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whether entering into a second marriage during the pendency of an appeal would be a breach of Sec 15 of HMA.
A contempt petition was raised by the petitioner, against her husband-respondent, seeking action u/s 12(3) of the Contempt of Court Act, 1971. She alleged that her husband has performed second marriage in contravention of Section 15 of Hindu Marriage Act, 1955 thereby alleging willful disobedience of other process of a court.
Facts :
A petition was filed for dissolution of marriage by the respondent u/s 13 of HMA, 1955 alleging grounds of cruelty & desertion against the petitioner. The marriage between the two was solemnized on 28-12-2003. The petition was opposed by the petitioner by filing a written statement. The same was dismissed by the decree of Learned Joint Civil Judge Senior Division, Akola; as the respondent could not prove the alleged grounds.
On 25-11-2015, the marriage was declared dissolved in Regular Civil Appeal. Thereby, the petitioner on 21-12-2015 filed the second appeal u/s 100 of C.P.C. A caveat was filed by the respondent and he made an appearance on 12-01-2016. The petitioner alleged that during the pendency of the appeal, her husband had performed a second marraige on 20-03-2016, which is in contravention of Section 15 of the HMA, 1955 & is a willful disobedience of 'other process of a Court' as provided u/s 2(b) of the 1971 Act.
Petitioner's Submission :
The learned counsel appearing for the petitioner submitted :
- That Sec 15 of HMA, 1955 creates an incapacity on the parties to marry during the pendency of an appeal.
- That u/s 2(b)&2(c) of 1971 Act, civil contempt can be constituted by willful disobedience of any judgement, or 'other process of a Court'.
- That the word 'other process of a Court' would necessarily include 'right to file an appeal within the limitation period' which is defeated by the conduct of the holder of decree of divorce.
- That entering into a second marriage during the pendency of an appeal constitutes willful disobedience of other process of a Court & hence action should be taken [Jasbir Kaur v Kuljit Singh, AIR 2008 Punjab & Haryana 168].
- That despite of the respondent giving undertaking that he would not enter into a marriage during the pendency of an appeal whenever the adjournment is sought, had wilfully breached his undertaking.
Respondent's Submission :
The learned counsel appearing for the respondents submitted :
- That the respondent had made an unconditional & sincere apology for any of his disobedience in the affidavit filed.
- That a marriage which is in contravention of Section 15 of HMA, 1955 is not void [Smt Lila Gupta v Laxmi Narain (1978) 3 SCC 258] & [Anurag Mittal v Shaily Mishra Mittal (2018) 9 SCC 691].
- That no such undertaking was given to the Court by the respondent that he would not perform any marriage.
Issues before the Court :
- Whether a second marraige which is in contravention of Section 15 of HMA, 1955 unlawful?
- Whether contravention of Section 15 of HMA, 1955 constitutes willful disobedience of other process of a Court?
Observation of the Court :
The court referred to Section 15 of HMA, 1955 & the case of Anurag Mittal. The court pointed that S.C has clearly stated that any marriage which takes place before the pendency of an appeal is not lawful. Section 15 protects the party who is contesting the decree of divorce. Its purpose is to avoid any complications which may arise due to second marriage, in case the Court reverses the decree of dissolution of marriage.
The court pointed that the respondent was completely aware of the appeal filed by the petitioner as he made an appearance on 12-01-2016 before entering into a second marriage. Therefore, he has ignored the fact that he is incapable to enter into a second marriage. Hence his second marriage is in contravention of Section 15 of HMA, 1955.
The court stated that in the case of Jasbir Kaur, S.C held that sub-section (b) & (c) of section 2 of the 1971 Act includes the right to file an appeal within the limitation period. And if the spouse in whose favour the decree of divorce has been passed attempts to defeat this right of the other party, it would be included in the expression "willful disobedience of the Court".
The court however, disagreed to the preposition & recorded that every provision/word of the statute should be looked before it is construed. The Court referred to the definition of "Civil Contempt" u/s 2(b) of the 1971 Act:-
"Civil Contempt means willful disobedience to any judgements, decree, direction, order, writ or other process of a Court or a willful breach of an undertaking given to a Court".
Each & every word in the clause was defined by the Court & found that one thing which is common in the words preceeding 'other process of a Court' is command. And hence, stated that the expression "willful disobedience of a Court" must also relate to the disobedience of any command which is issued by the Court. The court pointed that various commands has to be issued by the Courts which may fall within the ambit of 'willful disobedience of other process of a Court' but that cannot be stretched to the contravention of Section 15 of HMA, 1955.
Therefore, the Court stated that a second marriage during the pendency of an appeal, can be in contravention of Section 15 but it would not amount to disobedience of any command issued by the Court & would not fall within "willful disobedience of other process of a Court".
The court held that, the marriage u/s 15 of HMA, 1955 would not be void & there is no such provision for punishment in case of any contravention of Section 15. The court, therefore held that the marriage performed in contravention of Section 15 of HMA, 1955 would not amount to civil contempt u/s 2(b) of the 1971 Act.
Moreover, the court also stated that the petitioner's contention that the respondent had given an undertaking to the Court that he will not enter into a second marriage during the pendency of an appeal is not supported by records. No such undertaking has been recorded/mentioned in any orders.
Judgement :
The Court dismissed the Contempt petition by not finding the respondent guilty of civil contempt.
Judge : Hon'ble Mr Justice A.S. Kilor.
Case Courtesy : Kanchan v Prashant Manikrao Bagade.
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