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Whether a spouse under the the Hindu Marriage Act, 1955 can marry during pendency of divorce proceeding?

If any marriage is made in contravention of Section 5 (i) and Section 15 of the Hindu Marriage Act, 1955 what would be the effect?

Hindu Marriage Act, 1955 was intended to secure the rights of marriage for the bride and groom who are Hindu and are bound under the sacred bond of marriage under any ceremony. This law was enacted to avoid the various consequences which were prevalent due to immature Hindu law for marriage under British Rule. The law does not define the kind of ceremony. There are several ways a man and a woman may carry out this religious act. This act was floated after several cases were seen where both man and woman were petrified or humiliated under a fraud case in the name of marriage. This law is binding to any person who is Hindu by Birth or Hindu by Religion. There is a complete definition of Hindu under Section 2 of Hindu Marriage Act. There are no restrictions imposed under the Hindu Marriage Act, 1955 in terms of caste and communities. Inter-caste and inter-communal marriages are completely lawful under this act. The Act removed any distinction under law of a marriage of a maiden and a widow and both are treated equally under this law.

Section 5 of Hindu Marriage Act, 1955 makes a marriage lawful only if the groom has attained the age of 21 years at the time of marriage and bride has attained the age of 18 years at the time of marriage. Hindu Marriage Act, 1955 incorporated Monogamy. It strictly prohibits a Hindu from getting involved in a marital relationship with more than one person. Bigamy and Polygamy if proved is strictly punishable under the Indian Penal Code as per provisions under Section 5 and Section 17 of Hindu Marriage Act, 1955. Section 15 of the Act states that after a valid divorce, either party is eligible to re-marry. Section 16 of the Act defines the legitimacy of children born out the alliance and can be subsequently declared annulled or void or voidable. Dissolution of marriage- The question arises in regard to Section 15 of the Hindu Marriage Act.

Before Amendment

Before the amendment Section 15 was that: “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.

Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of the first instance.”

Judicial Pronouncements

Section 15 contemplates that the spouses who have obtained a decree of divorce should not and would not rush to marry again and thus the doctrine of Lis pendente lite and the doctrine of Locus Poenitentiae were incorporated in this provision. So the Proviso contained a prohibition. Such prohibition if violated was held to render the marriage void as held in Lila Gupta vs Laxmi Narain1) and Uma Charan Roy vs Kajal Roy2)

After Amendment

The proviso was omitted by Act 68 of 1976 under Section 19. So now with the omission of the Proviso, the divorced parties can marry again subject to the prohibition in the Act itself.

There was a detailed discussion on Section 15 in Lila Gupta vs Laxmi Narain.3) In this case, the matter came in appeal from Allahabad.4) But by that time the Proviso to Section 15 was omitted by Act 68 of 1976. The Supreme Court held that a marriage contracted in contravention of or violation of the Proviso to Section 15 is not void but merely invalid not affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing from the marriage. The Supreme Court further held that if a child is born in a marriage in contravention of Proviso to Section 15, he would have no protection under Section 16 of the Act. Since the Proviso is omitted, it clearly shows that the parties, whose marriage is dissolved, can contract marriage soon thereafter provided of course the period of appeal has expired. The Supreme Court reaffirmed the warning as given in Chandra Mohini v Avinash Prasad.5)

In Chandra Mohini case the decree of divorce was granted by the High Court reversing the dismissal of the petition of the husband by the trial court. Soon thereafter, the husband contracted second marriage. After sometime the wife moved for obtaining special leave to appeal under Article 136, which was granted. The husband thereafter moved for revoking the leave. While rejecting the petition for revoking the leave Wanchoo, J (as he then was) speaking for the court observed that even though it may not have been unlawful for the husband to have married immediately after the High court's decree as no appeal as of right lies from the decree of the High Court to this court, still it was for the respondent to make sure whether an application for special leave had been filed in this court and he could not deprive the wife by marrying immediately of the chance of presenting a special leave petition to this covet. If a person does so he takes risk and could not ask the court to revoke the special leave on that ground. The Supreme Court then referred to the case of Marsh v Marsh.6) In the privy Council it was held that the statute prohibited marriage by parties whose marriage was dissolved by a decree of divorce during the period of limitation prescribed the appeal. The contention was that such marriage in violation of a statutory prohibition is void. Negativing this contention it was held that the decree absolute was a valid decree and it dissolved the marriage from the moment it was pronounced. When the appeal by the intervener abated, it stood un-reversed. The fact that neither spouse could remarry until the time for appealing had expired, in no way affects the full operation of the decree. It is a judgment in rem and unless and until a court of appeal reversed it, the marriage for all purposes is at an end. So the court held that 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) of Section 5. Thus such a marriage within the period of prohibition is invalid. If a person remarries during the limitation period when the appeal is pending and a child is born, then what will be the status of such a child when such marriage is legally considered as invalid. Such provision is also not there at all. So it is suggested that Supreme Court in Chander Mohini v Avinash Parshad7) by way of passing reference said that the question while child born of new wedlock would become legitimate or not need not be considered as Section 16 may come to the aid of the new child. In view of these obiter dicta it is necessary that Section 16 be amended to cater for such eventuality if it arises due to contravention of Section 15 and the child is born. Clause 4 to Section 16 can be added to cover such contingency. Birth of a Child out of Wedlock Marriage Laws (Amendment) Act, 1976 provides legitimacy to children of a marriage hit by Section 11 of Hindu Marriage Act. There must be a marriage which would be hit by the provisions of the Act. When there is no proof of solemnization of marriage, the provisions of Section 16 of the Hindu Marriage Act as amended by Marriage Laws (Amendment) Act, 1976 is not attracted. So Section 16 would not cover a relationship resulting from any other arrangement than the marriage. So a child born out of wedlock is ”Filius Nullius.“ It is recognized as a child of the mother as per Section 3(1)(J) Proviso of the Hindu Succession Act 1956 but not under Section 16 of the Hindu Marriage Act 1955.

Section 11 - Void Marriages: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party; be so declared by a decree of nullity if it contravenes anyone of the conditions specified in clauses (i), (iv) and (v) of Section 5.

The said Section 11 only speaks about a void marriage and is silent about the legitimacy of the children born of a void marriage and as such under Section 11 both the aspects of void marriage and legitimacy of children of void marriage cannot be considered because two declarations are distinct in nature though are interconnected.

In Tulsan Devi v Krishni Devi it was held that the remedy of either party of the marriage is only a petition under this Section and not a civil suit. However, a regular suit is to be filed for declaration of legitimacy. So there is reference of Section 5„ clauses (i), (iv) and (v) in Section 11, violation of which renders the marriage null and void and as such a further reference is to be made to Section 5 of the Act.

Section 5. Conditions of A Hindu Marriage: A marriage may be solemnized between any two Hindus if the following condition is fulfilled:- . “(i) neither party has a spouse living at the time of the marriage;”

The principle of monogamy is enshrined in Sec. 5(1) with all legal, vehemence and vigour. Violation of Sec. 5(1) renders the marriage void under Sec. 11 and punishable under Section 17 read with Sec. 494 or 495 as the case may be. So violation of Section 5(1) is not only a matrimonial offence but also a criminal offence. Supreme Court in Yamuna v Anantha Rao8) has said that the fact that the husband has been treating the woman as his wife and did not inform her of his first marriage is immaterial and the principle of estoppel cannot be invoked to defeat the provisions of the Act.

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ILR (1969) 1 AH 92
AIR 1971 Cal. 307.
AIR 1978 S.C.1351
ILR (1969) 1 All 92
5) , 7)
AIR 1967 S.C 581
AIR 1945 P.C 188
1988 1 HLR 375 (S.C)

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