MR. ANURAG MITTALversusMRS. SHAILY MISHRA MITTAL

                         [2018] 10 S.C.R. 123                           123


                     MR. ANURAG MITTAL                                  A
                                 v.
                MRS. SHAILY MISHRA MITTAL
                  (Civil Appeal No. 18312 of 2017)
                        AUGUST 24, 2018                                 B
       [S. A. BOBDE AND L. NAGESWARA RAO, JJ.]
       Hindu Marriage Act, 1955 – s. 15 and 5(i) – Divorced
persons, when may marry again – Marriage between the appellant
and the respondent during the pendency of the appeal against the
                                                                        C
decree of divorce – Marriage was entered into after application
for withdrawal of appeal, though before the order of withdrawal
was passed – Validity of the second marriage – Held: Section 15
provides that the second marriage by either party shall be lawful
only after dismissal of an appeal against the decree of divorce, if
filed – In case an appeal is presented, any marriage before dismissal   D
of the appeal shall not be lawful – On facts, during the pendency
of the appeal, there was a settlement between the appellant 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
                                                                        E
has to wait till a formal order is passed in the appeal – Following
the principles of purposive construction, the restriction placed on
a second marriage in s. 15 till the dismissal of an appeal would not
apply to a case where parties have settled and decided not to pursue
the appeal – Appeal is deemed to have been withdrawn on the date
of the filing of the application for withdrawal – On the date of the    F
marriage between the appellant and the respondent, the former
spouse of the appellant cannot be considered as a living spouse –
Thus, s. 5(i) not attracted and the marriage between the parties not
void.
      Allowing the appeal, the Court                                    G
      Per L. Nageswara Rao, J.
     HELD: 1.1 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
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                                123
124            SUPREME COURT REPORTS                      [2018] 10 S.C.R.


A     respondent was before the order of withdrawal was passed by
      the Court. The application for withdrawal of the appeal was filed
      prior to the date of the marriage. [Para 10] [134-C-D]
            1.2 Order XXIII Rule 1 (1) gives an absolute right to the
      plaintiff to withdraw his suit or abandon any part of his claim.
B     There is no doubt that Order XXIII Rule 1 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. Therefore, the appeal is deemed to have been
      withdrawn on the date of the filing of the application for withdrawal.
      On the date of the marriage between the appellant and the
C     respondent, first wife of the appellant 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. [Para 12] [135-F-G]
            1.3 Section 15 of the Hindu Marriage Act, 1955 provides
D     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
E     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 is to avert complications
F     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.
      [Para 18] [137-H; 138-A-C]
G           1.4 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
H
        ANURAG MITTAL v. SHAILY MISHRA MITTAL                           125


filing of the application for withdrawal. It cannot be said that he     A
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, 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
                                                                        B
decided not to pursue the appeal. [Para 19] [138-D-E]
       1.5 It is not the case of the appellant that the marriage 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. Thus, denouement
of the Family Court is correct and upheld, albeit for different         C
reasons. The conclusion of the High Court that the marriage is
void is erroneous. The judgment of the High Court is set aside.
[Para 20] [138-F-G]
      Lila Gupta v. Laxmi Narain and Ors. (1978) 3 SCC
      258 : [1978] 3 SCR 922 ; Shiv Prasad v. Durga Prasad              D
      (1975) 1 SCC 405 : [1975] 3 SCR 526 ; Anil Dinmani
      Shankar Joshi v. Chief Officer, Panvel Municipal
      Council, Panvel AIR 2003 Bom. 238 ; K. S. Bhoopathy
      v. Kokila (2000) 5 SCC 458 : [2000] 3 SCR 1168 ;
      Bijayananda Patnaik v. Satrughna Sahu [1962] 2 SCR                E
      538 ; Paratabjabdutak Eravath Kanapravan Kalliani
      Amma v. K. Devi (1996) 4 SCC 76 : [1996] 2 Suppl.
      SCR 1 ; Revanasiddappa v. Mallikarjun (2011) 11 SCC
      1 : [2011] 4 SCR 675 ; Shailesh Dhairyawan v. Mohan
      Balkrishna Lulla (2016) 3 SCC 619 : [2015] 12 SCR
      70 ; Parayankandiayal Eravath Kanapravan Kalliani                 F
      Amma v. K. Devi (1996) 4 SCC 76 : [1996] 2 Suppl.
      SCR 1 ; Revanasiddappa v. Mallikarjun (2011) 11
      SCC 1 : [2011] 4 SCR 675 ; Dy. Custodian v. Official
      Receiver [1965] 1 SCR 220 – referred to.
      Marsh v. Marsh 1945 AC 271 ; Salomon v. Salomon &                 G
      Co. Ltd. (1897) AC 22 ; Black-Clawson International
      Ltd. v. Papierwerke Waldhof-Aschaffenburg AG
      (1975) AC 591 – referred to.
      Cross Statutory Interpretation, Ed. by Dr. John Bell &
      Sir George Ingale, Second Edn. (1987) – referred to.
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126            SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A           Per S. A. Bobde, J. ( Concurring)
            1.1 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
B     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 a marriage contracted during a prescribed period will
      not be void because it was contracted under an incapacity.
C     Obviously, this would have no bearing on the other conditions of
      a valid marriage. [Para 2] [139-F-H]
            1.2 In any event, 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
D     had done nothing to contradict his intention to accept the decree
      of dissolution. [Para 3] [140-A-B]
            Lila Gupta v. Laxmi Narain and Ors. (1978) 3 SCC
            258 : [1978] 3 SCR 922 – relied on.

E                            Case Law Reference
      Judgment of Hon’ble Justice L. Nageswara Rao
            [1978] 3 SCR 922      referred to                Para 6
            [1975] 3 SCR 526      referred to                Para 10
            AIR 2003 Bom. 238     referred to                Para 10
F
            [2000] 3 SCR 1168     referred to                Para 11
            [1962] 2 SCR 538      referred to                Para 12
            [1996] 2 Suppl. SCR 1 referred to                Para 14
            [2011] 4 SCR 675      referred to                Para 14
G           [2015] 12 SCR 70      referred to                Para 15
            [1996] 2 Suppl. SCR 1 referred to                Para 15
            [2011] 4 SCR 675      referred to                Para 15
            [1965] 1 SCR 220         referred to             Para 17

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         ANURAG MITTAL v. SHAILY MISHRA MITTAL                                  127


Judgment of Hon’ble Justice S.A. Bobde                                          A
      [1978] 3 SCR 922                referred to             Para 1
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 18312
of 2017.
      From the Judgment and Order dated 10.08.2016 of the High Court            B
of Delhi at New Delhi in Matrimonial Appeal (FC) No. 94 of 2015.
       Anurag Mittal, Appellant-in-person.
      Sakha Ram Singh, Sr. Adv., Umang Shankar, Mohd. Muztaba,
Advs. for the Respondent.
                                                                                C
      The Judgments of the Court were delivered by
         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
                                                                                D
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               E
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
                                                                                F
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             G
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
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128            SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A     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
B     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
C     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?
D           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
E     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
F
      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
G     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.
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         ANURAG MITTAL v. SHAILY MISHRA MITTAL                                 129
                [L. NAGESWARA RAO, J.]

       4. Section 11 of the Act provides that any marriage solemnized          A
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:
                                                                               B
       “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      C
       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         D
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     E
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             F
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:
                                                                               G
       “8. Did the framers of law intend that a marriage contracted in
       violation of the provision contained in the proviso to Section 15 to
1
  Marsh v. Marsh 1945 AC 271
2
  Hindu Marriage (Amendment ) Act, 1976, Act 68 of 1976
3
  (1978) 3 SCC 258
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130      SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     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
B
      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
C     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
D
      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
E     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
F
      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
G     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
H
  ANURAG MITTAL v. SHAILY MISHRA MITTAL                                  131
         [L. NAGESWARA RAO, J.]

requisites, but whether the marriage itself is void ... is a question    A
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
                                                                         B
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       C
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         D
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                E
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             F
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        G
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.

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132            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A           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
B
            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
C           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
D
            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
E     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
F           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
G           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
H
         ANURAG MITTAL v. SHAILY MISHRA MITTAL                               133
                [L. NAGESWARA RAO, J.]

      decree of divorce. Section 13 which provides for divorce in terms      A
      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
                                                                             B
      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     C
      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
                                                                             D
      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), sub-section (1) of Section 5 by
      its very context would not include within its meaning the
      expression “former spouse”.                                            E
                                                     (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           F
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   G
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
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134               SUPREME COURT REPORTS                        [2018] 10 S.C.R.


A     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’.
B            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
C            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
D     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
E     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.
F     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
G     Joshi v. Chief Officer, Panvel Municipal Council, Panvel 5 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
      4
          (1975) 1 SCC 405
      5
H         AIR 2003 Bom. 238, 239
            ANURAG MITTAL v. SHAILY MISHRA MITTAL                                  135
                   [L. NAGESWARA RAO, J.]

withdrawal would be complete as soon as the plaintiff files his purshis            A
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           B
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         C
          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   D
          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      E
          to sue afresh on the same cause of action. Such liberty being
          granted 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         F
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              G
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.
6
    K.S. Bhoopathy v. Kokila (2000) 5 SCC 458
7
    Bijayananda Patnaik v. Satrughna Sahu (1962) 2 SCR 538, 550                    H
136             SUPREME COURT REPORTS                             [2018] 10 S.C.R.


A             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
      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
B
      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
C     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
D     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.
E
             Interpretation is the process by which the Court determines
             the meaning of a statutory 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
F     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
G     recognized by this Court in Shailesh Dhairyawan v. Mohan Balkrishna
      Lulla11 which is as follows:
      8
        Cross Statutory Interpretation, Ed. Dr. John Bell & Sir George Ingale, Second
      Edition (1987)
      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
H     11
         (2016) 3 SCC 619
           ANURAG MITTAL v. SHAILY MISHRA MITTAL                                  137
                  [L. NAGESWARA RAO, J.]

         “ 33. We may also emphasise that the statutory interpretation of         A
         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.
                                                                                  B
         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 the courts not
         only in this country but in many other legal systems as well.”           C
         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                       D
         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:
                                                                                  E
         “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           F
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”.                 G

       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
12
   [1897] AC 22 at 38
13
   [1975] AC 591, p. 613
14
   (1965) 1 SCR 220 at 225 F - G                                                  H
138            SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A     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
B
      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
C     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.
D     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
E     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
F     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.
G
            21. Accordingly, the Appeal is allowed.




H
            ANURAG MITTAL v. SHAILY MISHRA MITTAL                                139


        S. A. BOBDE, J. 1. I am in agreement with the view taken by              A
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
                                                                                 B
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 and 10 of Lila Gupta        C
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            D
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     E
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            F
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         G
not be void because it was contracted under an incapacity. Obviously,
this would have no bearing on the other conditions of a valid marriage.
The decision in Lila Gupta case thus covers the present case on law.
1
    (1978) 3 SCC 258
2
    Act 68 of 1976                                                               H
140                SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A            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.
B
      Nidhi Jain                                                   Appeal allowed.




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