LexTEJINDER KAUR versus GURMIT SINGH
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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1EJINDER KAUR
v.
GURMIT SINGH
FEBRUARY 23, 1988
[A.P. SEN AND B.C. RAY, JJ.)
Constitution of India, 1950: Article 136-Decree for dissolution
of marriage-Upheld by High Court-Wife filing SLP-Husband con-
tracting second marriage one month after dismissal of appeal by High
Court-SLP whether rendered infructuous.
Hindu Marriage Act, 1955: Section 15-Effect of deletion of )
proviso by Marriage Laws (Amendment) Act, 1976-Decree for disA
solution of marriage upheld by High Court-SLP under Article B6 of
Constitution of India filed by wife-Husband marrying again one
month after dismissal of High Court appeal-Preliminary objection that
D SLP rendered infructuous-Whether maintainable.
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Limitation Act, 1963: Article 113(c)-Decree for dissolution of
marriage-Upheld by High Court-SLP-Filed within 90 days by
wife-Husband meanwhile contracting second marriage-Whether SLP
rendered infructuous.
Section 15 of the Hindu Marriage Act, 1955 provided that when a
marriage was dissolved by a decree of divorce, it shall be lawful for
either of the spouses to marry again, where either there was no right of
appeal or where there was such a right of appeal, the time for appeal-
ing, had expired, without the appeal being presented or the appeal
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F having been presented, was dismissed. Proviso to the section provided
that it shall not be lawful for either of them to remarry unless at the
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date of such marriage at least one year bad elapsed from the date of\. -(
decree in the conrt of first instance. This proviso was deleted by tbe'"1
Marriage Laws (Amendment) Act, 1976.
A decree for dissolution of marriage was granted by the Addi-
tional District Judge against the petitioner-wife on the ground of
cruelty under s. 13(i-a) of the Hindu Marriage Act, 1955. The J
petitioner-wife's appeal to the High Court was dismissed in limine.
The petitioner-wife ftled a Special Leave Petition in this Court. A
H preliminary objection was raised on behalf of the respondent-husband
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TEJINDER KAUR v. GURMIT SINGH
1099
that the petition had become infructuous inasmuch as the respondent-
hushand bad meanwhile married again on 17th August, 1986, just a
month after the dismissal of the petitioner's appeal by the High Court.
Over ruling the preUrninary objection and directing the Special
Leave Petition to be placed for hearing,
HELD: Under the law laid down in the Hindu Marriage Act,
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1955, monogamy is the rule and a party can only contract valid second
marriage after the first ceases to exist in the manner envisaged bys. IS.
This rule is an integral part of the proceedings by which alone both the
parties to the decree can be released from their incapacity to contract a
\,!resh marriage. I 1102E-F)
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Prior to the Amendment Act of 1976, the proviso to s. 15 laid
down a period of waiting of one year between the passing of a decree for
divorce by the court of first instance and the remarriage of any of the
spouses. The deletion of this proviso, by the Marriage Laws (Amend-
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ment Act), 1976 and doing away with the period of waiting has given
rise to a question of great difficulty. I 1103A-B I
The section, when it speaks of a case where there is a "right of
appeal" does not in terms cover the case of an application for special
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leave to appeal to the Supreme Court under Article 136 of the Consti-
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tution. l1103B-C)
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Under Article 133(c) of the Limitation Act, 1963 a special leave
petition can be fJ.Ied within 90 days from the date of the disposal of the
appeal by the High Court. Therefore, a successful party cannot take
away the right of presenting an application from the other spouse by
marrying Immediately after the High Court's jndgment and must wait
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)- ~II that period was over and make sure whether an application for
special leave has been fJ.Ied in the Supreme Court. I II03C-D I
Chandra Mohini Srivastava v. Avinash Prasad Srivastava &
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Anr., [1967) 1SCR864 and Lila Gupta v. Laxmi Narain & Ors., [1978)
3 SCR 922, followed.
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In the instant case, the High Court having dismissed the appeal on
t6th July, 1986, the petitioner could have presented a special leave
petition within ninety days therefrom i.e. till l4th September, 1986. Till
that period was over, it was not lawful for either party to marry again
as provided bys. 15. [1104C-D I
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1100
SUPREME COURT REPORTS
[1988] 2 S.C.R.
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