MR. ANURAG MITTAL versus MRS. SHAILY MISHRA MITTAL

Citation: [2018] 10 S.C.R. 123 · Decided: 24-08-2018 · Supreme Court of India · Bench: S.A. BOBDE · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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MR. ANURAG MITTAL
v.
MRS. SHAILY MISHRA MITTAL
(Civil Appeal No. 18312 of 2017)
AUGUST  24, 2018
[S. A. BOBDE AND L. NAGESWARA RAO, JJ.]
Hindu Marriage Act, 1955 –  s. 15 and  5(i)  – Divorced
persons, when may marry again – Marriage between the appellant
and the respondent during the pendency of the appeal against the
decree of divorce –  Marriage was entered into after application
for withdrawal of appeal, though before the order of withdrawal
was passed – Validity of the second marriage – Held: Section 15
provides that the second marriage by either party shall be lawful
only after dismissal of an appeal against the decree of divorce, if
filed – In case an appeal is presented, any marriage before dismissal
of the appeal shall not be lawful – On facts, during the pendency
of the appeal, there was a settlement between the appellant 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 – Following
the principles of purposive construction, the restriction placed on
a second marriage in s. 15 till the dismissal of an appeal would not
apply to a case where parties have settled and decided not to pursue
the appeal – Appeal is deemed to have been withdrawn on the date
of the filing of the application for withdrawal – On the date of the
marriage between the appellant and the respondent, the former
spouse of the appellant cannot be considered as a living spouse –
Thus, s. 5(i) not attracted and the marriage between the parties not
void.
Allowing the appeal, the Court
Per L. Nageswara Rao, J.
HELD: 1.1 In case of a dissolution of marriage, a second
marriage shall be lawful only after dismissal of the appeal.
Admittedly, the marriage between the appellant and the
   [2018] 10 S.C.R. 123
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SUPREME COURT REPORTS
[2018] 10 S.C.R.
respondent was before the order of withdrawal was passed by
the Court. The application for withdrawal of the appeal was filed
prior to the date of the marriage. [Para 10] [134-C-D]
1.2 Order XXIII Rule 1 (1) 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 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 the date of the filing of the application for withdrawal.
On the date of the marriage between the appellant and the
respondent, first wife of the appellant cannot be considered as a
living spouse. Hence, Section 5 (i) is not attracted and the
marriage between the appellant and the respondent cannot be
declared as void. [Para 12] [135-F-G]
1.3 Section 15 of the Hindu Marriage Act, 1955 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 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 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.
[Para 18] [137-H; 138-A-C]
1.4  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
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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 06.12.2011 shall be

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