KRISHNAVENI RAI versus PANKAJ RAI & ANR.

Citation: [2020] 1 S.C.R. 682 · Decided: 19-02-2020 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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KRISHNAVENI RAI
v.
PANKAJ RAI & ANR.
(Criminal Appeal No. 321 of 2020)
FEBRUARY 19, 2020
[INDIRA BANERJEE AND M.R. SHAH, JJ.]
Hindu Marriage Act, 1955: ss.5, 11, 15 – Claim for maintenance
by appellant-wife – Plea of respondent-husband that appellant was
not entitled to maintenance since their marriage was a nullity having
taken place while an appeal by appellant against decree of divorce
against her first husband was still pending – The said appeal by
wife against first husband was filed almost one year after the expiry
of limitation period – Whether second marriage performed during
the pendency of an appeal from a decree of divorce a nullity, even
though there were no stay of operation of the decree – Held: s.15
specifies that when a marriage has been dissolved by a decree of
divorce, and 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 preferred, or an appeal has been
presented but the same has been dismissed, it shall be lawful for
either party to the marriage to marry again – It could never have
been the legislative intent that a marriage validly contracted after
the divorce and after expiry of the period of limitation to file an
appeal from the decree of divorce should rendered void on the filing
of a belated appeal – The bar of s.15 is not at all attracted in the
facts and circumstances of this case, where the appeal from the
decree of divorce had been filed almost a year after expiry of the
period of limitation for filing an appeal – Maintenance application
remitted to the Family Court for determination of maintenance
amount – In the meanwhile, respondent directed to pay Rs.20,000
as was directed by the Family Court.
Allowing the appeal, the Court
HELD: 1. A careful reading of Sections 5, 11 and 15 makes
it amply clear that while Section 5 specifies the conditions on
which a marriage may be solemnized between two Hindus, only
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contravention of some of those conditions render a marriage void.
Marriage in contravention of Section 5(i) of the Hindu Marriage
Act, that is, where either party or both have a spouse living at
the time of marriage is void. [Paras 28-29] [690-B-C]
2. Section 15 clarifies that when a marriage has been
dissolved by a decree of divorce, and 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 preferred,
or an appeal has been presented but the same has been dismissed,
it shall be lawful for either party to the marriage to marry again.
The bar of Section 15 is not at all attracted in the facts and
circumstances of this case, where the appeal from the decree of
divorce had been filed almost a year after expiry of the period of
limitation for filing an appeal. The bar, if any, under Section 15 of
the Hindu Marriage Act applies only if there is an appeal filed
within the period of limitation, and not afterwards upon
condonation of delay in filing an appeal unless of course, the decree
of divorce is stayed or there is an interim order of Court,
restraining the parties or any of them from remarrying during
the pendency of the appeal. The appeal was infructuous for all
practical purposes, from the inception, since the Appellant’s ex-
husband had lawfully remarried after expiry of the period of
limitation for filing an appeal, there being no appeal till then.
[Paras 31, 34-36][690-E-F; 692-D, F-G]
Anurag Mittal v. Shaily Mishra Mittal (2018) 9 SCC
691 : [2018] 10 SCR 123; Leela Gupta v. Laxmi Narain
& Ors. (1978) 3 SCC 258 : [1978] 3 SCR 922 –
referred to
3. It could never have been the legislative intent that a
marriage validly contracted after the divorce and after expiry of
the period of limitation to file an appeal from the decree of divorce
should be rendered void on the filing of a belated appeal. If the
marriage of the Appellant’s ex-husband in 2006 was a valid
marriage in law recognizing that he had no living spouse, the
subsequent re-marriage of the Appellant could also not be void.
The maintenance application is remitted to the appropriate Court
having jurisdiction for determination of the Appellant’s claim to
KRISHNAVENI RAI v. PANKAJ RAI & ANR.
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maintenance. In the meanwhile, the Respondent No.1 shall pay
to the Appellant mainten

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