LATE Vs. VILAS

JUDGEMENT

(1.) The respondent-husband instituted original petition on 7th March, 1984 for declaration that the marriage with the appellant-wife was a nullity under sub-section (1)(d) of section 12 of the Hindu Marriage Act (hereinafter referred to as "the Act") on the ground that the appellant-wife was at the time of marriage pregnant by some person other than the respondent-husband. The appellant-wife contested the proceedings, but eventually the petition filed by the respondent-husband was allowed by the IIIrd Joint Civil Judge, (Senior Division), Nagpur, who by his judgment and decree dated 3-5-1986 declared the marriage between the parties as null and void. The appellant feeling aggrieved by the judgment and decree filed Regular Civil Appeal No. 436 of 1985 on 19th July, 1985 before the IInd Additional District Judge, Nagpur. Before the appeal could be filed the respondent-husband married one Miss Sarita daughter of Laxmanrao Modak on 27th June, 1985. The respondent-husband raised a preliminary objection (Exh. 9) in the appeal preferred by the appellant-wife contending that after passing of the judgment and decree dated 3rd May, 1985 by the trial Court, he married one Sarita daughter of Laxmanrao Modak, resident of Nagpur on 27th June, 1985. It was further asserted in the application that when the marriage was solemnised on 27th June, 1985 there was no impediment against the respondent-husband in contracting the said marriage since the parties to the appeal were relegated to the position as if there was no marriage between them and as such the marriage solemnised on 27th June, 1985 was legal and valid with the consequence that the appeal filed by the appellant was not tenable having been rendered infructuous. The find Additional District Judge, Nagpur, vide his order dated 17th August, 1985 allowed the objection raised by the respondent under the application (Exh. 9) and dismissed the appeal with a direction to the parties to beer their respective costs. It Is this judgment and decree, which is now impugned in this second appeal.

(2.) The question which falls for determination is, whether the remarriage of the respondent-husband with Miss Sarita daughter of Laxmanrao Modak before filing of Regular Civil Appeal No. 436 of 1985 renders that appeal infructuous.

(3.) Shri R.K. Deshpande, Advocate, the learned Counsel for the appellant, contended that although section 15 of the Act does not specifically mention the annulment of marriage by a decree of nullity, yet in view of the observations in (Chandra Mohin v. Avinash Prasad) A.I.R. 1967 Supreme Court 581, the principles laid down in section 15 of the Act would still be applicable in cases where the marriage has been annulled. In support of his contention reliance was also placed on the decision in (Vathsala v. Manoharan) A.I.R. 1960 Madras 405. On the other hand Shri A.P. Deshpande, Advocate appearing for the respondent contended that since the decree Passed was one for the annulment of the marriage under Section 12 of the Act, the provisions of section 15 or for that matter even the principles laid down therein will have no application whatsoever. Section 15 of the Act applies only in cases where the marriage was dissolved by divorce and not in the case where marriage was annulled. Consequently, no bar was created for the respondent to marry again after obtaining the decree of nullity from the trial Court. In this connection reliance was placed on two reported decisions in (Pramod Sharma v. Radha) A.I.R. 1976 Punjab and Haryana 355 and (Jamboo Prasad Jain v. Malti Prabha and another) A.I.R. 1979 Allahabad 260. He also referred to the decision of the Supreme Court in Chandra Mohinis case (cited supra) and urged that the observations contained therein had application only in respect of dissolution of marriage by divorce.