Remarriage under Iddat and IDA 1869

Dear Assumi Sir,

Under the Mohammadan 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 discernible public policy behind treating such marriage void was confusion about the parentage of the child, if the woman was pregnant at the time of divorce. The marriage was treated void interpreting a certain text of the Hanafi law. Recent trend, however, is that under the Mohmadan Law a marriage of a woman undergoing iddat is not void but merely irregular.If public policy behind prohibiting marriage of a woman undergoing iddat and persons who are prohibited from marrying for a period of one year from the date of the decree dissolving their marriage is the same, viz., to avoid confusion about the parentage of the child which may have been conceived or the divorce sought to be obtained only for contracting second marriage, then the same conclusion may follow that such regulatory prohibition if violated or contravened could not render the marriage void. Muhammad Hayat v. Muhammad Nawaz, [1935] 17 L.R. Lah. 48 followed.

It was, however, said that an identical provision in s. 57 of the Indian Divorce Act, 1869, has been consistently interpreted to mean that a marriage contracted during the period prescribed in the fifth paragraph of s. 57 after a decree dissolving the marriage would be void. The Indian Divorce Act provides for the divorce of persons professing Christian religion. Section 57 provides for liberty to parties whose marriage is dissolved by a decree of divorce to marry again. Section 57 reads as under :

"57. When six months after the date of an order of a High Court confirming the decree for a dissolution of marriage made by a District Judge have expired, or when six months after the date of any decree of a High Court dissolving a marriage have expired, and no appeal has been presented against such decree to the High Court in its appellate jurisdiction, or when any such appeal has been dismissed. or when in the result of any such appeal any marriage is declared to be dissolved, but not sooner, it shall be lawful for the respective parties to the marriage to marry again, as if the prior marriage had been dissolved by death :

Provided that no appeal to the Supreme Court has been presented against any such order or decree. When such appeal has been dismissed, or when in the result thereof the marriage is declared to be dissolved, but not sooner, it shall be lawful for the respective parties to the marriage to marry again as if the prior marriage had been dissolved by death." 935 We would presently examine the scheme of s. 57 to appreciate the contention that the section is in pari materia with s. 15 of the Act. Section 57 grants liberty to the parties whose marriage is dissolved by a decree of divorce to marry, but prohibits them from marrying again within the prescribed period. The question in terms raised was whether a marriage during the period of prohibition was void. Undoubtedly, consistently such marriage has been held to be void following- the earliest decision in Warter v. Warter(1). In that case the matter came before the court on a petition for probate of a will made by one Colonel Henry De Grey Warter who had contracted marriage with one Mrs. Tayloe on February 3, 1880, whose former marriage, with Mr. Tayloe was dissolved by a decree absolute of November 27, 1879. He made his will on February 6, 1880. Subsequently on legal advice both of them went through a second form of marriage on April 2, 1881.' The contention was that by the second marriage the Will was revoked and that is how the validity of the first marriage was put in issue. Upholding the contention it was held that Mrs. Tayloe could only contract a valid second marriage by showing that the incapacity arising from her previous marriage had been effectually removed by the proceedings taken under that law. This could not be done, as the Indian law, like the English law, does not completely dissolve the tie of marriage until the lapse of a specific time after the decree. The prescribed period was held as ,in integral part of the proceedings by which alone both parties could be released from their incapacity to contract a fresh marriage. Thus the previous marriage was held to be void and of no consequence in law. This decision in Warter v. Warter was followed in J. S. Battie v. G. E. Brown ;(2) Turner v. Turner;(3) Jackson v. Jackson(4). If provision contained in s. 15 along with its proviso was in pari materia with s. 57 of tile Indian Divorce Act, it would have become necessary for us to examine the correctness of the ratio in aforementioned decisions. But a mere glance at s. 15 of the Act and s. 57 of the , Indian Divorce Act would clearly show that the provisions are not in pari 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, under 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 under 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 appellate jurisdiction of the High Court when the appeal is dismissed and the parties even cannot marry if ,in appeal has been presented to the Supreme Court. Under 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 mate- (1) [ 1 890] 1 5 4Probate Division 152.

(2) AIR 1916 Madras 847.

(3) AIR 1921 Cal. 517.

(4) ILR 34 Allahabad [203.

I do agree with Shree.

Shree, thank you very much indeed for the explecit and erudite explaination to my query. Now the comparasion of section 15 of the HMA and section 57 of the IDA 1869 was under the old section 15 of the HMA with a provisio of one year like that section 57 of the IDA, which ofcourse is no more there in present section 15 HMA, that means if appeal is not perfered against the order of the court within the time framed under section 28 HMA can the spouse entered into second marriage or right after getting the order of the court can the spouse entered into second marriage, and if so, is it void under the HMA?. Suppose the spouse entered into second marriage right after obtaining the order of the court is it void? As rightly pointed out by you with regard to Hanafi text which ofcourse is not followed in other cases and such marriage being only irregular and not void, whereas under the IDA marriage is regarded as void unless decree nisi  is passed and confirmd by the High Court which also was not there in the old sections 15 of the HMA. thus it appears that there are different laws in this matters in matrimonial proceedings with orders of the court with regard to second marriage. Thus there is a need to stream line the divergents of laws in this matter. As mentioned above I am not sure in HMA of the time limit of the second marriage like the Iddat and section 57 of the IDA of 1869 which are very clear but not under HMA. Correct me if  I am wroung. Once again thank you for your erudiate exposures in this matter.