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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 have 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. 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 at 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 lo 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.

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 s. 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 manage 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 pro- vides for divorce in terms says, that a marriage solemnised may on (1) AIR 1945 PC 188.

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 cl. (i), sub-s. (1) of s. 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 s. 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 cl. (i) of sub-s. (1) of s. 5. The expression 'spouse' in cl. (i), sub-s. (1) of s. 5 by its very context would not include within its meaning the expression 'former spouse'.. It was, however, said that an identical provision in s. 57 of the Indian Divorce Act, 1869, has been consistently interpreted to mean that a marriage contracted during the period prescribed in the fifth paragraph of s. 57 after a decree dissolving the marriage would be void. The Indian Divorce Act provides for the divorce of persons professing Christian religion. Section 57 provides for liberty to parties whose marriage is dissolved by a decree of divorce to marry again. Section 57 reads as under :

Provided that no appeal to the Supreme Court has been presented against any such order or decree.

When such appeal has been dismissed, or when in the result thereof the marriage is declared to be dissolved, but not sooner, it shall be lawful for the respective parties to the marriage to marry again as if the prior marriage had been dissolved by death."

We would presently examine the scheme of s. 57 to appreciate the contention that the section is in pari materia with s. 15 of the Act. Section 57 grants liberty to the parties whose marriage is dissolved by a decree of divorce to marry, but prohibits them from marrying again within the prescribed period. The question in terms raised was whether a marriage during the period of prohibition was void. Undoubtedly, consistently such marriage has been held to be void following- the earliest decision in Warter v. Warter(1). In that case the matter came before the court on a petition for probate of a will made by one Colonel Henry De Grey Warter who had contracted marriage with one Mrs. Tayloe on February 3, 1880, whose former marriage, with Mr. Tayloe was dissolved by a decree absolute of November 27, 1879. He made his will on February 6, 1880. Subsequently on legal advice both of them went through a second form of marriage on April 2, 1881.' The contention was that by the second marriage the Will was revoked and that is how the validity of the first marriage was put in issue. Upholding the contention it was held that Mrs. Tayloe could only contract a valid second marriage by showing that the incapacity arising from her previous marriage had been effectually removed by the proceedings taken under that law. This could not be done, as the Indian law, like the English law, does not completely dissolve the tie of marriage until the lapse of a specific time after the decree. The prescribed period was held as ,in integral part of the proceedings by which alone both parties could be released from their incapacity to contract a fresh marriage. Thus the previous marriage was held to be void and of no consequence in law. This decision in Warter v. Warter was followed in J. S. Battie v. G. E. Brown ;(2) Turner v. Turner;(3) Jackson v. Jackson(4). If provision contained in s. 15 along with its proviso was in pari materia with s. 57 of tile Indian Divorce Act, it would have become necessary for us to examine the correctness of the ratio in aforementioned decisions. But a mere glance at s. 15 of the Act and s. 57 of the , Indian Divorce Act would clearly show that the provisions are not in pari materia. Under the Indian Divorce Act a decree nisi has to be passed and unless confirmed by High Court it is not effective and in the proceedings for confirmation, the decree nisi can be questioned. No such requirement is to be found under the Act. Further, under s. 15 the period of one year is to be computed from the date of decree of the Court of first instance which means. that a decree of divorce is made by the Court of first instance while under s. 57 of the Indian Divorce Act the period of six months is to be computed from the date of an order of the High Court confirming the decree for dissolution of a marriage made by a District Judge or when an appeal has been preferred in the appellate jurisdiction of the High Court when the appeal is dismissed and the parties even cannot marry if ,in appeal has been presented to the Supreme Court. Under s. 15 if the decree of divorce is granted not by the Court of first instance but by the appellate Court the proviso would not be attracted. There is thus a mate-