Saket Nishad vs Pooja Nishad

Heard.

The instant appeal has been filed against the judgment and decree dated 04.03.2016 passed in Civil Suit No.620/2015 passed by the Principal Judge,

Family Court, Durg, District Durg (C.G.) whereby an application filed by the appellant/applicant under Section 11 of the Hindu Marriage Act, 1955

(hereinafter referred to as 'the Act, 1955') seeking declaration of nullity of a marriage dated 11.06.2014 in between the appellant and the respondent,

was dismissed.

Brief facts of the case are that the appellant/husband filed an application under Section 11 read with Section 5 (i) of the Act, 1955 on the ground

that he performed a marriage with the respondent on 11.06.2014 at village Arasnara, Post Office Nandkatti, Police Station Nandini Mines, Tehsil and

District Durg (C.G.). It was pleaded that in the presence of the villagers on 11.06.2014 marriage was performed with the respondent which was

scribed into an agreement of Rs.50/-, wherein the villagers put their signature. It was further stated that before the date of marriage with the present

respondent on 11.06.2014 the appellant was already married with one Uma Nishad and out of their wedlock a child was also born. It was also pleaded

that the existence of the earlier marriage was informed to the non-applicant, her parents and the witnesses. The appellant further stated that on

20.10.2015 respondent left her. It was stated that since the appellant was married at an earlier point of time on 24.02.2012 and the earlier wife since

was living as such the marriage dated 11.06.2014 is required to be declared as nullity under Section 11 read with Section 5 (i) of the Act, 1955.

Before the learned Court below the wife/respondent appeared and admitted the fact that the appellant/husband was married at an earlier point of

time was known to her. She further contended that on 11.06.2014 she was pregnant and gave birth to a child on 17.06.2014 and the father of the child

was one Dinesh Sahu, not the appellant. Learned Court below dismissed the application preferred by the husband/appellant on the ground that the

petition was filed in connivance with the respondent and the appellant/husband cannot be given benefit of his own wrong.

Learned counsel for the appellant would submit that there was no occasion to dismiss the petition as there was an admission made by the wife that

she was in know of the fact that at the time of subsequent marriage the earlier spouse was living and since it was not rebutted, the Court below should

have granted the decree of nullity. He would further submit that the order of the Court below, therefore, being not sustainable is required to be set

aside.

We have heard learned counsel for the appellant and perused the documents.

No representation is made before this Court on behalf of the respondent.

Perusal of the application filed by the husband/appellant would show that marriage dated 11.06.2014 was sought to be declared as nullity in the

background of the fact that the appellant/husband was already married on that date and in the lifetime of the earlier wife the second marriage was

performed. It was further pleaded that in the presence of the villagers on 11.06.2014 the agreement of marriage was executed which is filed as Ex. P-

In response to it the wife in the written statement admitted the fact that on the date of marriage on 11.06.2014 the earlier wife of the appellant

namely Smt. Uma Nishad was living and out of the wedlock a child was also born whose name is Tejal and she is 2 & ½ years old. It was further

admitted that the wife and relatives had the knowledge of the fact that the earlier wife of the appellant was still living. In the additional pleading the

wife contended that on 17.06.2014 she gave birth to a child whose name is Himanshu and denied the fact that the present appellant is the biological

father of the said child Himanshu and it was Dinesh Sahu.

The evidence of the appellant Saket Nishad would show that he has stated that on 11.06.2014 when the marriage was performed with the

respondent, his earlier wife Uma Nishad was living. The said statement is corroborated by one Mansingh Nirmalkar (AW-2) who was deposed as

witness he has signed to the document Ex. P-1 which purport that the marriage in between the appellant and respondent Pooja Nishad took place on

11.06.2014. It is also deposed that on the date of such marriage the earlier wife Uma Nishad was living.

The void marriage is defined under Section 11 of the Act, 1955 which has a reference to Section 5 of the Act, 1955. For the sake of brevity

Section 11 and Section 5 (i) of the Act, 1955, which is relevant in this case are reproduced hereinbelow:-

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;

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

clause (i), (iv) and (v) of section 5.

The law mandates that if the conditions which are imposed under Section 5 of the Act, 1955 are not fulfilled then the marriage can be declared null

and void by a decree of nullity. In the instant case both the parties maintain the stand that on the date of second marriage on 11.06.2014 the husband

was married and the spouse was living along with the husband. When the parties admit to the fact even at the cost which may assassinate their

character, then in such case in the facts of this case, the provisions of Section 11 of the Act, 1955 would be attracted. In absence of any rebuttal of

the evidence we accept the submission and the pleadings adduced by the parties. Accordingly, it is held that on the date of marriage i.e. on 11.06.2014

of Saket Nishad, the appellant herein, had a living wife namely Uma Nishad as she was married to him at prior point of time on 24.02.2012, as such

the second marriage performed on 11.06.2014 would eclipsed by the conditions imposed under Section 5 read with Section 11 of the Hindu Marriage

Act, 1955. Accordingly, it is ordered that the marriage in between the appellant and respondent Pooja Nishad dated 11.06.2014 would be a nullity and

marriage be dissolved by a decree of nullity. The order of the Court below dated 04.03.2016 is set aside. The decree be accordingly drawn.

Appeal is allowed. No order as to costs.