Smt. Rajani Devi and Others vs Smt Usha Devi

Heard Sri Arvind Vashistha, counsel for the Appellants and Sri Rajendra Dobhal, counsel for the Respondent.

By the present first appeal filed u/s 96 of the Code of Civil Procedure, the Appellants have prayed for setting aside the judgment and decree dated 25-5-2005 passed by the District Judge, Tehri Garhwal by which the suit filed by the Plaintiff-appellants has been dismissed.

Briefly stated, a suit was filed by the Plaintiffs-appellants for declaration to the effect that they are the successor of late Mohan Singh. According to the plaint case, late Mohan Singh (hereinafter referred as ''the deceased'') was posted in the Indian Army on the rank of Naik, who died on 15-11-2003. The deceased was married with Smt. Usha Devi, the Defendant. There was no issue from the wedlock of the deceased and Usha Devi. Later on, the deceased married the Plaintiff-appellant No. 1 Rajani Devi with the consent of Usha Devi in September, 1989 and there were three issues from their wedlock as a result of which Plaintiff-appellants No. 2,3 and 4 became the heirs of the deceased. Smt. Usha Devi has filed an application u/s 125 of the Code of Criminal Procedure. and a compromise has taken place between the parties on 31-10-1990 and thereafter, the deceased started giving a sum of Rs. 300/- per month towards the maintenance of his wife. In paragraph 12 of the plaint, she (sic) has claimed that she is entitled for the movable and immovable property including the family pension and amount of life insurance also.

A written statement was filed by the Defendant stating therein that she is the legally married wife of the deceased. It has been stated that she has been left in her parental house by the deceased. In paragraphs 15 and 16 of the additional pleas, it has been stated as under;-

The Defendant has also stated that neither the Plaintiff-appellant No. 1 nor the Plaintiff-appellants Nos. 2 to 4 are entitled for any claim by way of the present suit.

Smt. Raani Devi has filed her own affidavit, paper No. 31 ka and she has stated regarding the second marriage with the deceased. P.W. 2 Jitar Singh and P.W. 3 Raghuvar Dayal have also filed their affidavit i.e. paper No. 32 ka and 33 ka respectively. All the Plaintiff witnesses have stated that all the Plaintiff-appellants are the children from the wedlock of Smt. Raani Devi and the deceased and the Plaintiff-appellants are the legal heirs and the successor of the deceased.

Smt. Usha Devi has filed her affidavit D.W. 1, paper No. 36 ka and she has asserted that she is the legally wedded wife of the deceased. Paragraph Nos. 4 and 5 of the affidavit are quoted below:

A compromise application dated 31-10-1990 was also filed by Smt. Usha Devi and the deceased with regard to the suit filed u/s 125 of the Code of Criminal Procedure. The compromise application reads as under:

The C.J.M. New Tehri Garhwal has passed the order to the following effect:

As will appear from the aforesaid statement that she has completely denied about the second marriage with the deceased. From the record, it appears that suit No. 36/1991, paper No. 30 C/ 5, was filed for divorce and the said suit was dismissed on 17-8-1992. The finding recorded by the court in the said suit is quoted below:

The trial court has dismissed the suit on the ground that she is not entitled on account of the fact that first wife is alive and no benefit can be given till the first wife is alive and the second marriage is completely barred by the provisions of the Hindu Marriage Act.

Section 5 of the Hindu Marriage Act provides as under:

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) at the time of the marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity;

(iii) the bridegroom has completed the age of (twenty-one years) and the bride, the age of (eighteen years) at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of 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.

In contravention of the provision of the Section 5 of the Hindu Marriage Act, second marriage renders the marriage as void u/s 11 of the Hindu Marriage Act. The same is quoted below:

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.

Section 17 of the Hindu Marriage Act also provides the punishment for bigamy. "17. Punishment of bigamy.-Any marriage between two Hindus solemnized after the commence of this Act is void if at the date of such marriage either party had a husband or wife living and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly."

Counsel for the Respondent has referred the judgment of Savitaben Somabhai Bhatiya Vs. State of Gujarat and Others, where it has been held that on a subsisting marriage, the second marriage will be void. Para 15 is relevant and the same is quoted below:

In Yamunabai case it was held that the expression "wife" used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word "wife" is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of the law preceding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with Hindu rites with a man having a living spouse is a complete nullity in the eye of the law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short "the Marriage Act"). Marriage with a person having a living spouse is null and void and not viodable. However, the attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 of the Code has been enacted in the interest of a wife and one who intends to take benefit under Sub-section (1) (a) has to establish the necessary condition, namely, that she is the wife of the person concerned. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the provision in Section 125 of the Code is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be answered except by reference to the appropriate law governing the parties.

The trial court has also disbelieved the marriage with the Appellant No. 1 being void on account of Section 5 of the Hindu Marriage Act. The findings of the trial court is quoted below:

With regard to the issue as to whether the Plaintiffs are entitled to get any share out of Group Insurance Pension after the death of Shri Mohan Singh, the trial court has recorded the finding to the following effect:

Counsel for the Appellant has referred Section 16 of the Hindu Marriage Act. The aforesaid provision is fully inapplicable inasmuch as the marriage itself has been treated to be null and void.

In view of the aforesaid, I find no merit in the submissions made on behalf of the Appellants. The appeal lacks merit and is dismissed. No order as to costs.