D.K. Seth, J.
1. In this case, a suit for restitution of conjugal rights was filed by the husband-opposite party. It was decreed ex parte. The wife filed an application under Order 9 Rule 13 of the Code of Civil Procedure. That was also dismissed. Thereafter, a suit for divorce was filed on the ground that no cohabitation took place after the decree for restitution of conjugal rights despite intimation to the learned counsel for the wife. This suit was decreed on contest where wife had denied that no such communication was received by her. Such an appeal has been preferred by the wife before this Court against the decree of divorce. This was filed along with an application under Section 5 of the Limitation Act a little late on 7th of April, 2003. But on 2nd of July, 2003, the delay was condoned. It is contended on behalf of the respondent-opposite party that the husband has contacted marriage for the second time on 11th of June, 2003.
2. At this stage this application for stay of operation of the judgment and decree has been asked for. The learned counsel for the appellant points out from the decision in Savitri Pandey v. Prem Chandra Pandey, : 1SCR50 ; Chandra Mohini Srivastava v. Avinash Prasad Srivastava and Anr., AIR 1967 SC 581 and Tejinder Kaur v. Gurmit Singh, : 2SCR1098 to contend that in view of Section 15 of the Hindu Marriage Act, the husband had a duty cast upon him to enquire before contracting second marriage whether an appeal has been preferred after the proviso is deleted. He has also relied on a decision in Prakash Chandra Sharma v. Vimlesh (Smt.), 1995 Supp. 4 SCC 642. In this case the appeal was preferred three days after the expiry of the limitation. The husband had contracted marriage after the presentation of appeal though barred by limitation. In such situation, the Apex Court had held that the contracting of second marriage by the husband during the pendency of the appeal is hit by the provisions of Section 15 of the Hindu Marriage Act since the husband cannot take advantage of his own wrong. On this ground, he contends that in view of Section 15, the operation of the judgment and decree appealed against should be stayed. Contracting of second marriage cannot be a justification to refuse grant of stay in this case.
3. Mrs. Nandy, learned counsel for the respondent, on the other hand, contends that the husband has contracted marriage after the expiry of the period for preferring the appeal. He was not aware that the appeal was pending when he has contracted second marriage. In fact, the husband had waited for almost nine months before contracting marriage. No intimation of filing of the appeal was ever given to the husband. The husband might have a duty cast upon him to enquire as to whether an appeal has been preferred or not but at the same time, the appellant-wife has also a responsibility about the preferring of the appeal. She also seeks to distinguish the decision cited by the learned counsel for the appellant on the ground that Section 15 permits remarriage after the expiry of the period of limitation or where an appeal is presented and after hearing or otherwise the same is dismissed. This presentation of the appeal must be deemed to have been presented within the period of limitation. It will not include an appeal presented after the expiry of limitation. So far as the decision in Prakash Chandra Sharma v. Vimlesh(Smt.) (supra) is concerned, her contention is that this judgment has not laid down the law after discussing the question raised by her and, therefore, the same is distinguishable.
4. After having heard the respective counsel for the parties, it appears that there are some substances in the submission of the appellant as it appears from the decision cited by him. In Section 15 though the presentation of appeal follows the clause of expiry of the period of appeal but it cannot be read to mean that such appeal was intended to mean or refers only to appeals presented within the period of limitation. The section, as it stands, does not seem to make any distinction in between an appeal preferred within time and beyond time. It simply says or an appeal has been presented but has been dismissed. This will include appeal presented even after expiry of period of limitation. In fact, the provision couched in a manner so as to include the mischief of Section 15 in respect of second marriage if made during the pendency of the appeal even if it is contracted after the expiry of limitation. Whether such appeal was filed along with an application under Section 5 of the Limitation Act or not, contracting of marriage during the pendency of an appeal would be hit by the mischief as has been held in the decision in Prakash Chandra Sharma (supra). At the same time, as observed by the Supreme Court in the other three decision in Tejinder Kaur (supra), Chandra Mohini Srivastava (supra) and Savitri Pandey (supra), the husband has a duty to enquire as to whether an appeal has been preferred or not. The embargo has been imposed on the person contracting second marriage. Therefore, it is the duty cast upon the appellant. Inaction or infraction of any responsibility on the part of the appellant will not enure to the benefit of the respondent contracting second marriage. The distinction sought to be made in the decision in Prakash Chandra Sharma (supra) by Mrs. Nandy does not appeal to us. The decision of the Apex Court whether reasoned or hot is binding on the High Court in view of Article 141 of the Constitution of India.
5. In the circumstances, we grant ad interim stay of operation of the judgment and decree till disposal of the suit.
6. The application is thus disposed of.
7. Let a copy of this application filed in Court today be treated as original and be kept on record.
8. There will be no order as to costs.
Rajendra Nath Sinha, J.