High Court of Punjab and HaryanaFAO/3075/2024dismissed

Prabhdeep Kaur v. Harjiwan Singh

2024-07-29Mr. Justice Sureshwar Thakur,Mrs. Justice Sudeepti Sharma30 pages

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Present:

Mr. Rahul Aggarwal, Advocate for the appellants. 6 6

The present application has been filed seeking condonation of delay of 151 days in filing the instant appeal. For the reasons mentioned in the application, which is duly supported by an affidavit, the application is allowed and delay of 151 days in filing the instant appeal is condoned.

The present appeal is filed against the judgment and decree dated 03.11.2023 whereby petition filed under Section 13 B of Hindu Marriage Act, 1955 (hereinafter referred as 'Act') was allowed and marriage between the petitioners was dissolved w.e.f. 03.11.2023 by passing a decree of divorce by mutual consent under Section 13 B of Hindu Marriage Act, 1955. As per the judgment dated 03.11.2023, the custody of minor daughter

was given to petitioner No.2 i.e. mother. It was further stated in the judgment that the parties would remain bound by their statements made in the Court.

6 6 2.

The marriage between the parties was solemnized on 25.11.2016 at village Badrukhan as per the Anand Karaz ceremony. Following the marriage, the parties lived together as husband and wife and cohabited with each other. Out of this wedlock, a daughter was born on 31.01.2018. Due to the temperamental differences, the parties began living separately since December, 2021. Subsequently, they decided to dissolve their marriage by filing a petition under Section 13 B of the Act. The appellants filed a petition bearing No.HMA no.1205 of 2023 in the Court of learned Additional Principal Judge, Family Court, Sangrur on 27.04.2023. The preliminary statements of the parties were recorded on 27.04.2023 and the second motion statements were recorded on 03.11.2023. On 03.11.2023, the learned trial Court passed a decree of divorce under Section 13 B of the Act thereby dissolving their marriage with mutual consent. The custody of the minor daughter was given to the mother present appellant No.1 herein. 6 666 69 3.

Learned counsel for the appellants submit that after obtaining a decree of divorce by mutual consent, the appellants have realized their mistake and now they want to stay together for the welfare of the minor child, since their divorce affected the minor child the most. 4.

We have heard learned counsel for the parties and perused the whole record.

The question of law to be determined by this Court in the

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Learned counsel for the appellant has relied upon the following judgments:

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For proper adjudication of the question framed by this Court in the present case, the judgment of /#4"-&+ /-!1+#.+0

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referred to by learned counsel for the appellant is required to be reproduced and the same is reproduced as under:

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2 966

/6 / 9 6 The facts in the present case are altogether different and distinguishable from those in the judgment passed in /#4"-&+ /-!1+#.+0 (supra). In /#4"-&+ /-!1+#.+0 (supra), the wife had filed appeal against decree of divorce by mutual consent under Section 13B of the Act, contending that the decree of divorce has been granted without following the procedure mandated by Section 13B (2) and without satisfying the requirement of Section 23 (1) (bb) of the Act. Therefore, this Court in /#4"-&+ /-!1+#.+0 's case held that appeal under Section 28 would be maintainable against decree of dissolution of marriage under Section 13B of the Act (divorce by mutual consent).

In this case initially there was a dispute between the parties regrading which husband filed petition under Section 13 of the Act against the wife, which was subsequently converted to a petition under Section 13B of the Act. Furthermore, wife was not granted mandatory six months period for reconsideration/rethinking, as provided under Section 13B (2) of the Act. Therefore, that would not amount to a decree under Section 13B by mutual consent, because the wife was aggrieved by Court's decision to deny her sufficient time to rethink/reconcile about her decision of giving consent to the divorce by mutual consent. Therefore, the divorce granted in /#4"-&+ /-"!1+#.+0 (supra) cannot be considered as a valid decree of divorce under Section 13B of the Act, as it lacked mutual consent. It is further clarified that divorce granted in /#4"-&+ /-!1+#.+0's case under Section 13B by mutual

consent will not amount to divorce under Section 13B of the Act because there was consent of one party only as per the facts and circumstances of the case.

The other two judgments have followed the ratio in /#4"-&+ /-!1+#.+0 supra) and have allowed the appeal.

6 92

266 26 66 9.

It would be relevant for proper adjudication of the questions framed by us to reproduce certain provisions of various legislation. 10.

The relevant provisions, the object and the reasons behind the enactment of Hindu Marriage Act is reproduced as under: i) to liberalize the provisions relating to divorce; ii) to enable expeditious disposal of proceedings under the Act; and iii) to remove certain anomalies and handicaps that have come to light after the passing of the Act.

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# + 4&%( +##4+7!'DA marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity

(iii) the bridegroom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two". 6!)14 & * !#!= &4!"

# + 4&%( +##4+7!.- "(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken."

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(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party [(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] (ii) has ceased to be a Hindu by conversion to another religion; or

[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.-In this clause,- (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or (v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

[Explanation.-In this sub section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

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[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] 6!)14 &

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,> =(1(+0 ) &"!&1.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

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5-!& =+> =+##> +7+4&-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." 6!)14 &

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?;'DSubject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

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4& .# )!!%4&7"'D(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that (a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub clause (a), sub clause (b) or sub clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in clause (i) of sub section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and 2 [(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and] (c) [the petition (not being a petition presented under section 11)] is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties: [Provided that nothing contained in this sub section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub section (1) of section 13.]

(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.] 6!)14 &

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#%!#"-"(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of

sub section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a 3 [period of ninety days] from the date of the decree or order." 6!)14 &

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-"All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced." 29

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#474&+0 %!)#!!-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed ten thousand rupees.

9 966 < ;? 6!)14 & !

4&414 &"-In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,

(3) "affidavit" shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing;

(37) "oath" shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing

(38) "offence" shall mean any act or omission made punishable by any law for the time being in force;

(62) "swear", with its grammatical variations and cognate expressions, shall include affirming and declaring in the case of persons by law allowed to affirm or declare instead of swearing; 3 [(62A) "Union territory" shall mean any Union territory specified in the First Schedule to the Constitution and shall include any other territory comprised within the territory of India but not specified in that Schedule;] 6 < ? 6!)14 &

4&414 &"-In this Act, unless the context otherwise requires,- (b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;

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) (#1".-Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself:

Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).

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(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:

Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.

Explanation.-An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub section (1) for any contempt either in respect of itself or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary

shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:

Provided that nothing contained in this sub section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

(5) Notwithstanding anything contained in sub section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to 5 be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer. Explanation.-For the purpose of sub sections (4) and (5),- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm."

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* Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

Explanation 1.-A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2.-A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

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$4%!&)! (1) Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine which may extend to ten thousand rupees.

(2) Whoever intentionally gives or fabricates false evidence in any case other than that referred to in sub section (1), shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine which may extend to five thousand rupees.

Explanation 1.-A trial before a Court martial is a judicial proceeding.

Explanation 2.-An investigation directed by law preliminary to a proceeding before a Court, is a stage of a judicial proceeding, though that investigation may not take place before a Court. 6 < ??

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#!) #%DEvery High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

96 6 A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the 'intention' of its maker. A statute is to be construed according to the intent of those that make it' and 'the duty of judicature is to act upon the true intention of the Legislature '. The expression 'intention of the Legislature' is a shorthand reference to the meaning of the words used by the Legislature objectively determined with the guidance furnished by the accepted principles of interpretation. If a statutory provision is open to more than one interpretation the court has to choose that interpretation which represents the true intention of the Legislature, in other words the 'legal meaning' or 'true meaning of the statutory provision.

The task is often not an easy one and the difficulties arise because of various reasons. To mention a few of them: Words in any language are not scientific symbols having any precise or definite meaning, and language is but an imperfect medium to convey one's thought, much less of a large assembly consisting of persons of various shades of opinion.

enacting a statute where its application may be called for. The function of the courts is only to expound and not to legislate. 966

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of the Hindu Marriage Act, 1955 that all proceedings under the Hindu Marriage Act shall be regulated by the Code of Civil Procedure, 1908. Further, the Marginal Heading of Section 21 is "..04)+14 &

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; of the Hindu Marriage Act, 1955 specifically states that all decrees made by the Court in any proceedings under this Act shall, subject to the provisions of sub Section 3 be appealable, as decrees of the Courts made in the exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which appeals ordinarily lie from decisions of the Court given in the exercise of its original jurisdiction and the procedure to be followed by the Court in the exercise of its original jurisdiction is the civil procedure.

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talks about appeals from original decrees wherein it has been specifically mentioned that no appeal shall lie from a decree passed with the consent of the parties. 4.

Though the provisions of appeal from decrees and orders is also mentioned in the Hindu Marriage Act, which is enacted in the year 1955 but therein also it is stated that all decrees passed by the Court in any proceedings under the Hindu Marriage Act, 1955 shall be appealable as decrees of the Court made in exercise of original civil jurisdiction. 5.

A perusal of Section 28 A of Hindu Marriage Act, 1955 which refers to the enforcement of decrees and orders, shows that all decrees and orders made by the Court in any proceeding under this act (Hindu Marriage Act)

;

shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for time being in force, meaning thereby that the Civil Procedure Code which is an enactment of the Legislation since the year 1908 would be applicable. 6.

The statutory provision under Civil Procedure Code can not be ignored, for the provision of appeal as mentioned in Section 28 of Hindu Marriage Act, 1955, which says that all decrees made by the Court in any proceeding under the Hindu Marriage Act are appealable. The procedure which is to be followed for filing of the appeal and maintainability of the appeal is the Civil Procedure Code. This intention of the legislature is shown in Section 21 and 28A of the Act, which clarified that Act 5 of 1908 (Code of Civil Procedure) would be applicable.

The intention of the Legislature under Section 28 of the HMA wherein decrees made by the Court in any proceeding under the Hindu Marriage Act 1955 shall be appealable includes all decrees except decree under Section 13 B which is divorce by mutual consent.

Since there is a bar under Section 96(3) of CPC that no appeal shall lie from decree passed by the Court with the consent of the parties. Therefore, no appeal shall lie from decree passed by the Court with the consent of the parties under Section 13 B of the Act. Appeal under Section 13 B would be maintainable only on the ground that the consent was obtained by force, fraud or undue influence.

In view of Section 96(3) of CPC, no appeal shall lie against the consent decrees. If the legislature had intended for decrees, under Section 13 B to be appealable, then provisions under Sections 21 and 28A of the Act and 96(3) of CPC, would be rendered redundant.

10.

Provisions of Section 15 of Act, provides that when a marriage has been dissolved by 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. If the legislation had intended to include Section 13 B of the Act, the wording in Section 15 of the Act that "

Cwould become meaningless.

11.

In matrimonial matters, it is often observed that appeals remain pending for extended period and after getting divorce under Section 13 B of the Act in which sufficient time period is given to the parties and the statements are made on oath in the Courts and in the decrees, it is stated that the parties shall remain bound by their statements made in the Court. Permitting parties to subsequently retract their sworn statements and assert a desire to reconcile, by stating that they have realised their mistake and now they want to live together, would amount/constitute Contempt of Court and perjury. Additionally this behavior would undermine the authority of the Court. Insult its proceedings and make a mockery of its verdict. 12.

Given the significant pendency in the Courts, allowing parties to further delay proceedings by seeking to set aside a decree, they initially sought by giving their mutual consent, would only make the backlog worse. 13.

The litigants must respect the orders/judgments passed by the Courts, that is the reason for enactment of Contempt of Court Act. If the Court themselves begin(s) to stamp the contempt of Court, then the deterrence of contempt of Court act would be washed away.

14.

In view of the above, question No.1 is answered in negative. It is held that no appeal under Section 28 of the Act against dissolution of marriage by mutual consent under Section 13 B of the Act would be maintainable, in view of the provisions of Section 96(3) of Code of Civil Procedure, 1908.

15.

This Court has reproduced the relevant provisions of the Act to show the intention of the legislature in honouring the belief of the society. 16.

Reverting back to the instant appeal. Since the parties have now realised their mistake and want to live together, as per Section 15 of the Act, they are allowed to marry again. There is no bar in the Act for re marriage of the parties, who have been granted divorce decree. 17.

In view of the above, the present appeal is dismissed as not maintainable. The parties are free to marry again. 18.

All the pending applications also stand disposed of. 66: /

6 6

July 29, 2024 sonia arora Whether speaking/reasoned:

Yes Whether reportable:

Yes