. The respondent contended that the marriage was void given the bar on bigamy in Section 5(i) read with Section 11 of the Act..Further, Section 15 of the Act was also quoted. This provision lays down that it shall be lawful for divorced persons to marry only after the former marriage is dissolved by a divorce decree and when there is no subsisting right of appeal..In this backdrop, the second wife contended that the marriage was solemnised while a right of appeal was still pending qua the dissolution of her husband’s first marriage..The family court dismissed the second wife’s plea for voiding the marriage, whereas the High Court allowed it on appeal..In the husband’s appeal against the High Court’s verdict, the Supreme Court framed two questions for consideration:.Whether the dismissal of the appeal relates back to the date of filing of the application for withdrawal? 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?.On the question of the effective date of dismissal of an appeal, it was noted that the Supreme Court in Shiv Prasad v. Durga Prasad has already laid down that,.“…the act of withdrawal is complete as soon as the applicant intimates the Court that he intends to withdraw the application.”.To buttress this position, the Court referred to the right of litigants to absolutely withdraw suits under Order XXIII Rule 1 (1) of the Code of Civil Procedure, which, the Court held, could be applied for appeals as well. As also endorsed in the case of Bijayananda Patnaik v Satrughna Sahu,.“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.”.The Court concluded that as on the date of the second marriage, the valid decree of divorce existed with respect to the appellant’s first marriage. This divorce became final once the appellant withdrew his challenge to it on November 28, 2011..Therefore, the bar on bigamy was not attracted in the case and the second marriage could not be declared as void on that ground..Additionally, the Court also clarified that a marriage that takes place in contravention of Section 15 does not necessarily mean that the marriage is void, given the absence of any express prohibitory language. This position has already been clarified in the case of Lila Gupta v Laxmi Narain..While affirming this position, the Court noted that Section 15 of the Act has to be given a purposive interpretation, given the social welfare objects of the Act..In light of these observations, Justice Rao held that Section 15 was only intended to protect the rights of divorcees if they choose to contest the divorce by appeal. It would not be attracted in the instant case, where the divorcee has already made it clear that he does not intend to further contest his divorce..“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.”.In a concurring judgment, Justice Bobde held,.“What is held [in Lila Gupta’s case] 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 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.”.Read the judgment:
The Supreme Court recently clarified that divorcees are free to enter into a subsequent marriage under the Hindu Marriage Act, 1965, once it is clear that they will not contest their divorce decree..In this context, appeals preferred by divorcees against a divorce decree would be treated as dismissed from the date on which the divorcee applies to withdraw his appeal, with the intent of absolutely abandoning such appeal..The Bench of Justices L Nageswara Rao and SA Bobde rendered the judgment in an appeal against a Delhi High Court verdict which had declared the second marriage of the appellant/divorcee husband void..The second marriage in question had taken place on December 6, 2012..This marriage was solemnised after the husband filed an application to withdraw his appeal against a 2009 divorce decree granted in respect of his first marriage..The withdrawal application was filed on November 28, 2011. However, the appeal itself was formally declared dismissed as withdrawn by the Court only on December 20, 2012, i.e. two weeks after his second marriage was solemnised..Marital discord prompted his second wife/respondent to filed an application to nullify their marriage in a family court in 2016. The respondent contended that the marriage was void given the bar on bigamy in Section 5(i) read with Section 11 of the Act..Further, Section 15 of the Act was also quoted. This provision lays down that it shall be lawful for divorced persons to marry only after the former marriage is dissolved by a divorce decree and when there is no subsisting right of appeal..In this backdrop, the second wife contended that the marriage was solemnised while a right of appeal was still pending qua the dissolution of her husband’s first marriage..The family court dismissed the second wife’s plea for voiding the marriage, whereas the High Court allowed it on appeal..In the husband’s appeal against the High Court’s verdict, the Supreme Court framed two questions for consideration:.Whether the dismissal of the appeal relates back to the date of filing of the application for withdrawal? 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?.On the question of the effective date of dismissal of an appeal, it was noted that the Supreme Court in Shiv Prasad v. Durga Prasad has already laid down that,.“…the act of withdrawal is complete as soon as the applicant intimates the Court that he intends to withdraw the application.”.To buttress this position, the Court referred to the right of litigants to absolutely withdraw suits under Order XXIII Rule 1 (1) of the Code of Civil Procedure, which, the Court held, could be applied for appeals as well. As also endorsed in the case of Bijayananda Patnaik v Satrughna Sahu,.“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.”.The Court concluded that as on the date of the second marriage, the valid decree of divorce existed with respect to the appellant’s first marriage. This divorce became final once the appellant withdrew his challenge to it on November 28, 2011..Therefore, the bar on bigamy was not attracted in the case and the second marriage could not be declared as void on that ground..Additionally, the Court also clarified that a marriage that takes place in contravention of Section 15 does not necessarily mean that the marriage is void, given the absence of any express prohibitory language. This position has already been clarified in the case of Lila Gupta v Laxmi Narain..While affirming this position, the Court noted that Section 15 of the Act has to be given a purposive interpretation, given the social welfare objects of the Act..In light of these observations, Justice Rao held that Section 15 was only intended to protect the rights of divorcees if they choose to contest the divorce by appeal. It would not be attracted in the instant case, where the divorcee has already made it clear that he does not intend to further contest his divorce..“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.”.In a concurring judgment, Justice Bobde held,.“What is held [in Lila Gupta’s case] 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 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.”.Read the judgment: