# LILA GUPTA v. LAXMI NARAIN & ORS

- **Citation:** [1978] 3 S.C.R. 922
- **Court:** Supreme Court of India
- **Decided:** 1978-05-04
- **Case number:** Special Appeals Nos. 374-379 of 1967
- **Bench:** Y. V. Chandrachud, D. A. Desai, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lila-gupta-v-laxmi-narain-ors-7457
- **Pages:** 21

## Headnote

Ilindu Marriage Act, 1955-s. 15, scope of-Whether a rnarriage contracted
in contravention of or in violation of the proviso to s. 15 of the Act is void of
1nerely invalid not affecting the core of 1narriage and the· parties are
subiect
to a binding the of wedlock fioi,ring fron1 the 1narriage.
The husband of the appellant-late Ra·jcndra Kumar had earlier to the
marriage with her, contracted a marriage \Vith one Sada Gupta.
Both
Rajendra Kumar and Sarla Gupta- filed suits against each other praying for
a decree of divorce, which were decreed on April 8, 1963 granting the di·
vorce.
The marriage with the appellant Lila Gupta was solemnised on May
25, 1963 i.e. after a month and 17 days from the date of the decree of
divorce.
Rajendra Kumar expired on May 7, 1965. Disputes arose in consolidation proceedings ,between the appellant claiming as widow of Rajendra
Kumar and respondents who were brothers and brothers' sons of Rajendra
Kumar about succession to the Bhumidari rights in respect of certain plots
of land enjoyed by Rajendra Kumar in his life time, the latter challenging
the status of the appellant to be the widow of Rajendra Ktimar on the ground
that her marriage \Vith Rajendra Kumar was void having been contracted 1n
violation of the provisions contained in the proviso to s. 15 of the
Hindu
Marriage Act, 1955.
The final authority Deputy Director of Con!>olidation
apheld the claim of the appellant and this decision was challenged by the
respondents in six petitions filed under Article 227 of the Constitution in
the High Court of Allahabad.
The learned Single Judge before whom
the petitions came up for hearing was of the opinion that the marriage of
Rnjendra Kumar with the present appellant on May 25, 1963, being
in contravention of the proviso to s. 15 was null and void and accordingly allowed
the writ petitions.
The Division Benell dismissed the further appeals by the
appellant, confirmed the order of the learned single Judge and granted a
certificate under Article 133(1) (c) .
. i\lJov.·ing the appeals, the Court
HELD : ( 1) Examining the matter from all possible angles and keeping in
vie¥.' t11e fact that the scheme of the Act provides for treating certain man'iages
void and simultaneously some marriages which are made punishable yet not
void and no consequences having been provided for in respect of the n1arriage
in contravention of the proviso to s. 15 of the Hindu Marriage Act. 1955 it
cannot be said that such 1narriage would be void.
In the instant case, as the
marriage of the appellant, even though in contravention of the provisions of
Section 15 is not void, she cannot be denied the status of wife and, therefore the \vidow of deceased Rajendra Kumar and in that capacity as an heir
to him.
[937 D-F]
(2) A comprehensive revie\V of the relevant provisions of the Act unmistakably manifests the legislative thrust that every marriage solemnised in
contravl!ntion or one of other condition
pr~cribed for valid marriage
is
not void. These express provisions in the Act would show that Parliament
was aware about treating any specific marriage
void
and
only
speCific
marriages punishable.
This express provision pl'lma facle would go a long
way to negative any suggestion of a marriage being void though not covered
by s. 11 such as in breach of proviso to s. 15 as being void by necessary
implication. The net effect of it is that at any
rate
Parliament did
not
think fit to treat such marriage void or that it is so opposed to pilblic policy
as to make it punishable.
[929 A-B, F-G]
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LILA GUPTA V. ,LAXMI NARAIN
923
(3) While enacting the legislation the framers had in tnind the question
A
of treating certain marriages vo~d a;nd
provi~~ for the . samf?.
~t w6uld, ·
therefore be fair, to infer as legislabve exposition that a marriage in breach
of other conditions the legislature did not intend to treat as void while prescribing conditions for valid marriage in s. 5, e~h of. the six conditions
w~
not considered

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922
LILA GUPTA
v.
LAXMI NARAIN & ORS.
May 4, 1978
[Y. V. CHANDRACHUD, C.J., D. A.
DESAI AND R. S.
PATHAK, JJ.J
Ilindu Marriage Act, 1955-s. 15, scope of-Whether a rnarriage contracted
in contravention of or in violation of the proviso to s. 15 of the Act is void of
1nerely invalid not affecting the core of 1narriage and the· parties are
subiect
to a binding the of wedlock fioi,ring fron1 the 1narriage.
The husband of the appellant-late Ra·jcndra Kumar had earlier to the
marriage with her, contracted a marriage \Vith one Sada Gupta.
Both
Rajendra Kumar and Sarla Gupta- filed suits against each other praying for
a decree of divorce, which were decreed on April 8, 1963 granting the di·
vorce.
The marriage with the appellant Lila Gupta was solemnised on May
25, 1963 i.e. after a month and 17 days from the date of the decree of
divorce.
Rajendra Kumar expired on May 7, 1965. Disputes arose in consolidation proceedings ,between the appellant claiming as widow of Rajendra
Kumar and respondents who were brothers and brothers' sons of Rajendra
Kumar about succession to the Bhumidari rights in respect of certain plots
of land enjoyed by Rajendra Kumar in his life time, the latter challenging
the status of the appellant to be the widow of Rajendra Ktimar on the ground
that her marriage \Vith Rajendra Kumar was void having been contracted 1n
violation of the provisions contained in the proviso to s. 15 of the
Hindu
Marriage Act, 1955.
The final authority Deputy Director of Con!>olidation
apheld the claim of the appellant and this decision was challenged by the
respondents in six petitions filed under Article 227 of the Constitution in
the High Court of Allahabad.
The learned Single Judge before whom
the petitions came up for hearing was of the opinion that the marriage of
Rnjendra Kumar with the present appellant on May 25, 1963, being
in contravention of the proviso to s. 15 was null and void and accordingly allowed
the writ petitions.
The Division Benell dismissed the further appeals by the
appellant, confirmed the order of the learned single Judge and granted a
certificate under Article 133(1) (c) .
. i\lJov.·ing the appeals, the Court
HELD : ( 1) Examining the matter from all possible angles and keeping in
vie¥.' t11e fact that the scheme of the Act provides for treating certain man'iages
void and simultaneously some marriages which are made punishable yet not
void and no consequences having been provided for in respect of the n1arriage
in contravention of the proviso to s. 15 of the Hindu Marriage Act. 1955 it
cannot be said that such 1narriage would be void.
In the instant case, as the
marriage of the appellant, even though in contravention of the provisions of
Section 15 is not void, she cannot be denied the status of wife and, therefore the \vidow of deceased Rajendra Kumar and in that capacity as an heir
to him.
[937 D-F]
(2) A comprehensive revie\V of the relevant provisions of the Act unmistakably manifests the legislative thrust that every marriage solemnised in
contravl!ntion or one of other condition
pr~cribed for valid marriage
is
not void. These express provisions in the Act would show that Parliament
was aware about treating any specific marriage
void
and
only
speCific
marriages punishable.
This express provision pl'lma facle would go a long
way to negative any suggestion of a marriage being void though not covered
by s. 11 such as in breach of proviso to s. 15 as being void by necessary
implication. The net effect of it is that at any
rate
Parliament did
not
think fit to treat such marriage void or that it is so opposed to pilblic policy
as to make it punishable.
[929 A-B, F-G]
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LILA GUPTA V. ,LAXMI NARAIN
923
(3) While enacting the legislation the framers had in tnind the question
A
of treating certain marriages vo~d a;nd
provi~~ for the . samf?.
~t w6uld, ·
therefore be fair, to infer as legislabve exposition that a marriage in breach
of other conditions the legislature did not intend to treat as void while prescribing conditions for valid marriage in s. 5, e~h of. the six conditions
w~
not considered as sacrosanct as to render mamage m breach of each of It
void
Even where a marriage in breach of a certain condition is
made
puni~haoble under s. 18 of the Act, yet the law does not treat it as voitl.
The marriage in breach of the proviso is neither punishable nor does s. 11
B
treat it as void.
It would not be fair to attribute the intention to
the
legislature that by necessary implication in casting the proviso in the negative
expression, the prohibition was absolute and the breach of it would render
the marriage void.
If void marriages Vi'ere specifically provided for it is not
proper to infer that in some cases express provision is made and in some
other cases voidness had to be inferred by necessary implication.
It would
be all the more hazardous in the case of marriage laws to treat a marriage
in breach of a certain condition void even though the law does not expressly
provide for it.
[930 D-E, G-H. 931 A]
C
In the Act there is a specific provision for treating certain
marriages
contracted in breach of certain conditions prescribed for valid marriage in
the same .'\ .. ct as void and simultaneously no specific provision h<1<ving been
made for treating certain other marriages in brtil.ch of certain conditions as
void.
Jn this background even though the proviso is couched in prohib1tory
and negative Janguage, in the absence of an express provision it is
not
possible to infer nullity in respect of a marriage contracted by a
person
under incapacity prescribed by the proviso.
[931 D-E]
D
(5) Undoubtedly, the proviso opens with a prohibition that "It shall not
be Ja\vful" etc.
It is not an absolute prohibition viola,tion of which would
render the Act a nullity.
A person whose marriage is
dissolved
by
a
decree of divorce suffers an incapacity for a period of one year for
contracting second n1arriage.
For such a person it shall not be
J <lwful
to
contract a second marriage within a period of one year from the date ot the
decree of the Court of first instance.
While granting a decree for divorce,
the ]a\v interdicts and prohibits ma.rriage for a period of one year from the
date of the decree of divorce.
The inhibition for a Period does not indi~
cate that such marriage would be void.
While there is a disability for a
time suffered by a party from contracting marriage, every such disability
doc~ not render the marriage void.
[931 F-G]
(6) The interdict of law is that it shall not be lawful for a certain party
to do a certain thing which would mean that if that act is done it would be
un]a\vful.
But whenever a statute prohibits a certain thing
being
done
thereby
.m~king it
~!1lawful without pr()viding for consequence of the
breach, 1t is not legitimate to say that such a thing when done is
void
because that would tantamount to saying that every unlawful act is void.
[931 G-H, 932 Al
(7) Undoubtedly, where a prohibition is enacted in public interest its
violation should not be treated lightly. A valid Hindu marriage subsists during
the ~ife time of ~ither party ~o the marriage until it is dissolved by a decree
of divorce at the instance of either party to the marriage. A decree of divorce
breaks
tb~ marriage tie.
Incapacity for marriage of such persons whose
marnage 1s dissolved by a decree of divorce for a period of one year was
presumably . enacted to allay apprehension' that divorce was sought only
fo~ contracting another marriage or to avoid dispute about the parentage of
children. There was some such time lag provided in comparable divorce laws and
possibly such a proviso was, therefore, considered proper and that appears to be
the purpose of object behind enacting the proviso to s. 15. It appears to be
pureiy a regulatory measure for avoiding a possible confusion. If it was so
sacrosanc~ that its violation would render the marriage void, it is not possible
!O appreciate why the Parliament completely dropped it; The proviso to s. JS
is deleted by s. 9 of the Marriage Laws (Amendment) Ac~ 1976.
The net
result is that now since the amendment parties whose maniage is dissolved
by a decree of divorce can contract marriage soon thereafter provided
of
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SUPREME COURT REPORTS
[1978] J S.t'..R.
course the period of appeal has expired. This will, reinforce the contention
that such marriage, is not void.
The fact that neither spouse could reIDB!IJ'
until the time: for appealing had expired, in no way a~ects the full operatiOil
of the decree. It is a judgment in rem unless and until a court of appeal
reversed it, the n1arriage for all purposes is at an end. [932 C~H, 933i A., E-FJ
Chandra Mohini Srivastava v. Avinash
Prasad
Srivastava
&
Aar. [1967] I SCR 864; Marsh v. Marsh, AJR 1945 PC 188 referred
to.
(8) To say that such proyision c_ontinue~ t~e marria~e tie even ~fter the
decree of divorce for the penod of 1ncapac1ty is to attribute a ,certain status
to the parties \vhose ~arriage is already dis.solved by divorce and_ for. which
there is no legal mention.
A decree of divorce breaks the manta) he and
the parties forfeit the status of husband and wife in relation to each other.
Each one becomes competent to contract another marriage as provided by
s. 15.
Merely because each one of them is prohibited from contracting a
second marriage for a certain period it could not be said that despite there
being a decree of divorce for certain purposes the first ma.rriage subsists or
is presumed to subsist.
Some incident of marriage does survive the decreC
of divorce; say, liability to pay permanent alimony but on that accourit it
cannot be said that the marriage subsists beyond the date ·of
decree of
divorce.
Section 13 which provides for divorce n
terms says that a
marriage solemnised may on a petition presented by the husband or the wife
be dissolved by a decree of divorce on one or more of the grounds mentioned
in that section.
The dissolution is complete once the decree is made, subject of course, to appeal.
But a final decr~e of divorce in terms dissolves
the marriage.
No incident of such dissolved marriage can bridge a.nd bind
the parties whose marriage is dissolved by divorce at a time posterior to
the date oi decree.
[933 F-H, 934 A]
(9) 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 meailing
of cl. (1), sub-s. (1) of s. 5.
The 'spouse' has been understood to connote
ai husband or a wife which term itself postulates a
subsisting
marriage.
The 'spouse' in sub-section ( 1) of s. S cannot be interpreted to
mean a
former spouse because even after the divorce when a second- marriage
is
contracted if the former spouse is living that would not prohibit the partie.g
from contracting the marriage within the meaning of (cl) (i), sub-s.
(1) of
s. 5 by its very context would not include witp_in its meaning the expression
'former spouse'. [934 B-C]
( 10) A mere. glance a'1 s. 15 of the Act and s. 57 of the Indian Divorce
F
A.ct >Vould clearly show that the provisions are not in pari materia. 1935 Fl
~
Warier v. Warier, [1890] 15 Probate Division 152;
J. Battie v.
(]. E. Brown, AIR 1916 Madras 847; Turner v. Turner, A.I.R. 1921
Ca-1. 517; Jnckson v. Jackson, ILR 34 Allahabad 203 explained, Uma
Charan Roy v. Smt. Kaja/ Roy, AIR 1971 Cal. 307 overruled.
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( 11) Under the Mohammadan law after the divorce the traditional Jav.
<lid not permit a divorced wife to controct second marriage during the periOO
of Iddiit and in the past such marriage ·was considered void. The discernible
public policy behind treating such marriage void was confusion about the
parentage of the child, if the woman was pregnant M: the time of divorce.
The marriage was treated void interpreting a certain text of the Hanafi law.
Recent trend, however, is that under the Mohmadan Laow a marriage of a
woman undergoing iddat is not void but merely irregular. [936 F·Hl
If public policy behind e:rohibiting marriage of a woman undergoing idda1
and persons who are prohibited from maorrying for a period of one
year
from the date of the decree dissolving their marriage is the same, viz.~ to
avoid confusion about the parentage of the child which may have
been
conceived or the divorce sought to be obtained only for contracting second
marriage, then the same conclusion may follow that such regulatory prohibiton ·if violated or contravened could not render the marriage void. f937 lJ-Cl
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LILA GUPTA V. LAXMI NARAIN
925
1\1uhafnn1ad Jlayat v. Mul1amn1ad l'>/awaz, [1935} 17 L.R.
Lah.
48
followed.
A
(12) \'oidness of marriage unless statutorily provided for is not to be
loferred.
A reference to Child Mocriage Restraint Act would also show
that the Child Marriage Restraint Act was enacted to carry forward the reformist movement of prohibiting child marriages and while it made _marriage
in contravention of the provisions of the Child
Marriage
Restramt
Act
punishnblc, simultaneously it did not render the marriage void.
r937 C-D]
B
Pathak, J (concurring) :
(1) No doubt. the question of the validity of a .marriage deserves . an
especial care and the greatest caution must be exercised before a marnage
i~ declared void. The contention that unless the statute specifica-lly decfares
a marriage to be a nullity, it cannot be pronounced so by the Courts is not
correct.
The intrinsic evidence provided by the language of the statute tb.e
context in ~hich the provision finds place and the
object
in.tended
to be
served is of equal validity.
[938 G-H, 939 Al
The argument that the proviso to s. 15 of the Hindu Marriage Act is
directory and not mandatory because a marriage solemnised in
violation of
it has not been declared a nullity by the statue cannot be accepted. [939 F]
Ca1terall v. Sweetman, (1845) 9 Jur. 951, 954; Chichester v.
c
Mure (falsely called Chichester), (1863)3, Sw. & Tr., 223; Rogers,
D
otherwise Briscoe (falsely called Halmshaw) v. Halmshaw, (1864)3,
Sw. & Tr. 509; explained and distinguished.
(ii) A marriage performed in violation of the proviso to s. 15 of the
Hindu Marriage Act is not void. [940 D]
(a) The object behind the restraint impased by the proviso to s. 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
E
confusion in parentage of the child
by
her
husband
under the
earlier
marriage. [939 G-H]
59th Report of Law Commission of India p. 29 referred to.
(b) A statutory provision n1ay be construed as mandatory
when
the
object underlying it would be defea.ted but for strict compliance with the pro.
vision.
No serious discouragement is provided by the proviso to s. 15 to
a husband anxious to marry another woman. The inpediment provided
by the proviso to s. 15 is a temporary one and ceases on the expiration of
the period of one year.
The proviso proceeds on the assumption that the
decree dissolving the marriage is a final decree, and merelv attempts to
postpone the remarriage.
It does not take into account the defeasibility
of the decree in virtue of an appeal.
The defeasibility of the decree bE"cause
an appeal has been provided .is a matter with which the main provisons of
s. 15 1s concerned. Further evidence that the proviso to s. 15
is
directory
only is orovided by its deletion altogether by Parliament by the Marriage
Laws Reforms Act, 1976. [940 A-CJ
Umac/1aran Roy v. Smt. Kaja/ Roy, AIR 1971 Cal. 307 disapproved.
(b) The intention _to . safe¥llard against a confusion in parentage is perhaps. based. on the. pnnc1ple tn __ Mahommedan law which places a ban
on
~rnage with ~ divorced or w1do"':'ed won1::i.n .before the completion of her
1ddat:
A marnage
perform~d duru;ig the penod of Iddat is an irregular
mar~1a~e only and not. a void marnage.
Jn the instant case, the marriage
10f RaJendra Kumar with the appellant is not void and she is entitled to be
considered as his wife.
[940 C-D & F]
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SUPREME COURT REPORTS
[1978] 3 S.C.R.
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Mohammad Hayat v. Mahammad Nawaz, (1935) 17 L.R. 17 Lab.
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48 applied.
(iii) The two tests sought to be employed in the construction
of
the
proviso to s. 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 lee:islaiture bas made no provision for legitimating
the offspring of such a marriage need to be viewed with caution.
"fhe.se
are tests which could equally be invoked to the construction of the main
provision of sectino 15. The conclusion that that provision is directory and
not mandatory does not necessarily follow.
[940 G-H]
The main provision of s. 15 provides that when a marriage has been,,: d_issolved by a decree of divorce, either party to the marriage may marry agarn,
if there is no legal right of appeal against the decree or, if there is such a
right of aippeal, 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.
The English La\\-' and the decisions of the
Australian High Court and Indian High Courts which involved the _ application of s. 57 Indian Divorce Act
indicate
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 the a:ppeal must
be regarded as a void marriage,
[941 A-B]
The main provision of s. 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 contention that a marriage solemnised in violation of the main
provision of s. 15 is a nullity cannot be summarily rejected.
[942 E-F]
Chichester v. Mure (falsely called Chichester) (1863) 3, SW. &
Tr., 223: Warier v. Warter. (1890) 15 P., 152; Le Mesurier v.
Le
Mesurier, (1929) 46 T.L.R., 203; Doettcher v.
Doettcber,
(1949)
Weekly Notes, 83; Miller v. Tea/e, (1954-55) 92 C.L.R. 406; J. S.
Battie v. G. E. Brown, AIR 1916 Mad. 847; Turner v. Turner, AIR
1921 Cal. 517; Jackson v. Jackson, !LR 34 All. 203; referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2585-2590/
69.
From the Jud~ent and Order dated 6-5-1968 of the A11Jahabad
High Court in Special Appeals Nos. 374-379 of 1967.
F
S. N. Andley, Uma Dutta aud Brij Bhushan for the Appellant.
V. S. Desai and Promod Swarup for Respondent No. 2 in C.A.,
Nos. 2585, 2586, 2588, 2589, 2590/69 and Lrs. Nos. 2, 6, 7 and 8
of Respondent No. 1 in all the appeals.
The following Judgments of the Court were delivered by :
DESAI, J.-A very interesting and to some extent hitherto unG
explored question under the Hindu Maniage Act, 1955, arises in this
group of six appeals by certificate granted by the Allahabad High
Court under Article 133(1 )(c) of the Constitution. Appellant in all
the appeals is the same person and a common question of law is raised
in all these appeals and, therefore, they were heard together and are
being disposed of by this common judgment.
H
One Rajendra Kumar whose widow appellant Smt. Lila Gupta
claims to be, had cont~acted a marriage with one Sarla Guota. Both
Rajendra Kumar and Sarla Gupta filed suit against each other praying
for a decree of divorce. These suits ended in a decree of divorce on
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LILA GUPTA v. LAXMI NARAIN (Desai, 1.)
927
April 8, 1963. Soon thereafter, on May 25, 1963, Rajendra Kumar
contracted second marriage with appellant Smt. Lila Gupta. Unfortunately, Rajendra Kumar expired on May 7, 1965. Disputes arose
in con·solidation proceedings between the appellant claiming as widow
of deceased Rajendra Kumar and Respondents who are brothers and
brother's sons of Rajendra Kumar about succession to the Bhumidhari
rights in respect of certain plots of land enjoyed by Rajendra Kumar
in his life time, the latter challenging the status of the appellant to be
the widow of Rajendra Kumar on the ground that her marriage with
Rajendra Kumar was void having been contracted in violation of the
provision contained in the proviso to Section 15 of the Hindu Marriage
Act, 1955 ('Act' for short). The final authority Deputy Director of
Consolidation upheld the claim of the appellant and this decision was
challenged by the Respondents in six petitions filed under Article 227
of the Constitution in the High Court of Allahabad.
The learned
single Judge before whom these petitions came up for hearing was
of the opinion that the marriage of Rajendra Kumar with the present
appellant on May 25, 1963, being in contravention of the proviso
to s. 15 was null and. void, and accordingly allowed the writ petitions
and quashed the order's of the Settlement Officer (Consolidation) and
of the Deputy Director of Consolidation and restored the order
of the Consolidation Officer.
The appellant preferred six different appeals under the Letters Patent. The Division Bench dismissed
these appeals and confirmed the order of the learned single Judge.
The Division Bench granted certificate under Article 133(1) (c) to
the present appellant and that is how these six appeals have come up
before us.
Even though the appeals were argued on a wider canvass,
the
short and narrow question which would go to the root of the matter
is : Whether a marriage contracted in contravention of or violation
of the proviso to s. 15 of the Act is void or merely invalid not affecting
the core of marriage and the parties are subject to a binding tie of
wedlock flowing from the marriage ?
At the outset it would be advantageous to have a clear picture of
the scheme of the Act. Section 5 prescribes the conditions for a valid
Hindu marriage that may be solemnised after the commencement of
the Act. They are six in number. Condition No. (i) ensures monogamy.
Condition No. (ii) refers to the mental capacity of one or
the other person contracting the marriage and prohibits an idiot or
lunatic from contracting the marriage.
Condition (iii) prescribes
minimum age for the bride and the bridegroom for contracting marriage. This condition incidentally provides for consent of the bride and
the bridegroom to the marriage as the law treats them mature at a
certain age, Condition (iv) forbids marriage of parties within the
degrees of prohibited relationship unless the custom or usage governing
each of them permits of a marriage between the two, Condition No.
(v) is similar with this difference that it prohibits marriage between
two sapindas, Condition (vi) is a corollary to condition (iii) in that
where the bride has not attained the minimum age as prescribed in
condition (iii), the marriage will nonetheless be valid if the consent of
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928
SUPREME COURT REPOR1 S
[1978[ 3 S.C.R.
her guardian has been obtained for the marriage.
Section 6 specifics
guardians in marriage who would be competent to give consent as envisaged by s. 5(vi). Section 11 is material.
It provides that any
marriage solemnised after the commencement of the Act shall be null
and void and may on a petition presented by either party thereto be
so declared by a decree of nullity if it contravenes any one of the
conditions specified in clauses (i), (iv) and (v) of s. 5. Incidentally
at this stage it may be noted that s. 11 does not render a marriage
solemnised in violation of conditions (ii), (iii) and (vi) void, all of
which prescribe personal incapacity for marriage.
Section 18 pro-
·1ides that certain marriages shall be voidable and may be annulled by
a decree of nullity on any of the grounds mentioned in the section.
Clause (h) of sub-s. ( 1) inter a/ia provides that the marriage in contravention of condition specified in clause (ii) of s. 5 will be voidable.
Similarly, sub-clause (c) provides that the consent of the petitioner or
where consent of the guardian in marriage is required under s. 5 and
such consent was obtained by force or fraud, the marriage shall be
voidable.
Section 13 provides for dis'solution of marriage by divorce
on any of the grounds mentioned in the section. Section 14 prohibits
a petition for divorce being presented by any party to the marriage
within a period of three years from the date of the marriage which
period has been reduced to one year by s. 9 of the Marriage Laws
(Amendment) Act, 1976. Then comes s. 15 as it stood at the relevant
time, which is material for the purpose of this judgment and may be
reproduced in extenso :
"15. When a marriage has been di'ssolved by 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 marnage at
lea's! one year has elapsed from the date of the decree in the
court of the first instance".
The substantive part of s. 15 enables divorced persons to marry
again. The proviso prescribes a time limit within which such divorced
persons cannot contract marriage and the time prescribed is a period
of one year from the date of the decree in the Court of the first instance. Section 16 confers status of legitimacy on a child who but for
the provision would be treated illegitimate. If a marriage is annulled
by a decree of nullity, the legal consequence· would be that in the eye
of law there was no marriage at all even though the parties contracting
the marriage might have gone through some form of marriage but as
they were not bound by a valid binding wedlock, the child conceived
or begotten before the decree of nullity would nonetheless be illegitimate. The law steps in and provides that such child shall be legitimate.
The principle discernible is that innocent person shall not
·suffer.
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929
Sect.ion 17 provjdcs for punishment for bigamy. Section 18 prescribes
A
purusbment for contravention of some of the conditions prescribed
for valid marriage ins. 5. Contravention of conditions (iii), (iv), (v)
and (vi) of s. 5 is made punishable under s. 18.
A comprehensive review of the relevant provi'sions of the Act unmistakably manifests the legislative thrust that every marriage solemnised in contravention of one or other condition prescribed for valid
marriage is not void.
Section 5 prescribes six conditions for valid
marriage.
Section 11 renders marriage solemnised in contravention
of conditions (i), (iv) and (v) of s. 5 only, void. Two incontrovertible propositions eme.rge from a combined reading of ss. 5 and 11 and
other provisions of the Act, that the Act specifies conditions for valid
marriage and a marriage contracted. in breach of some but not all of
them renders the marriage void. The statute thus prescribes conditions
for valid marriage and also does not leave it to inference that each
one of such conditions is mandatory and a contravention, violation
or breach of any one of them would be treated as a breach of a prerequisite for a valid marriage rendering it void. The law while pre·scribing conditions for valid marriage simultaneously prescribes that
breach of some of the conditions but not all would render the marriage
void.
Simultaneously, the Act is conspicuously silent on the effect on
a marriage solemnised in contravention or breach of the time bound
prohibition enacted in s. 15. A further aspect that stares into the face
i's that while a marriage solemnised in contravention of clauses (iii),
(iv), (v) and (vi) of s. 5 is made penal, a marriage in contravention
of the prohibition prescribed by the proviso does not attract
any
penalty.
The Act is suggestively silent on the question as to what
is the effect on the marriage contracted by two persons one or both
of whom were incapacitated from contracting marriage at the tjme
when it was contracted in view of the fact that a period of one year
had not elapsed since the dissolution of their earlier marriage by a
decree of divorce granted by the Court of first instance.
Such a
marriage is not expressly declared void nor made punishable though
marriages in breach of conditions Nos. (i), (iv) and (v) are expressly
declared void and marriages in breach of conditions Nos. (iii), (iv),
(v) and (vi) of s. 5 are specifically made punishable by s. 18. These
express provisions would show that Parliament was aware
about
treating any specific marriage void and only
specific
marriages
punishable.
This express provision prima facie would go a long
way to negative any suggestion of marria~e being void though not
covered by s. 11 such as in breach of proviso to s. 15 as being void
by necessary implication.
The net effect of it is that at any rate
Parliament did not think fit ta treat such marriage void or that it is
so opposed to public policy as to make it punishable.
Parliament while providing that a marriage in contravention of
conditions l,i), (iv) and (v) would be ab initio void
which would
mean that the parties did not acquire the status of husband and wife
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comprehensively provided for its impact on a child
born of such
H
marriage. If any child is born to them before the marriage is annulled
by a decree of nullity, indisputably such 'a child would be iliegitimate
but s. 16 confers the status of legitimacy oil such children.
A child
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SUPREME COURT REPORTS
(1978] 3 S.C.R.
born to parties who had gone through a form of marriage which is
either void under s. 11 or voidable under s. 12, before the decree is
made .,would be illegitimate, the law nonetheless treats it as legitimate
even 1f the mamage 1s annulled by a decree of nullity and such child
shall always be deemed to be a legitima_te child notwithstanding the
decree of nullity.
Therefore, the Parliament was conscious of the
fact that in view of the provisions contained in ss. 11 and 12 and
its legal consequence a situation is bound to arise where a child begotten or conceived while the marriage was subsisting would
be
illegitimate if annulled because such marriage would be ab initio void.
Look at the impact of a marriage in violation of proviso to s. 15 on
child born of such marriage.
Section 16 does not come
to
its
rescue.
If the marriage is to be void as contended the child would
be illegitimate.
A status of legitimacy is not conferred by any provision of the Act on a child begotten or conceived to a woman who
had contractedi marriage and the marriage was in contravention of the
proviso to s. 15.
No intelligible explanation is offered for such a
gross discriminatory treatment.
The thrust of
these
provisions
would assist in deciding whether the marriage in contravention of
proviso to s. 15 is void as was contended on behalf of the respondents.
Did the framers of law intend tha~ a marriage
contracted
in
violation of the provision contained in the proviso to s. 15 to be
void ? While enacting the legislation, the framers had in mind the
question of treating certain marriages void and provided for the same.
It would, therefore, be fair to infer as legislative exposition that a
marriage in breach of other conditions the legislature did not inteod
to treat as void.
While prescribing conditions for valid
marriage
in s. 5 each of the six conditions was not considered so sacrosanct
as to render marriage in breach of each of it void.
This becomes
manifest from a combined reading of ss. 5 and 11 of the Act.
If
the provision in the proviso is interpreted to mean personal incapacity for marriage for a certain period and, therefore, the marriage
during that period was by a person who had not the requisite capadty
to contract the marriage and hence void, the same consequence must
follow where there is breach of condition (iii) of s. 5 which also
provides for personal incapacity to contract marriage for a certain
period.
When minimum age of the bride and the bridegroom for
a valid marriage is prescribed in condition (iii) ·of s. 5 it would only
mean personal incapacity for a period because every day the person
grows and would
acquire the necessary capacity on
reaching the
minimum age.
Now, before attaining the minimum age if a
marriage is contracted S· 11 does not render it void even though s.
18 makes it punishable.
Therefore, even where a marriage in
breach of a certain condition is made punishable yet the law does
not treat it as void.
The marriage in breach of the proviso
is
neither punishable nor does s. 11 treat it void.
Would it then be
fair to attribute an intention to the legislature that by
necessary
implication iri casting the proviso in the negative expression,
the
prohibition was · absolute and the breach of it would render the
marriage void ?
If void marriages were specifically provided for
it is not proper to infer that in some cases express provision is made
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LILA GUPTA v. LA.xMI NARAIN (Desai, J.)
931
and in some other cases voidness had to be inferred by necessary
implication.
It would be all the more hazardous in the case of
marriage Jaws to treat a marriage in breach of a certain condition
void even though the law does not expressly provide for it.
Craies
on Statute Law, 6th Edn., pages 263 and 264 may be referred to
with advantage :
"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 l have sought in vain for any case
in which a marriage has been declared null and void unless
there were words in the statute expressly so declaring
it
( empasis supplied). . . . From this examination of these
Acts, I draw two conclusions.
First, th.at there
never
appears to have been a decision where words in a statute
relating to marriage, though prohibitory and negative, have
been held fo infer a nnllity unless snch 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".
In the Act under discussion there is a specific provision for
treating certain marriages contracted in breach of certain conditions
prescribed for valid! marriage in the same Act as void and simultaneously no specific provision have been made for treating certain
other marriages in breach of certain conditions as void.
In this
background even though the proviso is couched in prohibitory and
negative language, in the absence of an express provision it is not
possible to infer nullity in respect of a marriage contracted by a
person under incapacity prescribed by the proviso .
Undoubtedly, the proviso opens with a prohibition that : 'It shall
not be lawful' etc.
Is it an absolute prohibition violation of which
would render the act a nullity ? A person whose marriage is dissolved
by a decree of divorce suffers an incapacity for a period of one year
for contracting second marriage.
For such a person it shall not be
lawful to contract a second marriage within a period of one year
from the date of the decree of the Court of first instance. \Vhile
granting a decree for divorce, the1 law interdicts and
prohibits
a
marriage for a period of one year from the date all the decree of
divorce.
Does the inhibition for a period indicate
that
such
marriage would be void ?
While there is a disability for a time
suffered by a party from contracting marriage, every such disability
does not render the marriage void.
A submission that the oroviso
is directory or at any rate not mandatory and decision bearing on
the point need not detain us because the interdict of Jaw is that , it
,shall not be lawful for a certain party to do a certain thing which
would mean that if that act is done it would be unlawful.
But whenever a statute prohibits a certain thing being done thereby making
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SUPREME COURT REPORTS
(1978] 3 S.C.R.
it unlawful without providing for consequence of the breach, it i~
not legitimate to say that such a thing when done is void because
that would tantamount to saying that every unlawful act is void,
As pointed out earlier, it would be all the more inadvisable in the
field of marriage laws.
Consequences of treating a marriage void
are so serious and far reaching and are likely to affect innocent persons such as children born during the period anterior to the date of
the decree annulling the marriage that it has always been considered
not safe to treat a marriage void unless the law so enacts or the
inference of the marriage being treated void is
either inescapable
or irresistable.
Therefore, even though the proviso is conched in
a language prohibiting a certain thing being done, that by itself is
not sufficient to treat the marriage contracted in contravention of it
as void.
Undoubtedly, where a prohibition is enacting in public interest
its voilation should not be treated
lightly.
That
necessitates
examination of the object and purpose behind enacting the proviso.
Till recent past a valid Hindu marriage among the twice born class
in which customary divorce was not pennissible could only be broken
by the death of either party·
Subsequently the concept of divorce
was introduced.
Therefore, a valid Hindn marriage subsists dnring
the life time of either party to the marriage until it is dissolved by
a decree of divorce at the instance of either party to the marriage.
A decree of divorce breaks the marriage tie. Incapacity for marriage
of such persons whose marriage is dissolwd by a decree of divorce
for a period of one year was presumably enacted to allay apprehension
that divorce was sought only for contracting another marriage or to
avoid dispute about the parentage of children.
At the time of the
divorce the wife may be pregnant. She may give birth to a child after
the decree. If a marriage is contracted soon after the divorce a qnesmight arise as to who is the father of the child viz., the former
husband or the hnsband of the second marriage. There was some such
time lag provided in comparable divorce, laws and possibly such a
proviso was, therefore, considered proper and that appears to be the
purpose or object behind enacting the proviso to s. 15. Is such public
policy of paramount consideration as to render the marriage in breach
of it void ? It appears to be purely a regulatory measure for avoiding
a possible confusion.
If it was so sacrosanct that its violation would render the marriage
void, it is not possible to appreciate why the Parliament completely
dropped it.
The proviso to s. 15 is deleted by s. 9 of the Marriage
Laws (Amendment) Act, 1976.
The net result is that now since
the amendment parties whose marriage is dissolved by a decree of
divorce can contract marriage soon thereafter provided of course the
period of appeal has expired.
This will reinforce the content;on
that such marriage is not void. But we would like to reaffinn the
warning voiced in Chandra Mohini Srivastava v. Avlnash Prasad
Srivastava & Anr.('),
In that case tl1e decree of
divorce
was
(I) [1967] I SCR 864.
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LILA GUPTA v.