Uma Charan Roy vs Sm. Kajal Roy on 1 September, 1970

    Uma Charan Roy vs Sm. Kajal Roy on 1/9/1970

JUDGMENT

   S.K. Chakravarti, J.

   1. This is an appeal at the instance of a husband against whom a decree of
nullity of his marriage with the respondent has been passed by a learned
Additional District Judge at Alipore. The appellant seems to be rather
unfortunate in his matrimonial ventures. He was first married with one Durga
Bala Roy in or about 1947, and on the 2nd of October, 1958. Durga EaJa died
leaving five issues. In less than three and half months from the date of the
death of Durga Bala the appellant married again one Susama, to be precise, on
the 15th of January, 1959. On the 11th of September, 1963. he filed a suit for
dissolution of his marriage with Susama on the ground that she had been
suffering from venereal disease in a communicable form for a period of not less
than three years immediately preceding the presentation of the petition. It
would further appear that before this suit was filed he and the present
respondent Kajal fell in love with each other. The suit for dissolution of the
marriage was decreed on the 23rd of March, 1964, under Section 13(1)(v) of the
Hindu Marriage Act (Ext. B). Admittedly the appellant Susama as also Kajal are
all Hindus. On the 18th of March, 1964, that is to say five days before the
appellant got his decree of divorce of the marriage with Susama he filed a
notice of marriage with Kajal before the Marriage Officer for Calcutta and 24
Parganas District (Ext. 2). On the 21st of April, 1964, the appellant and Kajal
were married under the Special Marriage Act and exhibit 3 is the certificate of
marriage. On the 17th of June, 1964. Kajal filed the instant suit mainly on the
allegation that her marriage with the appellant was void as the appellant's
marriage with Susama was continuing upto the date of the marriage or, in other
words, as her marriage with the appellant contravened the provision of Clause
(a) of Section 4 of the Special Marriage Act. She had also made allegations in
her petition that by fraud and misrepresentation she was induced to enter into
this form of marriage and she was actually not aware of the fact that the
appellant had a wife living on that date. But the appellant contested that suit
and denied these charges of fraud and misrepresentation and further alleged that
Kajal was aware of everything and that as a matter of fact it was she who
induced him to enter into this marriage. He further contended that in no view of
the law could Susama be considered as his spouse on the date of his marriage
with Kajal and as such the marriage was not a nullity. The learned Additional
District Judge was of the opinion that in view of Clause (4) of Section 29 of
the Hindu Marriage Act, Section 15 of the Hindu Marriage Act did not apply to
the instant impugned marriage but he held that the marriage is bad in view of
Section 30 of the Special Marriage Act and granted a decree of nullity. Hence
this appeal by the husband.

   2. The first point that is pressed by Mr. Himangshu Kumar Bose, the learned
Advocate for the appellant, is to the effect that the learned Judge erred in
applying Section 30 of the Special Marriage Act to this impugned marriage. In
our view, he is quite justified in this criticism of the learned Judge's
judgment. Section 30 of the Special Marriage Act, as it stands, would apply to
the dissolution of a marriage under the Special Marriage Act. Here the marriage
with Susama was dissolved, not under the Special Marriage Act, but under Section
13(1)(v) of the Hindu Marriage Act.

   3. Mr. Amarendra Mohan Mitra, learned Advocate appearing on behalf of the
respondent, however submits that Section 15 of the Hindu Marriage Act would also
apply and that accordingly the marriage between the appellant and Susama must be
deemed to be subsisting on the 21st of April. 1964, when the appellant and Kajal
entered into a marriage under the provisions of the Special Marriage Act.
Section 15 of the Hindu Marriage Act stands as follows:--

     "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:

     Provided that it shall not be lawful for the respective parties to marry
again unless at the date of such marriage at least one year has elapsed from the
date of the decree in the court of the first instance."

   Mr. Mitra submits that the marriage between the appellant and Kajal was held
before one year had elapsed from the date of the decree of dissolution of the
marriage, namely, between the appellant and Susama, and as such it must be held
that the appellant had a spouse living on the 21st of April, 1964, and his
marriage with Kajal would be hit under Section 4(a) read with Section 24(1)(i)
of the Special Marriage Act.

   4. Section 4 of the Special Marriage Act runs as follows:--

     "Notwithstanding anything contained in any other law for the time being in
force relating to the solemnization of marriages, a marriage between any two
persons may be solemnized under this Act, if at the time of the marriage the
following conditions are fulfilled, namely:-

     (a) neither party has a spouse living;

     (b) neither party is an idiot or a lunatic;

     (c) the male has completed the age of twenty-one years and the female the
age of eighteen years;

     (d) the parties are not within the degrees of prohibited relationship; and

     (e) where the marriage is solemnized outside the territories to which this
Act extends, both parties are citizens of India domiciled in the said
territories."

   Section 24(1) of the Special Marriage Act runs as follows:--

     "Any marriage solemnized under this Act shall be null and void and may be
so declared by a decree of nullity if-

     (i) any of the conditions specified in Clauses (a), (b), (c) and (d) of
Section 4 has not been fulfilled; or

     (ii) the respondent was impotent at the time of the marriage and at the
time of the institution of the suit."

   5. Prima facie the contention urged by Mr. Mitra is of substance. The term
'spouse' has not been defined either in the Hindu Marriage Act or in the Special
Marriage Act and therefore has to be given its ordinary grammatical meaning. It
means a wife or a husband. Therefore, if in law, the marriage between the
appellant and Susama is held to be continuing up to 21st of April, 1964, the
marriage between the appellant and Kajal would be null and void under the
provisions of the Special Marriage Act referred to above.

   6. Mr. Bose has very strenuously contended that in view of Section 29(4) of
the Hindu Marriage Act, Section 15 of that Act has no application to the
impugned marriage. Sub-section (4) of Section 29 runs as follows:

     "Nothing contained in this Act shall be deemed to affect the provisions
contained in the Special Marriage Act, 1954 (43 of 1954) with respect to
marriages between Hindus solemnized under that Act, whether before or after the
commencement of this Act."

   7. We are not in a position to accept this contention of Mr. Bose. Sub-
section (4) of Section 29 can only mean that if there is any inconsistency
between the provisions of Hindu Marriage Act and Special Marriage Act then the
provisions of Hindu Marriage Act would not apply to a marriage held under the
Special Marriage Act. It does not mean that the effect of the provisions of the
Hindu Marriage Act would not apply in case one party to a marriage under the
Hindu Marriage Act enters into a marriage with another person under the Special
Marriage Act.

   8. Mr. Bose has further contended that the term 'spouse' as used in Clause
(a) of Section 4 would apply only to a spouse married under the Special Marriage
Act. Or, in other words, his contention is to the effect that if a person has
been married under the Special Marriage Act and then re-married under the
Special Marriage Act, Clause (a) would apply, but not if the parties were
married under the Hindu Marriage Act originally and later on one party to the
marriage contracts the marriage under the Special Marriage Act. We see no
reasons to limit the use of the term 'spouse' in Clause (a) of Section 4 to be a
spouse married under the Special Marriage Act. We cannot read into this section
something which is not there. Moreover, if we accept this interpretation of Mr.
Bose it would lead to disastrous results. A person who is a Christian and has
been married according to Christian rites, may, without dissolving his first
marriage, get re-married with some other person under the Special Marriage Act,
and, accordingly, if we accept Mr. Bose's interpretation that marriage would be
valid. There are provisions similar to Clause (a) of Section 4 of the Special
Marriage Act in the Hindu Marriage Act as also in other Acts. Conversely also a
party to a marriage under the Special Marriage Act may choose to marry a Hindu
under the Hindu rites, and if we follow Mr. Bose's interpretation, this second
marriage cannot be questioned. Accordingly we do not accept this contention
raised by Mr. Bose.

   9. The next point that is urged by Mr. Bose is to the effect that even if
Section 15 of the Hindu Marriage Act would apply, still the effect of
dissolution of the marriage between Hindus under Section 13 would take effect
instantaneously and accordingly Susama could not be considered to be a spouse of
the appellant at the time of his marriage with Kajal. Mr. Bose is overlooking
Section 15, altogether in our view. It is clear from this section that at least
for a year since the date of the decree of dissolution of marriage, a party to
the marriage cannot re-marry, and if he or she remarries such a marriage shall
be illegal. Mr. Bose has referred to the decision in Mohanmurari v. Smt.
Kusumkumari . That was a case where there was a decree of annulment of marriage,
and Section 15 had no application, and therefore that decision is of no help to
Mr. Bose.

   10. On the other hand Mr. Mitra has referred to a number of decisions mostly
under the Indian Divorce Act to show that similar provisions under the Indian
Divorce Act were interpreted to show that the marriage continued till the expiry
of the period of six months. The earliest case is Warter v. Warter, (18901 15 PD
152. It deals with Section 57 of the Indian Divorce Act which runs as follows:

     "When six months after the date of an order of a High Court confirming the
decree for a dissolution of marriage made by a District Judge have expired.

     or when six months after the date of any decree of a High Court dissolving
a marriage have expired, and no appeal has been presented against such decree to
the High Court in its appellate jurisdiction,

     or when any such appeal has been dismissed,

     or when in the result of any such appeal any 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:

     Provided that no appeal to 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."

   The provision is almost similar to that in the Hindu Marriage Act or the
Special Marriage Act. In this case it was held that the first marriage, having
been celebrated within six months from the date of the final decree of divorce,
was invalid. In Esther Marie Jackson v. Frederick Ormond Layland Jackson, (1912)
ILR 34 All 203 it has also been held that where the successful petitioner in a
suit for dissolution of marriage entered into a second marriage within six
months of the decree for dissolution of marriage becoming absolute, the second
marriage was void. In Battie v. Brown, ILR 38 Mad 452 = (AIR 1916 Mad 847 (2))
it was held that Section 57 of the Indian Divorce Act doss not completely
dissolve the tie of marriage until the lapse of a specified time after the
decree for dissolution of marriage and the marriage continues to be in force
within the meaning of Section 19(4). In J. J. Turner v. Mrs. A. E. Turner, 25
Cal WN 710 = (AIR 1921 Cal 517) this Court also held that by reason of the
provisions of Section 57 of the Divorce Act and of the fact that the time
specified by Section 57 had not elapsed from the date of the order of the High
Court confirming the decree nisi the marriage with Turner's former wife was in
force on the date of the second marriage, and consequently the second marriage
was null and void.

   11. Mr. Bose tries to distinguish these decisions on the ground that there
both the first and the second marriages were held under Christian rites, whereas
in the instant suit the first marriage was held under Hindu Marriage Act, and
the second marriage was held under the Special Marriage Act. This is a
distinction without a difference. The point which arose for determination in the
decisions referred to above was what was the effect of the six months' period
after the decree had become final, and it is on an interpretation of that
proviso, that the courts held that the first marriage continued till the six
months' period had expired. In our view, therefore the principles enunciated in
the aforesaid decisions would apply with equal force in the instant case. What
is more in Smt. Chandra Mohini Srivastava v. Sri Avinash Prasad Srivas-tava. AIR
1967 SC 581 the Supreme Court while construing Section 15 also came to the same
conclusion. So we must hold 'that the effect of Section 15 of the Hindu Marriage
Act in this case was that the marriage between the appellant and Susama
continued for a period of one year from the 23rd of March 1964 and therefore, on
the 21st of April, 1964, Su-sama was a spouse of the appellant, and as such the
marriage between Kajal and the appellant is null and void under Section 4 read
with Section 24 of the Special Marriage Act.

   12. Mr. Bose has lastly contended that Kajal was a consenting party to this
marriage and had entered into this marriage with full knowledge that Susama was
alive, and, as such, she cannot question this marriage. As we have already
pointed out. the marriage is null and void and even if Kajal had acquiesced in
it, that does not prevent her from questioning it at a later stage,

   13. The result therefore is that we confirm the judgment and decree passed by
the Additional District Judge, though on a different ground, and the appeal
fails and must be dismissed.

   14. There will be no order as to costs.

   Salil Kumar Datta, J.

   15. I agree with my Lord that the appeal should be dismissed. I would,
however, like to say my views on the questions involved in the appeal.

   16. This appeal, by the husband against the decree of nullity of marriage on
the wife's petition under Section 24 of the Special Marriage Act. 1954 (Act
XLIII of 1954), raises some interesting points of law. The husband had five
children by his first wife purga who died on October 2, 1958. Thereafter on
January 15, 1959, he married his second wife Susama according to Hindu rites.
Shortly after the second marriage, the husband became acquainted with one Kajal.
the petitioner in this proceeding and their acquaintance ripened to highest
intimacy, borne out by wife's letter--exhibits A series. In 1963, the husband
brought a suit for a decree of dissolution of his marriage with Susama under
Section 13(1)(v) of the Hindu Marriage Act, 1955, (Act XXV of 1955) on the
ground of her venereal disease in a communicable form. While the proceedings
were pending, the parties before us gave notice to the Marriage Officer on March
13, 1964, of their intended marriage under Section 5 of the Special Marriage
Act. The husband's marriage with the second wife Susama was dissolved by a
decree of divorce on March 23, 1904. The appellant husband and Kajal were
married under the Special Marriage Act on April 21. 1961

   17. On June 17. 1964, Kajal filed an application under Section 24 of the
Special Marriage Act. for a declaration of nullity of her said marriage
solemnized on April 21. 1964. The grounds inter alia were that the marriage was
in violation of the provisions of the Hindu Marriage Act and at the time of the
impugned marriage, Susama the second wife of the husband was alive and
accordingly the condition specified in Clause (a) of Section 4 was not
fulfilled. As a result the marriage was null and void and should be so declared
by the Court. There were allegations of fraud and suppression by the husband of
the facts of his previous marriages as also of its spouse Susama who was
admittedly living then and even thereafter. The suit was contested by the
husband who denied the allegations of fraud or suppression of facts relating to
his previous marriages and facts connected therewith. On the point of law, it
was submitted that provisions of the Hindu Marriage Act had no application to
the impugned marriage which was under the Special Marriage Act.

   18. The learned Judge disbelieved the case of the petitioner about fraud and
suppression of facts by the husband and rightly so in our opinion, as the
exhibits A series clearly indicated that the petitioner was fully aware of the
previous marital life of the husband. In fact, in my opinion, she was, to a
large extent, responsible for this marriage. The learned Judge however held, on
an interpretation of Section 30 of the Special Marriage Act that the impugned
marriage within one month of "the decree of divorce against Susama was null and
void and decreed accordingly. The present appeal is against the said decree.

   19. Mr. Himangshu Kumar Basu, the learned counsel appearing for the husband
appellant, has contended that the learned Judge's interpretation of Section 30
was wholly wrong, as it has no application to the facts of the case. It seems
also obvious that Section 30 applies where the earlier marriage was under the
Special Marriage Act which is not the case before us. In fact, this position has
not been contested before us by Mr. Amarendra Mohan Mitra, the learned counsel
for the wife respondent

   20. Mr. Basu's more formidable contention is that Section 15 of the Hindu
Marriage Act, in view of its Section 29(4), has no application to a marriage
under the Special Marriage Act. Elaborating his arguments. Mr. Basu contended
that the Hindu Marriage Act and the Special Marriage Act are complete codes in
themselves, containing elaborate provisions regarding conditions of marriage,
respective rights of parties as also judicial processes in connection therewith.
It would not be permissible to import provisions of one statute to the other and
in fact by Section 29(4) of the Hindu Marriage Act it is provided that nothing
in the said Act shall affect the provisions in the Special Marriage Act with
respect to marriages between Hindus solemnised under that Act If Section 15 of
Hindu Marriage Act had thus no application, the marriage could not be impugned
in law. Mr. Mitra has disputed the above contentions as, according to him, the
provisions of the Hindu Marriage Act shall, under its Section 29(4). affect only
the provisions of marriage under the Special Marriage Act and nothing beyond,

   21. It appears to me that the contentions of Mr. Basu are without substance.
As it is well known, a Hindu couple at its option may solemnise their marriage
either under the Hindu Marriage Act or the Special Marriage Act and any marriage
of the Hindus registered under either of the Acts shall be valid in law. It will
be noticed that the conditons of a marriage under the Hindu Marriage Act in its
Section 5 thereof are little more elaborate than those of a marriage under the
Special Marriage Act as provided in its Section 4. Section 29(4) of the Hindu
Marriage Act only makes this provision that the conditions of marriage under
this Act shall not be imported or treated as conditions of a marriage under the
Special Marriage Act. It has no further restrictive power and certainly cannot
be extended to exclude application of Section 15 which does not by itself relate
to the provisions with respect to marriage between Hindus under the Special
Marriage Act.

   22. Section 15 of the Hindu Marriage Act imposes conditions in respect of re-
marriage of parties under decree of divorce and we are concerned here with the
proviso which makes it unlawful for any party to marry again unless at the date
of such marriage one year has elapsed from the date of the decree of the court
of first instance. This is a personal obligation on either of the spouses which
must be deemed to be incorporated in the decree of divorce itself and is its
integral part and must be complied with before the intending party is free from
the fetters of his or her earlier marriage for a re-marriage under whatever
statute he or she may elect as the section makes no exception. The rigorousness
of the provisions of Section 15 waa considered by the Supreme Court in AIR 1967
SC 581 which extended its principles to applications for special leave for
appeal before the court, though no appeal as of right lies from the decree of
the High Court It cannot therefore be said that with the passing of a decree for
divorce everything between husband and wife comes to an end; on the contrary,
for re-marriage after the decree for divorce under the Hindu Marriage Act, the
concerned party has strictly to comply with its provisions and infraction
thereof would only lead to penal consequences.

   23. Mr. Basu has contended with great emphasis that a decree takes effect on
the day it is passed and if so the parties cease to have any relationship on
that date and no longer are spouses of an erstwhile marriage dissolved by a
decree of divorce. Accordingly Section 4(a) of the Special Marriage Act could
not be resorted to in making the impugned decree invalid in the said
circumstances as it had no application.

   24. Mr. Basu in this connection also referred to the decision in where it was
held that when the decree is passed

   under the Hindu Marriage Act declaring a marriage void, the marriage is void
ab initio, as if no marriage in law has taken place. This decision has no
bearing here, as Section 15 imposes the prohibition in regard to decrees of
divorce and in case of decrees of nullity of marriage the section has no
application. On behalf of the respondent, we were referred to a number of
decisions which lay down the principle that during the time within which
remarriage is prohibited, as in Section 57 of the Indian Divorce Act (Act IV of
1869), marriage between the spouses is deemed to subsist. In (1890) 15 PD 152,
it was laid down that there was a prohibition contained in Section 57 of the
Indian Divorce Act against remarriage of either party within six months of the
date of the final decree.

     "as the Indian Law, like our own, does not completely dissolve the tie of
marriage until the lapse of a specified time under the decree. This is an
integral part of the proceedings by which alone both parties can be released
from their incapacity to contract a fresh marriage".

   (1912) ILR 34 All 203 was a case where the husband on the decree for
dissolution of marriage becoming absolute, remanied within six months. On the
petition of the wife of this marriage, it was held following (1890) 15 PD 152,
Warter v. Warter (supra) that the husband's marriage with his former wife who
was alive was still in force when he went through the form of a marriage with
the petitioner wife who was thus entitled to the declaration that her marriage
with the husband was null and void. In ILR 38 Mad 452 = (AIR 1916 Mad 847 (2))
in similar circumstances it was held that the former marriage is to be
considered still in force at any rate to the extent of preventing a subsequent
marriage during the lifetime of the other party to such marriage until the
prohibition resulting from the survival of such other party is removed by virtue
of the section. The subsequent marriage was held as void while the previous
marriage was held still "in force" within meaning of Section 19(4) for affording
the jurisdiction to court to declare the second marriage a nullity. In 25 Cal WN
710 = (AIR 1921 Cal 517). following the above case Warter v. Warter (supra) it
was held that the subsequent marriage, held within six months from the date
confirming a decree nisi was null and void, even though the parties to the
subsequent marriage lived as husband and wife for eighteen years.

   25. It must be mentioned that the cases cited above were governed by the
Indian Divorce Act and the Courts proceeded on the basis that as the former wife
was alive at the time of subsequent marriage and the former marriage was then in
force, it violated provisions of Section 19(4) of the said Act which prohibited
a marriage of a person with a spouse living. That was the ground of distinction,
according to Mr. Basu. which made the decisions inapplicable to the facts of
this case where the parties were Hindus and two statutes were involved in regard
to the two marriages. Further according to Mr. Basu. the language in Clause (a)
of Section 4 of the Special Marriage Act is merely "a spouse" without any
qualification which would have been qualified if it is intended to include
spouses of an earlier marriage under the Hindu Marriage Act.

   26. On a consideration of the cases cited above, I am of the opinion that the
principles enunciated therein should also be made applicable to the marriages
under the Hindu Marriage Act with which we are concerned here. For the purpose
of only preventing a spouse from marrying again within the limit of time
prescribed in the proviso to Section 15 of the Hindu Marriage Act, the former
marriage dissolved by a decree of divorce under its provisions must be deemed to
subsist for a period of at least one year from the date of such decree in the
Court of the first instance. The prohibition being attached to the persons
involved, any infraction of the rule leading to a second marriage would
obviously violate the provisions of Clause (a) of Section 4 of the Special
Marriage Act and make such subsequent marriage null and void.

   27. Such interpretation is in harmony with the other provisions of the
connected statutes and is consistent with, the objects for which they have been
brought to the statute book. As otherwise, even a Hindu spouse haying a marriage
solemnised under the Hindu Marriage Act, as here, could validly enter into a
marriage under the Special Marriage Act with impunity. The consequences thus
would be disastrous for the society also and would lead to acute problems while
the marriage acts seek to prevent their coming in existence. It may also be
noted that the words "spouses" in the said sections has been used without any
qualification, meaning that the spouse contemplated in the said provision would
include a spouse of any valid marriage.

   28. Provisions similar to those contained in Section 15 of the Hindu Marriage
Act have been made in Section 57 of the Indian Divorce Act and Section 30 of the
Special Marriage Act. This was necessary also for the additional reason that
provisions of the Special Marriage Act are available to any person residing in
India (excepting the State of Jammu and Kashmir) and have also extra territorial
operation.

   29. It is not necessary to deal further with the contention of Mr. Basu that
the wife is not competent to the reliefs prayed for in the circumstances or
with, the contention of Mr. Mitra that the notice of marriage contained the
false declaration of the husband being unmarried in place of divorce or the
notice being given at a time when the earlier decree was yet to be passed. The
impugned marriage, as we have seen, is null and void for non-fulfilment of the
provisions of Clause (a) of Section 4 of the Special Marriage Act and the
respondent wife was entitled to such declaration as rightly held by the trial
Court.

   30. The appeal accordingly fails and is dismissed, without any order as to
costs, as proposed.