JUDGMENT
R.S. Pathak, J.
1. I agree that the appeals should be allowed, but I would prefer to rest the decision on the reasons which I now set forth. The facts have already been set out by my brother Desai.
The question is whether a remarriage solemnised before the expiry of the period of one year specified in the proviso to Section 15 of the Hindu Marriage Act is a void marriage or merely irregular. Section 15 of the Hindu Marriage Act provides:
15, When a marriage has been dissolved by a decree of divorce and either there is no legal 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 of 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.
It is urged on behalf of the appellant that the proviso to Section 15 is directory in nature, and therefore, a Marriage effected in violation of the time period specified there is not void. The principal argument in support of the submission is that whenever the statute intends to threat a marriage as a nullity it specifically so provides. We have been referred to the observations of Dr. Lushington in Catterali v. Sweatmans (1848) 9 Jur. 951, 954:
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 for any case in which a marriage has been declared rule and void unless there were words in the statute expressly so declaring it…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.
It is contended that the question whether a marriage as a nullity invites particular considerations, and the ordinary norms of construction will not suffice. I find it difficult to dispute that the question of the validity of a marriage deserves on special care, and the greatest caution must be exercised before a marriage is declared void. But I do not find it possible to admit that unless the statute specifically declares a marriage to be a nullity, it cannot be pronounced so by the courts. To my mind, the intrinsic evidence provided by the language of the statute, the contest in which the provision finds place, and the object intended to be served is of equal validity. Dr. Lushington relied on the absence of any decision laying down that the nullity of a marriage could be inferred by statutory construction. It was not long after that his observations were considered in Chtchester v. Hure (1863) 3 Sw. & Tr. 223 falsely called Chichestey) by a Court consisting of Williams, J., and Channell, B. Williams, J., who delivered the judgment of the Court, noted the argument of counsel “that the statute contained no words nullifying,– that is, expressly declaring a marriage contracted and celebrated within the prohibited time null and void, and that in construing a statute which relates to a contract of marriage, a different rule of construction ought to prevail from that which might properly enough be applied to statutes relating to a subject-matter other than a contract of marriage ; and that, in construing a statute relating to a contract of marriage, it is not enough to invalidate the marriage to show a disregard of enactments merely negative and prohibitory, but the marriage must be held good, unless there are words expressly declaring that it shall be null and void.” The learned Judges pointed out that Gatterall (supra) was distinguishable and the observations of Dr. Lushington must be read in relation to the facts of the case before him. It was a case where a marriage, if good before the Act under consideration was passed would not be rendered void by the statute, but if not good before would not be aided by it, and where the object of the statute was not to make any marriage void that would have been valid without its aid. The validity of the marriage was to be judged in law independently of the statute. It was in that context that Dr. Lushington observed that there was no provision in the Act which expressly nullified the marriage. Having dealt with those observations, the learned Judges then said:
It is, however, quite a different question, whether, in construing a statute which gives the very right to contract at all, we are then to hold that the marriage is good, notwithstanding a disregard of words negative and prohibitory, which relates to the very capacity to contract, because there are no words expressly nullifying the contract.
Notwithstanding that there was no express provision nullifying the marriage, the court held the marriage void. Chichester (supra) was followed in Rogers, otherwise Briscos (falsely called Hadmshaw) v. Halmshaw (1864) 3, Sw. & Tr. 509. To my mind, the argument that the proviso to Section 15 is directory and not mandatory because a marriage solemnised in violation of it has not been declared a nullity by the statute does not carry conviction.
But the appellant is entitled to succeed in her contention on another ground. The object behind the restraint imposed by the proviso to Section 15 is to provide a disincentive to a hasty action for divorce by a husband anxious to marry another woman, and also the desire to avoid the possibility of confusion parentage where the wife has become pregnant by her husband under the earlier marriage 59th Report of the Law Commission of India i p. 29 para 2,32. A statutory provision may be construed as mandatory when the object underlying it would be defeated but for strict compliance with the provision. It does not seem to me that any very serious discouragement is provided by the proviso to Section 15 to a husband anxious to marry another woman. It is also worthy of note that the impediment to the remarriage provided by the proviso to Section 15 is a temporary one and ceases on the expiration of the period of one year. The proviso proceeds on the assmmption that the decree dissolving the marriage is a final decree and merely attempts to postpone the re-marriage. It does not take into account the defeasibility of the decree in virtue of an appeal. The defeasibility of the decree because an appeal has been provided is a matter with which the main provision of Section 15 is concerned. So far as the intention to safeguard against a confusion in parentage is concerned, one is reminded of the principle in Mahommadan Law which places a ban on marriage with a divorced or widowed woman before the completion of her Iddat. It has now been held in Muhammad Havet v. Mohammad Nawaz (1935) LR Lah. 48, overruling the earlier view on the point, that a marriage performed during the period of lddat is an irregular marriage only and not a void marriage. Further evidence that the proviso to Section 15 is directory only is provided by its delation altogether by Parliament by the Marriage Law Reforms Act, 1976. Accordingly lam unable to endorse the view taken by the Calcutta High Court in Uma Charon Roy v. Smt. Kajal Roy A.I.R. 1971 Cal. 387. In my opinion, a marriage performed in violation of the proviso to Section 15 of the Hindu Marriage Act is not void.
It has also been urged on behalf of the appellant that if Parliament intended that a marriage in violation of the proviso to Section 15 should be a nullity, it would have made express provision for legitimating the off spring of such a marriage. The absence of such a provision, it is said points to the conclusion that the proviso to Section 15 is directory. I refrain from expressing any opinion on the validity of that argument, which the appellant succeeds on the considerations to which I have adverted.
I hold that the marriage of Rajendra Kumar with the appellant is not void, and who is entitled to be considered as his wife.
At this stage, it is appropriate to mention that the two tests sought to be employed in the construction of the proviso to Section 15, that is to say that a marriage, although in violation of the statute, is not void because the legislature has not expressly declared it to be so, and also because the legislature has made no provision for legitimating the offspring of such a marriage, need to be viewed with caution. These are tests which could equally be invoked to the construction of the main provision of Section 15. And, as I shall endeavour to show, the conclusion that the provision is directory and not mandatory does not necessarily follow.
The main provision of Section 15 provides that when a marriage has been dissolved by a decree of divorce, either party to the marriage may marry again, if there is no legal 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 having been presented has been dismissed. In other words, the right to remarriage shall not be exercised before the decree of divorce has reached finality. Similar provision is contained in the English statutes. The courts in England have consistently taken the view that the right to remarry pertains to the capacity of the parties to enter into marriage, and when a limitation in point of time is placed on the exercise of the right it is regarded as a qualification of the right itself, and a remarriage affected in violation of the time limitation has been held to be a void marriage. See Chichester (supra).
In India, among the earliest enactments relevant to our purpose is the Indian Divorce Act 1869, Section 57 of which provides:
57. When six months after the date of an order of a High Court confirming the decree for a dissolution of marriage made by a District Judge have expired.
or when six months after the date of any decree of a High Court dissolving a marriage leave expired, and no appeal has been presented against such to the High Court in its appellate jurisdiction.
or when any such appeal has been dismissed,
or when in the result of any such appeal any marriage is declared to be dissolved,
but not, sooner, it shall be lawful for the respective parties to the marriage to marry again, as if the prior marriage had been dissolved by death,
Provided that no appeal to the Supreme Court has been presented against any such order or decree.
When such appeal has been dismissed, or when in the result thereof the marriage is declared to be dissolved, but not sooner, it shall be lawful for the respective parties to the marriage to marry again as if the prior marriage had been dissolved by death.
The section was construed in Warier v. Warter (1890) 15 P. 152 which in turn influenced the decisions in Le Masurier v. Le Masuriar (1929) 46 T.L.R. 203 and Boettcher v. Boettcher (1949) Weekly Notes, 83 These cases were considered with approval by the High Court of Australia in Millar v. Teals (1954-55) 92 EX.R. 406 in India, Water (supra) has been followed in J.S. Rattia v. S.K. Brown A.I.R. 1916 Madras, 847, Turner v. Turner A.I.R. 1921 Cal. 517 and Jackson v. Jackson IL.R. 34 Allahabad, 203 cases which involved the application of Section 57 of the Indian Divorce Act. Judicial opinion, appearing from those decisions, seems to be that a marriage solemnised before the expiry of the period of limitation for presenting an appeal or, where an appeal has been presented, during the pendency of that appeal must be regarded as a void marriage. The law in this regard was precisely stated in Miller (supra) where Dixen, C. J. pointed out:
In English Law a restraint on remarriage so as to allow time for appealing appears to be regarded as designed to give a provisional or tentative character to the decree dissolving the marriage so that it does not yet take effect in all respects. It is regarded an ancillary to the provision of the law which for a comparatively brief time makes the decree absolute for dissolution contingently defeasible in the event of appeal, remarriage arising out of the previous marriage and not yet removed by the process provided for dissolving it.” In the same case, Kitto, J. said:
Whatever be the law by which a person’s general capacity to marry is to be determined according to the rules applied by the English courts, if he in a divorced person those courts will recognize on incapacity to remarry which is imposed upon him by the law of the country in which his former marriage was dissolved, provided that the incapacity is imposed incidentally to the provision of a right of appeal against the judgment of dissolution.
The main provision of Section 15 of the Hindu Marriage Act, which bears almost identical resemblance to the relevant statutory provisions in the cases mentioned above, would perhaps attract a similar conclusion in regard to its construction. At the lowest, there is good ground for saying that a detention that a marriage solemnised in violation of the main provision of Section 15 is a nullity cannot be summarily rejected. The question which arises before us in this case does not directly involve the construction of the main provision of Section 15 and, therefore, I refrain from expressing any opinion on the validity of such a marriage.
The appeals are allowed, the judgment of the Division Bench of the High Court in Special Appeals Nos. 374 to 379 of 1967 as well as of the learned single Judge in Writ Petitions Nos. 4083 to 4088 of 1966 are set aside and the writ petitions are dismissed. The respondent shall pay the costs of the appellant in this court in one set.
