In a recent Judgment, Justice A.S.Kilor of Bombay High Court held that the performance of second marriage during the pendency of Appeal did not amount to contempt. Such performance of a marriage may be a breach or contravention of section 15, of 1955 Act, but not willful disobedience of “other process of a Court’ under Clause (b) of Section 2 of the Act, 1971.
Prashan Manikrao Bagade (Husband) filed a petition for the dissolution of marriage solemnized on 28.12.2003, on the ground of cruelty and desertion. The said petition was dismissed by the learned Joint Civil Judge Senior Division through its Judgment and decree dated 29.10.2009. Consequently, the husband challenged the dismissal of the petition by filing a civil appeal.
In Civil Appeal, the Judgment was reversed, and the marriage was dissolved by way of a decree of divorce. After that, the wife filed a second appeal against the Judgment of civil Appeal, which remained pending. During the pendency of Appeal, performed the second marriage, which was prohibited under section 15 of The Hindu Marriage Act, 1955.
The wife moved an application for initiation of contempt stating that the act of doing second marriage during the pendency of Appeal, amounts to willful disobedience of ‘other process of a Court’ as provided by Section 2 (b) of the Act, 1971.
(I). Whether the performance of second marriage during pendency of appeal amounts to contravention of Section 15 of HMA Act, 1955?
And if yes?
(II). Whether such contravention amounts to willful disobedience of ‘other process of a Court’ as provided in Section 2(b) of Act of 1971?
Submissions of the Petitioner (Wife)
- It was pleaded that Section 15 of the HMA, 1955 prohibited the performance of second marriage during the pendency of Appeal.
- Since the respondent entered into second marriage during the pendency of the Appeal, he willfully disobeyed to judgment or ‘other process of a Court’and therefore Contempt o Court.
- She stated that the respondent has acted against the undertaking given to the Court whereby he said that he would never enter into second marriage during the pendency of the Appeal.
Submissions of the Respondent (Husband)
- It was pleaded on behlaf of Respondent (Husband) that any marriage in contravention of Section 15 of the Act, 1955, is not void.
- In support of above contention he relied on the Judgment of Smt. Lila Gupta Vs. Laxmi Narain and others, reported in (1978) 3 SCC 258 and the Judgment in the case of Anurag Mittal Vs. Shaily MishraMittal, reported in (2018) 9 SCC 691.
- It was denied that the respondent had given undertaking at any time before this Court that he would not perform the marriage during the pendency of appeal.
OBSERVATIONS OF THE COURT
- The purpose of section 15 was to avert the complication that may arise due to the performance of marriage during the pendency of Appeal if the decree for dissolution of marriage was reversed. This protection was afforded by section of The Hindu Marriage Act, 1955 to a person who contested the Appeal against the decree of divorce.
- The Second Appeal was filed within the period of Limitation. The respondent knew that an appeal was filed against him. The respondent was on caveat, and his counsel recorded his presence on 12.01.2016, before, when the respondent performed second marriage on 20.03.2016.Therefore, the second marriage performed by the respondent was in contravention of provisions of section 15.
- The Court observed that the expression “willful disobedience of a court’ must be related to the disobedience of some command issued, as the Court issues so many commands during the various stages between the filing of any proceeding till the final decision by the Court.
- These commands include the issuance of summons, a deposit of cost, the compelling appearance of any expert or person as a witness, production of documents or record, etc., disobedience of any such command may come within the ambit of ‘willful disobedience of other processes of a Court’ as provided in Clause (b) of Section 2 of the Act, 1971
- However, the Court held that contravention of the provisions of section 15 could not be within the ambit of such willful disobedience.
- Any marriage performed in contravention of the provision to Section 15 of the Act, 1955, cannot be said to be void.