Jabir Kaur vs Kuljit Singh Bhatia

Hemant Gupta, J.—The present petition under Sections 11 and 12 of the Contempt of Courts Act, 1971 (hereinafter referred to as `the Act''), is directed against the alleged disobedience to the order passed by this Court on 19.9.2003 restraining the respondent from remarrying during the pendency of the appeal.

The brief facts, out of which the present petition arises are that the marriage between the parties was solemnised on 3.4.1990. The respondent filed a petition u/s 13 of the Hindu Marriage Act, 1955 on 30.9.1996. The learned trial Court granted a decree for dissolution of marriage on 5.8.2003. The petitioner filed first appeal in this Court on 9.9.2003 and this Court on 19.9.2003 passed the following order:

Issue notice to show cause why appeal be not admitted returnable on 9.2.2004.

Respondent shall be present in Court on the next date of hearing.

In the meantime, respondent is restrained from re-marrying.

It is pointed out that the appeal is now pending consideration before this Court, but the respondent married one Baljit Kaur and, thus, the respondent has violated the orders passed by this Court.

In reply, the respondent took up a stand that he contracted a second marriage on 15.9.2003 and the same was registered on 18.9.2003, whereas the restraint order was passed only on 19.9.2003. Though it is alleged by the respondent that the petitioner obtained certified copy of the judgment on 12.8.2003 but instead of filing any appeal by attaching the said certified copy of the judgment, the petitioner applied for another copy on 26.8.2003 and on the basis of the said copy, filed the present appeal. It is pointed out that the appeal, complete in all respects, was filed in this Court only on 18.9.2003 and thus, the marriage performed by the respondent before the receipt of the notice, cannot be said to be a violation of the order passed by this Court as the respondent was not aware of any restraint order.

During the course of arguments, learned Counsel for the petitioner has vehemently argued that in terms of Section 15 of the Hindu Marriage Act, 1955, the solemnisation of marriage by the respondent after filing of appeal before this Court is unlawful. Therefore, for such unlawful marriage, the respondent is liable to be punished for a civil contempt in terms of Section 2(b) of the Act, which apart from the wilful disobedience to any judgment, decree, order, direction or writ, also includes disobedience to the "other process of the Court". Therefore, performance of marriage by the respondent after the filing of the appeal is an act of civil contempt punishable u/s 12 of the Act. It is also contended that in any case, the performance of the marriage after the filing of appeal, interferes or obstructs the administration of justice and, therefore, would be a criminal contempt within the meaning of Section 2(c) of the act.

Prior to omission of proviso to Section 15 of the Hindu Marriage Act, 1955, vide Act No. 68 of 1976 with effect from 27.5.1976, the provision was that it would be lawful for the parties to marry after one year of the grant of decree of divorce. However, by virtue of amendment, the proviso has been deleted. Section 15 of the Hindu Marriage Act, 1955 contemplates that if there is a right of appeal and the time for appeal has expired without having been presented an appeal or an appeal has been presented but has been dismissed, it shall be lawful for either party to marry again. The Hon''ble Supreme Court in 1994 (2) PLJR 61 (SC) , held that even if the appeal was delayed by a view days, re-marriage during the pendency of such appeal is opposed to Section 15 of the Hindu Marriage Act, 1955. In Tejinder Kaur Vs. Gurmit Singh, , it was held by the Hon''ble Supreme Court that right of appeal does not in terms covers the right of appeal by way of SLP to the Hon''ble Supreme Court under Article 136 of the Constitution of India. But still it was held that till such time, the period of 90 days was available for presentation of SLP, it was not lawful for either parties to marry again. A Division Bench of Calcutta High Court in Smt. Kajal Chowdhury Vs. Dilip Chowdhury, , has held that Section 15 of the Act, cannot be read to mean only such appeals, which are presented within the prescribed period of limitation. The Section as it stands does not seem to make any distinction between an appeal preferred within time and beyond time. It simply says that appeal has been presented but has been dismissed. This, will include the appeal presented even after the expiry of limitation.

Conversely, if the appeal has been presented, it shall be unlawful for the either party to marry. Admittedly, in the present case, the appellant had a right of appeal. The appeal has been presented within the time prescribed and the same has not been dismissed, therefore, it is undoubtedly unlawful for the respondent to solemnise the second marriage.

Having heard learned Counsel for the parties at some length, I am of the opinion that the controversy involved in the present petition arises quite frequently and is of great importance and, therefore, requires authoritative consideration by a larger Bench, on the following two questions:

Whether the performance of a marriage after filing of appeal, an unlawful act in terms of Section 15 of the Hindu Marriage Act, 1955, amounts to wilful disobedience to the "other process of the Court" disclosing a civil contempt within the meaning of Section 2(b) of the Act?

Whether the act of marriage by the respondent after the filing of the appeal interferes or obstructs the administration of justice and thereby amounts to a criminal contempt within the meaning of Section 2(c) of the Act?

Let the papers of the present petition be placed before Hon''ble the Chief Justice, for appropriate orders.