Marriage solemnized before dismissal of appeal against decree of divorce held valid on ‘purposive construction’: SC

Supreme Court: The Bench comprising of S.A. Bobde and L. Nageswara Rao, JJ. allowed an appeal filed against the judgment of Delhi High Court whereby the marriage between the appellant and the respondent was held void.

The interesting factual matrix of the case is that, earlier, the appellant was married to one Rachna Agarwal. In August 2009, she had filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 which was allowed by the Additional District Judge and thus their marriage was dissolved. The appellant filed an appeal against the decree in the High Court. During pendency of the appeal, the appellant and the said Rachna Agarwal reached a settlement. Pursuant to the settlement, the appellant filed an application for withdrawing the appeal. It is pertinent to note that the settlement was reached on 15-10-2011; the application for withdrawal was filed on 28-11-2011, and the High Court dismissed the appeal as withdrawn on 20-12-2011. In the meanwhile, on 6-12-2011, the appellant married the respondent. Subsequently, consequent to matrimonial discord, the respondent filed a petition for declaring the marriage void under Section 5(i) read with Section 11. The main ground being that the appellant married the respondent during pendency of appeal against the decree of divorce from his first wife. The family court dismissed the respondent’s petition. However, on appeal, the High Court declared the marriage between the appellant and the respondent as null and void. Aggrieved by the same, the appellant filed the instant appeal.

To adjudicate the issue, the Supreme Court, inter alia, perused Section 15 of the Act. The Court observed that the section provides that it shall be lawful for either party to marry again after dissolution of marriage if there is no right to appeal against the decree. A second marriage by either party is lawful only after dismissal of an appeal against the decree of divorce is filed. The object of the provision was observed to provide protection to the appellant party and ensure that the said appeal is not frustrated. The purpose of the section is to avert complications that would arise due to a second marriage during pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded is primarily to a person who is contesting a decree of divorce. In the instant case, after entering into the settlement as mentioned hereinabove, the appellant did not want to contend the decree of divorce. His intention was made clear by filing the application for withdrawal of appeal. The Court was of the view that it could not be said that he had to wait till a formal order was passed in the appeal, or otherwise his marriage dated 6-12-2011 was unlawful. Following the principles of purposive construction, the Court held that the restriction placed on second marriage under Section 15 till dismissal of an appeal would not apply to a case where parties have settled the matter and decided not to pursue the appeal. The judgment of the High Court annulling the marriage between appellant and respondent was held to be erroneous. Accordingly, the judgment impugned was set aside and the appeal was allowed. [Anurag Mittal v. Shaily Mishra Mittal, 2018 SCC OnLine SC 1136, dated 24-08-2018]

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