Second marriage valid even if plea against divorce is pending: Supreme Court
NEW DELHI: Although the Hindu Marriage Act prescribes that it shall be lawful to marry again only after dismissal of an appeal filed by aggrieved party against the decree of divorce, the Supreme Court, however, clarified that second marriage would not be void if solemnised during the pendency of appeal.
Interpreting section 15 of Hindu Marriage Act, a bench of Justices S A Bobde and L Nageswara Rao said that incapacity for second marriage for a certain period of time (during the pendency of appeal against divorce )did not have the effect of treating the former marriage as subsisting and that a marriage contracted during that period will not be void because it was contracted under an incapacity.
Section 15 says 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. Section 5(1) of the Act says a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage.
The apex court set aside Delhi high court which had held that any marriage solemnized by a party during the pendency of the appeal wherein the operation of the decree of divorce was stayed, would be in contravention of Section 5 (i) of the Act. It passed the order on an appeal filed by a man challenging HC verdict which had declared his second marriage void on a plea of his second wife.
The man got married the second time when his appeal against divorce from his first wife was pending in HC. During pendency of his plea, he had settled the dispute with his first wife and filed an application for accepting the divorce and sought withdrawal of his appeal. But a fortnight before the HC passed the formal order allowing him to withdraw his appeal, he got married for the second time.
His second marriage also did not turn out to be blissful and matrimonial discord between the couple led his second wife to challenge validity of the marriage saying that it was void as it was solemnised during the pendency of case in HC. A family court dismissed her plea but the HC gave verdict in her favour and declared the marriage void.
The apex court, after hearing both the sides came to the conclusion that violation of section 15 did not render marriage void and said “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”.
“The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The Act intends to bring about social reforms. It is well known that this court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone,” the bench said.
“The dissolution of the marriage is complete once the decree is made, subject of course to appeal. This court also decided that incapacity for second marriage for a certain period of time does not have the effect of treating the former marriage as subsisting and the expression ‘spouse’ would not include within its meaning the expression former spouse,” the bench said while referring to its 1978 verdict.
“Whenever a statute prohibits a certain thing being done thereby making it unlawful without providing for consequence of 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... Consequences of treating a marriage void are so serious and far reaching and are likely to affect innocent persons such as children born during the period anterior to the date of the decree annulling the marriage that it has always been considered not safe to treat a marriage void unless the law so enacts or the inference of the marriage being treated void is either inescapable or irresistible,” the bench said while quoting its earlier judgement.
courtesy : timesofindia.indiatimes.com
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Two held for 'firing' at BJP leader's house in Bengal
Kolkata (PTI): A day before the counting of votes for the West Bengal assembly elections, two persons were arrested on Sunday for allegedly being involved in a firing incident outside the residence of a BJP leader in North 24 Parganas district, police said.
BJP leader Kundan Singh lodged a police complaint, alleging that a few gunmen fired at his house in the Noapara constituency around Saturday midnight.
Based on the CCTV footage, the two accused were apprehended, a senior officer said.
BJP's Noapara candidate Arjun Singh, in a post on social media, claimed that around 12.05 am, two armed miscreants arrived on a motorcycle at the residence of Kundan Singh, a BJP functionary and secretary of the Barrackpore organisational district, with an "intent to kill him".
According to the BJP leader, the accused are residents of Garulia and are known criminals.
Their names as offenders had been submitted to the Election Commission, he said.
The police officer did not specify whether the two arrested persons were the same individuals named by Arjun Singh.
According to the complaint, one round of firing took place outside Kundan Singh's house, triggering panic in the area.
The BJP candidate also questioned the role of the police, claiming that one of the accused had been detained by the police on the polling day but was later released in the evening.
The Noapara assembly seat went to the polls on April 29.
Several BJP leaders alleged that attempts were being made to create an atmosphere of fear ahead of the counting and weaken the organisation of the opposition parties.
The counting of votes will take place on May 4. Polling for the West Bengal assembly elections was held on April 23 and April 29.
The BJP urged the Election Commission to intervene immediately to ensure peaceful counting.
TMC candidate Somnath Shyam rubbished Arjun Singh’s allegation, claiming that the BJP nominee had orchestrated the firing incident to divert attention from imminent defeat.
“Arjun Singh knows all the gangsters in the Barrackpore belt. Everyone knows about his links with the underworld. Let the police investigate the incident,” Shyam said.
