Supreme Court

Anurag Mittal Vs. Shaily Mishra Mittal

MANU/SC/0903/2018

24.08.2018

Family

Restriction placed on a second marriage would not apply to a case where parties have settled and decided not to pursue the appeal

By present appeal, Appellant is impugning the judgment of High Court set aside the judgment of the Family Court and allowed the appeal of the Respondent and declared the marriage between the Appellant and the Respondent held on 06.12.2011 as null and void. The High Court was of the opinion that any marriage solemnized by a party during the pendency of the appeal wherein the operation of the decree of divorce was stayed, would be in contravention of Section 5 (i) of the Hindu Marriage Act, 1955. Issue involved in present matter is whether the dismissal of the appeal relates back to the date of filing of the application for withdrawal and that Whether the marriage dated 6th December, 2011 between the Appellant and the Respondent during the pendency of the appeal against the decree of divorce is void.

Order XXIII Rule 1(1) of the Code of Civil Procedure, 1908 (CPC) gives an absolute right to the Plaintiff to withdraw his suit or abandon any part of his claim. There is no doubt that, Order XXIII Rule 1 of the CPC is applicable to appeals as well and the Appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. Therefore, the appeal is deemed to have been withdrawn on 28th November, 2011 i.e. the date of the filing of the application for withdrawal. On 06th December, 2011 which is the date of the marriage between the Appellant and the Respondent, Rachna Aggarwal cannot be considered as a living spouse. Hence, Section 5 (i) of Act is not attracted and the marriage between the Appellant and the Respondent cannot be declared as void.

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 either party to the marriage is free to marry again. In case an appeal 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.

Aggrieved by the decree of divorce, the Appellant filed an appeal and obtained a stay of the decree. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal. It cannot be said that, he has to wait till a formal order is passed in the appeal, or otherwise his marriage dated 6th December, 2011 shall be unlawful. 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.

The conclusion of the High Court that, the marriage dated 6th December, 2011 is void is erroneous. Hence, the judgment of the High Court is set aside. Accordingly, the Appeal is allowed.

Tags : Second Marriage Restriction Pendency Appeal

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