Krishen Lal vs Mst. Krishna and others

Bhat, J.—This appeal arises out of an application u/s 9 of the Hindu Marriage Act brought by the appellant against Mst. Krishna alleging her

to be his wife, and against the other defendants for an injunction that they should not in any way interfere in the discharge of marital obligations by

Mst. Krishna towards the appellant-petitioner. The application was resisted in the trial court, the Court of the District Magistrate Judge, Kathua

and the then District Judge, Sardar Amir Singh, dismissed the petition of the appellant on 1-10-1966 holding that no marriage was proved between

the appellant and Mst. Krishna. It may be stated that Mst. Krishna and others defendants had categorically denied Krishna's marriage with the

petitioner. The defence of the respondents in that case had resulted in framing the following issues:-

Whether Mst. Krishna respondent was married to the applicant on 2nd Phagan, 20167 O.P.A.

If issue No. 1 is proved in the affirmative, whether Mst. Krishna respondent has without any reasonable cause left the house of the applicant?

O.P.A.

If issues Nos. 1 and 2 are proved, whether the other respondents interfere in her residing with the applicant O.P.A.

Relief.

When the appeal came before us, we heard the learned counsel for the parties and we were shown unambiguous evidence about the existence

and proof of the marriage of the appellant with the respondent Krishna, in particular certified copies of applications made by Mst. Krishna against

the appellant under Ss. 10/13 of the Hindu Marriage Act. These applications had been admitted by the respondent Krishna in her statement but

she had stated that her counsel Lala Saindass and Lala Tej Ram put in some applications, the contents whereof she did not know. After hearing the

learned counsel for the parties about the question of marriage, we were of the opinion that the marriage of the appellant with Krishna was proved

and in our order dated 23rd April, 1968 we clearly held that we do not agree with the finding of the trial court on issue No. 1 but we called for a

finding on issues Nos. 2 and 3 from the trial court. The District Judge who had first dismissed the application of the appellant u/s. 9 of the Hindu

Marriage Act, Sardar Amir Singh was succeeded by another District Judge Kanwar Hari Singh. He returned a finding against the appellant on both

these issues, vide his order dated 9-7-1968; but he devoted a sufficient portion of his report to a point, which was never referred to him,

suggesting that the appeal should fail because Krishna had married after she secured a decree of annulment of her marriage with the appellant. This

uncalled for portion of the report was based on the application moved before him on 9-7-1968 by the counsel for Mst. Krishna. The learned

Judge was influenced by a certain authority of the Madhya Pradesh High Court reported as Mohanmurari Vs. Smt. Kusum Kumar i, . After the

finding of the lower court was received, the parties were given time to file their objections against the finding of the District Judge.

We have again heard the learned counsel for the parties.

It was conceded before us by the learned counsel appearing for the respondents that the finding on issue No. 1 as given by the trial court cannot

be supported and in view of our finding recorded on 23-4-1969, it was not open to him to again canvass the question of marriage between the

appellant and Mst. Krishna. But like Kanwar Harisingh, he relied on the Madhya Pradesh ruling and argued that since the decree declaring that no

marriage had taken place between Mst. Krishna and the appellant, Mst. Krishna was free to enter into another marriage and she had actually

married. We have perused the application presented in the trial court by Mst. Krishna on 9-7-1968. In that application the respondent Mst.

Krishna does not state any particular date when she entered into another marriage with one Jagan Nath. The original petition was dismissed by the

trial court on 1-10-1966 and the appeal was presented in this court on 19-12-1966 which means that it was presented within time allowed for

appeal under the law of limitation. It seems Mst. Krishna has married after the appeal was preferred; otherwise also whether she married Jagan

Nath before the time for presenting the appeal had expired or after the appeal had been filed, would make no difference in our opinion in the legal

position of the case. Mr. Kotwal has mainly relied on the Madhya Pradesh ruling referred to above. It does, no doubt, support his contention. The

learned Judges who heard the appeal have decided that when the wife's application for annulment of her marriage was decreed by the trial Court,

there was no legal ""incompetency in the wife for contracting a remarriage once her marriage with the appellant had been annulled. The marriage

having been annulled, their status as husband and wife of each other had ceased to exist. If the appellant wanted the status quo to be preserved till

the final decision of the appeal, he should have applied for a prohibitory order restraining the respondent from marrying again till the appeal filed by

him had been decided. When the remarriage was a valid marriage, it could not be annulled or dissolved for the reason that it was contracted during

the pendency of the appeal, nor could it be affected by the ultimate decision of the appeal, even if it went in favour of the appellant. Thus the

appeal had been rendered infructuous by the remarriage of the respondent wife during pendency of appeal.

With utmost respect to the learned Judges of the Madhya Pradesh High Court, who decided this appeal, we are not able to persuade ourselves

to follow this authority. This was never the intention of Section 15 of the Hindu Marriage Act which has been relied upon by their Lordships of the

Madhya Pradesh High Court. Section 15 of the Act in our opinion is a special provision which relates to decree of divorce. This section lays down

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.

In the first place the section clearly says that the successful party has to wait till the disposal of the appeal or at least upto the time for appealing has

expired.

In our opinion the object of this section is to make a successful party wait for re-marriage for at least one year after the marriage has been

dissolved. This is contained in the proviso to the section. The proviso reads as under:-

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.

This proviso when read with the section would make it clear that in case no appeal has been preferred, or in case an appeal has been decided

before the expiry of one year from the decree of the first court, the successful spouse has still to wait for one year. This is the object of this section.

The principle behind this section appears to us to be very salutary, because it compels the party who gets a decree for divorce to wait at least for

one year and to reconsider the position, and to avoid further complications of any offspring that may be born after the decree but before one year.

This section clearly has no application to applications under other sections of the Act. What we mean to say is that it nowhere overrides even by

implication Section 28 of the Act; u/s 29 all decrees and orders made by the Court in any proceedings under this Act shall be enforced in like

manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction are enforced, and may be appealed from under

any law for the time being in force:

Provided that there shall be no appeal on the subject of costs only.

The petition of the appellant was u/s 9 of the Act. It was dismissed, therefore it was appealable u/s 28 of the Act. Under the ordinary civil law a

decision is only final when it is given by the highest court of appeal. The word ""appeal"" has been held to mean 'the removal of a cause from an

inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. See ILR (1899) Mad 68 (FB) and it is in

fact a complaint made to the higher court that the decree of the lower court is unsound and wrong. It is not a fresh suit but is only a continuation of

original proceedings and a stage in the suit itself. In Garikapatti Veeraya Vs. N. Subbiah Choudhury, it has been held that:-

the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by the intrinsic unity and

are to be regarded as one legal proceeding.

The decree that Krishna got in her favour from the trial court would be effective and complete only after the decision of the final court of appeal; if

the decree of the trial court were set aside, the legal implication would be that the decree passed by the court of appeal would be deemed to have

been passed on the day when the first court passed the decree. These principles are very well settled and we need not further dilate upon this point

because the matter is fully covered by a Supreme Court authority reported as AIR 1967 SC 581. There the Lordships extended the provisions of

Section 28 upto the stage of special leave to the Supreme Court. Their Lordships considered the effect of Section 15 of the Act so much relied

upon by the Madhya Pradesh High Court and the counsel for the respondents, as well as section 28. Their Lordships held as under:-

We are of opinion that special leave cannot be revoked on grounds put forward on behalf of the first respondent. Section 28 of the Act inter alia

provides that all decrees and orders made by the court in any proceedings under the Act may be appealed from under any law for the time being in

force, as if they were decrees and orders of the court made in the exercise of its original civil jurisdiction. Section 15 provides that when a marriage

has been dissolved by a decree of divorce and 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. These two sections make it clear that where a marriage has been dissolved, either party to the marriage

can lawfully marry only when there is no right of appeal against the decree dissolving the marriage, or, if there is such a right of appeal, the time for

filing has expired without an appeal having been presented or if an appeal has been presented it has been dismissed. It is true that Section 15 does

not in terms apply to a case of an application for special leave to this Court. Even so, we are of opinion that the party who has won in the High

Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's decree and thus take away from the losing

party the chance of presenting an application for special leave. Even though Section 15 may not apply in terms and it may not have been unlawful

for the first respondent to have married immediately after the High Court's decree, for no appeal as of right lies from the decree of the High Court

to this court in this matter, we still think that it was for the first respondent to make sure whether an application for special leave had been filed in

this court and he could not by marrying immediately after the High Court's decree deprive the appellant of the chance to present a SLP to this

court. If a person does so, he takes a risk and cannot ask this court to revoke the special leave on this ground. We need not consider the question

as to whether the child born to the new wife on May 20, 1965 would be legitimate or not, except to say that in such a situation Sec. 16 of the Act

may come to the aid of the new child. We cannot, therefore, revoke the special leave on the grounds put forward on behalf of the first respondent

and hereby dismiss his application for revocation of special leave.

This authority has been followed in another case by the Madras High Court reported as Vathsala Vs. N. Manoharan, . Therefore this argument of

the learned counsel for the respondents or of the District Judge Kathua who has transgressed the directions given by this court in our order dated

23rd April, 1968 cannot help the respondents. In our opinion the marriage has been proved between the appellant and Mst. Krishna and Mst.

Krishna's remarriage with Jagan Nath cannot stand in the way of a decree being passed in favour of the appellant. Mr. Hardesh has returned a

finding on the two issues against the appellant. We do not want to disturb the finding arrived at by the court below on issue No. 3 in so far as it

pertains to other respondents but the trial court has erred in returning a finding on issue No. 2. The appellant prays that his wife should live with

him. She is not prepared to live with him. On the other hand she states that she is the wife of one Jagan Nath and would like to stay with him.

Obviously this simple narration of the admitted position of the parties would bring the action of Mst. Krishna within the four corners of Section 9 of

the Act because being the wife of the appellant she does not like to return to him but lives with somebody else which in legal language means that

she has without reasonable excuse, withdrawn from the society of her husband, the appellant. There is no other legal bar to a decree for restitution

of conjugal rights being passed against her.

We therefore, set aside the decree passed by the trial court and accept this appeal to this extent that a decree for restitution of conjugal rights is

passed in favour of the appellant against Mst. Krishna respondent. The appeal fails, so far as it prays for an injunction against the other

respondents. There will be no order as to costs.

S.M.F. Ali, C.J.

I agree.