Kiran Kaur vs Jagir Singh Bamrah

Ajay Kumar Mittal, J.

This appeal has been preferred by the wife against the judgment and decree dated 11.10.2013 passed by the Additional District Judge, Moga, whereby the petition filed by the husband under Section 11 of the Hindu Marriage Act, 1955 (In short "the Act") for declaration of marriage between the parties as illegal, null and void, was allowed. A few facts necessary for adjudication of the instant appeal as narrated therein are that the marriage of the respondent with Rajwant Kaur was solemnized on 5.5.1991 according to Anand Karaj ceremony. Out of the said wedlock, three children, namely, Harmandeep Singh, Jarmanjit Singh and Arjan Singh were born. Relation between Jagir Singh Bamrah and Rajwant Kaur and their sons were very cordial. In the month of April, 2009, the appellant and her sister came to the respondent''s shop and purchased furniture worth Rs. 32,000/- and paid only Rs. 16,000/- to the respondent and promised to pay the balance amount in near future. However, the respondent refused to oblige them but on his friend''s guarantee, he agreed to receive the balance amount of Rs. 16,000/- within one month which they did not pay inspite of twice visit of the respondent to the house of the appellant. The appellant developed illicit relations with the respondent. On 28.10.2009, when the respondent went to the house of the appellant, her family members forced him to solemnize marriage with the appellant as she had conceived from his loins otherwise he would be eliminated. The respondent saved his life by fleeing from there and came back to Zira and went to the house of his in-laws. On 29.10.2009, when the respondent along with his wife and other members was present in his in laws house, the appellant and her family members came there in a Tata Sumo Taxi, picked up the respondent and by putting him in the said vehicle fled away. Rajwant Kaur and others chased them but in vain. On the next day, i.e., 30.10.2009, the appellant and her family members took the respondent to a Gurudwara in Sector 21-B, Chandigarh and got performed the marriage between the parties. They also obtained the signatures of the respondent on blank forms, papers, stamp papers and registered in connivance with Shri Harpreet Singh Rakhra, Advocate. In the month of November, 2009, the respondent came to know about the order dated 6.11.2009 passed by this Court in CRM No. 56511 of 2009 and CRM-M-31224 of 2009 whereby the appellant and respondent were provided security but the respondent refused to take security as he had not filed any petition. Thereafter, the appellant moved applications against the respondent which were found to be false and the proceedings under Section 182 of the Indian Penal Code was ordered to be initiated against the appellant. The respondent also moved various applications for taking action against the appellant but of no use. On 24.4.2012, he filed a complaint under Sections 496/452/419/365/340/295-A/182/34 IPC which is pending in the Court of Judicial Magistrate, Moga. Accordingly, the respondent filed a petition under Section 11 of the Act for declaring the marriage between the parties as illegal, null and void. The said petition was contested by the appellant by filing a written statement. Besides raising various preliminary objections, it was pleaded that the marriage between the parties was solemnized on 30.10.2009 by way of Anand Karaj at Gurudwara Sir Nirankari Darbar (Rawalpindi), Sector 21-B, Chandigarh. It was further pleaded that before the solemnization of the marriage, the respondent was unmarried and with his own will got changed the name of the appellant Kiran Kaur to Rajwant Kaur and got prepared all the documents in this regard. It was further pleaded that the appellant and the respondent approached this Court for protection under Section 482 of the Code of Criminal Procedure. The other averments made in the petition were denied and a prayer for dismissal of the same was made. The respondent controverted the averments made in the written statement by filing replication. From the pleadings of the parties, the trial court framed the following issues:-

"1. Whether the marriage between the parties is illegal, null and void? OPP

Whether the petitioner is entitled to decree of divorce on the ground of nullity? OPR

Whether the present petition is not maintainable? OPR

Whether the petitioner has no locus standi to file the present petition? OPR

Whether the petitioner has concealed the real and material facts from this Court? OPR

Relief."

The trial court on appreciation of evidence led by the parties decided issues No. 1 and 2 together being interconnected in favour of the respondent holding that the marriage between the parties was illegal, null and void and the respondent was entitled to a decree of declaration by declaring his marriage with the appellant as nullity. Issue No. 3 was decided against the respondent holding the petition to be maintainable. Issues No. 4 and 5 were decided against the respondent as not pressed. Accordingly, the trial court vide judgment and decree dated 11.10.2013 allowed the petition and passed a decree declaring the marriage between the parties as illegal, null and void. Hence, the present appeal.

Learned counsel for the appellant submitted that the trial court was in error in declaring the marriage between the parties as nullity whereas the respondent-husband was taking advantage of his own wrong. It was urged that in view of Section 23(1)(a) of the Act, the husband was not entitled to declaration that the marriage was void. In fact, the husband had contracted second marriage on the basis of which he had sought declaration that the marriage with the appellant was void. Support was drawn from the Division Bench judgment of this Court in Sanyogata Devi Vs. Lalit Kumar Khurana, .

After hearing learned counsel for the appellant, we do not find any merit in the appeal.

Section 11 of the Act provides for void marriages and reads as under:-

"11. Void marriages.- 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 Section 5."

It would be advantageous to notice clauses (i), (iv) and (v) of Section 5 of the Act, which are in the following terms:-

"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;

(ii) and

(iii) xx xx xx

(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."

Section 23(1)(a) of the Act provides that in case the Court is satisfied that any of the grounds for granting relief exists and the appellant is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, it shall decree such relief. A Full Bench of this Court in Smt. Bimla Devi Vs. Singh Raj, , analyzing the scope of Section 23(1)(a) of the Act had laid down as under:-

"The language of the Section is clear that the advantage of his or her own wrong or disability should be in connection with the relief which is sought to be claimed in the proceedings. Any such advantage of his or her own wrong or disability which had been taken or incurred in some other proceedings before the claim for the grant of relief was made cannot be made the basis for refusing relief under Section 23 of the Act."

On plain reading of Section 11 of the Act, it is manifest that a marriage solemnized after the commencement of the Act which is in contravention of any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the Act shall be null and void. In other words, the marriage is void if either party has a spouse living at the time of the marriage or if the parties are within the degree of prohibited relationship in terms of Section 3(g) of the Act unless custom or usage governing the parties permits such marriage. The marriage is also void where the parties are sapindas of each other, unless it is so permissible under the custom or usage between the two. In these circumstances, the marriage is invalid from its inception and is non-existent in law. In Section 11, the words specifically used are ''either party'' which means the husband or the wife. In case the intention of the law makers was to give this right only to an aggrieved party, it would have used the words ''aggrieved party''. The language used in Section 11 is unambiguous and clear and it gives a right to file a petition to a party to marriage against the other. Under Section 11 of the Act, option is given to either party to seek a declaration of invalidity and/or nullity of such marriage. Once remedy under Section 11 of the Act is available to "any party" and not to the aggrieved party, it cannot be said that the party who is performing second marriage and seeking declaration of that marriage to be a nullity, is precluded from filing petition under Section 11 of the Act. To put it differently, the provisions of Section 23(1)(a) of the Act would not debar such spouse from presenting a petition under Section 11 of the Act seeking declaration that the second marriage is nullity and void.

The Division Bench of Karnataka High Court in Shakuntala Bai v. Mallikar-junappa Jevargi, 1999 (2) H.L.R. 270 dealing with void marriages under Section 11 of the Act had held, that in the absence of the words "aggrieved party" in Section 11, it cannot be interpreted that the petition filed by the husband who was a party to the second marriage was not maintainable, in the following terms:-

"By reading Section 11, it is manifest that on a petition presented by either party thereto, any marriage solemnized after the commencement of this Act shall be declared null and void, if the marriage contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. The Parliament has specifically used the words ''either party that means the husband or the wife. If the Parliament wanted, the petition can be filed only by an aggrieved party, it ought to have used "aggrieved party". In the absence of such words, it cannot be interpreted that the petition filed by the husband, a party to the second marriage is not maintainable. The words ''either party'' to the marriage itself denote that any one of the party to the marriage can file a petition for declaration of nullity of marriage. Therefore, we are not able to agree with the learned counsel for the appellant on this ground. Therefore, the petition filed by the husband for declaring the marriage a nullity under Section 11 of the Act is maintainable."

A Single Bench of Chattisgarh High Court in Sona Ralsel Vs. Kiran Mayee Nayak (Smt.) and Another, considering similar issue had opined as under:-

"12. Section 11 of the Act speaks of void marriages if solemnized in contravention of the conditions specified in Clause (i) and other clauses of Section 5 of the Act. A conjoint reading of the above two provisions would reveal that any marriage solemnized between two Hindus would be void if either party has a spouse living at the time of marriage. Meaning thereby any marriage solemnized by anyone in the lifetime of his or her wife or husband, as the case may be, is void under Section 11 of the Act as it would be in contravention of Section 5(i) of the Act. So, this would be the cause of action for declaring a marriage as void under Section 11 of the Act, but at the same time, Section 11 speaks of the party who may bring petition under Section 11 of the Act. The language used in Section 11 is that "on a petition presented by either party thereto against the other party." The language used is unambiguous and clear and it straightway gives a right to file a petition to a party to marriage against the other and not to any third party who may be claiming that she is the first wife. It does not mean that such wife who claims to be first legally wedded wife has no remedy. She certainly can bring a civil suit for declaring the marriage between her husband and that second wife under Section 9 of Civil Procedure Code read with Section 34 of the Specific Relief Act but she has no right to bring a petition under Section 11 of the Hindu Marriage act. A single Bench of M.P. High Court in case of Amarlal Goru and Another Vs. Vijayabai Singroda, observed thus:

"4. The respondent as a previously married wife of the appellant No. 1 Amarlal was entitled under Section 10 of that Act only to a decree for judicial separation so far as she was concerned. She could not prefer any application to have the marriage between the appellants declared void under Section 11. That section can be invoked by only those persons who are party to a marriage as would clearly appear from the words, "either party thereto" used therein. The relief of declaring a marriage void has been intentionally confined to the parties to the marriage and it is not open to any other person to make an application under Section 11. It is true that the marriage between the appellants was contrary to the provisions in Section 5 of the Act and was, therefore, invalid, but that is not the point in the case. The real question is whether any third party has a right to file an application under Section 11 to have the marriage declared null and void. The language used in that section admits of no doubt that the right cannot be exercised by anyone except the parties to the marriage which is challenged. Under these circumstances, it was not open to the Court to declare the marriage "between the appellants null and void."

In Ajay Chandrakar''s (supra) case, reliance has been placed upon the judgments reported in Rajeshbai (supra) and Ram Pyari (supra), which have been cited by the respondent No. 1 and in para 5, it has been observed that:-

"5. It has been argued that a declaratory decree could not be granted if the marriage was void. This argument is not acceptable. Section 11 of the Hindu Marriage Act, 1955 provides that "any marriage in contravention of Clause (i) of Section 5 shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity. Thus the law envisages the judicial declaration of such a marriage as nullity though void ab initio. Remedy under Section 11 of this Act is available to a person who is a party to the second marriage. First wife cannot avail the remedy provided by Section 11 of this Act and therefore, she has to file a suit for declaration under Section 34 of the Specific Relief Act for declaration of such marriage as void...."

Having analyzed the legal position, it would be expedient to examine me factual matrix herein. It was not disputed that the earlier spouse of husband was alive and there was no valid divorce between them. In such a situation, the second marriage was a void marriage and the void act cannot be legalized by denying it under Section 23(1)(a) of the Act. As per allegations of the husband, on 29.10.2009, the respondent-husband was present in his house with his first wife-Rajwant Kaur, when the appellant along with her family members came there in a Tata Sumo taxi and picked up the husband and fled away. On the next day, i.e. on 30.10.2009, the husband was taken to a Gurudwara in Sector 21-B, Chandigarh and was forcibly got married to the appellant and his signatures were also obtained on blank forms, papers and stamp papers. The marriage was got registered in connivance with Shri Harpreet Singh Rakra, Advocate. Various complaints were filed against the appellant-wife and one such complaint under Sections 496/452/419/365/340/295-A/182/34 IPC filed on 24.4.2012 is pending in the Court of Judicial Magistrate, Moga. On the aforesaid facts, the plea of the respondent-husband taking advantage of his own wrong would have no legal meaning and Section 23(1)(a) of the Act is not attracted to the facts of the case in hand. Moreover, no such plea was raised before the trial court.

The trial court had recorded that at the time of alleged marriage of the respondent with the appellant on 30.10.2009, the respondent had a living spouse, namely, Rajwant Kaur and the appellant had performed the marriage with the respondent at her own free will. The trial court, thus, rightly came to the conclusion that the marriage between the parties was illegal, null and void and the respondent was entitled to a decree of declaration by declaring the marriage between them as nullity.

The principle enunciated in the judgment in Sanyogata Devi''s case (supra) is undisputable but the factual matrix being different in the present case, no benefit can be derived by the appellant therefrom.

In view of the above, we do not find any ground to interfere in the judgment and decree dated 11.10.2013 passed by the trial court. Consequently, finding no merit in the present appeal, the same is hereby dismissed. CMM No. 172 of 2013 also stands disposed of accordingly.