CHHATTISGARH HIGH COURT
JUSTICE Sanjay K. Agrawal
Hemlata Karayat Vs. Vijay Kumar Karayat On 7 August 2014
Law Point:
Claim from second husband — Void marriage — Effect of — Wife admitted that she was earlier married and no divorce has taken place — Second husband was not required to seek formal declaration from competent Court of Law declaring her marriage to be void under Section 11— Application for maintenance rejected.
JUDGEMENT
Feeling aggrieved and dissatisfied with the impugned order dated 5.7.2011, passed by 1st Additional Principal Judge, Family Court, Raipur in Civil Case No. 107/2010, instant revision has been filed by the applicant herein whereby his application under Section 125 of the Code of Criminal Procedure (for short ‘the Code’) has been rejected.
2. The core facts necessary for disposal of this revision are as under:
2.1. The applicant, being the wife of the non-applicant duly married on 14.1.2008 at Raipur, filed an application, under Section 125 of the Code stating inter alia that she was living with non-applicant for seven months and, thereafter, she was forced to leave the house by the non-applicant/husband on account of ill-treatment and demand of dowry, claiming maintenance from her husband non-applicant/Vijay Kumar Karayat as she is unable to maintain herself having no independent source of income and the non-applicant has sufficient means even then he neglected her.
2.2. The non-applicant/husband has filed his reply before the Family Court stating inter alia that the applicant had earlier married to one Sunder Lal Chouhan, who is still alive and marriage of the applicant is subsisting, and therefore, marriage of the non-applicant with applicant is void ab initio and therefore, she is not entitled for allowance of maintenance.
2.3. Parties led evidence of their respective pleas. The Family Court, after appreciating the oral and documentary evidence available on record, rejected the application under Section 125 of the Code holding that the applicant had earlier married to one Sunder Lal Chouhan and during the subsistence of her earlier marriage, second marriage was solemnized by the applicant with non-applicant Vijay Kumar Karayat is void marriage within the meaning of Section 11 of the Hindu Marriage Act, 1955. Against this order, the instant revision has been filed.
3. Mr. Syed Imtiaz Ali, learned Counsel for the applicant would submit that the Family Court is absolutely unjustified in rejecting the application as non-applicant/husband was required to seek a declaration from competent Court of invalidity/nullity of the marriage under Section 11 of the Act, 1956 and unless such a declaration is granted under above provisions of law, marriage of the applicant with non-applicant cannot be held to be void marriage leading to rejection of her application under Section 125 of the Code.
4. Mr. C.K. Sahu, learned Counsel appearing for the non-applicant/husband would submit that the learned Family Court is absolutely justified in rejecting the application in view of the fact that applicant herself has admitted the fact of earlier marriage with Sunder Lal Chouhan. He would further submit that since the applicant herself has admitted the fact of marriage with Sunder Lal Chouhan, therefore, the declaration of nullity/invalidity of marriage under Section 11 of the Hindu Marriage Act, 1995 is not required at law and therefore, the revision deserves to be dismissed.
5. I have heard learned Counsel appearing for the parties and given thoughtful consideration of the facts of the case.
6. The short question that falls for consideration before this Court in this revision whether the formal declaration of invalidity/nullity of marriage was required under Section 11 of the Act, 1995 by non-applicant part to a marriage.
7. For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955 have to be examined. Section 11 of the Act declares such a marriage as null and void in the following terms:
“11. Void marriage—Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of the Section 5.”
8. Section 5(i) of the Act, 1995 clearly provides that a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of marriage. Section 5(i) of the Act, 1955 reads as under:
“5. Conditions for a Hindu marriage.—A 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. “
9. Clause (1)(i) of Section 5 of the Act, 1955 provides for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of marriage. A marriage in contravention of this condition, therefore, is null and void. The marriage covered by Section 11 are void ipso jure, that is, void from the very inception, and have to ignored as not existing in law.
10. In Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Another, AIR 1988 SC 644, Their Lordships of Supreme Court while considering the provisions of Section 11 of the Act, 1955 has held that the marriages covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law and held as under:
“3……………The marriage covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a Court in a proceeding specifically commenced for the purpose.”
11. The aforesaid principle of law has been reiterated and followed by Their Lordship of the Supreme Court in M.M. Malhotra v. Union of India and Others, VIII (2005) SLT 993=AIR 2006 SC 80.
12. Very recently, in Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Another, I (2013) DMC 18 (SC)=IX (2012) SLT 341=I (2013) DLT (CRL.) 446 (SC)=AIR 2013 SC 346, Para 18, Their Lordships of Supreme Court had considered and read the above-noted decision of the Supreme Court i.e. Yamunabai (supra), and M.M. Malhotra (supra), and held as under:
“20. In the present case, however, the appellant in her pleadings had clearly, categorically and consistently denied that she was married to any person known as Rohit Kumar Mishra. The legitimacy, authenticity and genuineness of the marriage certificate dated 18.4.2003 has also been questioned by the appellant. Though Section 11 of the aforesaid Act gives an option to either of the parties to a void marriage to seek a declaration of invalidity/nullity of such marriage, the exercise of such option cannot be understood to be in all situations voluntarily. Situations may arise when recourse to a Court for a declaration regarding the nullity of a marriage claimed by one of the spouses to be a void marriage, will have to be insisted upon in departure to the normal rule. This, in our view, is the correct ratio of the decision of this Court in Yamunabai (supra), and M.M. Malhotra (supra).
13. Thus, following the decisions of the Supreme Court in the abovenoted cases, it is held that where there is no dispute between the parties as regards existence or validity of the first marriage, second marriage would be ipso jure void under Section 11 of the Act, 1956 but if the first marriage has been denied clearly and categorically then the formal declaration of nullity or invalidity of the marriage is required to be obtained under Section 11 of the Act to be void marriage and that has to be insisted upon in departure of normal rule.
14. The determination of the aforesaid issue brings me to the facts of the case as in the present case, the applicant/wife has clearly and categorically admitted that she was earlier married to Sunder Lal Chouhan, who is still alive and no divorce has taken place; and during the life-time of Sunder Lal Chouhan and subsistence of her marriage with Sunder Lal Chouhan. She has married to present non-applicant herein and, thus, the marriage of the present applicant with the non-applicant would be ipso jure void under Section 11 of the Act and in view of the abovenoted decisions of Their Lordships of the Supreme Court in the aforesaid cases, as there is no dispute between the parties as regards the existence or validity of the first marriage of applicant, therefore, non-applicant was not required to seek formal declaration from the competent Court of law declaring her marriage to be void under Section 11 of the Art, 1955 and, therefore, the learned Family Court is absolutely justified in holding that the marriage of the present applicant with the non-applicant is void ab initio in view of the provisions contained in Section 11 of the Act, 1955, and I hereby affirm finding so arrived in.
15. Concludingly, the criminal revision deserves to be and is hereby dismissed.
16. No order as to costs.
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