Punjab-Haryana High Court
Jaswinder Singh vs Manjit Kaur on 21 May, 2018
Author: M.M.S. Bedi
Bench: M.M.S. Bedi, Gurvinder Singh Gill
FAO 2709 of 2015 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
FAO 2709 of 2015 (O&M)
Date of Decision: May 21, 2018
Jaswinder Singh
.....Appellant
Vs.
Manjit Kaur
.....Respondent
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
HON'BLE MR. JUSTICE GURVINDER SINGH GILL.
-.-
Present: Mr. Malkeet Singh, Advocate
for the appellant.
Mr. Vineet Chaudhary, Advocate for the respondent.
-.-
M.M.S. BEDI, J.
Jaswinder Singh appellalnt is aggrieved by dismissal of his petition for annulment of marriage with Manjit Kaur respondent vide judgment and decree dated March 4, 2015 passed by Family Court, Ambala. The appellant has preferred this appeal under Section 19 of the Family Courts Act to set aside the impugned judgment and decree and seeks a declaration that his marriage with respondent which was solemnized on December 12, 1997 be declared a nullity.
Briefly stated the facts pleaded by the appellant-husband in his petition are that his marriage with respondent was solemnized on December 12, 1997 according to Sikh rites. The appellant and respondent cohabited 1 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [2] together as husband and wife and one male child Darshdeep was born out of said wedlock on July 6, 1999. The appellant levelled allegations of maltreatment and cruelty against the respondent. During the period of 14 years of marriage, they had lived together for a period of six months under one roof and for the last more than 10 years they had been residing separately in separate rooms in the house of the appellant. The allegations have been levelled against the respondent for not performing the matrimonial duties and causing mental and physical cruelty. It has been averred in the petition that respondent had deserted the appellant in the same house. An allegation has been levelled that respondent was already married at the time of marriage with the present appellant, with one Ravinder Singh on March 4, 1992, at Chandigarh but she did not disclose the said fact to the appellant regarding her earlier marriage. It is further averred in the petition that respondent had played a fraud with the appellant as she was already married with Ravinder Singh which fact was not disclosed to the appellant as well as to his parents. It was informed that respondent was youngest daughter of her parents whereas the respondent was having a younger sister who was also married. It was further averred that respondent had obtained divorce from her earlier husband on January 29, 1998 after the solemnization of marriage with the appellant, by the Court of Sh.Amar Dutt, the then District Judge, Chandigarh, in case "Manjit Kaur Vs. Ravinder Singh @ Lalli", as such there was concealment of fact by the respondent regarding her earlier marriage which has caused mental torture to the appellant as well as his family members as such decree for annulment of marriage was prayed for.
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FAO 2709 of 2015 (O&M) [3]
The respondent contested the petition for nullity claiming that son of the parties was studying in 10th class and the respondent was also residing in the same house. The petition was a counter-blast to an application filed by the respondent under Protection of Women from Domestic Violence Act, 2005. As a matter of fact, the appellant was humiliating and harassing the respondent on account of insufficient dowry having been brought by her. The appellant has given wrong title of the petition by showing the name of the previous husband of the respondent who had already obtained divorce and all facts were well within the knowledge of the appellant. On merits, the petition has been contested on the ground that at the time of solemnization of marriage, sum of Rs.5 lacs was spent on the marriage and valuable dowry articles had been given to the appellant and his family members. The respondent wife admitted to have filed a petition under Protection of Women from Domestic Violence Act, 2005 but the allegations of cruelty by her stand denied. The respondent has submitted that everything was disclosed to the appellant about her previous marriage prior to her marriage with appellant. The marriage with appellant is valid and it was solemnized with due knowledge of the appellant and his family members including the relations. The appellant was having all papers of divorce which he had not disclosed in the present petition. The appellant with his free consent had agreed to the re-marriage with the respondent as such there was neither any concealment of fact nor any ground for annulment of marriage. It is claimed that on account of petition having been filed at belated stage with manipulations, the same deserves to be dismissed.
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FAO 2709 of 2015 (O&M) [4]
It was rather appellant who had committed cruelty on the respondent. It was specifically pleaded that the petition was hopelessly barred by time.
On the pleadings of the parties, following issues were framed:-
"1. Whether the petitioner is entitled to seek annulment of marriage between the parties under Section 12 of the Hindu Marriage Act, 1955 ? OPP
2. Relief."
The lower Court arrived at a conclusion that the parties had solemnized the marriage on December 12, 1997 and prior to the said marriage, the respondent had solemnized marriage with one Ravinder Singh on March 4, 1992 which was dissolved by a decree of mutual divorce vide judgment dated January 29, 1998, as mentioned in the petition. The lower Court observed that the petition had been presented after a period of more than one year of knowledge of fraud as such it was not maintainable.
Mr. Malkeet Singh, learned counsel for the appellant has vehemently contended that as a matter of fact the petition for declaring the marriage null and void is under Section 11 (1) of the Hindu Marriage Act, for short 'the Act', read with Section 5 (i) of the Act as the respondent had a living spouse at the time of marriage i.e. on December 12, 1997 while she had obtained divorce from her first husband on January 29, 1998 by a decree of divorce by mutual consent.
On the other hand, counsel for the respondent submits that the declaration sought is bared by time. The petition for claiming marriage a nullity has been filed after a period of about 14 years as such it is liable to be dismissed.
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FAO 2709 of 2015 (O&M) [5]
Mr. Malkeet Singh, counsel for the appellant, has vehemently urged that any marriage which has been performed by a spouse while first marriage was subsisting would be a nullity as per provisions of Section 11 of the Act. Mr. Malkeet Singh has urged that the delay, estoppel and law of limitation will not in any manner effect the right of a spouse to seek declaration that marriage is void.
We have considered the facts and circumstances of the case and considered the contention of counsel for the parties. At the outset, when confronted with provisions of Sections 11 and 12 of the Act, Mr. Malkeet Singh submitted that as a matter of fact the marriage had been sought to be declared invalid under Section 11 of the Act as the same deserves to be declared as a nullity because the marriage contravenes one of the conditions specified in clause 5 (i) of the Act which lays down that for a lawful marriage the necessary condition is that neither party should have a spouse living at the time of marriage and a marriage in contravention to this condition, is therefore, required to be declared null and void. He admitted that so far as Section 12 of the Act is concerned, it is confined to the other category of marriage and is not applicable to a marriage which is solemnized in violation of provisions of Section 5 (i) of the Act. He submitted that in view of the facts of the present case being covered under Section 11 read with Section 5 (i) of the Act, the marriage between the appellant and the respondent is required to be declared null and void. He placed strong reliance on the judgment of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, AIR 1988 SC 644 wherein the case of right of maintenance of a wife who had a living spouse at the time of her marriage 5 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [6] was considered and it was held that under Section 12 of the Act marriage of a woman with a man having living spouse, is a complete nullity and she is not entitled for benefit under Section 125 Cr.P.C. For the same proposition, counsel for the appellant has relied upon M.M. Malhotra Vs. Union of India, (2005) 8 SCC 351. In the said case the rights of an Air Force officer who had been compulsorily retired were considered and it was held that he having developed illicit relations with a lady during subsistence of his first marriage had been rightly retired compulsorily as he had contracted plural marriage which was not permissible under the Air Force Regulations as well as under Section 11 of the Act. In support of his contention, that the second marriage during life time of living spouse would be void and invalid and requires no declaration as a nullity counsel for the appellant has cited Mohan Lal Sharma Vs. Parveen, 2009 (4) RCR (Civil) 749 in which the marriage of appellant was declared null and void being second marriage. Reliance was also placed on the judgment of Manpreet Kaur Vs. Balkar Singh, 2015 (5) RCR (Civil) 510 wherein the wife had solemnized marriage with respondent during subsistence of her previous marriage and she had a living spouse and therefore, marriage was annulled later on. The marriage of appellant being violative of Section 5 (i) of the Act was declared to be null and void. He also placed reliance on the judgment of Hemlata Karayat Vs. Vijay Kumar Karayat, 2015 (5) RCR (Civil) 160, wherein while considering the right of wife who entered into second marriage without divorce from the first husband who was alive was held not entitled for maintenance as her marriage was null and void under Section 11 of the Act. It was observed that second husband was not required to seek formal 6 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [7] declaration from the competent Court of law for declaring the marriage void. He urged that his petition may be considered as a petition under Section 11 of the Act. In support of his contention, he relied upon the judgment of Chain Singh Vs. Hardeep Kaur, 2016 (3) PLR 700 wherein it was observed that an error in quoting correct provisions of law can be condoned and the case be considered on merits.
On the other hand, counsel for the respondent has argued that as per the judgment of Perminder Charan Singh etc. Vs. Harjit Kaur, AIR 2003 SC 2310 where the appellant husband was aware of marital status of respondent wife at the time of marriage, there was no question of annulment of marriage though it was a case of annulment of marriage under Section 13 of the Act.
We have heard counsel for the parties and gone through the pleadings and the entire evidence and the case law cited by both the counsel for the parties and are of the opinion that the point which is required for the determination of the present appeal is whether a husband who has stayed with his wife for a period of 14 years having knowledge about the date of her divorce from earlier husband would be entitled to seek a declaration that his marriage is null and void on account of the fact that 14 years back his wife had not obtained divorce and had rather obtained divorce about one month after marriage with him, by mutual consent from her previous husband Ravinder Singh. The above said proposition has to be considered in the light of the evidence led by both the parties taking into consideration the provisions of Section 11 of the Act read with Section 5 (i) of the Act as well as the law of limitation and the principle of estoppel and waiver. It is not out 7 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [8] of place to mention here that no other point has been raised in the present case except for the applicability of Section 11 of the Act read with Section 5
(i) of the Act as a ground for declaring the marriage void. It is not disputed that the marriage of the parties had taken place on December 12, 1997 and a decree for divorce under Section 13 B of the Act had been passed on January 29, 1998 (after 46 days of the second marriage) and the appellant had the knowledge about the first marriage and date of divorce as established by Hardit Singh Sandhu, RW1 that he knew that the respondent had filed a petition for divorce with first husband by mutual consent. The said fact has been proved by the respondent herself by appearing as a witness as RW2 and by tendering her testimony in the shape of affidavit Ex.RW2/2.
We have considered the above said facts in context to the relevant law. It is undisputed fact arisen from the present case that the respondent wife was earlier married to Ravinder Singh on March 4, 1992. Respondent had filed a petition under Section 13 B of the Act along with her husband on July 17, 1997. The marriage was dissolved vide judgment and decree Ex.R-1 and R-2 passed by District Judge, Chandigarh. The respondent wife had married the appellant after recording of the statement dated July 26, 1997 of Special Power of Attorney holder of her husband Ravinder Singh, namely, Jarnail Singh, i.e. during the pendency of the proceedings under Section 13 B of the Act, on December 12, 1997. The petition for nullifying the marriage solemnized on December 12, 1997 was filed on September 6, 2012 after the respondent initiated proceedings under Protection of Women from Domestic Violence Act, 2005, in the Court of CJM, Ambala in November 2011, which is apparent from Mark 'B', copy of 8 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [9] the application placed on record and proved by the respondent by appearing as RW2. The petition for nullity of the marriage was contested on the ground that she has been residing in the same house as that of the appellant. They have a grown up child studying in 10th class and the petition has been filed as a counter-blast to the proceedings under the Protection of Women from Domestic Violence Act and that the appellant was very well aware of her previous marriage and date of divorce as everything was disclosed to the appellant as the marriage had been solemnized with due knowledge of the appellant and his family members; the appellant had all the papers of divorce. The case of the respondent wife is that all the documents were handed over to the appellant prior to the marriage even at the time of engagement. There is no ambiguity regarding the date of divorce and everything was done in consented manner with the free consent of the appellant. He had agreed to re-marriage. There has not been any concealment of facts. The petition had been filed at belated stage. It was also alleged that the appellant had himself committed matrimonial wrong by treating the respondent with cruelty. Specific plea was taken that the petition was barred by time.
The respondent has been able to establish from her testimony as RW2 which is coupled with the admission of appellant in his cross- examination that the marriage is settled with his consent and free mind. Appellant also admitted that he had filed a petition for declaring the marriage a nullity after the respondent had filed application under Section 125 Cr.P.C. and a petition under Protection of Women from Domestic Violence Act, 2005, against him in the year 2011 and he had been ordered to 9 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [10] pay a sum of Rs.5000/- per month to the respondent besides a sum of Rs.2000/- p.m. to the minor. The appellant admitted that he never made a complaint against the respondent before any authority regarding any fraud having been played on him.
On the basis of appreciation of evidence, the lower Court arrived at a conclusion that the appellant had knowledge about the first marriage of the respondent and that he had challenged the validity of the marriage after 14 years and that his petition is barred under Section 12 (2)
(a) (i) of the Act as the petition had been presented after more than one year of alleged fraud having been discovered by him.
In the present case it stands established that at the time of filing of the petition, 14 years had elapsed from the date of marriage and the petition for nullity on the ground that the wife was earlier married on the date of marriage with appellant was taken after proceedings for maintenance and domestic violence had been launched against him.
Counsel for the appellant has placed strong reliance on the following judgments:-
i) Yamunabai Anantrao Adhav Vs. Anantrao
Shivram Adhav, AIR 1988 SC 644;
ii) M.M. Malhotra Vs. Union of India, (2005) 8
SCC 351;
iii) Mohan Lal Sharma Vs. Parveen, 2009 (4) RCR
(Civil) 749;
iv) Manpreet Kaur Vs. Balkar Singh, 2015 (5) RCR
(Civil) 510;
v) Narinder Singh Mangat Vs. Harjinder Kaur,
2017 (2) RCR (Civil) 387;
vi) Hemlata Karayat Vs. Vijay Kumar Karayat,
2015 (5) RCR (Civil) 160;
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We have carefully gone through all the said judgments. Yamunabai Anantrao Adhav's case (supra) was a case of a wife who had married respondent No.1 in 1974 but the husband had a subsisting marriage on the day when he married the appellant. The appellant had lived with him for one week. In context to the provisions of Section 125 Cr.P.C. it was held that the marriage of appellant wife was a nullity as such she was not entitled to any maintenance. The scope of Sections 11 or 12 of the Act was not the subject matter of the said judgment. The said judgment was followed in the case of M.M. Malhotra (supra) where the appellant/ husband had been terminated from his service on the basis of having married during subsistence of his first marriage. It was observed that second marriage would be void marriage under Section 11 of the Act in context to his misconduct, for the service purposes. In Mohan Lal Sharma's case (supra), single Bench of this Court had set aside the judgment of the lower Court declining decree of nullity under Section 11 of the Act and the same was set aside relying upon the judgments of M.M. Malhotra's case (supra) just making an observation that merely because the appellant was aware of the previous marriage at the time of the marriage would be no ground to non-suit him. In view of above discussion, the judgments in M.M. Malhotra's case (supra) and Yamunabai Anatrao Adhav's case (supra), and that of Mohan Lal Sharma's case (supra) do not lay down an sbolute rule of law that every marriage of a spouse could be considered as null and void at any time despite the fact that the spouse claiming a declaration for nullity had a knowledge for a long time about the factum of first marriage. Similarly, in the case of Manpreet Kaur (supra), the respondent/ husband 11 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [12] had obtained a decree under Section 11 of the Act on the ground that the wife was already married to one Deepak Virdi and the said marriage was still subsisting. The marriage of the respondent was declared a nullity. A perusal of the said judgment indicates that the principle of estoppel, waiver and limitation was neither raised nor considered, as such the said judgment cannot be treated as a precedent to hold that in all circumstances, at any time, a spouse can seek to get a marriage declared a nullity on the ground that the other spouse was having a living spouse at the time of marriage. In Promila Vs. Ashok Kumar and another, 2009 (4) RCR (Civil) 444, the wife had dissolved her marriage by Panchayat and had re-married the respondent. Dissolution of marriage by Panchayat was held to be without jurisdiction and the decree of the trial Court for nullity of marriage in favour of the husband was upheld relying upon the judgment of M.M. Malhotra's case (supra).
As in none of the judgments referred to by counsel for the appellant, the applicability of principles of estoppel and waiver or the law of limitation has been considered and finally decided, we have taken into consideration the Parliamentary discussion when the Hindu Marriage Bill had been presented. A perusal of the discussion of May 3, 1955 indicates that Sh.Rane who had been an expert and proposed the amendments, had raised the arguments as follows:-
"Shri Rane: I have appeared in about hundred cases of divorce. You may call me an expert. But I have tabled all these amendments based on my actual experience in courts. You may laugh at it. I know there are many
12 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [13] Members who will later on come to know that my amendment to clause 12--amendment No.10--was a very wise amendment. I reply upon the future and I have given several grounds in all details in my amendment No.10.
My amendment No.10 to clause 12 seeks to combine clause 13 with clause 12. If my amendment is accepted, there will be no necessity for retaining clause
13. The language of clause 12 of the Bill, in my opinion, is very clumsy. I have read it and re-read it. There are so many ifs and buts and therefore I was unable to make any meaning for some time. I read and re-read and then I came to know the meaning of this caluse. I want that the language of the present Hindu Marriage Bill should be very simple. It must not be left to the lawyers to interpret it in different ways. Let the Bill say what we mean in a simple language that a man-in-the- street can understand. My amendment has this merit that as soon as you read it, you can make the meaning out of it. My claim may perhaps be exaggerated. I humbly submit that the language of my amendment is very simple and even a man-in-the-street may make meaning out of it.
As regards the other matters, I wish to stress the importance of amendment No.6 which seeks to liberalise the grounds for judicial separation. Amendment No.8 13 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [14] relates to the question of void marriages. My amendment seeks to omit clause (i), that is, to omit the condition.
"(i) neither party has a spouse living at the time of the marriage;"
My object is that if a man marries another wife, it should not be declared void; it should be made punishable only. My amendment to clause 11 says:
"Notwithstanding the provisions of the Indian Limitation Act, no petition under Section 11 of this Act, shall lie after two years from the date of the solemnization of the marriage and the marriage not so declared null and void by a petition under Section 11 shall be valid for all purposes notwithstanding the contravention of section 5 of this Act."
It is a question of limitation. I want that no marriage should be challenged on the ground that it is void after a specific period after the marriage has been solemnized.
With these observations, I commend my amendments to the acceptance of the House." A perusal of the proposal of the amendment to Section 11 of the Act himself was that a proviso should be added that no petition under Section 11 of the Act would lie after two years from the date of solemnization of the marriage and the marriage not so declared null and void
14 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [15] by a petition under Section 11 of the Act shall be valid for all purposes notwithstanding the contravention of Section 5 of the Act.
Few of the comments of the Speakers who participated in the debate prior to the passing of the Hindu Marriage Bill are relevant. The legislature had entered into a prolonged discussion regarding the status of the child begotten or conceived before a decree is made regarding nullity of the marriage under Sections 11 and 12 of the Act and also regarding the locus standi of a person who could challenge the validity of marriage having interest in the marriage. The relevant portion of the discussion as extracted from page 7641 is reproduced as under:-
"Shri Pataskar: May I point out to the Hon. Member that under the section as it stands, a petition can be made only by either of the party?
Shri S.S. More: Presented by either party. But suppose either party who entered into the wedlock, though void, decided not to get it set aside, what is going to happen?
Shri N.C. Chatterjee: May I draw the attention of the hon. Minister to this. Cannot a suit be filed under Section 42 for a declaration of the marriage as void if there is non-compliance with the conditions prescribed in Section 5? Will not the Court declare the marriage void because of non-compliance, apart from section 11? A suit can be filed and declaration can be obtained.
15 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [16] Shri Pataskar: Section 11 is a shorter remedy provided. It may or may not be used.
Shri N.C. Chatterjee: I hope the hon. Minister agrees that this is not the exclusive remedy. Ordinarily a suit would lie in a civil court under Section 42 of the Specific Relief Act.
Shri S.S. More: My proposition is this. Either party can get a marriage declared void. Besides either party, ther are many relations, say, father and other persons whose property the children, the product of this wedlock may inherit. Now, unfortunately, that marriage is not set aside by the two parties concerned, because they are interested in keeping their present relationship. Now, what happens under clause 16? Clause 16 says that they shall be deemed to be legitimate children for a certain limited purpose. It may be so if the marriage of their parents is set aside or declared to be null and void. But there is a contingency, and there will be many cases, where the marriage, though void, remains as it is and unannulled by any decree of a Court. Then, say, after 15 or 20 years the question of inheritance opens up somewhere. Now, what is going to happen to these children? That is my point. So there should be certain period fixed, and if other relations also do not take proper steps, if permitted under clause 11 to set aside the 16 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [17] marriage, then they should be stopped from challenging the legitimacy of the children; otherwise, it will be a sort of very unfair deal to the children concerned. So as far as clause 16 is concerned, it will have to be further amended by Government so as to put in some limit, that within such and such period it should be done. If it is not done, the children of that marriage should not be punished for the sins because they will be not in a position to see at the earliest moment that the marriage of their parents was void. This is my submission.
Shri Dhulekar: Clauses 11 and 16 are badly drafted. Shri S.S. More: I have made my point sufficiently clear. Clause 16 will be only applicable to children, the marriage of whose parents is declared null and void..... Shri N.C.Chatterjee: After nullification under this Act. Shri S.S. More: Nullification of the marriage will be a condition precedent for their getting this status of legitimate children. But there will be many children, the marriage of whose parents is void--can be proved to be void--but no party has taken any steps to get it set aside. Take, for instance, contravention of the prohibited degrees. Then, say after 15 years or 20 years when 'X' is going to claim a particular property, the point may be raised that the marriage of X's parents was void and therefore, X is illegitimate. Being illegitimate, he cannot 17 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [18] claim this particular property by inheritance. That is the point.
Mr. Chairman: It should be limited to a period. I think it is reasonable.
Shri S.S. More: If the relations do not take that step within that time, they must be stopped from challenging the legitimacy of the child. Therefore, this clause 11 will have to be amended. Instead of restricting the rights of presenting the petition to either party, make it as wide as possible so that everybody interested will have a chance to say something."
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 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 18 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [19] 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, 19 of 20 ::: Downloaded on - 08-07-2018 14:33:59 ::: FAO 2709 of 2015 (O&M) [20] 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.
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.
In view of the above circumstances, we do not find any infirmity in the judgment and decree dated March 4, 2015 passed by lower Court in dismissing the petition for declaring the marriage null and void.
The appeal is dismissed. The judgment and decree passed by the Family Court dated March 4, 2015 is hereby affirmed.
(M.M.S. BEDI)
JUDGE
May 21, 2018 (GURVINDER SINGH GILL)
sanjay JUDGE
Whether speaking/ reasoned: Yes/ No.
Whether reportable: Yes/No.
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