AMENDMENT TO SECTION 15 OF HINDU MARRIAGE ACT, 1955

THIS ARTICLE WAS WRITTEN BY NAMRATA LANGADE, A STUDENT OF  BHARATI VIDYAPEETH DEEMED UNIVERSITY, PUNE.

Section 15: what is about?

Section 15 sets out that when a marriage has been separated by a proclamation of partition and either there is no benefit of offer against the statement or, if there is such a benefit of demand, the perfect open door for drawing in has ended without any effort having been put in, or an interest has been shown but anyway has been rejected, it will be authentic for either parties to the marriage to marry yet again.[1]

Subsequently as indicated by the segment, the gatherings to the marriage, may wed once more, if the accompanying conditions are fulfilled:

(1)When the marriage has been separated and there is no benefit of offer against the declaration of court, or

(2) If there is a benefit of development yet the time has slipped by without archiving an interest, or

(3) An interest has been reported yet has been removed.

Although the Hindu Marriage Act prescribes that it shall be lawful to marry again only after dismissal of an appeal filled by the aggrieved party against the decree of divorce, the Supreme Court, However in latest judgment of Mr. Anurag Mittal v. Mrs. Shaily Mishra Mittal AIR 2017, [2]clarified that second Marriage would not be void if solemnized during the pendency of the appeal. The bench comprising Justice SA Bobde and Justice L. Nageswara Rao has observed that restriction placed on the second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.

Case study

This is an instance of a man whose second marriage moreover accomplished the court. The first wife pulled him to family court and viably obtained a partition announce. He recorded an interest under the vigilant gaze of the High court, yet in the midst of the pendency of an interest, the couple ‘settled’ to part with each other and the life partner archived applications to pull back the interest. The High court allowed the application and rejected the interests. He married another woman on 06.12.2011, on which day his application searching for withdrawal of offers testing divorce pronounce was ‘pending’ under the vigilant gaze of the High court which had quite recently passed arranges on it on 20.12.2011. The second life partner pushed toward the Family court searching for partitioned on the ground that the marriage contracted by him with her is invalid and void because of the above-said reality of pendency of the interest under the watchful eye of the High court on the date of second marriage. Regardless of the way that Family court expelled her application, the High court found help with it, and declared the marriage as invalid and void. As the issue arrived at the Apex court, it thought about the accompanying two issues

  • Whether the expulsion of the interest relates back to the date of recording of the application for withdrawal?
  • Whether the marriage dated 06.12.2011 (second marriage) between amid the pendency of the interest against the declaration of separation (in first marriage) is void?

Interpretation of Section 15

Justice Nageswara Rao, who authored the lead judgment, took note of the repealed proviso to Section 15 of the Act which provided that ‘it shall not be lawful for the respective parties to marry again unless at the time of such marriage at least one year has elapsed from the date of the decree in the Court of first instance’. Lila Gupta v. Laxmi Narain, a judgment of the Apex court interpreting this proviso was taken note of. In the said judgment, it was held a marriage in contravention of the proviso to Section 15 is not void.

On Lila Gupta[3], Justice Rao observed: “This Court found that a marriage contracted in breach of only some of the conditions renders the marriage void. This Court was also conscious of the absence of any penalty prescribed for contravention of the proviso to Section 15 of the Act. This Court referred to the negative expression “it shall not be lawful” used in proviso to Section 15 which indicates that the prohibition was absolute. In spite of the absolute prohibition, this Court was of the view that a marriage contracted in violation of the proviso to Section 15 was not void. There was a further declaration that the dissolution of a marriage is in rem and unless and until a Court of appeal reversed it, marriage for all purposes was not subsisting. The dissolution of the marriage is complete once the decree is made, subject of course to appeal. This Court also decided that incapacity for second marriage for a certain period of time does not have the effect of treating the former marriage as subsisting and the expression ‘spouse’ would not include within its meaning the expression ‘former spouse’.”[4]

The Protection That Is Afforded By Section 15 Is Primarily To A Person Who Is Contesting The Decree Of Divorce

Referring to various judgments on ‘interpretation of statutes’, Justice Rao observed that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal. He observed: “Section 15 of the Act provides that it shall be lawful for either party to marry again after dissolution of a marriage if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.”[5]

Marriage would not be void in the absence of an express provision that declares nullity

Justice Bobde in his opinion observed that Lila Gupta Judgment, in essence, has held that if a provision of law prescribes incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity.

Conclusion

The Hindu Marriage Act is social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The Act intends to bring out the social reform. Hence in the above case the Petitioner had filed an application for withdrawal of his appeal against the decree for dissolution and had done nothing to contradict his intention to accept the decree of dissolution.

[1] Section 15 of the Hindu Marriage Act, 1955

[2] Civil Appeal No.18312 of 2017

[3] Lila Gupta vs Laxmi Narain & Ors 1978 AIR 1351

[4] Ibid.

[5] Mr. Anurag Mittal v. Mrs. Shaily Mishra Mittal AIR 2017,

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