Holding

A Special Leave Petition is not rendered infructuous by a respondent's remarriage before the expiry of the appeal period and the 90‑day limitation for filing the petition; such remarriage is unlawful and the petition must be heard.

Summary

The wife obtained a decree of dissolution of marriage on grounds of cruelty and appealed the decree, which was dismissed by the High Court on 16 July 1986. The husband subsequently contracted a second marriage on 17 August 1986, and the wife filed a Special Leave Petition (SLP) under Article 136 of the Constitution within the 90‑day limitation period. The husband raised a preliminary objection that the SLP was rendered infructuous by his remarriage. The Supreme Court examined Section 15 of the Hindu Marriage Act, as amended by the Marriage Laws (Amendment) Act, 1976, and held that a party may remarry only after the period for filing a special leave petition has expired and the appeal period has lapsed. Since the 90‑day window for filing the SLP ended on 14 September 1986, the husband's remarriage before that date was not lawful and could not defeat the petition. Consequently, the preliminary objection was overruled and the SLP was directed to be placed for hearing.

Issues considered

Whether a Special Leave Petition becomes infructuous when the respondent contracts a second marriage before the 90‑day filing period expires.
Whether Section 15 of the Hindu Marriage Act, as amended, bars remarriage before the appeal period and the SLP filing period have expired.
Effect of the deletion of the one‑year proviso on the right to remarry in pending appeal situations.

Legislation cited

Subjects

Hindu Marriage ActSection 15Special Leave PetitionArticle 136RemarriageAppeal periodLimitation ActMonogamySupreme CourtPreliminary objection

Judgment

,,
J"

1EJINDER KAUR
A
v.
GURMIT SINGH

FEBRUARY 23, 1988

B [A.P. SEN AND B.C. RAY, JJ.)

Constitution of India, 1950: Article 136-Decree for dissolution

-•
of marriage-Upheld by High Court-Wife filing SLP-Husband con-
tracting second marriage one month after dismissal of appeal by High
Court-SLP whether rendered infructuous.
c Hindu Marriage Act, 1955: Section 15-Effect of deletion of )
proviso by Marriage Laws (Amendment) Act, 1976-Decree for disA
solution of marriage upheld by High Court-SLP under Article B6 of
Constitution of India filed by wife-Husband marrying again one
month after dismissal of High Court appeal-Preliminary objection that
D SLP rendered infructuous-Whether maintainable.
(.
Limitation Act, 1963: Article 113(c)-Decree for dissolution of
marriage-Upheld by High Court-SLP-Filed within 90 days by
wife-Husband meanwhile contracting second marriage-Whether SLP
rendered infructuous.
E
l
Section 15 of the Hindu Marriage Act, 1955 provided that when a
marriage was dissolved by a decree of divorce, it shall be lawful for
either of the spouses to marry again, where either there was no right of
appeal or where there was such a right of appeal, the time for appeal-
ing, had expired, without the appeal being presented or the appeal
-
F having been presented, was dismissed. Proviso to the section provided
that it shall not be lawful for either of them to remarry unless at the
date of such marriage at least one year bad elapsed from the date of\. -(
decree in the conrt of first instance. This proviso was deleted by tbe'"1
Marriage Laws (Amendment) Act, 1976.

G A decree for dissolution of marriage was granted by the Addi-
tional District Judge against the petitioner-wife on the ground of
cruelty under s. 13(i-a) of the Hindu Marriage Act, 1955. The J
petitioner-wife's appeal to the High Court was dismissed in limine.

The petitioner-wife ftled a Special Leave Petition in this Court. A
H preliminary objection was raised on behalf of the respondent-husband
1098
TEJINDER KAUR v. GURMIT SINGH 1099
--(
that the petition had become infructuous inasmuch as the respondent-
A
hushand bad meanwhile married again on 17th August, 1986, just a
month after the dismissal of the petitioner's appeal by the High Court.

Over ruling the preUrninary objection and directing the Special
Leave Petition to be placed for hearing,
B
HELD: Under the law laid down in the Hindu Marriage Act,
~

-
1955, monogamy is the rule and a party can only contract valid second
marriage after the first ceases to exist in the manner envisaged bys. IS.
This rule is an integral part of the proceedings by which alone both the
parties to the decree can be released from their incapacity to contract a
\,!resh marriage. I1102E-F)
--{ '
c
i Prior to the Amendment Act of 1976, the proviso to s. 15 laid
down a period of waiting of one year between the passing of a decree for
divorce by the court of first instance and the remarriage of any of the
spouses. The deletion of this proviso, by the Marriage Laws (Amend-
' ment Act), 1976 and doing away with the period of waiting has given D
rise to a question of great difficulty. I1103A-B I

The section, when it speaks of a case where there is a "right of
appeal" does not in terms cover the case of an application for special
'f leave to appeal to the Supreme Court under Article 136 of the Consti-

- tution. l1103B-C)

Under Article 133(c) of the Limitation Act, 1963 a special leave
petition can be fJ.Ied within 90 days from the date of the disposal of the
appeal by the High Court. Therefore, a successful party cannot take
E

away the right of presenting an application from the other spouse by
marrying Immediately after the High Court's jndgment and must wait F
)- ~II that period was over and make sure whether an application for
special leave has been fJ.Ied in the Supreme Court. I II03C-D I

Chandra Mohini Srivastava v. Avinash Prasad Srivastava &
.> Anr., [1967) 1SCR864 and Lila Gupta v. Laxmi Narain & Ors., [1978)
3 SCR 922, followed. G

In the instant case, the High Court having dismissed the appeal on
t6th July, 1986, the petitioner could have presented a special leave
petition within ninety days therefrom i.e. till l4th September, 1986. Till
that period was over, it was not lawful for either party to marry again
as provided bys. 15. [1104C-D I H
1100 SUPREME COURT REPORTS [1988] 2 S.C.R.
)-
A Though the respondent has denied -any knowledge of the f"tling
of the appeal in the High Court or of its dismissal, and has justif"teif
the second marriage on August f7, 1986, this has been controverted by
the petitioner, by filing a copy of the registered notice dated May 31,
1986, intimating the resp11ndent of the filing of the appeal. It was,
therefore, incumbent on the respondent to have apprised himself as to
B whether the appeal in the High Court was still pending; and if not, r
whether the period for filing a special leave petition to this Court had
expired. [1104A-C]

eCatterall v. Sweetman, [1845] 9,Jur. 951, 954, referred to. -
'

CIVIL APPELLATE JURISDICTION: Special Leave Petitio_n)
c (Civil) No. 13306 of 1986. /\..

From the Judgment and Order dated 16. 7.1986 of the High
Court of Punjab and Haryana in First Appeal from Order No. 110/M
of_ 1986, and Civil Misc. No. 3087 Cll of 1986.
D
Mrs. Sarla Chandra and Girish Chandra for the Petitioner.

Mukul Mudgal and P .K. Jain for the Respondent.

The Judgment of the Court was delivered by
E
SEN, J. In this special leave petition by the wife against the -
decree for dissolution of marriage granted by the Additional District
Judge, Patiala dated 29th March, 1986 on the ground of cruelty under
s. 13(ia) of the Hindu Marriage Act, 1955, against which the peti-
tioner-wife had preferred an appeal to the Punjab & Haryana High
F Court and which the High Court by its order dated 16th July, 1986
dismissed in limine, a preliminary objection is raised that the petitio~ -(
has become infructuous inasmuch as the respondent-husband has iti-..
the meanwhile married again on 17th August, 1986 i.e. just after a
moµth of the dismissal of her appeal.

G It is not necessary to state the facts in any detail. It is enough to
say that the learned District Judge held the wife guilty of mental :J
cruelty for having voluntarily deprived the husband of her society and
cohabitation for a long period as, according to him, marriage without
sex is an anathema. He further held that the wife had falsely charged
the husband with adultery. It is quite evident on these facts that the
H marriage has irretrievably broken.
TEJINDER KAUR v. GURMIT SINGH [SEN, J.I 1101

--i We heard learned counsel for the parties and the question is A
whether the condition pre-requisite before a lawful marriage can take
~
plac'!! after a decree for dissolution of marriage under s. 15 of the Act
has been fulfilled. Prior to its amendment by the Marriage Laws
.
(Amendment) Act, 1976 by which the proviso was deleted, s. 15 was in
these terms:
B
1 "15. 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 pre-
sented, or an appeal has been presented but has been dis-
·missed, it shall be lawful for either party to the marriage to
'\
marry again .
c
..'f
Provided that it shall not be lawful for the respective
parties to marry again unless at the date of such marriage at
least one year has elapsed from the date of the decree in the
court of the first instance." D
)
Emphasis supplied

Prior to the Amendment Act of 1976, the proviso to s. 5 laid
down a period of waiting of one year between the passing of a decree
for divorce by the Court of first instance and the remarriage of any of
t the spouses. The Allahabad High Court in Lila Gupta v. Laxmi- E
..,, narayan, ILR (1969) 1 All 92 and the Calcutta High Court in Uma
Charan Roy v. Smt. Kaja/ Roy, AIR (1971) Cal. 307 held that such
period of waiting was en joined on the parties in the interests of public
policy and morality so as to discourage divorcees from entering into
> fresh matrimony and to avoid confusion of parentage. It was pointed
out that even in Mohammadan law a divorced wife is expected to F
~~- avoid a danger of confusion of paternity. It was accordingly held that
marry any other man only after the expiry of the period of iddat to

the prohibition being mandatory, if any divorced party married again
within a period of one year, such marriage was nullity. That view how-
~
ever did not find favour with this Court in Lila Gupta v. Laxmi Narain
& Ors., [1978] 3 SCR 922 and it was held.that a marriage contracted in G
contravention of the rule relating to one year laid down in the proviso
~ would not be void. The Court referred to the following observations of
Dr. Lushington in Catterall v, Sweetman, [1845] 9 Jnr. 951, 954:

"The words in this section are negative words, and are
clearly prohibitory of the marriage being had without the H
1102 SUPREME COURT REPORTS 11988] 2 S.C.R. '..
prescribed requisites, but whether the marriage itself is
A
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 for any case in
which a marriage has been declared null and void unless
there were words in the statute expressly so declaring it
B .... From this examination of these Acts I draw two con•
clusions. 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
c nullity, were not considered by the legislature to create a
nullity."

It was observed that a decree for divorce breaks the marital tie and the
parties forfeit the status of husband and wife in relation to each other.
D But there was nothing in s. 15 of the Act to make that marriage a
nullity. The reason for this was an incapacity for second marriage for a
1 certain period does not have the effect of treating the former marriage
as subsisting.

Under the law laid down in this enactment, monogamy is the rule
t

-
E and a party can only contract a valid second marriage after the first
ceases to exist in the manner envisaged bys. 15. The rule laid down in
this section is an integral part of the proceedings by which alone both
the parties to the decree of divorce can be released from their incapa-
city to contract a fresh marriage. The Law Commission in its 59th
Report on Hindu Marriage Act, 1955 and Special Marriage Act, 1954
F however suggested the deletion of the proviso to s. 15 which laid down
that it shall not be lawful for the respective parties to marry again ~ ·'(
unless at the date of such marriage at least one year has elapsed from -
the date of the decree in the Court of the first instance, for the reason
extracted below:
1
G "The consideration of the parties, freedom to marry and
the inconvenience caused by the prohibition to remarry, ..)
out-weighed the two-fold purpose, i.e. avoiding confusion
of parentage and checking an attempt to obtain divorce
from one woman with the specific object of marrying
another woman."
H
1EJINDER KAUR v. GURMIT SINGH [SEN, J.I 1103

Parliament accordingly by the Marriage Laws (Amendment)
Act, 1976 has done away with the period of waiting by deleting the A
proviso. In Lila Gupta's case, this Court held that the effect of deleting
the proviso is that parties whose marriage is dissolved by a decree for
divorce can contract marriage soon thereafter provided, of course, the
· period of appeal has expired and that all pending pr<lceedings have to
be decided as if the proviso had not been applicable. The deletion of B
the proviso has given rise to a question of great difficulty. The section
when it speaks of a case where there is a 'right of appeal' does not in
. terms cover a case of an application for special leave to appeal to the
Supreme Court under Art. 136 of the Constitution.

\ In Chandra Mohini Srivastava v. Avinash Prasad Srivastava &
~ Anr., (1967] 1 SCR 864, on somewhat similar facts it was held that C
· though s. 15 in terms does not apply to a case of special leave to appeal
to the Supreme Court, a spouse who has won in the High Court and
got a decree of dissolution of marriage cannot by marrying imme-
diately after the High Court's Judgment take away the right of present-
1 ing an application for special leave to appeal from the other spouse. It D
was further held that the successful party must wait for a reasonable
time and make sure whether an application for special leave has been
filed in this Court. Wanchoo, J. speaking for a two-Judge Bench said:

"It is true that s. 15 does not in terms apply to a case of an
application for special leave to this Court. Even so, we are E
... of opinion that the party who has won in the High Court
and got a decree of dissolution of marriage cannot by
marrying immediately after the High Court's decree take
away from the losing party the chance of presenting an
application for special leave. Even though s. 15 may not
apply in terms and it may not have been unlawful for the F
first respondent to have married immediately after the
High Court's decree, for no appeal as of right lies from the
decree of the High Court to this Court in this matter, we
still think that it was for the first respondent to make sure
whether an application for special leave had been filed in
this Court and he could not by marrying immediately after G
the High Court's decree deprive the appellant of. the
chance to present a special leave petition to this Court. If a
person does so, he takes a risk and cannot ask this Court to
revoke the special leave on this ground."

In the present case, the respondent in the counter-affidavit has H
1104 SUPREME COURT REPORTS .(1988) 2 S.C.R.

A denied any knowledge of the fact that an appeal had been preferred in
the High Court or of-its dismissal and tlierefore asserts that he was
justified in contracting a second marriage on 17th August, 1986 i.e.
immediately after the expiry of one month from the date of the decree
of dissolution of marriage passed by the learned Additional District
Judge. This fact is controverted by the petitioner in her affidavit-in-
B reply. She has placed a copy of the registered notice dated 31st May, \..
1986 intimating the respondent of the filing of the appeal. · l
~
In view of this, it was incumbent on the respondent to have
enquired about the fate of the appeal. At any rate, the High Court,.
having dismissed the appeal on 16th July, 1986 the petitioner could
C have presented a special leave petition within ninety days therefrom / _
under Art. 133(c) of the Limitation Act, 1963 i.e. till 14th Septembei,~
1986. Till that period was over, it was not lawful for either party to · .
marry again as provided bys. 15. It was incumbent on the respondent,
as observed in Lila Gupta's case to have apprised himself as to whether
the appeal in the High Court was still pending; and if not, whether the
D period for filing a special leave petition to this Court had expired. We , .
must accordingly overrule the preliminary objection following the
views expressed in Chandra Mohini's an\! Lila Gupia's cases. We wish
to add that in the subsequent decision In Lila Gupta the Court while
dealing with the effect of deletion of the proviso observed:
~ '
t
E ''The net result is that now since the amendment parties
whose marriage is dissolved by a decree of divor<:e can
contract marriage soon thereafter provided of course the
period of appeal has expired."
-
The Court adverted to the word of caution administered by Wanchoo,
F J. in Chandra Mohini's case and reiterated:
. --('
t~
·.

"Even, though it may not have been unlawful for
husband to have married immediately after the Hi~
Court's decree tor no appeal as of right lies from the decree
of the High Court to this Court, still it was for the respon- ,._
G dent to make sure whether an application for special leave
had been filed in t_his Court and he could not, by marrying -:)
immediately after ·the High Court's decree, deprive the
wife of the chance of presenting a special leave petition to
this Court. If a person does so, he takes a risk and could not
ask the Court to revoke the special leave on that ground."
H
IBJINDER KAUR v. GURMIT SINGH !SEN, J.] 1105

We must for this reason overrule the preliminary objection and .A
direct the special leave petition to be placed for hearing. There shall be
no order as to costs.

N.P.V.