TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 1983
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....e Appellant had to move an application for withdrawal of the Appeals within 30 days. The Appellant filed an application to withdraw the appeals before the High Court in terms of the settlement dated 15.10.2011 which was taken up on 28.11.2011 by the Registrar of the High Court of Delhi. He recorded that there was a settlement reached between the parties before the Mediation Centre, Tis Hazari Court, Delhi and listed the matter before the Court on 20.12.2011. The High Court dismissed the appeals filed by the Appellant as withdrawn in terms of the settlement by an order dated 20.12.2011. In the meanwhile, the Appellant married the Respondent on 06.12.2011. Matrimonial discord between the Appellant and the Respondent led to the filing of a petition by the Respondent for declaring the marriage as void Under Section 5 (i) read with Section 11 of the Act. The main ground in the petition was that the appeal filed by the Appellant against the decree of divorce dated 31st August, 2009 was pending on the date of their marriage i.e. 06.12.2011. The Family Court dismissed the petition filed by the Respondent. The Respondent challenged the judgment of the Family Court in the High Court. By a ju....
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....ch is relevant is as follows: 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 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. 5. There is no dispute that the marriage between the Appellant and the Respondent was held on 06.12.2011 during the pendency of the appeals filed by the Appellant against the decree of divorce in favour of Ms. Rachna Aggarwal. It is also clear from the record that the appeals were dismissed as withdrawn on 20.12.2011 pursuant to an application for withdrawal that was placed before the Registrar on 28.11.2011. The Family Court has rightly held that the decree of divorce is a judgment in rem Marsh v. Marsh 1945 AC 271 6. It is pertinent to take note of the Proviso to Section 15 of the Act according to which it shall not be lawful for the respective parties to marry again unless at the time of such marriage at least one year has elapsed from the date of the d....
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....g the proviso in the negative expression, the prohibition was absolute and the breach of it would render the marriage void? If void marriages were specifically provided for it is not proper to infer that in some cases express provision is made and in some other cases voidness had to be inferred by necessary implication. It would be all the more hazardous in the case of marriage laws to treat a marriage in breach of a certain condition void even though the law does not expressly provide for it. Craies on Statute Law, 7th Edn., P. 263 and 264 may be referred to with advantage: The words in this Section are negative words, and are clearly prohibitory of the marriage being had without the 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 or 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....
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....re inadvisable in the field of marriage laws. 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. Therefore, even though the proviso is couched in a language prohibiting a certain thing being done, that by itself is not sufficient to treat the marriage contracted in contravention of it as void. 7. In the said judgment, this Court also had occasion to deal with the continuance of the marital tie even after the decree of divorce for the period of incapacity as provided in the Proviso to Section 15 of the Act. In the said context, this Court held as follows: 13. To say that such provision continues the marriage tie even after the decree of divorce for the period of incapacity is to attribute a certain status to the parties whose marriage is already dissolved by divorce and for which there is no legal sanction. A decree of divorce breaks the m....
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....ous of the absence of any penalty prescribed for contravention of the proviso to Section 15 of the Act. This Court referred to the negative expression "it shall not be lawful" used in proviso to Section 15 which indicates that the prohibition was absolute. In spite of the absolute prohibition, this Court was of the view that a marriage contracted in violation of the proviso to Section 15 was not void. There was a further declaration that the dissolution of a marriage is in rem and unless and until a Court of appeal reversed it, marriage for all purposes was not subsisting. 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'. 9. The majority judgment was concerned only with the interpretation of proviso to Section 15 of the Act. Justice Pathak in his concurring judgment referred to Section 15, but refrained from expressing any opinion on its interpretation. Effective d....
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....ndonment in Order XXIII Rule 1(1) of the Code of Civil Procedure is "absolute withdrawal" which is different from the withdrawal after taking permission of the court, this Court held as follows K.S. Bhoopathy v. Kokila (2000) 5 SCC 458: 12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts: (a) a Plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the Plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the Defendant insist that the Plaintiff must be compelled to proceed with the suit; and (b) a Plaintiff may, in the circumstances mentioned in Sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the Court enables the Plaintiff to avoid the bar in Order II Rule 2 and Section 11 Code of Civil Procedure. 12. Order XXIII Rule 1(1) of the Code of Civil Procedure gives an absolute right to the Plaintiff to withdraw his suit or....
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....s to be interpreted in a manner which advances the object of the legislation. The Act intends to bring about social reforms. Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi (1996) 4 SCC 76, para 68 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. Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1, para 40 15. The predominant nature of the purposive interpretation was recognized by this Court in Shailesh Dhairyawan v. Mohan Balkrishna Lulla (2016) 3 SCC 619 which is as follows: 33. We may also emphasise that the statutory interpretation of a provision is never static but is always dynamic. Though the literal Rule of interpretation, till some time ago, was treated as the "golden rule", it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced. Not only legal process thinkers such as Hart and Sacks rejected intentionalism as a grand strategy for statutory inter....
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....the Appellant filed an appeal and obtained a stay of the decree. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal. It cannot be said that he has to wait till a formal order is passed in the appeal, or otherwise his marriage dated 06.12.2011 shall be unlawful. Following the principles of purposive construction, we are of the opinion that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal. 20. It is not the case of the Appellant that the marriage dated 06.12.2011 is lawful because of the interim order that was passed in the appeals filed by him against the decree of divorce. He rested his case on the petition filed for withdrawal of the appeal. The upshot of the above discussion would be that the denouement of the Family Court is correct and upheld, albeit for different reasons. The conclusion of the High Court that the marriage dated 06.12.2011 ....