NANIGOPAL CHAKRAVARTY Vs. RENUBALA CHAKRAVARTY

JUDGEMENT

(1.) THE respondent (wife) obtained a decree for divorce against the appellant (husband) on 8-4-1960. The decree declared that the wife and the husband stood divorced from that day and the appellant was to pay to the respondent a sum of rs. 3000/- within a month from that day failing which she was to recover the amount by execution. She had claimed a gross sum towards permanent alimony on the ground that she being a Brahmin would not be able to remarry. In the judgment the learned District Judge did not give the basis as to how he granted a gross sum of Rs. 3000/- towards permanent alimony. Admittedly the appellant has not made any payment in satisfaction ot the decree. The respondent started an execution case which is pending. She remarried in January 1961 to one Chittaranjan Goswami, On 8-9-1962 the appellant filed an application with a prayer that the decree dated 8-4-1960 be rescinded or modified under Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act ). The respondent filed an objection. The learned District Judge found that the story of remarriage was true, but dismissed the application on the ground that the decree awarding a gross sum of Rs. 3000/- could not be rescinded as it was payable at a time a month after the decree. Against the order of the learned District Judge dated 3-4-1963 dismissing the petition, this appeal has been filed. The view of the learned District Judge is assailed as being contrary to law.

(2.) SECTION 15 of the Act prescribes--"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. " the remarriage of the respondent with her second husband in January 1961 was within one year from the date of the decree and as such the second marriage is not lawful. Thus though in fact there was a remarriage, it cannot have any recognition in law being hit by the proviso to Section 15. This aspect of the matter was not presented before the learned District Judge. This finding, however, would not dispose of the application as it is maintainable under Section 25 (3) of the Act, if the wife has not remained chaste. In view of the admitted position that she had a second marriage, she cannot be said to have remained chaste. The maintainability of the application for rescission of the decree under Section 25 (3)must therefore be closely examined.

(3.) SECTION 25 of the Act enacts-25.