Reena D/o Shri Kishan vs Rakesh Sharma S/o Satyanarayan Sharma

Instant Misc. Appeal has been preferred by the appellant-

wife assailing the judgment & decree dt.03.12.2014 passed by the

ld.Family Court, Jhunjhunu declaring the alleged marriage

solemnized on 06.03.2011 to be a void marriage as envisaged

u/Sec.11 of the Hindu Marriage Act, 1955 (in short "the Act,

1955") and granted the decree of nullity as it has contravened one

of the conditions specified u/cl.(i) of Sec.5 of the Act, 1955.

At the outset, it may be noticed that the respondent had

filed application u/O.41 R.27 CPC placing certain documents on record which are the public documents with affidavit and it has

been stated that the appellant''s marriage was earlier solemnized

with one Sanjay S/o Babu Lal on 16.07.2005 and that came to be

dissolved by mutual consent u/Sec.13B of the Act, 1955 by the

court of Additional District Judge, Rewari on 18.05.2010 and while

subsisting her first marriage, she solemnized marriage with Lalit

S/o Tara Chand on 08.12.2009 and that was dissolved by consent

on 04.08.2011 and certified copy has been placed on record.

The indisputed facts which manifest from the record are that

the marriage of the appellant-wife with the respondent-husband

was solemnized on 06.03.2011 according to Hindu rites & customs

and from this wedlock a child was born on 23.02.2012. Application

u/Sec.11 & 12 of the Act, 1955 came to be filed by the

respondent-husband before the ld.Family Court, Jhunjhunu

treating their marriage to be a void marriage with a declaration of

nullity contravening the condition specified u/cl.(i) of Sec.5 of the

Act, 1955.

It has not been disputed by the appellant-wife that her

earlier marriage was solemnized with Lalit S/o Tara Chand on

08.12.2009 according to Hindu rites & customs and a joint

application was filed by the appellant and Lalit, with whom she

solemnized marriage, to seek divorce by consent u/Sec.13B of the

Act, 1955 on 24.12.2010 and their statements were recorded by

the ld.Family Court on 21.01.2011 but the decree of divorce by

consent was granted by the ld.Family Court on 04.08.2011 and

indisputably, on the date when the marriage of the appellant with

the respondent was solemnized on 06.03.2011, the appellant had a spouse living and she had contravened the condition specified

u/cl.(i) of Sec.5 of the Act, 1955 and it was a void marriage

referred to u/Sec.11 of the Act, 1955 and marriage being void

ipso jure, it is always open to the parties even without recourse to

the court to treat it as a nullity. At the same time, the marriage

which is void ab initio from its very inception does not alter or

affect the status of the parties nor does it create any rights and

obligations between them which must normally arise from a valid

marriage except such rights as are expressly recognized by the

Act.

When the matter being tried by the ld.Family Court, the

appellant in her written statement and so also in her statement

recorded before the ld.Family Court as NAW-1 admitted the

factum of her marriage with the respondent being solemnized on

06.03.2011 and from this wedlock they have a son born on

23.02.2012 and earlier she got married with Lalit S/o Tara Chand

which was solemnized on 08.12.2009 and a joint application

u/Sec.13B of the Act, 1955 was filed on 24.12.2010 but decree of

divorce was granted on 04.08.2011.

The only defence of the appellant-wife before the ld.Family

Court was that the respondent-husband was aware of the factum

of her earlier marriage solemnized with Lalit S/o Tara Chand on

08.12.2009 and they have applied for a decree of divorce by

consent in which their statement was recorded on 21.01.2011 and

with full knowledge of her marital status, the respondent

proceeded to solemnize marriage with the appellant according to

the Hindu rites & customs on 06.03.2011, in the given circumstances, their marriage cannot be said to be a void

marriage as envisaged u/Sec.11 of the Act, 1955.

Indisputably, from the material on record, it reveals that the

day when marriage of the appellant being solemnized with the

respondent according to Hindu rites & customs on 06.03.2011, the

appellant had her first spouse living at the time of marriage which

was solemnized earlier with Lalit S/o Tara Chand on 08.12.2009

and indisputably, decree of divorce by consent was granted to the

appellant on 04.08.2011. Even before this court also the

contention of the appellant''s counsel in assailing the judgment &

decree passed by the ld.Family Court impugned is to justify that

when her marriage was solemnized with the respondent on

06.03.2011, he was having full knowledge about subsistence of

her earlier marriage, as such the present application filed at the

instance of the respondent u/Sec.11 & 12 of the Act, 1955 for

declaring their marriage to be a void marriage and granted the

decree of nullity does not hold good and deserves to be set aside.

Counsel further submits that the ld.Family Court has not

taken note of the surrounding facts which came on record about

the knowledge of factum of her earlier marriage dt.08.12.2009 not

being dissolved on the day when their marriage was solemnized

on 06.03.2011 and the facts being in the complete knowledge of

the respondent, he cannot be said to be justified in filing

application for divorce.

Counsel for the respondent support the judgment & decree

passed by the ld.Family Court and further submits that no tangible

evidence came on record by which at least it can be inferred that he had a knowledge of the factum of her earlier marriage which

was solemnized on 08.12.2009 and in the given facts &

circumstances, no error has been committed by the ld.Family

Court in declaring their marriage to be void and granting the

decree of nullity as their marriage contravened the conditions

referred to u/cl.(i) of Sec.5 of the Act, 1955.

We have heard counsel for the parties and with their

assistance perused the material on record.

Indisputably, there is a distinction between void and voidable

marriage. Marriage is a voluntary union of one man with one

woman to the exclusion of all others. The Act of 1955 provides for

three types of marriages namely:-

Valid

Void; and

Voidable.

The difference between these three relates to the pre-

marriage impediments to marriage which are clearly enunciated in

Sec.5 of the Act. If there exist, absolute disablements or

impairments, a marriage is void ab initio and Sec.11 of the Act,

1955 deals with void marriages. If relative disablements or

impairments exist, a marriage is voidable and Sec.12 deals with

voidable marriages. All other marriages which are not covered by

aforesaid two Sections are valid marriages. As regards void

marriage is concerned, Sec.5 of the Act, 1955 includes essential

conditions of a valid marriage and it contains such conditions

which if violated shall result into a void marriage. Sec.11 of the

Act, 1955 had considered following marriages to be void marriage which contravene any other conditions specified u/cl.(i), (iv) & (v)

of Sec.5 of the Act, 1955:-

Where at the time of marriage any party has a living husband or wife i.e., bigamous marriage is void. 2. Where parties to the marriage are not sapindas to each other, unless the custom or usage governing each of them permits of a marriage between the two. 3. Where parties to the marriage come with degrees of prohibited relationship and Sec.3(g) of the Act, 1955 talks about ''degrees of prohibited relationship'', which may not be relevant for the present purpose.

Sec.11 & 12 of the Act, 1955 deal with cases where a

marriage is void and where a marriage is voidable at the option of

either of the parties to the marriage respectively. U/Sec.11 of the

Act, 1955 the expression used is ''null and void'' while the word

''voidable'' is used u/Sec.12 of the Act, 1955. It indicates the

intention of the Parliament that they wanted to make a distinction

between void marriage and voidable marriage. The distinction is

very explicit & further indicated by Sec.17 of the Act, 1955 which

makes the parties in void marriage criminally liable, while there is

no such penalty for the parties in a voidable marriage. Of course,

both the Sec.11 & 12 speak about a decree of nullity but Sec.11

specks of only declaration of the marriage as null and void by such

a decree while Sec.12 speaks of the annulment of a voidable

marriage by a decree. It goes without saying that a void marriage

is non-existent in the eye of law and only a declaration is sufficient

but at the same time, annulment of a voidable marriage is

necessary because such a marriage shall be deemed to be valid

until it is annulled by a decree of nullity.

In the instant case, the marriage of the present appellant

was solemnized on 06.03.2011 indisputably was a void marriage

as it has contravened the condition specified u/cl.(i) of Sec.5 of

the Act, 1955 and in the present scheme of the Act, it cannot be

treated as voidable marriage u/Sec.12 of the Act, 1955.

Indisputably, a marriage which contravenes the conditions referred

u/cl.(i), (iv) & (v) of the Act, 1955 is in law no marriage at all

being void ipso jure and it is open for the paties even without

recourse to the court to treat it as a nullity and either party is not

under any obligation to seek a declaration of nullity u/Sec.11 of

the Act, 1955 though such a declaration is always asked for the

purpose of precaution or record.

A marriage which is void ab initio does not alter or affect the

status of the parties nor does it create any right and obligation

between them which must normally arise from a valid marriage

except such rights which are explicitly recognized by the Act. The

effect of a decree of nullity in the case of a void marriage or

annulment of a voidable marriage is to render the marriage as null

and void from its inception for all intents and purposes. There is

an apparent distinction between void and voidable marriages and

this distinction is firmly rooted even in the common law and a

voidable marriage is valid and not ipso facto void until sentence of

nullity is obtained and at the same time, a void marriage is void

ab initio from its inception. The decree of nullity is merely

declaratory that no marriage in law ever existed while in a

voidable marriage the decree of nullity relates back to the time of

the marriage and renders the marriage void.

The position of law has been examined by the Apex Court in

Yamunabai Anantrao Adhav Vs. Anatrao Shivram Adhav &

Another reported in 1998 (1) SCC 530, where the Apex Court

has in para-3 observed ad infra:-

"Clause (1)(i) of Section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. It was urged on behalf of the appellant that such a marriage should not be treated as void because such a marriage was earlier recognized in law and custom. A reference was made to Sec.12 of the Act and it was said that in any event the marriage would be voidable. There is no merit in this contention. By reason of the overriding effect of the Act as mentioned in Section 4, no aid can be taken of the earlier Hindu law or any custom or usage as a part of that law inconsistent with any provision of the Act. So far as Sec.12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnized in violation of Section 5(1)(i) of the Act. Sub-section (2) of Section 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. 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 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."

It has been further examined by the Apex Court in

A.Subash Babu Vs. State of A.P. reported in 2011 (7) SCC

616 and it has been observed in para 24 ad infra:-

"24. Though Section 11 of the Hindu Marriage Act provides that any marriage solemnised, if it contravenes the conditions specified in clause (I) of Section 5 of the said Act, shall be null and void, it also provides that such marriage may on a petition presented by either party thereto, be so declared. Though the law specifically does not cast an obligation on either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the court to treat the marriage as a nullity, such a course is neither prudent nor intended and a declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose of precaution and/or record. Therefore, until the declaration contemplated by Section 11 of the Hindu Marriage Act is made by a competent court, the woman with whom second marriage is solemnised continues to be the wife within the meaning of Section 494 IPC and would be entitled to maintain a complaint against her husband."

In view of the binding precedents of the Apex Court, the

appellant attempted to legalize the marriage which is void

u/Sec.11 and has defeated the provisions of Sec.5(i) & Sec.11 of

the Act, 1955. The sole defence of the appellant that her earlier

marriage solemnized on 08.12.2009 with Lalit S/o Tara Chand was

in the knowledge of the respondent, even from the record no

presumption can be drawn and at the same time if the marriage

which is covered by Sec.11 of the Act, 1955 being void ipso jure

and void from the very inception even conduct of the parties may

not be relevant to make an attempt in holding a void marriage to

be voidable marriage, as prayed for by the appellant and needless

to mention that once the marriage of appellant solemnized with

the respondent-Rakesh Sharma, having a spouse living at the time

of her marriage rendered the marriage to be void as contemplated

u/Sec.11 of the Act, 1955.

After we have heard counsel for the parties, we find no error

in the judgment & decree passed by the ld.Family Court and

accordingly the appeal is dismissed. No costs.