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Advocates
  • For the Appellant: C.P. Sudhakara Prasad
Judges
  • P.C Balakrishna Menon
  • P. Krishnamoorthy, JJ.
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Citation Codes
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Advocates
  • For the Appellant: C.P. Sudhakara Prasad
Judges
  • P.C Balakrishna Menon
  • P. Krishnamoorthy, JJ.
Acts
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Smart Summary

Judgment Summary — Balakrishna Menon, J.

Factual and Procedural Background

The petitioner and the first respondent were married on 6-6-1976. The petitioner filed a petition under Section 13 of the Hindu Marriage Act on 29-10-1980 seeking dissolution of the marriage on the ground that the first respondent (the wife) had, after solemnization, voluntary sexual intercourse with the second respondent (her sister's husband). Both respondents filed written statements denying the allegation of adultery.

The case was posted for trial on 22-2-1984 but was advanced (on an oral representation for the petitioner) to 4-2-1984; there is no petition to advance in the record. The respondents were absent on 4-2-1984. The petitioner's power of attorney holder was examined as P.W.1. Arguments on behalf of the petitioner were heard on 4-2-1984, and the case was posted for orders on 8-2-1984. On 8-2-1984 the trial Court passed an ex parte decree dissolving the marriage, the sole basis being the oral evidence of P.W.1.

The respondents (the losers at trial) filed this appeal on 26-5-1986, after the 30-day period provided under Section 28(4) of the Act, accompanied by a petition (C.M.P. 11164 of 1986) to condone the delay. A Judge of this Court, by order dated 12-8-1967, after hearing both parties, condoned the delay and the appeal was admitted to file.

The petitioner (original successful party) in a counter-affidavit filed in C.M.P. 1739/1988 for stay of operation of the decree averred that he had on 20-12-1985 married one Omana and that a male child was born to Omana on 15-11-1986; a marriage certificate (Ext. R1(a)) was produced.

Legal Issues Presented

  1. Whether the appeal is rendered infructuous by reason of the petitioner's second marriage, in view of Section 15 of the Hindu Marriage Act.
  2. Whether an ex parte decree passed after advancing the trial date (without notice to the respondents) and based solely on P.W.1's oral evidence can be sustained.
  3. Whether condonation of delay in filing the appeal affects the operation of Section 15 and the right to remarry while an appeal is pending or condoned.

Arguments of the Parties

Respondent in the Appeal (original petitioner at trial) — Arguments

  • Raised a preliminary objection that the appeal had become infructuous because the petitioner had contracted a second marriage at a time when, they argued, there was no impediment to remarry under Section 15 of the Hindu Marriage Act (i.e., a decree dissolving the earlier marriage was in force and the time for appeal had expired).
  • Relied on the decision of the Madhya Pradesh High Court in Shakuntala @ Shakum v. Govind Prasad ((1985) 1 DMC 472) to support the proposition that the second marriage was valid and the appeal should be dismissed as infructuous.

Appellants in the Appeal (original respondents at trial) — Arguments / Procedural Steps

  • Filed written statements in the original trial denying the adultery allegation.
  • Filed this appeal on 26-5-1986 accompanied by a petition to condone the delay (C.M.P. 11164 of 1986); the delay was condoned by a Judge of this Court by order dated 12-8-1967.
  • Implicit in their procedural move was a contention that the appeal remained maintainable and must be decided on merits despite the petitioner's second marriage; the Court addressed this contention in light of precedent and the condonation order.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Shakuntala @ Shakum v. Govind Prasad, (1985) 1 DMC 472 (Madhya Pradesh High Court) Held that a second marriage was perfectly valid where an earlier marriage had been dissolved by a decree of the trial Court and no timely appeal was filed; the appellant should have filed an appeal in time or obtained a status quo order. The respondent relied on this decision to argue that the appeal was infructuous. The Court explicitly stated difficulty in agreeing with this view and did not follow it in the present case.
Mohankumari v. Kusumkumari, AIR 1965 Madh Pra 194 Earlier Madhya Pradesh decision followed in Shakuntala endorsing the view that a second marriage was valid in similar circumstances. The Court noted this decision was followed by the Madhya Pradesh High Court but disagreed with that line of authority in the present case.
K. Yesoda v. Narayanan, 1985 Ker LT 540 : AIR 1985 Kerala 220 (Full Bench) Discussed the applicability of Section 12 of the Limitation Act for an appeal under Section 28 of the Hindu Marriage Act and observed that an appeal under S.28 has the characteristics of an appeal under the Civil Procedure Code; thus remedies and timings must be treated as in ordinary appeals. The Court relied on this Full Bench to explain that Section 15 does not automatically permit remarriage merely on expiry of 30 days if an appeal has been presented or if delay in filing appeal is condoned; the condonation makes the appeal deemed to be within time.
Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581 (Supreme Court) Considered Ss. 28 and 15 and held that a party who won in the High Court should not marry immediately in a way that would deprive the losing party of the chance to present an application for special leave; the Court refused to revoke special leave on the ground of remarriage. The High Court followed this Supreme Court decision in holding that remarriage during the pendency of appellate or special leave proceedings does not automatically entitle the successful party to have appellate remedies rendered infructuous.
Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839 (Supreme Court) Followed the decision in Chandra Mohini regarding remarriage and its effect on appellate remedies. The Court cited Tejinder Kaur as following Chandra Mohini, reinforcing the principle that remarriage will not automatically invalidate or render an appeal infructuous.
Vathsala v. Manoharan, AIR 1969 Mad 405 (Madras High Court) The learned Judge dissented from the Madhya Pradesh line of cases and observed that acts of parties pending final disposal of remedies (appeal or application to set aside ex parte decree) should not render those remedies infructuous. Quoted and followed as supportive authority for the proposition that remarriage during pendency of appellate remedies does not defeat those remedies.
Krishen Lal v. Krishna, AIR 1971 J & K 31 (Jammu & Kashmir High Court) Division Bench followed Chandra Mohini and Vathsala in holding that remarriage during the pendency of appeal does not render the appeal infructuous; dissented from the Madhya Pradesh approach. The Court cited this decision as further support for refusing to accept the preliminary objection that remarriage made the appeal infructuous.

Court's Reasoning and Analysis

The Court conducted a two-part analysis: first addressing the preliminary objection that the appeal had become infructuous by reason of the petitioner's second marriage and then addressing the validity of the ex parte decree on the merits.

On the preliminary objection, the Court:

  1. Observed the relevant statutory text of Section 15 (as amended) which states that remarriage is lawful only when there is no right of appeal or the time for appealing has expired without an appeal being presented, or an appeal presented has been dismissed.
  2. Reviewed and rejected the line of decisions from the Madhya Pradesh High Court (Mohankumari and Shakuntala) which held that a second marriage in such circumstances was valid and that an appeal is thereby rendered infructuous; the Court found this view difficult to accept.
  3. Relied upon a Full Bench decision of this Court (K. Yesoda v. Narayanan) which treated appeals under Section 28 of the Hindu Marriage Act as appeals akin to those under the Civil Procedure Code, and concluded that Section 15 does not automatically confer a right to remarry upon the mere expiry of 30 days if an appeal has been filed or the delay for filing an appeal has been condoned.
  4. Noted that the delay in filing the present appeal had been condoned by an order of this Court dated 12-8-1967 and therefore treated the appeal as having been filed within the time allowed by law—meaning the petitioner could not validly rely on Section 15 to render the appeal infructuous.
  5. Further relied on Supreme Court authority (Chandra Mohini) and subsequent decisions (Tejinder Kaur, Vathsala, Krishen Lal) to the effect that remarriage during pendency of appellate remedies, or during consideration of special leave, does not automatically deprive the losing party of the opportunity to pursue appellate relief, and that a party who marries during such pendency takes the risk of not being able to secure revocation of such leave on that ground.

On the merits of the decree, the Court:

  1. Examined the trial procedure: the trial had been advanced to 4-2-1984; the respondents were absent; the only evidence was the oral testimony of P.W.1, the power of attorney holder of the petitioner, examined on 4-2-1984.
  2. Noted that the records did not show that the respondents had notice of the posting for that date and the case had actually been posted for trial on 22-2-1984; because the trial was advanced and the respondents were not present, they had no opportunity to cross-examine P.W.1 or to adduce evidence on their behalf.
  3. Concluded that an ex parte decree founded entirely on the untested oral evidence of P.W.1, produced when the adverse parties had no opportunity to cross-examine, could not be sustained.
  4. Accordingly set aside the ex parte decree and remanded the case to the trial Court for fresh disposal in accordance with law and in light of the directions and observations contained in this judgment; directed the parties to appear before the Court below on 3-4-1989.

Holding and Implications

Core Holding: The appeal is allowed; the ex parte decree dissolving the marriage is set aside and the matter is remanded to the lower Court for fresh disposal.

Direct consequences for the parties:

  • The ex parte decree passed by the trial Court on 8-2-1984 is quashed and cannot be sustained given the procedural deficiencies identified (advancement of trial without notice resulting in no opportunity to cross-examine the sole witness).
  • The matter is remitted to the trial Court for a fresh hearing in accordance with law; the parties were ordered to appear before the trial Court on 3-4-1989.
  • There will be no order as to costs in the appeal.

Broader implications and precedent considerations:

  • The Court overruled the preliminary objection that remarriage by the successful party in the trial Court rendered the appeal infructuous where the delay in filing the appeal had been condoned; the decision aligns with Full Bench and Supreme Court authorities cited in the judgment rather than with the Madhya Pradesh decisions urged by the respondent.
  • The judgment emphasizes that condonation of delay makes the appeal to be treated as within time and that remarriage during the pendency of an appeal or special leave petition does not automatically defeat appellate remedies.
  • The opinion does not purport to lay down a new rule of law beyond the application of cited authorities; it applies existing precedents to the facts of the case and remands for fresh adjudication.
Appeal allowed.
Show full summary ...

    S.V Suhasini Devi And Another v. Padmanabhan Madhavan .

    Balakrishna Menon, J.:— This appeal by the respondents is against the ex parte decree dissolving the marriage between the petitioner and the first respondent passed by the lower Court under S. 13 of the Hindu Marriage Act, 1955.

    2. The petitioner had married the first respondent on 6-6-1976. A petition under S. 13 of the Act was filed on 29-10-1980 for dissolution of the marriage on the ground that the first respondent wife had after solemnization of the marriage voluntary sexual intercourse with the second respondent her sister's husband. Both the respondents filed written statements denying the allegation of adultery. The case was posted from time to time and on 12-1-1984 it was posted for trial on 22-2-1984. The case was, however, advanced to 4-2-1984 on an oral representation made on behalf of the petitioner (we do not see any petition to advance the trial of the case among the records sent up to this Court). The respondents were absent on 4-2-1984. The power of attorney holder of the petitioner was examined as P.W-1. Arguments on behalf of the petitioner were heard on 4-2-1984 itself and the case was posted for orders on 8-2-1984. The Court below on 8-2-1984 passed a decree dissolving the marriage between the petitioner and the first respondent on its finding that the first respondent is guilty of adultery after the solemnization of her marriage with the petitioner. The only evidence adduced in the case is the oral evidence of P.W 1 the power of attorney holder of the petitioner. The finding of adultery is based entirely on the evidence of P.W 1.

    3. The respondents filed this appeal on 26-5-1986 long after the period of 30 days for an appeal provided for under S. 28(4) of the Act. The appeal was accompanied by a petition C.M.P 11164 of 1986 to condone the delay in filing the appeal. A learned Judge of this Court by order dt. 12-8-1967 after hearing both parties condoned the delay and the appeal was taken to file. In the counter-affidavit filed in C.M.P 1739/1988 for stay of operation of the decree, the petitioner husband has averred that he had on 20-12-1985 married one Omana and a male child was born to Omana on 15-11-1986. Ext. R1(a) produced along with the counter-affidavit is the certificate of marriage issued by the Local Registrar of Marriages.

    4. Counsel for the respondent in this appeal has raised a preliminary objection that the appeal has become infructuous for the reason of the second marriage of the petitioner at a time when there was no impediment for such marriage by virtue of the provisions of S. 15 of the Act. S. 15 of the Act after the deletion of its proviso by the Marriage Laws Amendment Act 68/1976 reads:

    “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 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, it shall be lawful for either party to the marriage to marry again”.

    Counsel points out that the second marriage of the petitioner was at a time when there was a decree dissolving the marriage between the petitioner and the first respondent in force, no appeal had been filed against the decree and the time for filing the appeal had expired. It is also pointed out that the appeal itself was filed with a petition to condone the delay long after the second marriage of the petitioner. Since, according to the petitioner, the second marriage is valid under S. 15 of the Act, the appeal itself has become infructuous and is liable to be dismissed on that ground. Counsel relies on the decision of the Madhya Pradesh High Court in Shakuntala @ Shakum v. Govind Prasad, (1985) 1 DMC 472 in support of the proposition. A learned Judge of the Madhya Pradesh High Court in the aforesaid decision following an earlier decision of a Division Bench of the same High Court in Mohankumari v. Kusumkumari, AIR 1965 Madh Pra 194 has in similar circumstances held that the second marriage is perfectly valid as the earlier marriage had been dissolved by the decree of the trial Court and if the appellant wanted the respondent not to contract a second marriage, she should have filed an appeal in time and obtained an order of Court directing the respondent to maintain the status quo. The appeal was accordingly dismissed as infructuous for the reason of the second marriage of the respondent. We find it difficult to agree with the view expressed, by the Madhya Pradesh High Court in Mohanakumari v. Kusumkumari, AIR 1965 Madh Pra 194 and in Shakuntala alias Shakun v. Govind Prasad (1985) 1 DMC 472. A Full Bench of this Court in K. Yesoda v. Narayanan, 1985 Ker LT 540 : (AIR 1985 Kerala 220) considering the applicability of S. 12 of the Limitation Act for an appeal under S. 28 of the Hindu Marriage Act observed to p. 543 (of Ker LT): (at p. 223 of AIR):

    “By providing for appeals in S. 28 of the Hindu Marriage Act, the decrees are held to be appealable as “decrees of the Court made in the exercise of its original civil jurisdiction” and the forum for filing such appeal is prescribed by stating that “every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of that Court”. The appeal under the Hindu Marriage Act is thus a remedy available under the special enactment with all the characteristics of an appeal under the Civil Procedure Code and the High Court, in appeal has the same jurisdiction and exercises the same power and authority available in respect of every appeal under the Code”.

    It is further stated at page 545:

    “S. 15 of the Hindu Marriage Act only declares that it shall be lawful for either party to the marriage to marry again under certain circumstances. From this it does not follow that a right to remarry enures automatically after the expiry of 30 days from the date of the decree of divorce. If an appeal is presented, one will have to wait till it is dismissed. If there is a right of appeal, the time for filing the appeal should have expired without the appeal being filed, taking into consideration the time required for obtaining the certified copy. The period for filing the appeal does not expire if once the delay in filing the appeal is condoned”.

    5. In the present case the delay in filing the appeal had been condoned by order of this Court dt. 12-8-1987 and the appeal should therefore be deemed to have been filed within the time allowed by law.

    6. The question whether the special leave granted for an appeal against the decree of the High Court, dissolving the marriage between the parties is liable to be cancelled for the reason of the remarriage of the respondent was considered by the Supreme Court in Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581. Referring to Ss. 28 and 15 of the Act the Supreme Court observed at p. 583:

    “These two sections make it clear that where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or, if there is such a right of appeal, the time for filing appeal has expired without an appeal having been presented, or if an appeal has been presented it has been dismissed. 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 of the opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot be 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 S. 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 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. We need not consider the question as to whether the child born to the new wife on May 20, 1965 would be legitimate or not, except to say that in such a situation S. 16 of the Act may come to the aid of the new child. We cannot, therefore, revoke the special leave on the grounds put forward on behalf of the first respondent and hereby dismiss his application for revocation of special leave”.

    The decision in Chandramohini's case (AIR 1967 SC 581) was followed in a later decision of the Supreme Court in Tejinder Kaur v. Gurmit Singh., AIR 1988 SC 839. The decision of the Madhya Pradesh High Court in Mohanmurari v. Kusumkumari, AIR 1965 Madh Pra 194 was expressly dissented from by a learned Judge of the Madras High Court in Vathsala v. Manoharan, AIR 1969 Mad 405. In that case the wife obtained an ex parte decree of nullity of marriage against the husband and contracted a second marriage during the pendency of an application to set aside the ex parte decree. The learned Judge observed (Para 2):

    “What appears to me is that when an order of nullity of marriage is made and the law allows an appeal as well as an application to set aside an ex parte order and actually these remedies have been resorted to, any act of the parties pending final disposal of those remedies availed of cannot have the effect of rendering them infructuous, so to speak. Where such remedies are provided from an order, the order should be taken to be valid and in force, but only subject to the result of the application to set aside the ex parte order or the result in the appeal. To hold otherwise would mean that by an act of the party, he can successfully defeat the lawful remedy accorded to the aggrieved person”.

    7. In taking the above view the learned Judge has followed the decision of the Supreme Court in Chandra Mohini's case, AIR 1967 SC 581. To the same effect is the decision of a Division Bench of the Jammu and Kashmir High Court in Krishen Lal v. Krishna, AIR 1971 J & K 31. In that case a petition for restitution of conjugal right was dismissed by the trial Court on the finding that there was no valid marriage between the parties. The respondent wife married another person during the pendency of an appeal before the High Court. A contention on behalf of the respondent that the appeal has become infructuous for the reason of her marriage was repelled following the decision of the Supreme Court in Chandranchini's case (AIR 1967 SC 581) and of the Madras High Court in Vathsala's case (AIR 1969 Mad 405). The learned Judges dissented from the decision of the Madhya Pradesh High Court in Mohanamuran's case (AIR 1965 Madh Pra 194) and after hearing the appeal on merits granted a decree in favour of the appellant for restitution of conjugal right.

    8. For the aforesaid reasons, we overrule the preliminary objection that the appeal has become infructuous for the reason of the second marriage of the petitioner after the decree dissolving the marriage passed by the trial Court.

    9. The ground on which a decree for dissolution of marriage is claimed in this case in that the wife after the solemnization of marriage had voluntary sexual intercourse with the second respondent. The only evidence in support of the plea is that of P.W 1 the power of attorney holder of the petitioner examined on 4-2-1984. The records do not show that the respondents had notice of the posting of the case on that date. The case was actually posted for trial on 22-7-1984. The trial had been advanced to 4-2-1984 and an ex parte decree is passed against the respondents on 8-2-1984. The respondents had thus no opportunity to cross-examine P.W 1 and to adduce evidence on their behalf. The decree appealed against cannot, therefore, be sustained. It is accordingly set aside and the case is remanded to the lower Court for fresh disposal in accordance with law and in the light of the directions and observations contained in this judgment. The parties will appear before the Court below on 3-4-1989. The appeal is allowed as indicated above. There will be no order as to costs in this appeal.

    Appeal allowed.

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    Comments

    S.V Suhasini Devi And Another v. Padmanabhan Madhavan .
    (Mar 3, 1989)