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Archna (Rachna) vs Satish Kumar on 3 March, 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO (HMA) No. 326 of 2012

.

Date of decision: 03.03.2020

Archna (Rachna) …..Appellant

Versus
Satish Kumar …..Respondent

Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Yes.
Whether approved for reporting?1

For the Appellant:
r Mr. G. R. Palsra, Advocate.

For the Respondent: Mr. Ajay Chandel, Advocate.

Tarlok Singh Chauhan, Judge (Oral)

Aggrieved by the order dated 19.05.2012, whereby

the application filed by the appellant for setting aside ex parte

judgment and decree of divorce dated 02.09.2009 has been

ordered to be dismissed, the petitioner has filed the instant

appeal.

2. The marriage of the parties was solemnized on

21.02.2007, however, on account of matrimonial discord, the

petitioner-respondent filed a petition for divorce. Despite service,

appellant did not appear to contest such proceedings and

eventually an ex parte decree of divorce came to be passed by

the learned Court below on 02.09.2009.

1

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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2

3. On 26.02.2010, the petitioner filed an application

under Order 9 Rule 13 CPC for setting aside the ex parte decree

.

of divorce but the same was dismissed by the learned Court

below, constraining the petitioner to file the instant appeal.

4. It is not in dispute rather admitted by the appellant

herself that she had received summons on 27.05.2009 from the

learned Court in which the date was fixed for 30.05.2009 but she

did not choose to appear on the ground that petitioner had asked

her not to appear since the conciliation proceedings were under

progress. Since there being nothing on record to support this

contention, the same had rightly been negated by the learned

trial Court.

5. However, learned counsel for the appellant would

contend that the learned Court below has wrongly decided the

question of limitation against the appellant, as it is more than

settled that an application for setting aside the ex parte decree

can be filed within 30 days from the date of knowledge as

envisaged under Article 123 of the Limitation Act. However, this

contention is equally without merit.

6. It would be relevant to reproduce Article 123 of the

Limitation Act, which reads as under:-

123. To set aside a decree passed Thirty days The date of the decree
ex parte or to re-hear an or where the
appeal decreed or heard ex summons or notice
parte. was not duly served,

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when the applicant
had knowledge of the
decree.

.

7. A bare perusal of the aforesaid Article reveals that an

application to set aside decree that has been passed ex parte,

the period of limitation is 30 days and the same begins to run

from the date of decree or where the summons or notice was not

duly served, when the applicant had knowledge of the decree.

8. As observed above, the petitioner was duly served in

the proceedings, therefore, the limitation would begun from the

date of order and not from the date of knowledge of such order.

9. As a last ditch effort, the learned counsel for the

appellant would contend that since the respondent-petitioner has

got remarried during the pendency of these proceedings,

therefore, such re-marriage is required to be declared null and

void. Even this contention is without any merit.

10. Admittedly, the appeal for setting aside the decree of

divorce has been filed after five months after the prescribed

period of limitation for filing of the appeal, Section 15 of the

Hindu Marriage Act permits marriage after dissolution, if there is

no right of the 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.

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11. In the instant case, no appeal had been presented

within the prescribed period of limitation, the Section 15 of the

.

Hindu Marriage Act attract. In coming to such conclusion support

can conveniently be taken from a recent judgment of the Hon’ble

Supreme Court in Criminal Appeal No. 321 of 2020,, titled as

Krishnaveni Rai vs. Pankaj Rai, wherein the Hon’ble Supreme

Court observed as under:-

25. Sections 5, 11 and 15 of the Hindu Marriage Act, 1955,
relevant to this appeal are set out here-in-below for
convenience: –

“5. Conditions for a Hindu Marriage.- A marriage may
be solemnized between any two Hindus, if the
following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the

marriage;

(ii) at the time of the marriage, neither party,-

(a) is incapable of giving a valid consent to it in
consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has
been suffering from mental disorder of such a kind or
to such an extent as to be unfit for marriage and the

procreation of children; or

(c) has been subject to recurrent attacks of insanity
or epilepsy;

(iii) the bridegroom has completed the age of
twenty-one years and the bride, the age of eighteen
years at the time of the marriage;

(iv) the parties are not within the degrees of
prohibited relationship, unless the custom or usage
governing each of them permits of a marriage
between the two;

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(v) the parties are not sapindas of each other, unless
the custom or usage governing each of them permits
of a marriage between the two;

.

xxx xxx xxx

11. Void marriages.- Any marriage solemnized after
the commencement of this Act shall be null and void

and may, on a petition presented by either party
thereto, against the other party be so declared by a
decree of nullity if it contravenes any one of the
conditions specified in clauses (i), (iv) and (v) of
Section 5.

xxx xxx xxx

15. Divorced persons when may marry again.- When
a marriage has been dissolved by a decree of divorce
and either there is no right of appeal against the
rdecree 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.”

26. It is well settled that a marriage which is null and void

is no marriage in the eye of law. Where the marriage is a
nullity application for maintenance is liable to be set aside

on that ground alone. Under Section 5 of the Hindu
Marriage Act, a marriage may validly be solemnized

between any two Hindus, subject to the following
conditions:-

(i) Neither party has a spouse living at the time of
marriage [(Section 5(i) of the Hindu Marriage Act;

(ii) Neither party was incapable of giving valid
consent of the marriage in circumstances specified in
Section 5(ii) of the Hindu Marriage Act;

(iii) The parties to the marriage are of requisite age,
that is, the bridegroom should have completed 21
years of age and the bride 18 years of age, at the
time of marriage [Section 5(iii) of the Hindu Marriage
Act];

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(iv) The parties should not be within the degree of
prohibited relationship unless the custom or usage
governing each of them permits such marriage

.

[(Section 5(iv) of the Hindu Marriage Act];

(v) Parties are not sapindas of each other unless the
custom or usage governing each of them permits
between two. [(Section 5 (v) of the Hindu Marriage

Act];

27. Section 11 of the Hindu Marriage Act provides that any
marriage solemnized after the commencement of this Act
shall be null and void and may on a petition presented by

either party thereto, against the other party, be so
declared by a decree of nullity, if it contravenes any of the
conditions in Clauses (i), (iv) and (v) of the Section 5.

28. A careful reading of Sections 5, 11 and 15 makes it

amply clear that while Section 5 specifies the conditions
on which a marriage may be solemnized between two
Hindus, only contravention of some of those conditions

render a marriage void.

29. Marriage in contravention of Section 5(i) of the Hindu

Marriage Act, that is, where either party or both have a
spouse living at the time of marriage is void. Similarly, a

marriage is void if the parties to the marriage are within
the degrees of prohibited relationship unless the custom

or usage governing each of them permits of such
marriage, or if the parties are sapindas of each other
unless, again, the custom or usage governing each of
them permits marriage between the two. [Sections 5(iv)
and 5(v)]

30. Contravention of Sections 5(ii) or 5(iii) of the Hindu
marriage Act does not render the marriage null and void.
In such a case, the marriage is voidable at the option of

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the underaged party to the marriage or the party who
could not have validly consented to the marriage.

.

31. Section 15 clarifies 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 preferred, or an appeal has been
presented but the same has been dismissed, it shall be
lawful for either party to the marriage to marry again. Had

it been the legislative intent that a marriage during the
pendency of an appeal should be declared void, Section
11 would expressly have provided so.

32. As held by this Court in Anurag Mittal v. Shaily Mishra

Mittal, 2018 9 SCC 691, the object of Section 15 is to
provide protection to the person who had filed an appeal
against the decree of dissolution of marriage and to

ensure that such appeal was not frustrated. The
protection afforded by Section 15 is primarily to a person
contesting the decree of divorce. As observed by Bobde, J.

in his concurring judgment in Anurag Mittal (supra):-

“I am in agreement with the view taken by
Nageswara Rao, J. but it is necessary to state how

the question before us has already been settled by
the decision in Lila Gupta v. Laxmi Narain [Lila Gupta
v. Laxmi Narain, 1978 3 SCC 258] . Even when the
words of the proviso were found to be prohibitory in
clear negative terms – “it shall not be lawful”, etc.,
this Court held that the incapacity to marry imposed
by the proviso did not lead to an inference of nullity,
vide para 9 of Lila Gupta [Lila Gupta v. Laxmi Narain,
1978 3 SCC 258] . It is all the more difficult to infer
nullity when there is no prohibition; where there are
no negative words but on the other hand positive
words like “it shall be lawful”. Assuming that a
marriage contracted before it became lawful to do so
was unlawful and the words create a disability, it is

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not possible to infer a nullity or voidness vide paras 9
and 10 of Lila Gupta case…

.

“…….. What is held in essence is that if a provision of

law prescribes an incapacity to marry and yet the
person marries while under that incapacity,the
marriage would not be void in the absence of an
express provision that declares nullity. Quae

incapacity imposed by statute, there is no difference
between an incapacity imposed by negative
language such as “it shall not be lawful” or an
incapacity imposed by positive language like “it shall
be lawful (in certain conditions, in the absence of
which it is impliedly unlawful)”. It would thus appear

that the law is already settled by this Court that a
marriage contracted during a prescribed period will
not be void because it was contracted under an
incapacity. Obviously, this would have no bearing on
the other conditions of a valid marriage. The decision
rin Lila Gupta case thus covers the present case on
law.”

33. In Leela Gupta v. Laxmi Narain Ors., 1978 3 SCC
258, this Court held:

“……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 unlawful.

But whenever a statute prohibits a certain thing
being done thereby making it unlawful, without
providing consequence for the breach, it 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.” (Paragraph 10).

“…..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
marriage subsists or is presumed to subsist…… An
incapacity for second marriage for a certain period
does not have effect of treating the former marriage
as subsisting…..”(paragraph 13).

“Thus, examining the matter from all possible angles
and keeping in view the fact that the scheme of the
Act provides for treating certain marriages void and
simultaneously some marriages which are made
punishable yet not void and no consequences having

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been provided for in respect of the marriage in
contravention of the proviso to Section 15, it cannot
be said that such marriage would be void”

.

(paragraph 20)”

34. In any case, the bar of Section 15 is not at all
attracted in the facts and circumstances of this case,

where the appeal from the decree of divorce had been
filed almost a year after expiry of the period of limitation
for filing an appeal. Section 15 permits a marriage after
dissolution of a marriage if there is no right of appeal

against the decree, or even if there is such a right to
appeal, the time of appealing has expired without an
appeal having been presented, or the appeal has been

presented but has been dismissed. In this case no appeal

had been presented with the period prescribed by
limitation.

35. The bar, if any, under Section 15 of the Hindu

Marriage Act applies only if there is an appeal filed within
the period of limitation, and not afterwards upon
condonation of delay in filing an appeal unless of course,

the decree of divorce is stayed or there is an interim order

of Court, restraining the parties or any of them from
remarrying during the pendency of the appeal.

36. As observed above, the appeal was infructuous for all
practical purposes, from the inception, since the
Appellant’s ex-husband had lawfully remarried after expiry
of the period of limitation for filing an appeal, there being
no appeal till then.

37. It could never have been the legislative intent that a
marriage validly contracted after the divorce and after
expiry of the period of limitation to file an appeal from the

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decree of divorce should rendered void on the filing of a
belated appeal. If the marriage of the Appellant’s ex-

.

husband in 2006 was a valid marriage in law recognizing

that he had no living spouse, the subsequent re-marriage
of the Appellant could also not be void. We are in full
agreement with the view of this Court in Leela Gupta

(supra) that the effect of the prohibition against one of the
parties from contracting a second marriage for a certain
period is not to nullify the divorce and continue the

dissolved marriage, as if the same were subsisting.

12. For the reasons stated above, there is no merit in this

appeal and the same is accordingly dismissed, leaving the

parties to bear their own costs.

3rd March, 2020 (Tarlok Singh Chauhan)
(sanjeev) Judge

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