Patna High Court
Kedar Nath Gupta vs Sm. Suprava on 20 March, 1963
Equivalent citations: AIR1963PAT311, AIR 1963 PATNA 311
JUDGMENT Ramratna Singh, J.
1. This appeal arises out of a petition filed before the District Judge of Purnea by the respondent under Section 17 of the Hindu Marriage Act, 1955. The respondent in this Court is the first wife of the appellant. He married for the second time another girl named Radha Rani Gupta. According to the respondent, the second marriage of the appellant took place on the 26th May, 1957, that is, long after the commencement of the said Act. The respondent, therefore, prayed in her petition that the appellant be adjudged guilty under Section 17 of the Act. She added in her petition that she preserved the right to seek remedy against the appellant under Section 11 of the Act. The petition was transferred by the District Judge to the Court of the first Additional District Judge, Purnea; and during the arguments before the learned Additional District Judge it was verbally prayed on behalf of the respondent that a decree in terms of Section 11 be passed, that is, the marriage between the appellant and Radharani Gupta be declared null and void. The appellant opposed the petition on the ground that his marriage with Radha Rani Gupta took place on the 26th April, 1955, that is, about three weeks before the 18th May, 1955, when the said Act came into force.
2. The learned Additional District Judge accepted the case of the respondent and held that she was entitled to a declaration that the second marriage was null and void. Hence, this appeal.
3. Besides challenging the finding of fact, the learned Advocate for the appellant raised two legal questions, namely, (1) the petition could not be maintained at the instance of the first wife, and (2) the learned Additional District Judge was not competent to hear and decide the matter.
4. I shall take up first the contention that the petition cannot be maintained at the instance of the first wife. Section 11 of the Act enacts: --
"Any marriage solemnized after the commencement or this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any of the conditions specified in Clauses (i), (iv) and (v) of Section 5." Section 5 enumerates the conditions of a valid Hindu Marriage; and Clause (i) thereof contains the condition that "neither party has a spouse living at the time of the marriage".
It was, therefore, conceded at the bar that, if the marriage of the appellant with Radharani took place on the 26th April, 1957, it would be null and void. The question, however, is whether the Court was competent to grant a declaration under Section 11 on a petition presented by the first wife of the appellant. According to Section 11, the petition must be presented by "either party" to the marriage solemnized after the commencement of the Act. It is plain, therefore, that such a petition can be entertained only if it is made by either of the two parties to the marriage. This was the view expressed by a Single Judge of the Madhya Pradesh High Court in Amarlal Gour v. Vijayabai, AIR 1959 Madh Pra 400 and a Single Judge of the Madras High Court in Lakshmi Ammal v. Ramaswami Naicker, AIR 1960 Mad 6; and we are of the opinion that this is the correct view. Hence, in the instant case, only the appellant or his second wife, who were the parties to the marriage in question, could file such a petition; and as the first wife, Suprava Gupta (the respondent) was not a party to this marriage, she was not entitled to present a petition under Section 11.
5. What remedy has she then got? The scheme of the Act shows that it is not exhaustive except so far as it makes specific provisions. Section 4 lays down that the law in force" immediately before the commencement ot the Act shall "cease" to have effect with respect to any matter for which provision is made in this Act and in so far as it is inconsistent with any of the provisions contained in the Act. Sections 9, 10, 12 and 13 provide, respectively, for restitution of conjugal rights, judicial separation, annulment of voidable marriages, and divorce. Section 11 provides for a decree of nullity on the ground of the marriage being void. But the remedies contained in 9, 10, 11 and 13 can be granted only by a petition resented by either party to a marriage against the other party. Of course, Section 12 does not say specifically as to who may present the petition and against whom; but the grounds for annulment of a voidable marriage do not cover contravention of the conditions specified in Clauses (i), (iv) and (v) of Section 5. Further, Section 19 lays down that the petitions under all these sections shall be presented to the District Court, that is, the Court of District Judge (see Section 3(b) of the Act). It is clear from the above scheme that the] respondent, who was not a party to the marriage in respect of which a decree for nullity is prayed for, cannot come under this Act. She may, if so advised, seek her remedy, if any, under the general law.
6. Mr. B. C. Ghose, learned advocate for the respondent, urged that the present petition may be converted into a plaint, and the necessary court-fees may be realised, but the forum and procedure for a civil suit is absolutely, different and it will not be just and legal for the special Court meant for the administration of this Act to entertain such a suit.
7. The petition of Suprava Gupta cannot be entertained by the Court, that is, the District Judge, even under Section 17 of the Act. That Section lays down:
"Any marriage between two Hindus solemnised after the commencement of this Act is void if at the date ot such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (Act XLV of 1860) shall apply accordingly."
In other words, this Section imposes penalty under the Indian Penal Code for such a marriage. It is manifest that for a penal action against a party to the marriage in question, the forum is the Criminal Court and the District Court is not competent to adjudge the appellant guilty under Section 17 of the Act.
8. Mr. Ghose urged that the above points were not raised before the trial Court; but they are purely legal questions which can be raised and entertained at any stage.
9. In view of the above findings, it is not necessary to decide the question whether the learned Additional District Judge was competent to hear and dispose of the petition of the respondent. For the same reason, it is not desirable to decide in this case the fact whether the marriage in question was solemnised before or after the commencement of the Act, just to prevent any possible prejudice to either party.
10. In the result, the appeal is allowed and the judgment and decree of the Court below are set aside; but in the circumstances of the case, the parties will bear their own costs throughout.
Kanhaiya Singh, J.
11. I agree.