Dr. Pratibha Upasani, J.@mdashThe story revealed in these legal proceedings is the story of a husband, wife and the ""other woman"" in the
husband''s life, as usual. The unusual angle of this usual story is the legal angle which gives food for thought as to what status this ""other woman
exactly has in a monogamous society, if it turns out that the ""other woman"" also is a legally wedded wife, and has the same status? What then
happens to the other wife? What if relationship goes soar with both the wives at one time or the other, the couple is divorced and reunited, and the
second wife is now isolated and asks for maintenance? All this material is quite spicy and hot enough to churn out a Hindi Masala Movie,
displaying sentiments like love, lust, selfishness, materialism and urge for survival. But, Reeta Bharat Arora, Indu Bharat Arora and Bharat
Yasodanandan Arora are not the imaginary characters playing roles on the screen in the reel life. They are the real persons, in flesh and blood,
being singed by harsh circumstances. The wives are the puppets in the hands of destiny. And why blame only destiny? Their husband Bharat also
has been selfish all throughout, and has spoiled the lives of these two women; and hold your breath, the Law has added to the woes of the wives.
But first, the few admitted facts :
2. On or about 26th January, 1981, Bharat Arora married one Indu Kapoor at Delhi. Indu and her parents were hailing from Indore. Bharat and
Indu resided together and cohabited as husband and wife at Bombay. On or about 17th August, 1981, Indu left for Indore. On 25th February,
1982, a son namely. Sunny was born to Indu from the said wedlock. Unfortunately, disputes had already started between Bharat and Indu. Earlier
also she had left for her parents'' place, but there was some sort of compromise between husband and wife. Thereafter, when she went to Indore
in the year 1981, prior to Sunny''s birth in 1982, she did not come back. Bharat then filed M. J. Petition No. 56 of 1984 in the Bombay City Civil
Court for divorce on the ground of cruelly and desertion. In the said Petition, Bharat had made several allegations against Indu and had even
expressed doubt about paternity of the son. Indu was contesting this matrimonial petition, refuting the allegations, and written statement also was
filed by her. Hearing of the matter was adjourned from time to time. During all these years, by and large, Indu used to reside with her parents at
Indore. During the pendency of the above referred Petition, sometime in the year 1988. Bharat developed illicit relationship with one Reeta
Dhawan nee Reeta Sunil Grover. Incidentally, Reeta''s divorce proceedings with her husband Sunil Grover also were pending in the City Civil
Court till November, 1987 and decree of divorce was granted by City Civil Court in Sunil Grover''s favour, dissolving his marriage with Reeta,
only on 30th November, 1987. On 28th May, 1989, a daughter by name Shikha was born to Reeta from the illicit relationship with Bharat. The
relationship continued, though Reeta very much knew that Bharat was a married person, and his marriage with Indu was subsisting. The stalemate
in respect of marriage of Bharat with Indu continued. But on 12th September, 1989, City Civil Court Judge (Ms. R. S. Dalvi) passed ex parte
decree of divorce in M. J. Petition No. 56 of 1984, after recording evidence of Bharat, in brief, when the matter was in fact appearing on the
Board under the caption of ""Framing of Issues"". Neither Indu, nor her Advocate was present at the hearing of this Petition on 12th September,
1989. No issues were framed, nor was any finding given in respect of the alleged matrimonial offence of desertion and cruelty, but the Judge
recorded undertaking of the Petitioner Bharat to the effect that ""the Petitioner shall not remarry for a period of thirty days from the date of the said
decree"". Thus, the undertaking was restricted to a period of only thirty days. On 5th November, 1989, Bharat got married with Reeta in
accordance with Hindu Vedic Rites. On 5lh November, 1989, declaration that Reeta and Bharat were married was made. The said marriage was
thereafter registered on 5th February, 1990. Indu Arora, allegedly, came to know of the ex parte decree passed against her, dissolving her
marriage with Bharat on 9th November, 1989. By that time. Family Courts were constituted in Bombay in October, 1989. Indu Arora therefore
took out Miscellaneous Application No. 2 of 1990 for setting aside the ex parte decree, in the Family Court, accompanied by application for
condonation of delay. On 15th December, 1989, Indu also filed First Appeal No. 336 of 1990 in the High Court of Bombay, challenging the ex
parte decree passed against her by City Civil Court Judge, dissolving her marriage with Bharat. In Family Court, in reply to the Application made
by Indu Arora, for setting aside the ex parte decree. Bharat did not mention that he had remarried. On 7th August. 1991, Family Court Judge (Mr.
S. D. Pandit) passed order in Miscellaneous Civil Application No. 2 of 1990, setting aside the ex parte decree. The said order of the Family Court
was challenged by Bharat Arora in the High Court by filing Writ Petition No. 5884 of 1991. In the meantime, there was reconciliation between
Bharat and Indu. In fact, on 2nd June, 1992, Bharat and Indu applied for withdrawal of the proceedings in the Family Court. On 3rd June, 1992.
Reeta filed Civil Application No. 2846 of 1992 in Writ Petition No. 5884 of 1991 filed by Bharat in High Court for being impleaded as a party-
respondent. Recta also filed M. J. Petition No. B-52 of 1992 in the Family Court at Bandra for a declaration that her marriage with Bharat was
legally valid and subsisting. She also moved Interim Application No. 441 of 1992 and the Family Court passed order, restraining Bharat from
throwing Reeta out of the flat at Grand Paradi Apartments, August Kranti Marg, Bombay, where Reeta was staying along with her daughter
Shikha. Reeta also got injunction order by way of ad interim relief restraining Bharat from disposing of the said flat in Grand Paradi Apartments, so
also restraining Bharat from entering her bedroom. Reeta also moved various applications for interim reliefs in the Family Court, on which, orders
came to be passed against Bharat and Bharat challenged all those orders in the High Court by filing various Writ Petitions, including Writ Petition
No. 2889 of 1993. In Writ Petition No. 2889 of 1993, Bharat had challenged the interlocutory order passed by Family Court granting
maintenance of Rs. 4,000/- per month to Reeta and Rs. 1,500/- per month to daughter Shikha. In addition, the Family Court also ordered Bharat
to deposit Rs. 5,000/- towards maintenance of Reeta.
Indu also filed M. J. Petition No. B-64 of 1992 in the Family Court at Bandra, inter alia, praying for a declaration that Bharat and Reeta''s
marriage was not valid. On 22nd September, 1993, Bharat had made application in High Court to withdraw the Writ Petition No. 5884 of 1991.
Mr. V. P. Tipnis. J. however, declined to pass order permitting Bharat to withdraw the said Petition, observing that complex questions of facts and
law were involved in the said Petition, and therefore, it was to be decided on merits only. On 29th April, 1993, Family Court again passed order
being interlocutory order directing Bharat to pay Rs. 5,500/- per month to Reeta and Shikha as maintenance. This order, when challenged by
Bharat, in the High Court, was upheld, and in fact, undertaking was filed by Bharat in the High Court for payment of maintenance to Reeta and
daughter Shikha.
Thus, there is no dispute between the parties with respect to the dates, the chronology of events, and the pending litigation between them.
3. This Court (Mr. D. R. Dhanuka, J.) by its common Judgment and Order dated 1st March, 1994 disposed of First Appeal No. 336 of 1990
which was filed by Indu, so also. Writ Petition No. 5884 of 1991 and Writ Petition No. 2289 of 1993 filed by Bharat. The matter was argued at
length by the respective Advocates, and this Court, by giving exhaustive reasons, allowed the First Appeal filed by Indu, and the ex parte decree
dated 12th September, 1989 was set aside and M. J. Petition No. 56 of 1984 filed by Bharat was dismissed as withdrawn. Objection of Reeta for
permitting Bharat to withdraw the said M. J. Petition, was rejected.
Both the Writ Petitions filed by Bharat came to be dismissed by this Court by its common Judgment and Order dated 1st March, 1994, and
direction was given to the Family Court to dispose of the pending Petitions filed by Reeta as well as Indu being M. J. Petition No. B-52 of 1992
filed by Reeta and M. J. Petition No. B-64 of 1992 filed by Indu, as expeditiously as possible.
While disposing of these Writ Petitions and First Appeal by common Judgment and Order, this Court made certain observations with respect to
the conduct of Reeta. The learned Judge observed that the conduct of Reeta in having illicit relationship with a married person like Bharat since the
year 1988, was blame-worthy. Reeta also felt aggrieved because the learned Judge confirmed the interlocutory order of the Family Court, and was
not happy with the quantum of maintenance. She was also unhappy because the learned Judge allowed Bharat to withdraw his M. J. Petition being
M. J. Petition No. 56 of 1984, and the order of allowing the First Appeal filed by Indu and setting aside ex parte decree dated 12th September,
1989 passed by the Judge of the City Civil Court, dissolving the marriage between Bharat and Indu. Being aggrieved, Reeta has filed Letters
Patent Appeal No. 86 of 1994 (in Writ Petition No. 5884 of 1991), so also. Letters Patent Appeal No. 87 of 1994 (in First Appeal No. 336 of
1990). Reeta also has filed Family Court Appeal No. 3 of 2001, since the Family Court did not pass any order on arrears of maintenance payable
to her and daughter Shikha, while disposing of finally heard M. J. Petition No. B-52 of 1992. Reeta was also aggrieved, as the Family Court did
not express its opinion on validity of marriage of Indu with Bharat. Another ground for filing the Family Court Appeal No, 3 of 2001 by Reeta was
that the Family Court Judge did not grant her prayer with respect to security deposit for future maintenance to be paid by Bharat to her. It has to
be stated here that as per the directions given by Mr. D. R. Dhanuka, J. while disposing of First Appeal No. 336 of 1990. Writ Petition No. 5884
of 1991 and Writ Petition No. 2289 of 1993, the Family Court Judge recorded the evidence of parties and disposed of both the M. J. Petitions
being M. J. Petition No. B-52 of 1992 filed by Reeta and M. J. Petition No. B-64 of 1992 filed by Indu by his common Judgment dated 31st
December, 1999. By giving exhaustive reasoning, the Principal Judge of the Family Court at Bandra dismissed Indu''s M. J. Petition No. B-64 of
1992, and allowed Reeta''s M. J. Petition being M. J. Petition No. B-52 of 1992. The learned Judge gave a declaration that Reeta''s marriage with
Bharat was valid. Bharat was restrained by an order of injunction from ousting Reeta from her matrimonial home i.e. 91-A. 9th floor, Grand Paradi
Apartments, August Kranti Marg, Bombay-36.
Family Court also directed Bharat to pay Rs. 6.000/- per month to Reeta for her own maintenance u/s 18 of the Hindu Adoptions and
Maintenance Act. 1956 as well as to pay her Rs. 3,500/- per month for the maintenance of their daughter Shikha u/s 20 of the Hindu Adoptions
and Maintenance Act, 1956, from the date of the order i.e. 31st December, 1999. The learned Judge also granted Reeta permanent custody of
daughter Shikha.
4. Being aggrieved by the Judgment and Order dated 31st December, 1999 passed by Family Court, Appeal No. 3 of 2001 came to be filed by
Reeta.
5. Family Court Appeal No. 16 of 2000 also was filed by Bharat, being aggrieved by the said common Judgment and Order dated 31st
December, 1999. Indu also filed Family Court Appeal No. 15 of 2000, aggrieved by dismissal of M. J. Petition B-64 of 1992 and giving a
declaration that Recta''s marriage with Bharat was valid.
6. There is also Contempt Appeal No. 2 of 1999 filed by Bharat Arora, whereby he has challenged the order of the learned Single Judge of this
Court (D. K. Deshmukh, J.) dated 28th January, 1999, holding Bharat guilty of contempt of Court, and sentencing him to undergo simple
imprisonment for a period of three months. The said Contempt Petition being Contempt Petition No. 180 of 1995 was initiated by Reeta, alleging
wilful breach of undertaking given by Bharat in Civil Application No. 4922 of 1993 in Writ Petition No. 2289 of 1993. Her grievance was that
Bharat had not complied with the interim order granting maintenance to Reeta. The learned Single Judge of this Court held that Bharat had
committed breach of the undertaking given to the Court, and was of the opinion that imposition of fine would not meet the ends of justice, as
undertakings given in solemnity to the Court had to be scrupulously followed. Thus, considering the pros and cons of the matter, the learned Single
Judge found Bharat guilty of contempt of Court and sentenced him to undergo simple imprisonment for three months. This order was stayed on the
request of Bharat for approaching the Division Bench, which Bharat did. The Division Bench admitted the contempt appeal of Bharat and granted
stay of the impugned order of the learned Single Judge dated 28th January, 1999.
7. Thus, there are six proceedings before this Court, which are being disposed of by this common Judgment and Order.
8. We have heard Mr. Anand Grover, the learned Counsel appearing for Reeta, so also. Mr. Angal, appearing for Indu Arora. We have also gone
through the bulky record and proceedings of these matters. We have also carefully considered the Judgment and ex parte order dated 12th
September, 1989 of the City Civil Court passed in M. J. Petition No. 56 of 1984, Judgment and Order dated 7th August, 1991 passed by the
Principal Judge, Family Court in Miscellaneous Application No. 2 of 1990, the Judgment of the learned Single Judge dated 1st March, 1994, the
order of the learned Single Judge dated 28th January, 1999 passed in Contempt Petition No. 180 of 1995, the Judgment and Order of the Family
Court dated 31st December, 1999, so also, various Judgments of this Court, other High Courts and Supreme Court cited by both the sides.
9. The observation of the learned Single Judge in his Judgment dated 1st March, 1994 about the conduct of Reeta being blameworthy, cannot be
called erroneous on the background that during the pendency of Reeta''s divorce proceedings with her earlier husband Sunil Grover, she carried on
affair with the much married Bharat, whose divorce proceedings against Indu also were pending. Because of this illicit relationship, Reeta delivered
a baby girl Shikha and when Bharat got married with Reeta on 5th November, 1989, this love-child Shikha was already six month''s old.
10. It has to be mentioned at this stage that after carefully going through the entire record and proceedings, the picture that emerges of Bharat is
that of a villain. He is the person who has played with the lives of two women, and has left them in the lurch. Firstly, he carried on illicit relationship
with Reeta, when his marriage with Indu was still subsisting. He also fathered a child Shikha from her, who was born about six months earlier to
Bharat''s subsequent marriage to Reeta. Initially, when Bharat had filed divorce proceedings against his first wife Indu, he had made allegations
against her and he went to the extent of saying that the son namely, Sunny, born to Indu was not his, but subsequently, with the very same Indu,
Bharat reconciled to the chagrin of Reeta, who along with her child Shikha, fell from grace in the eyes of Bharat. When various applications for
maintenance were filed by Reeta for herself and for the maintenance of the child Shikha, they were vehemently contested by Bharat, though, he lost
in all of them at all stages. Various orders came to be passed by the Family Court, so also, by this Court, ordering Bharat to pay maintenance to
Reeta and child Shikha. All these orders came to be flouted with impunity by Bharat. Initially, he was paying some maintenance to Reeta and the
child, however, subsequently, there is a total failure on Bharat''s part to pay the maintenance. In fact, it appears that he has completely stopped
paying maintenance to Reeta and his child since August, 1994 and there is a huge amount by way of arrears. The Family Court, in fact, had passed
an order dated 23rd July, 1992, ordering maintenance at the rate of Rs. 4,000/- per month to Reeta and Rs. 1,500/ - to child Shikha. The Family
Court had also ordered Bharat by its order dated 1st September, 1992 to deposit Rs. 5,000/-. All these orders were disobeyed by Bharat. In
fact, on number of occasions, bailable warrants came to be issued against Bharat, as not only he did not pay the maintenance amount but also
avoided to attend the Court, In fact, Contempt Petition being Contempt Petition No. 180 of 1995 came to be filed at the behest of Reeta, alleging
willful breach of undertaking submitted by Bharat in Civil Application No. 4922 of 1993 in Writ Petition No. 2289 of 1993. After hearing both the
sides the learned Single Judge came to the conclusion that Bharat had committed breach of undertaking given to this Court. He was also of the
opinion that imposition of fine would not meet the ends of justice, as undertaking given in solemnity to the Court has to be scrupulously followed
and that, undertaking cannot be disregarded casually, as was done by Bharat in this case. Thus, considering the pros and cons of the matter and
having found Bharat guilty of contempt of this Court, the learned Single Judge sentenced Bharat to undergo simple imprisonment for three months.
This order was stayed for eight weeks on the request made by the learned Counsel appearing for Bharat. Thereafter, the Division Bench of this
Court stayed the order while admitting Contempt Appeal No. 2 of 1999, and the stay is still in operation, during the pendency of all the
proceedings.
11. After hearing Mr. Anand Grover, who is appearing for Reeta. and Mr. M. D. Angal, who is appearing for Indu (though he was not very much
concerned, as far as the maintenance aspect (to be paid by Bharat to Reeta) is concerned), and after going through various orders passed by
Family Court, as well as this Court, we are of the opinion that the learned Single Judge was right in holding Bharat guilty u/s 12 of the Contempt of
Courts Act. The Roznama of all these proceedings is very revealing and telling. It fully exposes as to how, different Benches of this Court have
issued bailable warrants against Bharat Arora on number of occasions, and how incorrigible he has proved to be. Even this Bench by its order
dated 19th January, 2001, during the course of hearing, passed an order directing Bharat to bring with him a cash of Rs. 50,000/- or a demand
draft of the said amount drawn in favour of Reeta on the next date of hearing. However, on the next date, neither Bharat was present, nor his
Counsel was present. Taking serious view of the matter, this Court issued bailable warrant in the sum of Rs. 50,000/- against Bharat, to be
executed through the Commissioner of Police. Bombay, returnable on 1st February, 2001. On 1st February. 2001, Bharat was produced before
this Court, but he expressed his inability to pay any amount. We therefore struck-off the defence of Bharat and refused to hear Mr. S. G.
Deshpande, learned Counsel, who was representing Bharat. Mr. Grover, the learned Counsel appearing for Reeta pointed out that a huge amount
had accumulated as arrears of maintenance payable to Reeta and child Shikha by Bharat. He also pointed out that similar order of striking of
defence of Bharat had been passed by Family Court also, and that, Bharat was simply not paying the arrears of maintenance either to Reeta or to
minor child Shikha. He also pointed out the order passed by this Court (Coram : B. N. Srikrishna and S- S. Nijjar, JJ.) observing that unless
maintenance amount was paid, Bharat was not to be heard. Thus, there is a clear admission that the amount of maintenance has not been paid by
Bharat to Reeta for the maintenance of herself and for the maintenance of Shikha. This failure to pay the amount has been sought to be justified,
stating that Bharat has financial problems, but the non-compliance of the order of the Court with respect to maintenance, is very much admitted.
12. It is not that Advocate Mr. S. G. Deshpande appearing for Bharat was not heard at all. In fact, initially, when this Bench started hearing the
matter, Mr. Deshpande also was heard for quite some time. It was during the course of arguments, that Mr. Grover, appearing for Reeta, pointed
out the order of maintenance passed by Family Court, so also various orders passed by this Court with respect to maintenance payable by Bharat
to Reeta and child Shikha, and the arrears which Bharat has to pay towards the maintenance amount. Thereafter, this Court ordered Bharat to pay
Rs. 50,000/- to Reeta and bring the amount on the next date. Bharat not only failed to pay the amount and comply with the order passed by this
Court, but also did not remain present. Thereafter, bailable warrant in the sum of Rs. 50,000/- came to be issued by this Court against Bharat,
which secured Bharat''s presence, but sans the amount. That is how the Court was constrained to pass an order of striking of the defence of
Bharat for non-compliance of the order of maintenance. However, Mr. Angal, appearing for Indu, was heard at length, and during the course of
hearing, it appeared as if he was appearing for Bharat also, and the Court had to remind him that he was representing only Indu and not Bharat. It
therefore, cannot be said that the principles of natural justice have been violated. As such, Bharat has proved to be so incorrigible in not complying
with any of the order, when it came to paying maintenance to his wife and the minor child, that striking of defence was only a natural corollary.
13. Mr. Grover also took us through the list of properties of Bharat, which is annexed to the proceedings. He also took us through the
observations of the Family Court made in the Judgment and Order dated 31st December. 1999, while finally disposing of M. J, Petition No. B-52
of 1992 and M. J. Petition No. B-64 of 1992, so also, the observations made by the Single Judge in his Judgment and Order dated 1st March,
1994 while disposing of First Appeal No. 336 of 1990, Writ Petition No. 5884 of 1991 and Writ Petition No. 2289 of 1993. These observations
are to the effect that Bharat is a wealthy businessman. In fact, while confirming the interlocutory order, whereby Family Court had ordered Bharat
to pay Rs. 4,000/-per month to Reeta and Rs. 1,500/- per month to child Shikha by way of maintenance, there was a direction by this Court that
the quantum of maintenance be re-examined deeply. Accordingly, the Family Court while disposing of M. J. Petitions, ordered Bharat to pay Rs.
6,000/- per month to Reeta for her own maintenance u/s 18 of the Hindu Adoptions and Maintenance Act. 1956, as well as to pay Rs. 3,500/-
per month for the maintenance of their daughter Shikha u/s 20 of the Hindu Adoptions and Maintenance Act. 1956, from the date of the order i.e.
31st December, 1999. There is no compliance of this order also. No doubt, Family Court Appeal No. 16 of 2000 filed by Bharat and Family
Court Appeal No. 3 of 2000 filed by Reeta, so also, Family Court Appeal No. 15 of 2000 filed by Indu, are pending before this Court, and were
heard by this Bench, but there is no stay of the order dated 31st December, 1999, passed by the Family Court and Bharat ought to have complied
with the said order, whereby, he was ordered to pay maintenance of Rs. 6,000/- per month to Reeta and Rs. 3,500/- per month to Shikha. He has
also not cleared the arrears of maintenance payable to them. This fact is admitted by Mr. S. G. Deshpande, learned Counsel appearing for Bharat.
The sole contention canvassed for the total non-compliance of the orders of maintenance was that his financial position was bad, and therefore, he
was unable to comply with the said orders. Having heard Mr. Deshpande and Mr. Grover, and having gone through the entire proceedings, we are
unable to agree with the submissions made by Mr. Deshpande. We have therefore struck off Bharat''s defence, as he has failed to pay maintenance
to Reeta and Shikha as per the order passed by the Family Court. The Contempt Appeal No. 2 of 1999 also will have to be dismissed and the
interim stay granted by the Division Bench of this Court at the time of admission will have to be vacated.
14. For the same reasons and in view of the discussion above. Family Court Appeal No. 16 of 2000 filed by Bharat against the Judgment and
Order dated 31st December, 1999 also will have to be dismissed.
15. This leaves us to decide Family Court Appeal No. 3 of 2001 filed by Reeta, the two Letters Patent Appeal Nos. 86 of 1994 and 87 of 1994
again filed by Reeta, and Family Court Appeal No. 15 of 2000 filed by Indu.
16. By the impugned Judgment dated 31st December, 1999, Family Court had allowed Reeta''s M. J. Petition No. B-52 of 1992 with costs. It
gave a declaration which was sought by Reeta that Reeta''s marriage with Bharat was valid. As prayed by Reeta, Bharat was also restrained from
ousting Reeta from her matrimonial home i.e. 91 -A, Grand Paradi Apartments, 9th floor, August Kranti Marg, Bombay. Bharat was also directed
to pay maintenance amount of Rs. 6,000/- per month to Reeta for herself and Rs. 3,500/- per month for the maintenance of Shikha. Reeta also
was held to be entitled for permanent custody of daughter Shikha. It also dismissed, by the impugned common Judgment and Order, Indu''s M. J.
Petition No. B-64 of 1992, in which, Indu had sought a declaration that marriage of Bharat and Reeta be declared as illegal, bad-in-law, and void.
Thus, though all these favourable orders were passed, granting Reeta''s prayers, still Reeta has preferred Family Court Appeal No. 3 of 2001. She
is obviously unhappy with the quantum of maintenance, which is granted to her and to her child Shikha. According to her, considering the affluent
financial position of Bharat, she should have been granted more amount. She had asked for security deposit in her name to the tune of Rs.
75,000/- for future maintenance and a car for her use. These prayers were turned down by the Family Court. It is also her grievance that there was
no order expressing opinion on the validity of marriage of Indu with Bharat. She is also aggrieved by the fact that there was no order of permanent
injunction restraining Bharat, his family members, servants, agents, etc. from transferring, disposing, selling of or creating third party right in the
matrimonial house at Grand Paradi or order with respect to arrears of maintenance payable to her. This has led to the filing of Family Court Appeal
No. 3 of 2001 by Reeta.
17. Indu is obviously aggrieved by the impugned Judgment and Order dated 31st December. 1999 because the Family Court dismissed her M. J.
Petition No. B-64 of 1992 with costs. All the orders came to be passed in favour of Reeta and her Petition was allowed. Declaration, as sought by
Reeta, was given that her marriage with Bharat was valid, and that, she was the lawful wife of Bharat. No finding was given by the Family Court on
the issue whether Indu succeeded in proving that her marriage with Bharat solemnised on 26th January, 1981 was legally and validly subsisting. No
such finding could be given by the Family Court, inasmuch as, Letters Patent Appeal on this very issue was pending before this Court.
18. Both the Letters Patent Appeals are filed by Reeta against the order passed by the learned Single Judge of this Court dated 1st March, 1994.
The question involved in both these Letters Patent Appeals is with respect to legality of marriage of Reeta with Bharat, so also, marriage of Indu
with Bharat.
19. Mr. Grover, appearing for Reeta forcefully submitted that as far as status of Reeta, as the wife of Bharat was concerned, the said declaration
was rightly given by the Family Court, and that, it has to be upheld in view of the Supreme Court Judgment in Smt. Lila Gupta v. Laxmi Narain.
Mr. Grover drew our attention to Section 15 of the Hindu Marriage Act, 1955 and submitted that Reeta''s marriage with Bharat was a legal and
valid marriage, inasmuch as, it was solemnised after ex parte decree dissolving marriage of Bharat with Indu was passed on 12th September,
1989, and after the prescribed appeal period for challenging the said exports decree was over. He also submitted that the proviso to Section 15 of
the Act requiring the divorced parties to wait for one year from the date of decree dissolving the marriage, being deleted by the Marriage
Amendment Act, 1976, there was no bar for Bharat to marry Reeta after the appeal period was over. He also submitted that the fact about the ex
parte decree being passed by the City Civil Court Judge on 12th September, 1989, became known to Indu because Indu''s Advocate applied for
certified copy of the same on 29th September, 1989, though application for setting aside the ex-parte decree came to be filed in the Family Court
much later. He argued that Bharat''s marriage with Reeta was solemnised 54 days after the ex parte decree dissolving Bharat''s marriage with Indu
was passed. According to him, application for setting aside the ex-parte decree was beyond the prescribed period of time and that, it was also
improper for Indu to also file First Appeal in this Court against the said ex parte decree passed against her. He also castigated Bharat''s conduct in
not revealing the fact of his remarriage with Reeta, while filing affidavit-in-reply to oppose Indu''s application for setting aside the ex parte decree
dissolving Bharat''s marriage with Indu. He submitted that though his client had sort of accepted the fact that Bharat was no more with her, and
that, he had reconciled and reunited with Indu, the amount of maintenance was a meagre amount, considering Bharat''s financial position. Mr.
Grover submitted that though Reeta had accepted the harsh reality of Bharat no more loving her, she had to maintain herself and the minor child
Shikha, whose responsibility Bharat could not abdicate.
20. We have heard Mr. Grover''s submissions at length. Since Section 15 of the Hindu Marriage Act, 1955 has much relevance and bearing in
deciding this matter, it will be convenient to reproduce the same.
15. Divorced persons when may marry again.- 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.
21. In Lila Gupta''s case (supra), the effect of marriage contracted in contravention of proviso to Section 15 of the Hindu Marriage Act. 1955
came for consideration. The said proviso which was subsequently deleted by Section 9 of the Marriage Laws (Amendment) Act, 1976, read as
follows :
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.
22. Thus, the substantive para of Section 15 enables divorced persons to marry again and the proviso to Section 15 (which is now deleted)
prescribed a time limit, within which such divorced persons could not contract marriage, and the time prescribed was a period of one year from the
date of the decree in the Court of the first instance.
23. In Lila Gupta''s case (supra), the facts were as follows : One Rajendra Kumar, whose widow appellant Lila Gupta claimed to be, had
contracted marriage with one Sarla Gupta. Both Rajendra Kumar and Sarla Gupta filed suit against each other praying for a decree of divorce.
These suits ended in a decree of divorce on April 8. 1963. Soon thereafter, on May 25, 1963, Rajendra Kumar contracted second marriage with
appellant Lila Gupta. Unfortunately, Rajendra Kumar expired on May 7, 1965. Disputes then arose in consolidation proceedings between the
appellant Lila Gupta, claiming as widow of deceased Rajendra Kumar and Respondents, who were brothers and brother''s sons of Rajendra
Kumar, about succession to the Bhumidhari rights in respect of certain plots of land enjoyed by Rajendra Kumar in his lifetime, the latter
challenging the status of the appellant Lila Gupta to be the widow of Rajendra Kumar, on the ground that her marriage with Rajendra Kumar was
void, as it was contracted in violation of the provisions contained in the proviso to Section 15 of the Hindu Marriage Act, 1955. The final authority
i.e. Deputy Director of Consolidation upheld the claim of the appellant Lila Gupta. This decision was challenged by the respondents in six Petitions
filed under Article 227 of the Constitution in the High Court of Allahabad. The learned Single Judge before whom these petitions came up for
hearing was of the opinion that the marriage of Rajendra Kumar with the appellant Lila Gupta on May 25. 1963, being in contravention of the
proviso to Section 15 was null and void. He accordingly allowed the writ petitions and quashed the orders of the Settlement Officer (Consolidation
and of the Deputy Director of Consolidations) and restored the order of the Consolidation Officer. The appellant Lila Gupta then preferred six
different appeals under the Letters Patent. The Division Bench dismissed these appeals and confirmed the order of the learned Single Judge. The
Division Bench also granted certificate under Article 133(1)(c) to the appellant Lila Gupta and that is how the matters landed in the Supreme
Court.
24. The short and narrow question going to the root of the matter which was before the Supreme Court in Lila Gupta''s case (supra) was, whether
a marriage contracted in contravention of or violation of the proviso to Section 15 of the Hindu Marriage Act, 1955 was void or merely invalid not
affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing from the marriage ?
25. After discussing the Scheme of Hindu Marriage Act, 1955, and more particularly, Sections 5 and 11 of the said Act, this is what the Supreme
Court observed :
A comprehensive review of the relevant provisions of the Act unmistakably manifests the legislative thrust that every marriage solemnised in
contravention of one or other condition prescribed for valid marriage is not void. Section 5 prescribes six conditions for valid marriage. Section 11
renders marriage solemnised in contravention of conditions (i), (iv) and (v) of Section 5 only, void, Two incontrovertible propositions emerge from
a combined reading of Sections 5 and 11 and other provisions of the Act, that the Act specifies conditions for valid marriage and a marriage
contracted in breach of some but not all of them renders the marriage void. The statute thus prescribes conditions for valid marriage and also does
not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would be treated
as a breach of a pre-requisite for a valid marriage rendering it void. The law while prescribing conditions for valid marriage simultaneously
prescribes that breach of some of the conditions but not all would render the marriage void. Simultaneously, the Act is conspicuously silent on the
effect on a marriage solemnised in contravention or breach of the time bound prohibition enacted in Section 15. A further aspect that stares into the
face is that while a marriage solemnised in contravention of Clauses (iii), (iv), (v) and (vi) of Section 5 is made penal, a marriage in contravention of
the prohibition prescribed by the proviso does not attract any penalty. The Act is suggestively silent on the question as to what is the effect on the
marriage contracted by two persons one or both of whom were incapacitated from contracting marriage at the time when it was contracted in view
of the fact that a period of one year had not elapsed since the dissolution of their earlier marriage by a decree of divorce granted by the Court of
first instance. Such a marriage is not expressly declared void nor made punishable though marriages in breach of conditions Nos. (1), (iv) and (v)
are expressly declared void and marriages in breach of conditions Nos. (iii), (iv), (v) and (vi) of Section 5 are specifically made punishable by
Section 18. These express provisions would show that Parliament was aware about treating any specific marriage void and only specific marriages
punishable. This express provision prima facie would go a long way to negative any suggestion of a marriage such as in breach of proviso to
Section 15 as being void by necessary implication- The net effect of it is that at any rate Parliament did not think fit to treat such marriage void or
that it is so opposed to public policy as to make it punishable.
The Supreme Court also expressed doubt as to whether the framers of the law intended that marriage contracted in violation of the provision
contained in the proviso to Section 15 to be void or not. It observed that :-
In the Act under discussion there is a specific provision for treating certain marriages contracted in breach of certain conditions prescribed for
valid marriage in the same Act as void and simultaneously no specific provision having been made for treating certain other marriages in breach of
certain conditions as void. In this background even though the proviso is couched in prohibitory and negative language, in the absence of an
express provision it is not possible to infer nullity in respect of a marriage contracted by a person under incapacity prescribed by the proviso.
Supreme Court therefore expressed doubt when it said that even though the proviso opened with a prohibition, whether it was an absolute
prohibition, violation of which would render the Act a nullity. According to the Supreme Court, a person whose marriage was dissolved by a
decree of divorce, suffered an incapacity for a period of one year for contracting second marriage, and for such a person, it was not lawful to
contract a second marriage within a period of one year from the date of the decree of the Court of first instance. It further observed that a decree
of divorce breaks the marriage tie. Incapacity for marriage of such persons whose marriage is dissolved by a decree of divorce for a period of one
year was presumably enacted to allay apprehension that divorce was sought only for contracting another marriage or to avoid dispute about the
parentage of children because at the time of the divorce the wife may be pregnant. Supreme Court, therefore, again expressed a doubt as to
whether this was based on the principle of public policy, and whether such public policy was of paramount consideration as to render the marriage
in breach of it void, inasmuch as, it appeared to be purely a regulatory measure for avoiding a possible confusion.
Supreme Court in Lila Gupta''s case (supra), also took a note of the fact that by subsequent Marriage Laws (Amendment) Act, 1976, the said
proviso to Section 15 of the Act came to be deleted. It therefore observed that if the proviso was so sacrosanct that its violation would render the
marriage void, then it was not possible to appreciate why the Parliament completely dropped it, and this position therefore reinforced the
contention that such marriage was not void.
26. In Chandra Mohini v. Avinash Prasad, the decree of divorce was granted by the High Court reversing the dismissal of the Petition of the
husband by the Trial Court. Soon thereafter, the husband contracted second marriage. Some time thereafter, the wife moved for obtaining special
leave to appeal under Article 126 of the Constitution, which was granted. The husband thereafter moved for revoking the leave. While rejecting the
petition for revocation of special leave granted to the wife, the Supreme Court observed that :-
even though it may not have been unlawful for the husband to have married immediately after the High Court''s decree or no appeal as of right lies
from the decree of the High Court to this Court, still it was for the respondent to make sure whether an application for special leave had been filed
in this Court and he could not, by marrying immediately after the High Court''s decree, deprive the wife of the chance of presenting a SLP to this
Court. If a person does so, he takes a risk and could not ask the Court to revoke the special leave on that ground.
27. Thus, according to the Supreme Court, as observed in Lila Gupta''s case (supra), the fact that neither spouse after decree of divorce, could
remarry until the time for appealing had expired, in no way affects the full operation of the decree. It was a Judgment in rem and unless and until a
Court of appeal reversed it, the marriage for all purposes was at an end.
28. The reason for arriving at such a conclusion is given by the Supreme Court in Lila Gupta''s case (supra) as follows :
............ A decree of divorce breaks the marital tie and the parties forfeit the status of husband and wife in relation to each other. Each one
becomes competent to contract another marriage as provided by Section 15. Merely because each one of them is prohibited from contracting a
second marriage for a certain period it could not be said that despite there being a decree of divorce for certain purposes the first marriage subsists
or is presumed to subsist. Some incident of marriage does survive the decree of divorce; say, liability to pay permanent alimony but on that account
it cannot be said that the marriage subsists beyond the date of decree of divorce ....... The dissolution is complete once the decree is made, subject
of course, to appeal ........ No incident of such dissolved marriage can bridge and bind the parties whose marriage is dissolved by divorce at a time
posterior to the date of decree. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as
subsisting. During the period of incapacity the parties cannot be said to be the spouses within the meaning of Clause (i), sub-section (1) of Section
5....
The Supreme Court also examined Section 57 of the Indian Divorce Act. 1869 which provides for divorce professing Christian religion, which has
identical provision and which has been consistently interpreted to mean that a marriage contracted during the period prescribed in the fifth
paragraph of Section 57 after a decree dissolving the marriage would be void. While commenting on Section 57 of the Indian Divorce Act. 1869,
the Supreme Court stated as follows :
..,... But a mere glance at Section 15 of the Act (Hindu Marriage Act, 1955) and Section 57 of the Indian Divorce Act would clearly show that
the provisions are not in part materia. Under the Indian Divorce Act a decree nisi has to be passed and unless confirmed by High Court it is not
effective and in the proceedings for confirmation, the decree nisi can be questioned. No such requirement is to be found under the Act. Further, u/s
15 the period of one year is to be computed from the date of decree of the Court of first instance which means that a decree of divorce is made by
the Court of first instance while u/s 57 of the Indian Divorce Act the period of six months is to be computed from the date of an order of the High
Court confirming the decree for dissolution of a marriage made by a District Judge or when an appeal has been preferred in the appellant
jurisdiction of the High Court when the appeal is dismissed and the parties even cannot marry if an appeal has been presented to the Supreme
Court. u/s 15 if the decree of divorce is granted not by the Court of first instance but by the Appellate Court the proviso would not be attracted.
There is thus a material difference in respect of the starting point of the period u/s 57.
29. Reference was also made by Supreme Court in Ma Gupta''s case (supra) to similar provisions under the Mohammedan Law. It observed that
under the Mohammedan Law, after the divorce, the traditional law did not permit a divorced wife to contract second marriage during the period of
Iddat and in the past such marriage was considered void. The marriage was treated void interpreting a certain text of the Hanafi Law. Recent trend
of decision quoted in Mulla''s Principles of Mohammedan Law, 17th Edition, edited by M. Hidayatullah, former Chief Justice of India, clearly
bears out the proposition that under the Mohammedan Law, a marriage of a woman undergoing Iddat is not void but merely irregular. Supreme
Court quoted the said passage from Page No. 252, which is given below :
A marriage with a woman before completion of her iddat is irregular, not void. The Lahore High Court at one time treated such marriages as void
Jhandu it. Mst. Hasain Bibi, but in a later decision held that such a marriage is irregular and the children legitimate Muhammed Hayat v.
Muhammed Nawaz.
30. As a conclusion, the Supreme Court observed in Lila Gupta''s case (supra) that examining the matter from all possible angles and keeping in
view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable
yet not void and no consequences having been provided for in respect of the marriage in contravention of the proviso to Section 15, it cannot be
said that such marriage would be void. Reaching this conclusion, Supreme Court then held that Lila Gupta was denied the status of the wife of
Rajendra Kumar and, therefore, his widow, and an heir to him on his death on the only ground that her marriage with Rajendra Kumar was void,
being in contravention of the proviso to Section 15. It then concluded that, as her marriage, even though in contravention of the provisions of
Section 15, was not void, she could not be denied the status of wife, and therefore, the widow of deceased Rajendra Kumar, and in that capacity,
as an heir to him, all the appeals filed by Lila Gupta were thus allowed, and the decision of the High Court in Special Appeals was quashed and set
aside.
31. In the concurring, but separate Judgment, R. S. Pathak, J. also observed in Lila Gupta''s case (supra) that :-
.......... a marriage, although in violation of the statute, is not void because the Legislature has not expressly declared it to be so, and also because
the Legislature has made no provision for legitimating the offspring of such a marriage, need to be viewed with caution. These are tests which could
equally be invoked to construction of the main provision of Section 15.
32. Mr. Grover, learned Counsel representing Reeta, heavily relying upon Lila Gupta''s case (supra), drew the analogy from the facts of that case
and comparing them with the facts of the present case at hand, argued that the marriage of Reeta and Bharat took place 54 days after the appeal
period was over, and that, during that period, there was no bar or impediment of any sort for Bharat and Reeta to get married. He submitted that
the conclusion arrived at by the Family Court in the impugned Judgment dated 31st December, 1999, was therefore correct.
33. Mr. Angal, learned Counsel representing Indu, on the other hand, submitted that it was improper for the Family Court to rely upon the case of
Lila Gupta (supra). His argument was that since the First Appeal No. 336 of 1990 challenging the ex parte decree dated 12th September. 1989
passed by City Civil Court Judge was allowed, and since Writ Petition No. 5884 of 1991 filed by Bharat, challenging the setting aside of the ex
parte decree by Family Court in Miscellaneous Application No. 2 of 1990 was dismissed, and since M. J. Petition No. B-56 of 1984 filed by
Bharat was dismissed as withdrawn, there was nothing before this Court to decide, more so, when Reeta was not a party or even an intervenor in
the First Appeal.
34. This contention of Mr. Angal, however, was countered by Mr. Grover, submitting that Reeta was heard in First Appeal filed by Indu, and that,
this was with the specific permission of the Court, and that, it was not that she was not allowed to intervene. He argued that this was rightly done in
view of the principles of natural justice since Reeta was the affected party, and no order could be passed without hearing her.
35. We are in agreement with the submissions of Mr. Grover. After perusing the Roznama, it is revealed that Reeta''s prayer for being heard was
specifically granted by the Court. This was a question of status of a person, and judgment pronounced was a judgment in rem.
36. Mr. Angal also submitted that Indu, indeed had two concurrent remedies, one was to file application under Order IX Rule 13 of the CPC to
set aside the ex parte decree, dissolving her marriage with Bharat, and that, she also had another concurrent remedy of approaching this Court by
filing First Appeal, challenging the very same order of ex parte decree, dissolving her marriage with Bharat. Mr. Angal, relying upon Arun Pawar v.
Laxmi, also submitted that not only provisions of Order IX Rule 13 of the CPC were applicable to the proceedings under the Hindu Marriage Act,
but that, by virtue of Section 21 of the Hindu Marriage Act, Article 123 as well as Section 5 of the Limitation Act, 1963 was applicable to the suits
and other proceedings under the Hindu Marriage Act, 1955. Mr. Angal, therefore, submitted that there was nothing wrong when the Family Court
condoned the delay in making an application for setting aside the ex parte order dissolving Indu''s marriage with Bharat, and entertaining the said
application. He also relied upon Lata v. Vilas, to substantiate his argument that in an appeal u/s 28 of the Hindu Marriage Act. Section 12(2) of the
Limitation Act is applicable and therefore, time required for obtaining copies of the judgment, will have to be excluded for computing the period of
limitation for appeal.
37. There is no quarrel with these propositions put forth by Mr. Angal, who is appearing for Indu. This indeed is the legal position. We therefore
hold that there was nothing wrong in Indu taking recourse to both the remedies-one by way of making an application under Order IX Rule 13 of
the Civil Procedure Code, for setting aside the ex parte decree passed against her, and another remedy by way of filing First Appeal in the High
Court against ex parte order passed by the City Civil Court, dissolving her marriage with Bharat.
38. Mr. Grover also made a reference to some other Judgments of the Supreme Court like ""Tejendra Kaur v. Gurmit Singh; Vathsala v.
Manoharan, etc., where the question of nullity of marriage u/s 12 was under consideration. We are not referring to them, as in the present case at
hand, we are concerned with the provisions of Section 13, where the marriage is dissolved by a decree of divorce, and we are not concerned with
the question of nullity of marriage.
39. Having heard both the Advocates at length and having gone through the entire proceedings and the various Judgments cited by both the sides,
we are of the view that the Family Court was right in arriving at the finding that Reeta''s marriage with Bharat was a valid marriage. The situation in
the present case is more or less similar to the situation in Lila Gupta''s case (supra), with the exception that in Lila Gupta''s case (supra), the
question involved was with respect to rights of inheritance and rights, as a whole of the heir of the deceased Rajendra Kumar. In the present case,
however, the question is not with respect to inheritance, as all the parties are very much alive. Since under the Hindu Marriage Act, 1955,
monogamy is the rule, it cannot be said that Indu and Reeta both, at the same time, are Bharat''s legally wedded wives. It can only be said that
keeping in view the provisions of the Hindu Marriage Act, and the peculiar facts and circumstances of the case that Bharat has reconciled with
Indu, his first wife, and the relationship between Bharat and Reeta has hit a rock-bottom, and in fact, Reeta herself had prayed for injunction
restraining Bharat from entering her bedroom, which was granted, what is relevant and practical to consider is only the incidence of Bharat''s
marriage with Reeta, and the aspect of maintenance to be paid to the wife Reeta and their minor child Shikha. Since Bharat has another wife
namely. Indu living, Reeta is entitled u/s 18 of the Hindu Adoptions and Maintenance Act, 1956 to live separately from Bharat, and claim
maintenance, so also. Bharat is under obligation to maintain his child Shikha. He cannot escape from this liability. The proceedings reveal that he
has flouted all the orders of the Court, which were passed from time to time, ordering him to pay maintenance to Reeta and Shikha. He has not
complied with several such interlocutory orders, nor has he complied with the final order passed by the Family Court by its impugned Judgment
and Order dated 31st December, 1999. The learned Single Judge was right in holding Bharat guilty of contempt and sentencing him to suffer
simple imprisonment for three months. We have already given our reasons for vacating the interim stay granted by the Division Bench of this Court,
at the time of admission of the said Contempt Petition, upholding the order of the Single Judge. In view of the aforesaid discussion, we pass
following order :
Letters Patent Appeal No. 86 of 1994 and Letters Patent Appeal No. 87 of 1994 are hereby dismissed.
In view of the dismissal of Letters Patent Appeal No. 87 of 1994. Civil Application Nos. 5565 of 1997 and 5140 of 1998 in Letters Patent
Appeal No. 87 of 1994 do not survive, and the same are accordingly disposed of.
Family Court Appeal No. 16 of 2000 and Family Court Appeal No. 15 of 2000 are hereby dismissed.
Civil Application No. 4277 of 2000 in Contempt Appeal No. 2 of 1999 is allowed in terms of prayer clauses (a) and (b).
Contempt Appeal No. 2 of 1999 is hereby dismissed. Stay granted by this Court stands vacated. Bharat to undergo imprisonment as per the order
dated 28th January, 1999.
Family Court Appeal No. 3 of 2000 is allowed to the extent of the claim for maintenance made by Reeta from Bharat.
Bharat to pay the entire amount of arrears of maintenance payable to Reeta and Shikha within a period of six months from today. He will also
continue to pay the maintenance amount of Rs. 6,000/- per month to Reeta and Rs. 3,500/- per month to Shikha, as directed by the Family Court,
on or before 15th day of every calender month.
After pronouncement of the Judgment, Mr. S. G. Deshpande, learned Counsel for Bharat Arora, sought stay of the Judgment for eight weeks. His
application for stay is rejected.
Issuance of certified copy is expedited.