ION Special Leave Petition Civil No 13306 of 1986
From the Judgment and order dated 1671986 of the High Court of Punjab and Haryana in First Appeal from Order No 110M of 1986 and Civil Misc
No 3087 C11 of 1986
Mrs Sarla Chandra and Girish Chandra for the Petitioner
Mukul Mudgal and PK Jain for the Respondent
The Judgment of the Court was delivered by SEN J
In this special leave petition by the wife against the decree for dissolution of marriage granted by the Additional District Judge Patiala dated 29th March 1986 on the ground of cruelty under section 13ia of the  against which the petitioner wife had preferred an appeal to the Punjab  Haryana High Court and which the High Court by its order dated 16th July 1986 dismissed in limine a preliminary objection is raised that the petition has become infructuous inasmuch as the respondent husband has in the meanwhile married again on 17th August 1986 ie just after a month of the dismissal of her appeal
It is not necessary to state the facts in any detail
It is enough to say that the learned District Judge held the wife guilty of mental cruelty for having voluntarily deprived the husband of her society and cohabitation for a long period as according to him marriage without sex is an anathema
He further held that the wife had falsely charged the husband with adultery
It is quite evident on these facts that the marriage has irretrievably broken
1101 We heard learned counsel for the parties and the question is whether the condition pre requisite before a lawful marriage can take place after a decree for dissolution of marriage under section 15 of the Act has been fulfilled
Prior to its amendment by the Marriage Laws Amendment Act 1976 by which the proviso was deleted section 15 was in these terms 15
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
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
 Emphasis supplied Prior to the Amendment Act of 1976 the proviso to section 5 laid down a period of waiting of one year between the passing of a decree for divorce by the Court of first instance and the remarriage of any of the spouses
The Allahabad High Court in Lila Gupta vs Laxminarayan ILR 1969 1 All 92 and the Calcutta High Court in Uma Charan Roy vs Smt
Kajal Roy AIR 1971 Cal
307 held that such period of waiting was enjoined on the parties in the interests of public policy and morality so as to discourage divorcees from entering into fresh matrimony and to avoid confusion of parentage
It was pointed out that even in Mohammadan law a divorced wife is expected to marry any other man only after the expiry of the period of iddat to avoid a danger of confusion of paternity
It was accordingly held that the prohibition being mandatory if any divorced party married again within a period of one year such marriage was nullity
That view however did not find favour with this Court in Lila Gupta vs Laxmi Narain  Ors  and it was held that a marriage contracted in contravention of the rule relating to one year laid down in the proviso would not be void
The Court referred to the following observations of Dr Lushington in Catterall vs Sweetman 1845 9 Jur 951 954 The words in this section are negative words and are clearly prohibitory of the marriage being had without the 1102 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 I 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 
From this examination of these Acts I draw two conclusions
First that there never appears to have been a decision where words in a statute relating to marriage though prohibitory and negative have been held to infer a nullity unless such 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
 It was observed that a decree for divorce breaks the marital tie and the parties forfeit the status of husband and wife in relation to each other
But there was nothing in section 15 of the Act to make that marriage a nullity
The reason for this was an incapacity for second marriage for a certain period does not have the effect of treating the former marriage as subsisting
Under the law laid down in this enactment monogamy is the rule and a party can only contract a valid second marriage after the first ceases to exist in the manner envisaged by section 15
The rule laid down in this section is an integral part of the proceedings by which alone both the parties to the decree of divorce can be released from their incapacity to contract a fresh marriage
The Law Commission in its 59th Report on and however suggested the deletion of the proviso to section 15 which laid down 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 for the reason extracted below The consideration of the parties freedom to marry and the inconvenience caused by the prohibition to remarry out weighed the two fold purpose ie avoiding confusion of parentage and checking an attempt to obtain divorce from one woman with the specific object of marrying another woman 1103 Parliament accordingly by the Marriage Laws Amendment Act 1976 has done away with the period of waiting by deleting the proviso
In Lila Gupta s case this Court held that the effect of deleting the proviso is that parties whose marriage is dissolved by a decree for divorce can contract marriage soon thereafter provided of course the period of appeal has expired and that all pending proceedings have to be decided as if the proviso had not been applicable
The deletion of the proviso has given rise to a question of great difficulty
The section when it speaks of a case where there is a right of appeal  does not in terms cover a case of an application for special leave to appeal to the Supreme Court under article 136 of the Constitution
In Chandra Mohini Srivastava vs Avinash Prasad Srivastava  Anr   on somewhat similar facts it was held that though section 15 in terms does not apply to a case of special leave to appeal to the Supreme Court a spouse who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court s Judgment take away the right of presenting an application for special leave to appeal from the other spouse
It was further held that the successful party must wait for a reasonable time and make sure whether an application for special leave has been filed in this Court
Wanchoo J speaking for a two Judge Bench said 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 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 special leave petition 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
 In the present case the respondent in the counter affidavit has 1104 denied any knowledge of the fact that an appeal had been preferred in the High Court or of its dismissal and therefore asserts that he was justified in contracting a second marriage on 17th August 1986 ie immediately after the expiry of one month from the date of the decree of dissolution of marriage passed by the learned Additional District Judge
This fact is controverted by the petitioner in her affidavit in reply
She has placed a copy of the registered notice dated 31st May 1986 intimating the respondent of the filing of the appeal
In view of this it was incumbent on the respondent to have enquired about the fate of the appeal
At any rate the High Court having dismissed the appeal on 16th July 1986 the petitioner could have presented a special leave petition within ninety days therefrom under article 133c of the ie till 14th September 1986
Till that period was over it was not lawful for either party to marry again as provided by section 15
It was incumbent on the respondent as observed in Lila Gupta s case to have apprised himself as to whether the appeal in the High Court was still pending and if not whether the period for filing a special leave petition to this Court had expired
We must accordingly overrule the preliminary objection following the views expressed in Chandra Mohini s and Lila Gupta s cases
We wish to add that in the subsequent decision in Lila Gupta the Court while dealing with the effect of deletion of the proviso observed 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 The Court adverted to the word of caution administered by Wanchoo J in Chandra Mohini s case and reiterated Even though it may not have been unlawful for the husband 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 still it was for the 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 wife of the chance of presenting a special leave petition to this Court
If a person does so he takes a risk and could not ask the Court to revoke the special leave on that ground 1105 We must for this reason overrule the preliminary objection and direct the special leave petition to be placed for hearing
There shall be no order as to costs


Summary:
The word Copy  occurring in section 419 Of the Code of Criminal Procedure means a certified copy and a petition of appeal filed under that section must therefore be accompanied by a certified copy of the judgment or order appealed against
Ram Lal vs Ghanasham Das AIR 1923 Lah
150 referred to
Firm Chota Lal Amba Parshad vs Firm Basdeo Mal Hira Lal AIR 1926 Lah
404 distinguished
Consequently where a State Government filed an appeal against an order of acquittal under section 417 of the Code of Criminal Procedure with a plain copy of the judgment appealed against and put in a certified copy of it after the period of limitation prescribed for the appeal had expired and the High Court dismissed the appeal as time barred that order was correct and must be affirmed