Smt. Veena Rani vs Romesh Kumar

R.P. Sethi, J.—Alleging her to be impotent the respondent-husband filed a petition and obtained a decree for annulment of the marriage against the appellant-wife. Her appeal filed in this Court was dismissed as having become infructuous on the ground of the respondent-husband solemnising the second marriage after obtaining the degree. Vide judgment impugned in this appeal, the learned single Judge relying upon the earlier judgment of this Court entitled Promod Sharma Vs. Smt. Radha, , Karam Singh v. Smt. Amro (1970) 72 P LR 503 and Smt. Lalita Gupta v. Parveen Kumar Mahajan. 1991 (1) 99 P LR 638 held that provisions of Section 15 of the Hindu Marriage Act, 1955 (for short the ''Act'') were not applicable in the case where the marriage has been dissolved by a decree of annulment and that if the other party solemnises the second marriage, his or her appeal would be deemed to have become infructuous.

The facts giving rise to the filing of the present appeal are that the marriage between the parties was solemnised at Ludhiana on 26-2-1976. The husband allege that on the very first night of the marriage he discovered that the appellant-wife was incapable of sexual intercourse rendering the marriage nullity. The wife on the other hand pleaded that it was the husband who failed to consummate the marriage for want of erection of his penis. She further submitted that on the first night after their marriage the petitioner had feigned that he was suffering from head-ache and had excused himself from having any sexual intercourse. Even on the following night he did not oblige the wife for sex again and later admitted that he was not capable of having sexual intercourse but assured the wife that he would get himself medically examined and by getting adequate treatment may be in a position to consummate the marriage. The trial Court vide its judgment delivered on 22-9-1983 allowed the application of the husband and annulled the marriage between the parties. The wife filed F.A.O. No. 162-M of 1983 in this Court praying for setting aside the judgment and decree of the trial Court. During the pendency of the appeal, the husband filed Civil Misc. No. 4642-C1I of 1984 praying that the appeal be dismissed as having become infructuous which was accepted vide judgment impugned in this appeal. Section 15 of the Act provides:

"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."

While interpreting the ambit and scope of S. 15 of the Act, a Division Bench of this Court in Promod Sharma Vs. Smt. Radha, came to the conclusion that the second marriage solemnised after the passing of the decree of nullity under S. 12 of the Act before the issuance of any stay order rendered the appeal of the wife against thejudgment of nullity infructuous. Similarly, another Division Bench of this Court in Lalita Gupta''s case (1991 (1) P LR 638) followed the earlier judgment and held as under:

"... Section 15 of the Act provides 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 any 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. However, there is no such provision if the marriage has been declared to be a nullity as provided under S. 12 of the Act."

It appears that in Promod Sharma Vs. Smt. Radha, and I.alita Gupta''s case (1991 (1) P LR 638) (supra) this Court did not take note of the provisions of Sees. 23 and 28 of the Act. Section 23 of the Act unambiguously provides thai no party to the Hindu Marriage can be permitted to take advantage of his or her own wrong. Similarly, S. 28 of the Act confers a right of appeal on the aggrieved party which cannot be permitted to be defeated under the cloak of technicalities. Section 15 of the Act specifically provides that during the pendency of the appeal against a decree passed in proceedings under the Act no one can marry unless the appeal is decided. As only the word ''divorce'' has been used in the said section, it does not mean that the bar of S. 15 ofthe Act would not apply in cases of other decrees passed for dissolution or annulment of marriage under the Act. The provisions of the Act are intended to mean and are applicable where the marriage between the parties is dissolved and relationship of husband and wife is brought to an end by the intervention of the Court irrespective of the fact whether the relief has been granted under Ss. 11, 12 or 13. A right of appeal has been conferred by the Legislature which is unqualified, unrestricted and not depending upon the whims or caprice of one of the parties. Holding the applicability of S. 15 of the Act only to the decrees of divorce would be against public policy making provisions of Ss. 23 and 28 of the Act infructuous. The material relations can never be weighed nor allowed to be determined under the shade of technicalities which if permitted to remain in force may result in defeating the purpose for which the Act was enacted. The Supreme Court in Smt. Lata Kamat Vs. Vilas, , considered the judgment of this Court rendered in Promod Sharma Vs. Smt. Radha, and Mohanmurari Vs. Smt. Kusum Kumar i, , and Jamboo Parasad Jain Vs. Smt. Malti Prabha and Another, , and held that:

"What S. 15 means when it use the phrase ''has been dissolved by a decree of divorce'' is that where the relationship of marriage has been brought to an end by intervention of Court by a decree, this decree will include a decree under Ss. 11, 12 or 13. If it is accepted that S. 15 will not apply to cases when a decree is passed under S. 11 or 12 it will mean that as soon as a decree is passed the party aggrieved may appeal but the other party by remarriage would make the appeal infructuous and therefore the right of appeal of one of the parties to the decree under S. 28 will be subject to the act of the other party in cases where decree is passed under S. 11 or 12. If it were so, the Legislature would have provided a separate provision for appeal when there is a decree under S. 13 and a different provision for appeal when there is a decree under S. 11 or 12 as the right of appeal against a decree under S. 11 or 12 could only be a limited righl subject to the desire of the other party. The Legislature in its wisdom has enacted S. 28 conferring a right of appeal which is unqualified, unrestrictive and not depending on the mercy or desire of a party against all decrees in any proceeding under this Act which will include a decree under S. 11, 12 or 13 and therefore the only interpretation which could be put on the language of S. 15 should be that which will be consistent with S. 28. This phrase ''marriage has been dissolved by decree of divorce" will only mean where the relationship of marriage has been brought to an end by the process of Court by a decree."

The Court further held that;--

"The decisions of the High Court on which reliance is placed by courts below and the learned counsel for the respondents are (i) Mohanmurari Vs. Smt. Kusum Kumar i, : (ii) Jamboo Parasad Jain Vs. Smt. Malti Prabha and Another, and Promod Sharma Vs. Smt. Radha, . In none of these decisions the impact of the right of appeal occurring in S. 15 in view of the language of S. 28 where the right of appeal is conferred has been considered. In our opinion, therefore, the view taken by the Court is not correct. What S. 15 means when it uses the phrase has been dissolved by decree of divorce? It only means where the relationship of marriage has been brought to an end by intervention of Court by a decree, this decree will include a decree under S. 11, 12 or 13 and therefore the view taken by all the Court below is not sustainable."

In view of the judgment of the Supreme Court in Smt. Lata Kamat Vs. Vilas, it has to be held that the judgments of (his Court in Promod Sharma Vs. Smt. Radha, and in Lalita Gupta Vs. Parveen Kumar Mahajan, are no good laws. The judgment of the learned single Judge having been based upon the law earlier laid down by this Court which impliedly stood set aside cannot be allowed to be sustained. On facts it is proved that the marriage between the parties was annulled by the trial Court on 22-9-1983 whereas the husband solemnised the second marriage with Smt. Vidya on 9-5-1984 admittedly during the pendency of the appeal. The second marriage could not in any way render the appeal filed by the appellant infructuous as had been held by the learned single Judge. We are aware of the complications and ihe consequences arising out of our judgment but have no option particularly when we have made all efforts for amicable settlement of the dispute between the parties which failed on account of the adamant attitude adopted by the respondent-husband. It appears that after getting judgment in his favour the husband is not in any way inclined even to compensate the appellant-wife despite the fact that his or her capacity to consummate the marriage is yet to be determined in the appeal filed by the appellant wife.

In the result, the judgment of the learned single Judge impugned in this appeal is set aside and the ease is remanded for decision of the appeal filed by the appellant-wife (F.A.O- No. 162-M of 1983) on merits. As the matrimonial dispute which arose between the parties immediately after the marriage in 1976 is pending in the Courts from the year 1981, the Registry is directed to list the said appeal of the wife before the appropriate Bench without any further delay.

Order accordingly.