1. The respondent-husband instituted original petition on 7th March, 1984 for a declaration that the marriage with the appellant-wife Was a nullity under sub-section (1)(d) of section 12 of the Hindu Marriage Act (hereinafter referred to as “the Act”) on the ground that the appellant-wife was at the time of marriage pregnant by some person other than the respondent-husband. The appellant-wife contested the proceedings, but eventually the petition filed by the respondent-husband was allowed by the IIIrd Joint Civil Judge, Senior Division, Nagpur, who by his judgment and decree dated 3-5-1985 declared the marriage between the parties as null and void. The appellant feeling aggrieved by the judgment and decree filed Regular Civil Appeal No. 436 of 1985 on 19th July, 1985 before the IInd Additional District Judge, Nagpur. Before the appeal could be filed the respondent-husband married one Miss Sarita daughter of Laxmanrao Modak on 27th June, 1985. The respondent-husband raised a preliminary objection (Exh. 9) in the appeal preferred by the appellant-wife contending that after passing of the judgment and decree dated 3rd May, 1985 by, the trial Court, he married one Sarita daughter of Laxmanrao Modak, resident of Nagpur on 27th June, 1985. It was further asserted in the application that when the marriage was solemnised on 27th June, 1985 there was no impediment against the respondent-husband in contracting the said marriage since the parties to the appeal were relegated to the position as if there was no marriage between them and as such the marriage solemnised on 27th June, 1985 was legal and valid with the consequence that the appeal filed by the appellant was not tenable having been rendered infructuous. The IInd Additional District Judge, Nagpur, vide his order dated 17th August, 1985 allowed the objection raised by the respondent under the application (Exh. 9) and dismissed the appeal with a direction to the parties to bear their respective costs. It is this judgment and decree, which is now impugned in this second appeal.
2. The question which falls for determination is, whether the re-marriage of the respondent - husband with Miss Sarita daughter of Laxmanrao Modak before filing of Regular Civil Appeal No. 436 of 1985 renders that appeal infructuous.
3. Shri R.K Deshpande, Advocate, the learned counsel for the appellant, contended that although section 15 of the Act does not specifically mention the annulment of marriage by a decree of nullity, yet in view of the observations in Chandra Mohini v. Avinash Prasad, AIR 1967 S.C 581, the principles laid down in section 15 of the Act would still be applicable in cases where the marriage has been annulled. In support of his contention reliance was also placed on the decision in Vathsalu v. Manoharan, AIR 1960 Madras 405. On the other hand Shri A.P Deshpande, Advocate appearing for the respondent contended that since the decree passed was one for the annulment of the marriage under section 12 of the Act, the provisions of section 15 or for that matter even the principles laid down therein will have no application whatsoever. Section 15 of the Act applies only in cases where the marriage was dissolved by divorce and not in the case where the marriage was annulled. Consequently, no bar was created for the respondent to marry again after obtaining the decree of nullity from the trial Court. In this connection reliance was placed on two reported decisions in Pradmod Sharma v. Radha, AIR 1976 Punjab and Haryana 355, and Jamboo Prasad Jain v. Malti Prabha, AIR 1979 Allahabad 260. He also referred to the decision of the Supreme Court in Chandra Mohini's case (cited supra) and urged that the observations contained therein had application only in respect of dissolution of marriage by divorce.
4. The first question which invites my attention is to find out whether section 15 of the Act or the principles underlying there under can apply in a case where the decree of annulment of marriage has been passed under section 12 of the Act. Analysing the provisions of section 15 of the Act it would reveal that it shall be lawful for either party to marry again whose marriage has been dissolved by a decree of divorce in the following circumstances. Firstly, where there is no right of appeal against the decree of divorce, secondly, if there is such a right of appeal, the time for filing the appeal has expired without any appeal having been presented; and thirdly if there is such a right of appeal and an appeal has been presented, on dismissal of the appeal. Clearly enough section 15 of the Act does not create any express bar to the contracting of the marriage afresh after the decree of divorce is passed, but any such marriage would not be lawful, unless it took place-after one of the three circumstances mentioned above. The Supreme Court in a subsequent decision in Lila Gupta v. Laxmi Narayan (1978) 3 SCC 258 : AIR 1978 S.C 1351, held that the marriage contracted in contravention of or violation of the provisions of section 15 is not void, but merely invalid not affecting the marriage.
5. The Hindu Marriage Act classifies marriages as void, voidable and valid. Under section 11 of the Act any marriage solemnised after the commencement of the Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any of the conditions mentioned in clauses (i), (iv) and (v) of section 5, while under section 12 of the Act any marriage solemnised whether before or after commencement of the Act, shall be voidable and may be annulled by a decree of nullity On any of the grounds mentioned in the section. Where the law on the ground of public policy has prohibited certain marriages, the marriages are declared to be void. Such marriages are hence said to be void ab initio as if no marriage has taken place. On the other hand voidable marriages are valid until avoided. Where impediment existed at the time of marriage, the law permits its avoidance by the parties, if they or any of them, so choose. When so avoided, they are annulled by a decree of nullity which means as if ther their marriage was void ab initio. However, when once a valid marriage has been performed, the law does not permit its avoidance. No decree of nullity can be passed in respect of it. It can only be dissolved by a decree of divorce subject to the provisions of section 14 on the grounds stipulated in section 13.
6. Section 15 of the Act has been specifically made applicable in cases of decree for divorce. No provision similar to section 15 is to be found in the Act, which could be made applicable to a decree of nullity annulling the marriage. What remains to be determined is the effect of the observations made by Their Lordships of the Supreme Court in Chandra Mohini's case (cited supra) notwithstanding the omission in the Act.
7. The Supreme Court was dealing with the case for dissolution of the marriage under section 13 of the Act. A suit was filed by Shri Avinash Prasad against his wife Smt. Chandra for a decree of divorce or in the alternative, it was prayed that a decree for judicial separation be granted. The trial Court dismissed the petition. The husband Avinash filed an appeal before the High Court. The said appeal came to be allowed and the appellant Avinash was granted a decree for dissolution of the marriage. After marriage was dissolved by the High Court, the husband Avinash married another woman. The wife Chandra filed Special Leave Petition to the Supreme Court against the decree for dissolution of the marriage and which came to be granted. Some time later the husband Avinash made an application to the Supreme Court that the special leave granted by the Supreme Court should be revoked as he had already married another woman and a son was also born out of such wedlock. The necessity to revoke special leave was emphasised because the child born should not become illegitimate. In these circumstances, the Supreme Court held as follows:
“It is true that section 15 does not in terms apply to a case of an application for special leave to this court. Even so, we are 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 and thus take away from the losing party the chance of presenting an application for special leave. Even though section 15 may not apply in terms and it may not have been unlawful for the 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 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.”
There is no doubt that the observations made by the Supreme Court are binding on this Court. The only question is whether the observations apply to the facts of the present case. The observations of the Supreme Court are in relation to a case of dissolution of marriage that a spouse can lawfully marry only when there is no right of appeal against a decree dissolving a marriage or if there is a right to appeal, the time for filing has expired, or if the appeal has been presented it has been dismissed. A party who was successful in the High Court and has obtained the decree of dissolution of marriage cannot remarry immediately thereafter thus taking away from the losing party the chance for presenting the special leave petition to the Supreme Court. The case in hand is one of annulment of marriage under section 12 of the Act where the marriage between the parties has been declared as a nullity and remarriage of either party is not barred either under section 15 or any other provisions of the Act. A Division Bench of Madhya Pradesh High Court in para 9 of its judgment in Mohan Murari v. Smt. Kusumkumari, AIR 1965 M.P 194, held that the wife having remarried during pendency of the appeal filed by the husband, the appeal had become infructuous since the original petition was filed under section 12 of the Act and hence section 15 had no application. This was the view taken by the Court much before Chandra Mohini's case (cited supra) was decided. The Punjab and Haryana High Court in Pramod Sharma's case (cited supra) while considering a case under section 12 of the Act adopted a similar view that a party whose marriage had been annulled can remarry and the appeal filed against the decree of annulment after the remarriage is rendered infructuous. In yet another case the High Court of Allahabad in Jamboo Prasad's case (cited supra) held that section 15 of the Act only applies in cases of dissolution of marriage by a decree of divorce. The said judgment also rules that there is nothing in section 15 itself to show that it applies even as regards a decree passed for annulment of marriage under section 12 of the Act. The Supreme Court case of Chandra Mohini was also considered both in Punjab and Haryana case of Pramod Sharma and Allahabad case of Jamboo Prasad, and either of the cases expressed that the observations made in the Supreme Court case cannot have any application to a case of an annulment of marriage under section 12 of the Act.
8. In contrast the Madras High Court in Vathsala v. Manoharan, AIR 1969 Madras 405 also cited supra, however, followed the observations of the Supreme Court in Chandra Mohini's case in a case under section 12 of the Act. In that case the Court held that once an ex parte decree is set aside, the suit proceeds and the remariage will not render the application for setting aside ex parte decree infructuous. With respect, I am unable to share this view taken by the learned Judge of that Court.
9. Upon consideration of the matter, it is crystally clear that section 15 of the Act or the principles there under have been made applicable to cases of dissolution of marriage by divorce. The provisions of section 15 or the principles there under cannot apply to cases where the decree of nullity annulling the marriage is passed. It seems that a decree for dissolution of marriage stands on a different footing than a decree for annulment of marriage, the basic difference being that the former postulates a valid marriage, which for happening of subsequent events requires to be dissolved, whereas the latter case postulates a voidable marriage and upon such marriage being declared void, the parties are relegated to the position as if there was no marriage between them. Upon declaration of a marriage as void, the parties to such a marriage would be free to contract fresh marriage in the absence of any legal imcompetency in their way. The respondent remarried after having obtained the decree of nullity annulling his marriage with the appellant. He was perfectly within his right to do so. If at all the appellant wanted the status quo to be preserved till final decision in appeals, she should have obtained stay of the decree or a prohibitory order restraining the respondent from marrying again from the very court which granted the decree for annulling the marriage. In the absence of such an order, the respondent was no more the husband of the appellant and there was no provision of law which created any impediment in the marriage. Such a marriage was a valid marriage as long as the provisions of section 5 are not violated. It cannot be annulled or dissolved on the ground that it was contracted before the appeal was filed challenging the decree of nullity annulling the marriage. The marriage also cannot be affected by the ultimate decision in appeal. Unfortunately for the appellant the law has not made any provision for such a contingency analogous to section 15 of the Act. In such an eventuality, there is no difficulty in holding that the appeal filed by the appellant after re-marriage of the respondent was infructuous and was rightly dismissed as such by the learned Additional District Judge, Nagpur.
10. In the result, the appeal is without any merit and is accordingly dismissed without any order as to costs. In the circumstances, the Civil Application No. 1030 of 1986 claiming maintenance pendente lite and expenses of the proceedings also stands rejected.
Appeal dismissed.