Himachal Pradesh High Court
Archna (Rachna) vs Satish Kumar on 3 March, 2020
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO (HMA) No. 326 of 2012
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Date of decision: 03.03.2020
Archna (Rachna) .....Appellant
Versus
Satish Kumar .....Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Yes.
Whether approved for reporting?1
For the Appellant:
r Mr. G. R. Palsra, Advocate.
For the Respondent: Mr. Ajay Chandel, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
Aggrieved by the order dated 19.05.2012, whereby the application filed by the appellant for setting aside ex parte judgment and decree of divorce dated 02.09.2009 has been ordered to be dismissed, the petitioner has filed the instant appeal.
2. The marriage of the parties was solemnized on 21.02.2007, however, on account of matrimonial discord, the petitioner-respondent filed a petition for divorce. Despite service, appellant did not appear to contest such proceedings and eventually an ex parte decree of divorce came to be passed by the learned Court below on 02.09.2009.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 06/03/2020 20:23:40 :::HCHP 2
3. On 26.02.2010, the petitioner filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree .
of divorce but the same was dismissed by the learned Court below, constraining the petitioner to file the instant appeal.
4. It is not in dispute rather admitted by the appellant herself that she had received summons on 27.05.2009 from the learned Court in which the date was fixed for 30.05.2009 but she did not choose to appear on the ground that petitioner had asked her not to appear since the conciliation proceedings were under progress. Since there being nothing on record to support this contention, the same had rightly been negated by the learned trial Court.
5. However, learned counsel for the appellant would contend that the learned Court below has wrongly decided the question of limitation against the appellant, as it is more than settled that an application for setting aside the ex parte decree can be filed within 30 days from the date of knowledge as envisaged under Article 123 of the Limitation Act. However, this contention is equally without merit.
6. It would be relevant to reproduce Article 123 of the Limitation Act, which reads as under:-
123. To set aside a decree passed Thirty days The date of the decree ex parte or to re-hear an or where the appeal decreed or heard ex summons or notice parte. was not duly served, ::: Downloaded on - 06/03/2020 20:23:40 :::HCHP 3 when the applicant had knowledge of the decree.
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7. A bare perusal of the aforesaid Article reveals that an application to set aside decree that has been passed ex parte, the period of limitation is 30 days and the same begins to run from the date of decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.
8. As observed above, the petitioner was duly served in the proceedings, therefore, the limitation would begun from the date of order and not from the date of knowledge of such order.
9. As a last ditch effort, the learned counsel for the appellant would contend that since the respondent-petitioner has got remarried during the pendency of these proceedings, therefore, such re-marriage is required to be declared null and void. Even this contention is without any merit.
10. Admittedly, the appeal for setting aside the decree of divorce has been filed after five months after the prescribed period of limitation for filing of the appeal, Section 15 of the Hindu Marriage Act permits marriage after dissolution, if there is no right of the 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.
::: Downloaded on - 06/03/2020 20:23:40 :::HCHP 411. In the instant case, no appeal had been presented within the prescribed period of limitation, the Section 15 of the .
Hindu Marriage Act attract. In coming to such conclusion support can conveniently be taken from a recent judgment of the Hon'ble Supreme Court in Criminal Appeal No. 321 of 2020,, titled as Krishnaveni Rai vs. Pankaj Rai, wherein the Hon'ble Supreme Court observed as under:-
25. Sections 5, 11 and 15 of the Hindu Marriage Act, 1955, relevant to this appeal are set out here-in-below for convenience: -
"5. Conditions for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;::: Downloaded on - 06/03/2020 20:23:40 :::HCHP 5
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
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xxx xxx xxx
11. Void marriages.- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
xxx xxx xxx
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 rdecree 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."
26. It is well settled that a marriage which is null and void is no marriage in the eye of law. Where the marriage is a nullity application for maintenance is liable to be set aside on that ground alone. Under Section 5 of the Hindu Marriage Act, a marriage may validly be solemnized between any two Hindus, subject to the following conditions:-
(i) Neither party has a spouse living at the time of marriage [(Section 5(i) of the Hindu Marriage Act;
(ii) Neither party was incapable of giving valid consent of the marriage in circumstances specified in Section 5(ii) of the Hindu Marriage Act;
(iii) The parties to the marriage are of requisite age, that is, the bridegroom should have completed 21 years of age and the bride 18 years of age, at the time of marriage [Section 5(iii) of the Hindu Marriage Act];::: Downloaded on - 06/03/2020 20:23:40 :::HCHP 6
(iv) The parties should not be within the degree of prohibited relationship unless the custom or usage governing each of them permits such marriage .
[(Section 5(iv) of the Hindu Marriage Act];
(v) Parties are not sapindas of each other unless the custom or usage governing each of them permits between two. [(Section 5 (v) of the Hindu Marriage Act];
27. Section 11 of the Hindu Marriage Act provides that any marriage solemnized after the commencement of this Act shall be null and void and may on a petition presented by either party thereto, against the other party, be so declared by a decree of nullity, if it contravenes any of the conditions in Clauses (i), (iv) and (v) of the Section 5.
28. A careful reading of Sections 5, 11 and 15 makes it amply clear that while Section 5 specifies the conditions on which a marriage may be solemnized between two Hindus, only contravention of some of those conditions render a marriage void.
29. Marriage in contravention of Section 5(i) of the Hindu Marriage Act, that is, where either party or both have a spouse living at the time of marriage is void. Similarly, a marriage is void if the parties to the marriage are within the degrees of prohibited relationship unless the custom or usage governing each of them permits of such marriage, or if the parties are sapindas of each other unless, again, the custom or usage governing each of them permits marriage between the two. [Sections 5(iv) and 5(v)]
30. Contravention of Sections 5(ii) or 5(iii) of the Hindu marriage Act does not render the marriage null and void. In such a case, the marriage is voidable at the option of ::: Downloaded on - 06/03/2020 20:23:40 :::HCHP 7 the underaged party to the marriage or the party who could not have validly consented to the marriage.
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31. Section 15 clarifies that when a marriage has been dissolved by a decree of divorce, and 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 preferred, or an appeal has been presented but the same has been dismissed, it shall be lawful for either party to the marriage to marry again. Had it been the legislative intent that a marriage during the pendency of an appeal should be declared void, Section 11 would expressly have provided so.
32. As held by this Court in Anurag Mittal v. Shaily Mishra Mittal, 2018 9 SCC 691, the object of Section 15 is to provide protection to the person who had filed an appeal against the decree of dissolution of marriage and to ensure that such appeal was not frustrated. The protection afforded by Section 15 is primarily to a person contesting the decree of divorce. As observed by Bobde, J.
in his concurring judgment in Anurag Mittal (supra):-
"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 [Lila Gupta v. Laxmi Narain, 1978 3 SCC 258] . 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 [Lila Gupta v. Laxmi Narain, 1978 3 SCC 258] . 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 ::: Downloaded on - 06/03/2020 20:23:40 :::HCHP 8 not possible to infer a nullity or voidness vide paras 9 and 10 of Lila Gupta case...
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"........ 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 have no bearing on the other conditions of a valid marriage. The decision rin Lila Gupta case thus covers the present case on law."
33. In Leela Gupta v. Laxmi Narain & Ors., 1978 3 SCC 258, this Court held:
"......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 consequence for 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." (Paragraph 10).
".....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...... An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting....."(paragraph 13).
"Thus, examining the matter from all possible angles and keeping in view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable yet not void and no consequences having ::: Downloaded on - 06/03/2020 20:23:40 :::HCHP 9 been provided for in respect of the marriage in contravention of the proviso to Section 15, it cannot be said that such marriage would be void"
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(paragraph 20)"
34. In any case, the bar of Section 15 is not at all attracted in the facts and circumstances of this case, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal. Section 15 permits a marriage after dissolution of a marriage if there is no right of appeal against the decree, or even if there is such a right to appeal, the time of appealing has expired without an appeal having been presented, or the appeal has been presented but has been dismissed. In this case no appeal had been presented with the period prescribed by limitation.
35. The bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal.
36. As observed above, the appeal was infructuous for all practical purposes, from the inception, since the Appellant's ex-husband had lawfully remarried after expiry of the period of limitation for filing an appeal, there being no appeal till then.
37. It could never have been the legislative intent that a marriage validly contracted after the divorce and after expiry of the period of limitation to file an appeal from the ::: Downloaded on - 06/03/2020 20:23:40 :::HCHP 10 decree of divorce should rendered void on the filing of a belated appeal. If the marriage of the Appellant's ex-
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husband in 2006 was a valid marriage in law recognizing that he had no living spouse, the subsequent re-marriage of the Appellant could also not be void. We are in full agreement with the view of this Court in Leela Gupta (supra) that the effect of the prohibition against one of the parties from contracting a second marriage for a certain period is not to nullify the divorce and continue the dissolved marriage, as if the same were subsisting.
12. For the reasons stated above, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.
3rd March, 2020 (Tarlok Singh Chauhan)
(sanjeev) Judge
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