In an appeal filed before the Madras High Court under Section 19 of the Family Courts Act, 1984, to set aside an order dated 03-03-2021 by the Family Court, Trichy, a Division Bench of Justice G.R. Swaminathan and Justice M.D. Sumathi dismissed the appeal after taking note of the procedural default and the wife’s remarriage after grant of the divorce decree.
The marriage between the appellant (husband) and the respondent (wife) was solemnized on 03-06-2001 as per Hindu rites and customs. The wife was the husband’s maternal uncle’s daughter, with an age gap of 11 years between them. Two children were born to the couple. Alleging cruelty and desertion, the wife filed a petition, which was allowed by the Family Court by the impugned order. Aggrieved, the present appeal was filed.
When the marriage took place, the wife was still in college. Once the husband became a Group IV employee, the wife acquired M.Tech (IT) qualification and joined as Assistant Professor in a private engineering college. The husband alleged that the wife used to speak to someone on the phone continuously. The Court noted that the Family Court had considered that the husband doubted the wife’s character and conduct as he made enquiries about her from security guards, the wife’s parents, and his own daughter.
The Court stated that doubting one’s character, either explicitly or by insinuation, would constitute cruelty within the meaning of Section 13(1) (i-a) of the Hindu Marriage Act, 1955. It was said that it is the seed of suspicion that takes a firm root and in due course, makes conjugal company incompatible as no self-respecting spouse can put up with such a conduct.
The Court noted that the wife left her matrimonial home on 15-08-2015 along with the children and that there was no evidence to support the contention that the wife’s parents did not allow the husband to meet the children.
The Court stated that from the indifference shown by the husband, it could be concluded that he was not interested in sustaining the marriage. It was said that indifference coupled with failure to maintain the children could constitute wilful neglect amounting to desertion, and hence, the Court held the husband guilty of constructive desertion. The Court held that the Family Court had rightly appreciated the evidence and granted the relief of dissolution of marriage by the impugned order.
The wife submitted that she had married someone else as per Hindu rites and customs on 27-08-2021, and that the marriage was duly registered with the Registrar of Marriage, Peenya, Bangalore. The Court stated that the question to be considered was whether this would render the appeal infructuous. It was noted that there was no interim stay of the operation of the impugned order throughout.
The Court perused various decisions as well as Section 15 of the Hindu Marriage Act and stated that this provision does not stipulate that if the marriage is solemnized in breach of what has been set out therein, the marriage is unlawful. Having certain doubts, the Court questioned whether it was to infer that the marriage in such circumstances was unlawful. It was stated that though the appeal was filed in time, no interim stay had been granted and that the respondent’s status was that of a divorced woman, being technically entitled to marry.
Referring to the Supreme Court’s decision in Lila Gupta v. Laxmi Narain (1978) 3 SCC 258, wherein it was held that marriage performed in breach of Section 15 of the Hindu Marriage Act is not void or voidable. The Court said that if something is not void or voidable, it can only be valid, but also had its reservations as this would mean rewriting of the statutory provision. The Court did not find it to be justified.
Considering the changing social mores, the Court suggested an amendment to Section 15 of the Hindu Marriage Act. It was stated that it should not be enough if the appeal is presented within time as the appellant must also obtain an interim stay of the divorce decree within two months thereafter. Further, being inspired from Krishnaveni Rai v. Pangaj Rai (2020) 11 SCC 253, the Court held that once an appeal has been dismissed for default, Section 15 loses its sting. It also held that when the application for restoration is taken up and it is reported that the respondent had remarried, the appeal has to be dismissed as infructuous, making the timing of the remarriage irrelevant.
