Case Analysis of:

Anurag Mittal Vs. Shaily Mishra

Mittal (AIR2018SC3983)
FAMILY LAW
INTERNAL ASSESSMENT

NAME : ARPIT JHANWAR

PRN : 1801012
ANALYSIS
In the case there is no dispute regarding the fact that the marriage between the Appellant and
Respondent took place on 06.12.2011. It also clear that the appeal against the decree of divorce
was withdrawn on 20.12.2011 pursuant to an application for withdrawal that was placed before
the Registrar on 28.11.2011. Section 15 of the Act provides that it shall be lawful for either
party to marry again after dissolution of a marriage if there is no right of appeal against the
decree. A second marriage by either party shall be lawful only after dismissal of an appeal
against the decree of divorce, if filed. The object of this provision is to protect the rights of the
person who has filled a appeal against the decree of divorce and the very purpose of the section
it to avoid the complication that would result if a second marriage takes place and the decree
of divorce is reversed. Sec 15 primarily provides protection to the person who has filled a
appeal against the decree of divorce. In the present case aggrieved by the decree of divorce the
appellant filed a case in high court against the said decree and during the pendency of appeal
there was a settlement reached between the appellate and the former spouse. The intention of
the appellant was clear form his act of filling the application of withdrawal of the petition.

The Supreme court stated that it cannot be said that he has to wait till a formal order is passed
in the appeal, or otherwise his marriage dated 06.12.2011 shall be unlawful. The reasoning
given in the same was with regards to following the principle of Purposive interpretation. For
that it must be seen that can dismissal off an appeal be related back to the date of application
for withdrawal. This can be reiterated by the judgement in the case of Shiv Prasad v. Durga
Prasad1 in which the Supreme court held that “every applicant has a right to unconditionally
withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court
is necessary permitting the withdrawal of the application”. Therefore the act in respect of
withdrawal of petition is complete as soon as the application is filled with the court. This
judgement was relied upon in Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal
Council, Panvel2 in which the court was of the opinion that this reasoning applies to suits also.
Therefore, there must be a purposive interpretation of the said section. The term Interpretation
has been explained by Cross in Statutory Interpretation3 as: “The meaning that the Court
ultimately attaches to the statutory words will frequently be that which it believes members of
the legislature attached to them, or the meaning which they would have attached to the words
had the situation before the Court been present to their minds. Interpretation is the process by
which the Court determines the meaning of a statutory provision for the purpose of applying it
to the situation before it.” . In context of the purposive interpretation It must be seen that Hindu

1
(1975) 1 SCC 405
2
AIR 2003 Bom. 238, 239
3
Cross Statutory Interpretation, Ed. Dr. John Bell & Sir George Ingale, Second Edition (1987
marriage act is a piece of social welfare legislation and it must be interpreted in a manner so as
to advance the object of the legislation. The act intents to bring social reforms. 4 The court
while interpreting must see that is was for the protection of appellant who has filled against the
decree of divorce and the application for the withdrawal of the same has been done by him.
Therefore, clearly showing intention of the party. It is also relevant to take note of Dy.
Custodian v. Official Receiver5 in which it was declared that

"if it appears that the obvious aim and object of the statutory provisions would be frustrated
by accepting the literal construction suggested by the Respondent, then it may be open to the
Court to inquire whether an alternative construction which would serve the purpose of
achieving the aim and object of the Act, is reasonably possible".

The predominant nature of the purposive interpretation was recognized by this Court in
Shailesh Dhairyawan v. Mohan Balkrishna Lulla6 which states “the literal Rule of
interpretation, till some time ago, was treated as the "golden rule", it is now the doctrine of
purposive interpretation which is predominant, particularly in those cases where literal
interpretation may not serve the purpose or may lead to absurdity. If it brings about an end
which is at variance with the purpose of statute, that cannot be countenanced.”

Therefore the purpose of the act to safe guard the person contesting the decree of divorce is to
be fulfilled and if he himself withdraws and before the order for the same a second marriage
will be void on literal interpretation of the statue which should not be the case.

Since the purpose of the act is will be defeated if such a appeal is allowed also the order
XXIII Rule 1 (1) give a absolute right to withdraw his suit and it is applicable in case of
appeal also. In the present case the application for withdrawal was filled was filled before the
second marriage thus automatically accepting the decree of divorce without the need of a
court order therefore the former spouse cannot be treated as living spouse according to this
section in the present case. Hence the provisions of section 5(1) can not be attracted in the
present case and the Supreme court was correct in interpreting the same on the various
judgement mentioned above.

JUDICIAL APPROACH

46
Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi, (1996) 4 SCC 76
5
(1965) 1 SCR 220
6
(2016) 3 SCC 619
The Judicial approach in cases regarding Sec 15 dates back to when the Clause 1 was not
removed by the Act 68 of 1976 which states a proviso regarding a period of one year wait
after the decree of Divorce. Foe that clause In Lila Gupta v. Laxmi Narain7, the judiciary
clearly stated that though the words are prohibitory and negative in nature this does not at all
mean that this will lead to nullity of marriage in case of absence of express provision of law.
Therefore, the violation of this clause thus not render the marriage void. Now with regards to
the section after removal of the said clause, the remaining section is positive and clear in
nature and a express provision when read with Sec 5 (i) and section 11 will lead to state the
second marriage as void as there is a living spouse present.

In various cases this section is straight jacket applied as there was no scope of interpretation
with regards to the pendency of appeal. Similarly, in Prakash Chand Sharma Vs. Vimlesh8,
the Husband during the pendency of appeal married other women and conceived a child with
her. Further it was suggested by the court to make a settlement with the former spouse. What
must be seen from this judgement is that in normal circumstance there is no need for
interpretation of this section and a remedy is suggested in the form of settlement. Therefore,
in normal circumstance the judicial approach is literal interpretation of the statue. But what if
like in the abovementioned case a settlement is reached between the parties and an
application for withdrawal is filled in the court before the second marriage. Then the literal
interpretation can be misused leading to a absurd result. Thus, the judiciary must see the
legislative intent in relation to the purpose of the statue as done in the present unique case.
Therefore, the previous judicial approach in normal circumstances is clear as well as the
course of action in special cases like the case in hand is also clear.

LEGISLATIVE APPROCH

The intent of legislative is very clear even before the Act 68 of 1976 which removed the proviso
regarding a period of one year wait after the decree of Divorce. In context of this the Supreme
Court Lila Gupta v. Laxmi Narain9 observed that, “While enacting the legislation, the framers
had in mind the question of treating certain marriages void and provided for the same. It would,
therefore, be fair to infer as legislative exposition that a marriage in breach of other conditions

7
(1978) 3 SCC 258
8
1995Supp(4)SCC642
9
(1978) 3 SCC 258
the legislature did not intend to treat as void”. The words in the said section before the order
was negative and prohibitory in nature but this does not at all mean will lead to the nullity of
the marriage as there is no express provision for the same. It is all the more difficult to infer
nullity when there is no prohibition; where there are no negative words but on the other hand
positive words like "it shall be lawful." Therefore, the Legislative intent was clear by the
removal of the said Clause which required a wait period of 1 year and as well as the stating of
the Section in positive way thus clearly stating the grounds.

With respect to the pending of appeal against the decree of court the legislative approach was
to protect the person contesting against the decree and in the present case the application of
withdrawal by the person contesting the decree clearly satisfies the intention of the legislature
which provided for his protection and further other statue Order XXIII Rule 1(1) of the Code
of Civil Procedure10 which don’t require the permission of the court to withdraw a suit clearly
shows that there was no appeal pending and the formality of a court decision cannot be used as
a weapon for declaring the marriage void as it was not the purpose of the legislature being a
social welfare legislation.

SUGGESTIONS AND CONCLUSION

In issue regarding Section 15, Hindu marriage Act,1955 it is seen that mostly there is straight
jacket application of law and therefore in special circumstance the family court and the high
court stick to the literal interpretation without giving emphasis to the purposive interpretation
and the legislative intent. Like in the present case the issue formed by the Family court that
‘whether the marriage between the parties was null and void on account of the contravention
of Section 5 (i) of the Act’, there was a ignorance of the special circumstances and
interpretation of Section 15 in that regard. The same mistake was done by the High Court as it
just saw that the petition is pending without giving emphasis on the point that as soon as
application for withdrawal is submitted there is no need for an order to substantiate the same
and there exist no pending appeal. Therefore, the family courts and the High court all over
India should take cognisance of the fact that in case of special circumstances proper
interpretation should be given and this case should be used as a binding precedent.

10
Order XXIII Rule 1(1) of the Code of Civil Procedure