Is a re-marriage by a divorced person in contravention of Section 5 (i) of the Hindu Marriage Act, 1955 null and void?

Section 11 of the Hindu Marriage Act, 1955 provides that any marriage solemnized after commencement of the Act shall be null and void if it contravenes any of the conditions specified in Clauses (i), (iv) and (v) of Section 5.

Clause (i) of Section 5 places a bar on marriage by a person who has a spouse living at the time of the marriage.
Section 15 of the Act which is relevant is as follows:

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.

The Proviso to Section 15 of the Hindu Marriage Act, 1955 provides 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. This Proviso was repealed w.e.f. 27.05.1976.

In Lila Gupta v. Laxmi Narain (1978) 3 SCC 258, Rajender Kumar contracted second marriage with Lila Gupta before the expiry of one year from the date of decree of divorce. The Supreme Court was concerned with a point relating to the marriage between Rajender Kumar and Lila Gupta being void having been contracted in violation of the Proviso to Section 15 of the Act.

In the said context the Supreme Court observed as follows:

8. Did the framers of law intend that a marriage contracted in violation of the provision contained in 1 Marsh v. Marsh 1945 AC 271 2 Hindu Marriage (Amendment ) Act, 1976, Act 68 of 1976 the proviso to Section 15 to be void? While enacting the legislation, the framers had in mind the question of treating certain marriages void and provided for the same. It would, therefore, be fair to infer as legislative exposition that a marriage in breach of other conditions the legislature did not intend to treat as void.

While prescribing conditions for valid marriage in Section 5 each of the six conditions was not considered so sacrosanct as to render marriage in breach of each of it void. This becomes manifest from a combined reading of Sections 5 and 11 of the Act.

If the provision in the proviso is interpreted to mean personal incapacity for marriage for a certain period and, therefore, the marriage during that period was by a person who had not the requisite capacity to contract the marriage and hence void, the same consequence must follow where there is breach of condition (iii) of Section 5 which also provides for personal incapacity to contract marriage for a certain period.

When minimum age of the bride and the bridegroom for a valid marriage is prescribed in condition (iii) of Section 5 it would only mean personal incapacity for a period because every day the person grows and would acquire the necessary capacity on reaching the minimum age. Now, before attaining the minimum age if a marriage is contracted Section 11 does not render it void even though Section 18 makes it punishable. Therefore, even where a marriage in breach of a certain condition is made punishable yet the law does not treat it as void. The marriage in breach of the proviso is neither punishable nor does Section 11 treat it void.

Would it then be fair to attribute an intention to the legislature that by necessary implication in casting the proviso in the negative expression, the prohibition was absolute and the breach of it would render the marriage void? If void marriages were specifically provided for it is not proper to infer that in some cases express provision is made and in some other cases voidness had to be inferred by necessary implication. It would be all the more hazardous in the case of marriage laws to treat a marriage in breach of a certain condition void even though the law does not expressly provide for it.

Craies on Statute Law, 7th Edn., P. 263 and 264 may be referred to with advantage:

“The words in this section are negative words, and are clearly prohibitory of the marriage being had without the prescribed requisites, but whether the marriage itself is void … is a question of very great difficulty. It is to be recollected that there are no words in the Act rendering the marriage void, and I have sought in vain or any case in which a marriage has been declared null and void unless there were words in the statute expressly so declaring it (emphasis supplied). . . .

From this examination of these Acts I draw two conclusions.

First, that there never appears to have been a decision where words in a statute relating to marriage, though prohibitory and negative, have been held to infer a nullity unless such nullity was declared in the Act.

Secondly, that, viewing the successive marriage Acts, it appears that prohibitory words, without a declaration of nullity, were not considered by the legislature to create a nullity [Ed. Quoting Catterall v. Sweetman, (1845) 9 Jur 951, 954].

In the Hindu Marriage Act there is a specific provision for treating certain marriages contracted in breach of certain conditions prescribed for valid marriage in the same Act as void and simultaneously no specific provision having been made for treating certain other marriages in breach of certain conditions as void. In this background even though the proviso is couched in prohibitory and negative language, in the absence of an express provision it is not possible to infer nullity in respect of a marriage contracted by a person under incapacity prescribed by the proviso.

The proviso opens with a prohibition that: “It shall not be lawful” etc. Is it an absolute prohibition violation of which would render the act a nullity? A person whose marriage is dissolved by a decree of divorce suffers incapacity for a period of one year for contracting second marriage. For such a person it shall not be lawful to contract a second marriage within a period of one year from the date of the decree of the Court of first instance.

While granting a decree for divorce, the law interdicts and prohibits a marriage for a period of one year from the date of the decree of divorce. Does the inhibition for a period indicate that such marriage would be void? While there is a disability for a time suffered by a party from contracting marriage, every such disability does not render the marriage void.

A submission that the proviso is directory or at any rate not mandatory and decision bearing on the point need not detain us because the interdict of law is that it shall not be lawful for a certain party to do a certain thing which would mean that if that act is done it would be unlawful. But whenever a statute prohibits a certain thing being done thereby making it unlawful without providing for consequence of the breach, it is not legitimate to say that such a thing when done is void because that would tantamount to saying that every unlawful act is void.

As pointed out earlier, it would be all the more inadvisable in the field of marriage laws. Consequences of treating a marriage void are so serious and far reaching and are likely to affect innocent persons such as children born during the period anterior to the date of the decree annulling the marriage that it has always been considered not safe to treat a marriage void unless the law so enacts or the inference of the marriage being treated void is either inescapable or irresistible. Therefore, even though the proviso is couched in a language prohibiting a certain thing being done, that by itself is not sufficient to treat the marriage contracted in contravention of it as void.”

In Lila Gupta v. Laxmi Narain (1978) 3 SCC 258, this Court also had occasion to deal with the continuance of the marital tie even after the decree of divorce for the period of incapacity as provided in the Proviso to Section 15 of the Act. In the said context, this Court held as follows:

“13. To say that such provision continues the marriage tie even after the decree of divorce for the period of incapacity is to attribute a certain status to the parties whose marriage is already dissolved by divorce and for which there is no legal sanction. A decree of divorce breaks the marital tie and the parties forfeit the status of husband and wife in relation to each other. Each one becomes competent to contract another marriage as provided by Section 15.

Merely because each one of them is prohibited from contracting a second marriage for a certain period it could not be said that despite there being a decree of divorce for certain purposes the first marriage subsists or is presumed to subsist. Some incident of marriage does survive the decree of divorce; say, liability to pay permanent alimony but on that account it cannot be said that the marriage subsists beyond the date of decree of divorce. Section 13 which provides for divorce in terms says that a marriage solemnised may on a petition presented by the husband or the wife be dissolved by a decree of divorce on one or more of the grounds mentioned in that section.

The dissolution is complete once the decree is made, subject of course, to appeal. But a final decree of divorce in terms dissolves the marriage. No incident of such dissolved marriage can bridge and bind the parties whose marriage is dissolved by divorce at a time posterior to the date of decree.

An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting. During the period of incapacity the parties cannot be said to be the spouses within the meaning of clause (i), sub-section (1) of Section 5. The word “spouse” has been understood to connote a husband or a wife which term itself postulates a subsisting marriage.

The word “spouse” in sub-section (1) of Section 5 cannot be interpreted to mean a former spouse because even after the divorce when a second marriage is contracted if the former spouse is living that would not prohibit the parties from contracting the marriage within the meaning of clause (i) of sub-section (1) of Section 5. The expression “spouse” in clause ( i), sub- section (1) of Section 5 by its very context would not include within its meaning the expression “former spouse”.

8. After a comprehensive review of the scheme of the Act and the legislative intent, the Supreme Court in Lila Gupta v. Laxmi Narain (1978) 3 SCC 258 held that a marriage in contravention of the proviso to Section 15 is not void. Referring to Sections 5 and 11 of
the Act, this Court found that a marriage contracted in breach of only some of the conditions renders the marriage void.

The Supreme 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, the Supreme 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. The Supreme 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’.

The majority judgment in Lila Gupta v. Laxmi Narain (1978) 3 SCC 258 was concerned only with the interpretation of proviso to Section 15 of the Act. Justice Pathak in his concurring judgment referred to Section 15, but refrained from expressing any opinion on its interpretation.

These principles of law have been reiterated by the Supreme Court in the judgement dated 24th August 2018 in Anurag Mittal vs Mrs. Shaily Mishra Mittal Civil Appeal No.18312 of 2017 by Justices L. NAGESWARA RAO and S.A. Bobde.



Category: Divorce, Custody, Matrimonial Law
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