Punjab-Haryana High Court
Balbir Singh vs Baljinder Kaur on 28 March, 2019
Equivalent citations: AIR 2019 PUNJAB AND HARYANA 125, AIRONLINE 2019 P&H 512, (2019) 2 PUN LR 582, (2019) 3 DMC 768, (2019) 3 RECCIVR 138, (2020) 1 HINDULR 83, AIRONLINE 2019 P AND H 512
Bench: Rakesh Kumar Jain, Harnaresh Singh Gill
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-M-74-2019
Date of Decision: 28th March, 2019
Balbir Singh .......Appellant
Versus
Baljinder Kaur .....Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
HON'BLE MR. JUSTICE HARNARESH SINGH GILL
Present: Mr. Anil Chawla, Advocate, for the appellant.
Harnaresh Singh Gill, J.
The appellant-husband has challenged the judgment and decree dated 20.11.2018 passed the learned Additional District Judge, Amritsar, whereby petition filed by the respondent-wife under Section 11 read with Section 5(i) of the Hindu Marriage Act, 1955 (for short `the Act') has been allowed and the marriage between the parties, is declared as null and void by way of a decree of nullity.
The respondent-wife had filed a petition under Section 11 read with Section 5(i) of the Act, inter-alia, with the averments that marriage between the parties was solemnized on 11.5.2012 at Amritsar as per Hindu Sikh rites. After marriage, the parties cohabited together as husband and wife, but no issue was born out of the wedlock. At the time of engagement and solemnization of the marriage, the appellant-husband was stated to be a divorcee, having taken a valid divorce, but no 1 of 19 ::: Downloaded on - 12-05-2019 11:38:54 ::: FAO-M-74-2019 (2) document to that effect was shown to the respondent-wife. Sufficient dowry articles were given in the marriage. After a few days the behavior and conduct of the appellant-husband and his family members was changed. Appellant-husband, started saying that he did not like the respondent-wife and that he had married her with an intention to grab her income. The petitioner was taunted and harassed for not bringing sufficient dowry and for this reason the respondent-wife was abused, insulted and maltreated. The appellant-husband was a man of vices. She was earlier married to one Shamsher Singh and from that wedlock, she was having a son, who was adopted by the appellant- husband with the assurance that he would treat him as his own son, but later on she came to know that he was having plans to kill the said child. The appellant-husband was in the habit of leaving the respondent-wife alone in the house and would come after two/three days, when he was in need of money. He would often lock the kitchen with a view to causing mental pain and agony in the mind of the respondent-wife. Her son (from the previous marriage) was occasionally dragged from his hair and beaten up by the appellant-husband. When she refused to accede to the demand of the respondent-husband and his family members regarding grant of a share to them in her house, they all gave her beatings and further levelled the allegations of her having illicit relations with some persons. Both the parties entered into an agreement of divorce dated 17.6.2013. The appellant-husband filed a false complaint before the Police Station Sultanwind against the respondent-wife and her father 2 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (3) and thereafter, the police raided their house. Earlier, the respondent-wife had filed a petition under Section 13 of the Act. During the evidence in the said proceedings, on 24.8.2016, the appellant-husband deposed that he was having a living spouse at the time of his marriage with the respondent-wife. Thereafter, the respondent-wife withdrew the said petition and filed the present petition under Section 11 read with Section 5(i) of the Act.
Appellant-husband appeared and filed his written statement, averring therein that the parties were divorcees at the time of their marriage. Before marriage, parents of the respondent-wife disclosed that she was having a child of 7 years of age from her first marriage, but later on the appellant- husband came to know that the child Gurpreet Singh was 20 years old and had completed his 10+2 in March, 2013. The respondent-wife and her parents were informed before marriage that there was a Panchayati divorce effected between the appellant-husband and his previous wife and that it was only thereafter, the respondent-wife and her parents gave their consent for the marriage.
On the pleadings of the parties, the following issues were framed by the learned trial Court:-
"1. Whether the petitioner is entitled to decree under Section 11 HMA Act? OPP
2. Whether the petition is not legally maintainable? OPR.
3. Relief."
Both the parties appeared as their own witness.
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The learned trial Court, after hearing the counsel for the parties, found that the factum of marriage stood admitted by both the parties. It was further admitted that it was second marriage of both the parties. No issue was born out of the said marriage.
Earlier, the respondent-wife had filed a petition under Section 13 of the Act, but during cross-examination of the appellant-husband, he disclosed that he had a living spouse. Thus, the respondent-wife withdrew the said petition with liberty to file the present petition. It was brought on record that the appellant-wife had obtained divorce on 4.5.2002 from her previous husband. Certified copy of the judgment and decree was produced and proved on record as Ex.P5. It was, accordingly, found that she was capable of performing marriage with the appellant-husband.
On the other hand, the appellant-husband had obtained a divorce from his earlier wife before the Panchayat. Hence, it was found that if such divorce is granted by the Panchayat, then it is no divorce in the eyes of law nor the appellant-husband was capable of contracting marriage with the respondent-wife, the same being in contravention of Section 5(i) of the Act. It was further found that no Panchayati divorce was produced on record and further the appellant-husband had failed to show any custom prevailing in his community regarding dissolution of marriage by way of a Panchayati divorce or any such method. It was, accordingly, found that Section 29 of the Act, shall have no effect in the instant case. While referring to 4 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (5) the provisions of Section 5 of the Act, it was held that as the appellant-husband was having a living spouse at the time of his marriage with the respondent-wife, the marriage between the parties was annulled. The allegations of cruelty were held to be not relevant for the purpose of the present proceedings.
Learned counsel appearing for the petitioner submits that the marriage between the parties was solemnized on 11.5.2012, whereas the present petition was filed on 15.9.2016 i.e. after a gap of four years and hence, the present petition is barred by limitation. While relying upon the judgment of the Division Bench of this Court in FAO-2709-2015-Jaswinder Singh Vs. Manjit Kaur, decided on 21.5.2018, it is argued that where a party who seeks divorce is aware of the previous marriage of his/her spouse, is to approach the Hon'ble Court within a reasonable period i.e. three years. The same principle being applicable in the instant case, the impugned judgment and decree passed by the learned trial Court, is liable to be set aside by this Court.
We have heard learned counsel for the appellant and having gone through the impugned judgment and decree under appeal.
The controversy involved in the present petition is with regard to marriage between the parties being a nullity for the reason that at the time of his marriage, the appellant- husband was having a living spouse.
Before deliberating upon the issue, the following statutory provisions are extracted and considered:-
5 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (6) "Hindu Marriage Act, 1955 Section 5. Condition 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 of 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 or epilepsy;
(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 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;.."
xx xx xx Section 11. Nullity of marriage and divorce- 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, 6 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (7) 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), Section 5.
xx xx xx Section 17. Punishment of bigamy.- Any marriage between two Hindus solemnized after the commencement of this Act, is void if at the date of such marriage either party had a husband or a wife living; and the provisions of sections 494 and 495 of the Indian Penal Code, 1860 (45 of 1860).
xx xx xx
Section 29. Savings.- xx xx xx
(2) Nothing contained in this Act shall be deemed to
affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.
xx xx xx".
Indian Penal Code
Section 494: Marrying again during lifetime of husband or wife.- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception.- This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, 7 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (8) nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
Section 495.- Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.- Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Section 11 of the Act, stipulates the conditions for declaring a marriage as void being a nullity. It provides that any marriage solemnized after the commencement of the Act, shall be null and void if it contravenes any of the conditions specified in Clause (i), (iv) and (v) of the Act. In the instant case, Section 5(i) of the Act, would come into play. The said provisions provide that the parties to the marriage are capable of solemnizing the marriage, if neither party has a living spouse at the time of such marriage.
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Section 17 of the Act provides for the punishment for the act of bigamy. It stipulates that any marriage between two Hindus solemnized after the commencement of the 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. Thus, it is clear that any act of bigamy entails punishment under Sections 494 and 495 IPC.
However, Section 29(2) of the Act, is an exception to the aforesaid provisions, provided the parties are governed by the custom. Thus, the provisions of Section 29(2) shall have overriding effect over the provisions of Sections 11 and 5 of the Act, subject to the conditions that the parties are governed by the customary provisions, protecting their rights emerging therefrom.
Section 5(i) of the Act creates within itself a concept of monogamy, which is essentially the voluntary union for life of one man with one woman to the exclusion of all others. The word `spouse' mentioned therein means a lawfully married husband or wife. Thus, before a valid marriage can be solemnized, both the parties to such marriage must be either single or divorced or a widow or a widower and only then they are competent to enter into a valid marriage.
In Mulla on Principles of Hindu Law, Twenty First Edition, page No. 875, while delineating the very object of Section 5(i) of the Act, the following discussion finds mention:-
"Clause 9(i) Monogamy.- Clause (i) of the section introduces monogamy which is essentially the voluntary union for life of one man with one woman to the exclusion
9 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (10) of all others. It enacts that neither party must have a spouse living at the time of marriage. The expression `spouse' here used, means a lawfully married husband or wife. Before a valid marriage can be solemnized, both parties to such marriage must be either single or divorced or a widow or a widower and only then they are competent to enter into a valid marriage. If at the time of performance of the marriage rites and ceremonies, one or other of the parties had a spouse living and the earlier marriage had not already been set aside, the later marriage is no marriage at all. Being in contravention of the conditions laid down in this clause, it is void ab initio. It cannot be treated as voidable under Section 12. Since a second marriage, during the subsistence of the first one is void, the `wife' of the second marriage cannot claim to succeed to the properties of the deceased spouse. The children born of such void marriage, would however be entitled to inheritance. As regards the entitlement to maintenance, attention is invited to the commentary under S.25 of this Act, and the decision of the Supreme Court in Ramesh Chandra Daga v. Rameshwari Daga, (2004)10 JT 366, where the court has held that the spouse of a null and void union, entered into during the pendency of an earlier marriage is entitled to maintenance, on the passing of a decree of nullity.
The general rule of matrimonial law is that, a party to a marriage of which the other party is incompetent to join in the celebration because of the existence of a previous husband or wife, is entitled, without recourse to any court, to marry anyone else because that particular marriage is not in law a marriage at all, is applicable equally well to marriages under the Act. A person, an innocent party to a bigamous marriage, may go to a court for a declaration that the bigamous marriage is null and void. That would be for the purpose of precaution or record, or evidence. However, the bigamous marriage is non-existent and simply because there is no recourse to the court, it cannot be said that it exists unless and until a decree is passed declaring it to be null and void. Section 10 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (11) 17 in terms lays down that such a marriage is null and void and imposes punishment for bigamy as provided in the Indian Penal Code, 1860.
This provision which prohibits bigamy does not contravene Article 25 of the Constitution.
A decree of divorce terminates the status of the parties as married persons and is, after such a decree, competent to remarry and the prior marriage having been dissolved is no impediment to such remarriage. Reference may be made to S.15. Divorce, though not allowed by Hindu law is by custom and usage recognized in certain communities, and remarriage of either party is also permissible. Section 29 expressly saves from the operation of the Act all rights recognized by custom or any special enactment to obtain dissolution of marriage whether solemnized before or after the commencement of this Act."
Thus, from the above, it would be crystal clear that a bigamous marriage is null and void and not a marriage in the eyes of law and that an innocent spouse, unaware of the bigamous marriage of the other spouse, may approach the Court for annulment of such marriage. Any contravention of such condition, as per the provisions of Section 11 of the Act, renders the marriage as null and void. More so, the act of bigamy entails punishment as prescribed under Section 17 of the Act. Hence, not only the marriage contracted in contravention of Section 5(i) of the Act, shall be null and void, but any party, who solemnizes a second marriage, during the subsistence of his/her earlier marriage, shall also be liable to be prosecuted and punished under Sections 494 and 495 of the Indian Penal Code. Section 494 IPC provides that whoever, having a husband or wife living, marries in any case in which such marriage is void by the 11 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (12) reason of its taking place during the life of such husband or wife, shall be punished with an imprisonment which may extend to seven years and shall also be liable to fine. Section 495 IPC provides for punishment for a term which may extend to 10 years as also the fine, if the offence of bigamy is committed by concealing the factum of earlier marriage from the person with whom the second marriage is contracted.
A Division Bench of this Court in Kala Singh Vs. Jaspreet Kaur, 2016(3) RCR (Civil) page 9, while considering the provisions of Section 11 read with Section 5 of the Act, has held that marriage between the parties therein was void, for the reason that the husband was having a living spouse as on the date of his marriage with the respondent-wife. The plea of customary divorce raised by the husband was negated by holding that it is well settled that in order to succeed on custom, the person claiming custom has to plead and prove the custom. There being absolutely no evidence to prove existence of any such custom in the community of the parties, by which the divorce could be granted, the marriage was held to be null and void.
Another Division Bench of this Court in Manpreet Kaur Vs. Balkar Singh, 2015(5) RCR (Civil) 510, while considering the similar question of one of the parties to the marriage having living spouse at the time of marriage, held that the second marriage is a nullity being in contravention of the provisions of Section 5(i) of the Act. In the said judgment, reliance was placed upon the Full Bench Judgment of the 12 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (13) Andhra Pradesh High Court in Abbayolla M. Subba Reddy Vs. Padmamma, 1998(4) RCR (Civil) 314, wherein it was held that the marriage which is null and void for contravening the provisions of Section 5(i) of the Act, cannot be treated as voidable under Section 12.
Similar is the view taken by a Single Bench of this Court in Mohan Lal Sharma Vs. Parveen, 2009 (4) RCR (Civil)
749. In Jaswinder Singh's case (supra), the Division Bench of this Court dismissed the appeal filed by the husband against the judgment and decree passed by the trial Court, dismissing his petition for annulment of the marriage. In the said case, the marriage between the parties was solemnized on 12.12.1997. One male child was born out of the said wedlock on 6.7.1999. The parties lived together as husband and wife for 14 years, whereafter the husband sought annulment of the marriage on the ground that wife had been already married at the time of her marriage with him. The Hon'ble Division Bench, after having extensively quoted the Parliamentary discussion during the presentation of the Hindu Marriage Bill, proceeded to held as under:-
"A reading of the above said extracts clearly indicates that the point of limitation to challenge a marriage being nullity under Section 11 of the Act was taken into consideration and it was even proposed that there should be certain period fixed so that a marriage could be set aside within some reasonable period. The proposer had suggested that limitation for 2 years from the date of solemnization of marriage should be fixed to seek a declaration regarding the marriage being null and void. The said proposed amendment has not found its way into the legislation but with the passage of time, a controversy has been 13 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (14) repeatedly raised regarding the right of a spouse to seek declaration that marriage is null and void on account of one of the spouse having another living spouse.
We have also taken into consideration the period of limitation for seeking a declaration. A perusal of the provisions of Limitation Act indicates that in Part III of the Schedule, a period of 3 years has been prescribed to seek a declaration. A declaration is granted under Section 34 of the Specific Relief Act for enforcement of a legal right which is denied by another party. The declaration which is sought under Section 11 of the Act is also in the nature of a declaration under the provisions of Specific Relief Act for which the limitation prescribed is three years. If any party raises a plea of knowledge of any act which is nullity, it is always a question of fact to be decided in each case.
We have also taken into consideration the scope of Hindu Marriage Act which is introduced in the year 1955 in the light of "mischief rule" of interpretation of statute. The above said act was incorporated in the year 1955 with one of the major objective to prohibit polygamy. The intention of the legislature to prohibit bigamy or polygamy stands enshrined in provisions of Section 11 read with Section 5 (i) of the Act. The objective of incorporation of Section 11 of the Act was to declare second marriage a nullity. The legislative discussion in the Parliament is indicative of the fact that the rules of limitation and estoppel and principle of waiver were not ignored but for assigning any limitation; for seeking a marriage nullity, were incorporated. The general rule of limitation for seeking declaration and principle of waiver and estoppel cannot be ignored. We are of the considered opinion that in view of above discussion a party seeking to declare a marriage null and void on the ground that one of the spouses was having a living spouse, he has to approach the Court within a reasonable period which, in the light of Limitation Act should be three years but in cases where ignorance of the fact of first marriage is pleaded it will always be a question of fact to be decided in every case on the basis of evidence, therefore, no straight jacket formula could be laid down but we hold that any petition under Section 11 of the Act should be filed within a reasonable period after the date of marriage which in the light of provisions of the Limitation Act would generally be not more than three years depending upon the facts and circumstances of each case.
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In the present case as mentioned hereinabove, the appellant already had a knowledge about the marriage of the respondent with Ravinder Singh when he married the respondent. The date of marriage is December 12, 1997. A petition under Section 11 of the Act has been filed in the year 2012 after about 14 years. The intention of a party will also be a relevant factor in the circumstances of each case. In the present case, the petition is apparently filed with malafide intention as a counter-blast to the proceedings initiated by the wife for maintenance and under Protection of Women from Domestic Violence Act."
A perusal of the aforesaid extracts would show that the Division Bench held that the husband was having knowledge of the previous marriage of the wife, when he married her. Thus, he having initiated no proceedings against the wife for a period of 14 years, it was held that the annulment sought by way of a petition filed in the year 2012, was barred by time. It was further held that the intention of the party initiating the proceedings is a relevant factor in the circumstances of each case. It was, thus, held that the proceedings initiated by the husband was a result of mala-fide intention being a counter-blast to the proceedings initiated by the wife for maintenance and under Protection of Women from Domestic Violence Act.
After having heard the learned counsel for the parties and taking into consideration various judgments quoted above, we find that the view taken by the Division Bench in Jaswinder Singh's case (supra), is not applicable to the facts of the present case.
In the instant case, admittedly, the marriage between the parties was solemnized on 11.5.2012. There being a matrimonial discord between the parties, the parties parted their 15 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (16) ways on 17.6.2013. Thereafter, the respondent-wife had filed a divorce petition under Section 13 of the Act. When the evidence in the said proceedings were being led, the appellant-husband in his testimony (cross-examination) on 24.8.2016 admitted the factum of his having a living spouse at the time of his marriage with the respondent-wife. Such statement was produced by the wife on record. Upon this, the respondent-wife withdrew said petition and then filed the present petition on 15.9.2016. The appellant-husband in his defence pleaded that divorce was granted by the Panchayat as per custom. However, in the absence of the parties being governed by any custom, such plea of the appellant-husband did not find any favour.
The aforesaid factual position could not be disputed by the learned counsel appearing for the appellant-husband in the present proceedings. The fact remains that there is neither any long stay between the parties nor it has been pleaded and/or proved on record by the appellant-husband that the respondent-wife was aware of the factum of his previous marriage at the time of his marriage with the respondent-wife.
Rather, it is the case of the respondent-wife that the appellant had concealed the factum of not taking divorce from his earlier wife. Thus, in our view, it was not in the knowledge of the respondent-wife that the appellant did not get the decree of divorce from his earlier marriage.
Thus, even if the view taken by the Division Bench in Jaswinder Sing's case (supra), as regards law of limitation being applicable to the present proceedings is considered, it cannot be 16 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (17) said that the present petition filed on 15.9.2016 was barred by limitation. As noticed above, the earlier petition filed by the respondent-wife under Section 13 of the Act was withdrawn soon after she, in the said proceedings, came to know by way of the deposition of the appellant-husband on 24.8.2016, that he was having a living spouse at the time of his marriage with the respondent-wife. She had filed the present petition soon thereafter i.e. on 15.9.2016. Hence, present petition filed by the respondent-wife is within the period of limitation.
The Hon'ble Supreme Court in its very recent judgment in Special Leave Petition (C) No.25080 of 2016 delivered on 6.3.2019 in Swapnanjali Sandeep Patil Vs. Sandeep Ananda Patil, has held that for a petition filed with a view to getting the marriage declared as null and void, there is no period of limitation. The Hon'ble Court has held as under:-
"13.1 At the outset it is required to be noted that the appellant filed the marriage petition for a declaration to declare her marriage with the respondent as null and void on the ground that, at the time of their marriage, the first marriage of the respondent with his first wife was subsisting; that the respondent committed a fraud and suppressed the material fact of his first marriage, and in fact, in the registration form he stated himself to be a bachelor. On the other hand, it was the case on behalf of the respondent that neither there was any suppression nor any fraud committed by him. It was the case on behalf of the respondent that the appellant was in the knowledge of his first marriage and that as such there was a customary divorce between the respondent and his first wife, which was much prior to the marriage between the appellant and the respondent. That the learned trial court dismissed the marriage petition on the ground that none of the grounds stated in the plaint for declaration of the marriage between the appellant and respondent as null and void, would fall within Section 25 of the Act and that, even otherwise, the marriage
17 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (18) petition is beyond the period of limitation as prescribed in explanation to Section 25 of the Act. It is required to be noted that, however, neither the trial court nor even the High Court at all considered Section 24 read with Section 4 of the Act nor considered the case on behalf of the appellant that as at the time of her marriage with the respondent, the respondent's first marriage was subsisting and therefore the marriage between the appellant and the respondent would be void and nullity.
13.2 As per Section 4 of the Act, the marriage between any two persons may be solemnized under the Special Marriage Act if at the time of the marriage neither party has a spouse living. Section 24 of the Act provides that any marriage solemnized under the Special Marriage 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 any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled. Clause (a) of Section 4 provides that neither party shall have a spouse living at the time of marriage. Therefore, considering Section 24 read with Section 4 of the Act, if at the time of marriage either of the party has spouse living, then the said marriage is a void marriage and a decree of nullity can be passed on a petition presented by either party thereto against the other party. No period of limitation is prescribed so far as presentation of petition for declaration to declare a marriage being nullity/void marriage, under Section 24 of the Act and rightly so, as once the marriage is void the same is a nullity and at any time the same can be declared as nullity being a void marriage. Therefore, both the trial court as well as the High Court have committed an error in observing that the marriage petition was barred by limitation. While holding so, both the trial court as well as the High Court had considered first proviso to Section 25 of the Act. In the facts and circumstances of the case, we are of the opinion that Section 25 of the Act shall not be applicable and Section 24 of the Act would be applicable which does not provide for any period of limitation like first proviso to Section 25 of the Act." It may be noticed that though the said judgment has been delivered under the Special Marriage Act, 1954, yet the 18 of 19 ::: Downloaded on - 12-05-2019 11:38:55 ::: FAO-M-74-2019 (19) legal issue being the similar as is involved in the present case, we respectfully follow the said judgment.
The factum of the living spouse of the appellant- husband was duly proved by the respondent-wife before the learned trial Court. The only defence of the appellant-husband that he had obtained a Panchayati divorce from his previous wife, was negated for the reason that the appellant-husband had failed to prove that the parties were governed by the custom, thereby having an overriding effect over the provisions of the Act.
Except for the reliance upon the Division Bench judgment on Jaswinder Singh's case (supra), to support his plea that petition filed by the respondent-wife was time barred, the learned counsel for the appellant could not dispute the findings recorded by the learned trial Court, in any manner. The judgment in Jaswinder Singh's case (supra), being not applicable to the facts of this case, is of no help to the appellant. Moreover, if the plea of the appellant is considered, even then there being no period of limitation for seeking a decree of nullity as regards a void marriage, the plea raised by the appellant, is liable to be rejected.
No other point has been urged.
In view of the above, we do not find any merit in the present appeal. The same is, accordingly, dismissed.
(RAKESH KUMAR JAIN) (HARNARESH SINGH GILL)
JUDGE JUDGE
March 28, 2019
ds
Whether Speaking/ Reasoned: Yes/ No
Whether Reportable: Yes/ No
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