Madras High Court
R.Vijayalakshmi vs K.P.Arun on 11 October, 2006
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
29.11.2018 04.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
C.M.S.A. (MD) No.2 of 2007
and
M.P.(MD) Nos.1 of 2007, 1 of 2008 & 1 of 2010
R.Vijayalakshmi ... Appellant / Respondent / Respondent
-vs-
K.P.Arun ... Respondent / Appellant / Petitioner
PRAYER: Appeal is filed, under Section 100 read with Section 108 of the Code
of Civil Procedure, against the Judgment and Decree passed in C.M.A.No.25 of
2005, on the file of the District Court, Karur, dated 11.10.2006, reversing the
Judgment and Decree passed in H.M.O.P.No.97 of 2003, on the file of the Sub
Court, Karur, dated 08.04.2005.
For Appellant : Mr.G.Prabhu Rajadurai
For Respondent : Mr.V.Balaji
http://www.judis.nic.in
2
JUDGMENT
The civil miscellaneous second appeal is directed against the Judgment and Decree, dated 11.10.2006, passed in C.M.A.No.25 of 2005, on the file of the District Court, Karur, reversing the Judgment and Decree, dated 08.04.2005, passed in H.M.O.P.No.97 of 2003, on the file of the Subordinate Court, Karur.
2. The parties are referred to as per the rankings in the Trial Court for the sake of convenience.
3. The petitioner filed a petition, under Sections 5(i) and 11 of the Hindu Marriage Act, 1955 (hereinafter, referred to as “the Act”). Shorn of unnecessary details, the case of the petitioner is that the respondent is his second wife and the marriage between them was solemnized during the month of August, 1992 and after the marriage, they had been leading the marital life and out of the wedlock, two sons were born to them. The petitioner had married one Kasthuri as his first wife, in the year 1982 and the said marriage had been solemnized as per the caste, custom and rituals of the community of the parties and thereafter, the petitioner and the abovesaid Kasthuri had been leading the marital life as the husband and wife and out of the wedlock, two children were born to them and while the abovesaid marriage was subsisting http://www.judis.nic.in 3 between the petitioner and Kasthuri, the petitioner had developed intimacy with the respondent and accordingly, on the compulsion putforth by the respondent that he should marry her, despite the subsistence of his marriage with Kasthuri, left with no other alternative, according to the petitioner, he had married the respondent and also leading the marital life with her, however, after the marriage, the respondent had exposed her true mind by showing her behaviour in a rude, cruel and rough manner and thereby, prevented the petitioner from meeting his first wife Kasthuri and the children born to them and also insisted that the petitioner should put an end to the marital life with Kasthuri and in the meanwhile, Kasthuri had also levied a petition, in M.C.No.19 of 1992,against the petitioner, on the file of the Judicial Magistrate Court No.II, Karur, claiming maintenance to her and children and as per the compulsion exercised by the respondent seeking annulment of the marriage with Kasthuri, the petitioner had preferred a petition, in H.M.O.P.No. 80 of 1994, against his first wife Kasthuri and the said petition was allowed on 10.11.1994, however, the fact remains that the marriage of the petitioner with respondent took place when the marriage of the petitioner with Kasthuri was subsisting, therefore, according to the petitioner, the marriage between him and the respondent is null and void and even after divorce from his first wife, the respondent did not carry on the marital life with the petitioner peacefully and on the other hand, started abusing and threatening the petitioner and http://www.judis.nic.in 4 directed him to include her name as his wife in the official records and also forced and coerced him to buy properties in her name and handover the monies and jewels to her and the respondent's attitude had developed to such an extent that she had even started assaulting the petitioner and resultantly, the petitioner was forced to lodge a Police complaint against the respondent and inasmuch as the respondent had not chosen to mend her ways and her intention was only to grab the monies and properties belonging to the petitioner and therefore, according to the petitioner, the continuance of the marital life with the respondent has become impossible and inasmuch as the petitioner had married the respondent during the subsistence of his marriage with his first wife Kasthuri, the marriage held between the petitioner and the respondent is null and void in the eyes of law as per Sections 5(i) and 11 of the Act and there is no collusion between the petitioner and the respondent in filing the petition and hence, the petition.
4. The case of the respondent, in brief, is that the petition laid by the petitioner is not maintainable either in law or on facts. The fact that the petitioner had married Kasthuri as his first wife and leading the marital life with her and out of the wedlock, two children were born to him and Kasthuri are true and inasmuch as there was dispute between the petitioner and the first wife Kasthuri, the petitioner on account of his intimacy with the http://www.judis.nic.in 5 respondent, accordingly, chose to marry the respondent and the marriage between the petitioner and the respondent had been arranged by the elder members of the community and the relatives of the both sides and as the petitioner had assured that he would take steps to obtain divorce from his first wife as per law and the divorce would be granted within a short period and believing the words of the petitioner, the respondent and her parents agreed for the second marriage and accordingly, the marriage had been held between the petitioner and the respondent and out of the wedlock between the petitioner and the respondent, two sons were born and it is false to state that the respondent had started to behave rudely and forced the petitioner to part with the properties, jewels and monies to her as putforth in the petition and it is false to state that she had compelled the petitioner to seek annulment of the marriage with Kasthuri and only on account of the same, the petitioner had preferred H.M.O.P.No.80 of 1994 for divorce against the said Kasthuri. On the other hand, as there was dispute between the petitioner and Kasthuri, the petitioner had chosen to marry the respondent and thereafter, had also obtained dissolution of the marriage held with Kasthuri and the case putforth by the petitioner that he had purchased properties and handed over the jewels and monies to the respondent on account of the force and compulsion exercised by the respondent is false. On the other hand, it is only the petitioner, who is the mischief monger and acted against the interest of the http://www.judis.nic.in 6 respondent and her children, started to stay with his divorced wife Kasthuri and thereby, the dispute arose between the petitioner and the respondent and the petitioner did not choose to mend his ways and as he had not come forward with clean hands and suppressed the material facts and not projected any valid ground for divorce, according to the respondent, the petition preferred by the petitioner is liable to be dismissed.
5. In support of the petitioner's case, P.Ws.1 and 2 were examined and Exs.P1 to P3 were marked. On the side of the respondent, R.Ws.1 to 3 were examined and Exs.R1 to R4 were marked.
6. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Trial Court was pleased to dismiss the petition preferred by the petitioner. On appeal, the First Appellate Court, on a consideration of the materials placed on record and the submissions made, was pleased to set aside the Judgment and Decree of the Trial Court and by way of allowing the appeal preferred by the petitioner, declared the marriage held between the petitioner and the respondent as null and void, by way of allowing the petition preferred by the petitioner. Impugning the same, the present civil miscellaneous second appeal has been preferred.
http://www.judis.nic.in 7
7. It is not in dispute that the respondent is the second wife of the petitioner. It is also not in dispute that the petitioner had contracted his first marriage with one Kasthuri in the year 1982 itself and accordingly, the petitioner and the said Kasthuri had been living as husband and wife and out of the said wedlock, two children were born to them. It is noted and also not in dispute that the petitioner had married the respondent as the second wife during the month of August, 1992. Admittedly, at that point of time, the marriage between the petitioner and Kasthuri has been subsisting and the said fact is not controverted by the respondent. On the other hand, the respondent, in her counter, has clearly admitted that the petitioner had contracted the first marriage with Kasthuri and the marriage was subsisting at the time of the petitioner's marriage with the respondent, during the month of August, 1992 and according to the respondent, as averred in the counter, as the dispute arose between the petitioner and Kasthuri and thereby, the petitioner had decided to marry the respondent, accordingly, it is stated by the respondent that inasmuch as the petitioner had assured that he would seek for divorce from his first wife Kasthuri shortly and believing the abovesaid words of the petitioner, according to the respondent, she and her parents had agreed for the second marriage and accordingly, the marriage had been held between the petitioner and the respondent. Therefore, as per the abovesaid http://www.judis.nic.in 8 case projected by the petitioner as well as the respondent, it is very evident that at the time of the marriage between the petitioner and the respondent, the marriage between the petitioner and Kasthuri has been in force and subsisting and the said marriage has not been annulled as per law.
8. Materials placed on record would go to show that only after the marriage with the respondent, nearly two years after the said marriage, it is seen that the petitioner had preferred H.M.O.P.No.80 of 1994 seeking for divorce against the first wife Kasthuri and as per the document marked as Ex.P2, it is found that the divorce had been granted in favour of the petitioner as against his first wife only on 10.11.1995, as could be seen from the decree copy passed in H.M.O.P.No.80 of 1994, marked as Ex.P2. Therefore, it is seen that the petitioner had divorced his first wife nearly three years after the marriage with the respondent and resultantly, it is seen that the petitioner's marriage with the first wife Kasthuri has been in force and subsisting at the time of the petitioner's marriage with the respondent and in such view of the matter, as putforth by the petitioner, it is found that the marriage of the petitioner with the respondent, during the subsistence of the marriage of the petitioner with his first wife, as per law is null and void. http://www.judis.nic.in 9
9. The abovesaid position of law could be gathered from Section 5(i) of the Act. Section 5(i) of the Act reads as under:
“5. 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;”
10. Furthermore, the consequence of the marriage of the petitioner and the respondent, during the subsistence of the marriage with Kasthuri, has been declared as void under Section 11 of the Act. Section 11 of the Act reads as under:
“11. 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 clauses
(i), (iv) and (v) of section 5.”
11. On a conjoint reading Sections 5(i) and 11 of the Act, it is seen that any marriage solemnized after the commencement of the 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 http://www.judis.nic.in 10 the conditions specified in clauses (i), (iv) and (v) of Section 5. Therefore, when as per Section 5(i) of the Act, neither party to a marriage should have a spouse living at the time of the marriage and as could be seen from the abovesaid discussions and also admitted by both parties that at the time of the marriage of the petitioner with the respondent, the marriage of the petitioner with his first wife Kasthuri has been in force and subsisting, in such view of the matter, it is clear that as rightly determined by the First Appellate Court, the marriage held between the petitioner and the respondent is null and void and the parties to the marriage are entitled to seek the declaration of the said marriage by a decree of nullity, if they choose to do so and accordingly, as rightly putforth by the petitioner's counsel, when the marriage covered by Section 11 of the Act is found to be void ipso jure, that is, void from the very inception and has to be ignored as not existing in law at all and also the Section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from the Court in a proceeding specifically commenced for the purpose and even de hors the same, a marriage in contravention of Section 11 of the Act must be treated as null and void from its very inception and this position of law could be gathered from the decision of the Apex Court in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, reported in AIR 1988 SC 644, relied upon by the petitioner's counsel.
http://www.judis.nic.in 11
12. In the decision in Chinnammal vs. Elumalai, reported in 2000 (II) CTC 214, it has been held that the marriage contracted by a male Hindu, after advent of the Tamil Nadu (Bigamy Prevention and Divorce) Act, 1949 and the Hindu Marriages Act, while the first marriage is subsisting, is totally void, illegal and opposed to the public policy and when the factum of the petitioner's marriage with his first wife Kasthuri has not been disputed by the respondent herself and on the other hand, as averred in the counter of the respondent, when it is noted that the respondent is fully aware about the factum of the petitioner's marriage with his first wife and the subsistence of the said marriage at the time when the petitioner had chosen to contract the marriage with the respondent, thus, it is noted that both parties knowing the above position, having chosen to contract the marriage, while the petitioner's first marriage was subsisting and not dissolved as per law, even in the absence of any petition preferred by the petitioner to declare the abovesaid marriage with the respondent as null and void, when as per the law the abovesaid marriage contracted between the petitioner and the respondent shall be treated only as null and void from the inception, it is found that the petition preferred by the petitioner seeking for annulment of the marriage with the respondent should be accepted straightaway as determined by the First Appellate Court. http://www.judis.nic.in 12
13. The only contention putforth by the respondent's counsel for attacking the Judgment of the First Appellate Court is that the First Appellate Court, according to him, has failed to consider the import of Section 23(1)(a) and (d) of the Act and accordingly, it is his contention that when the petitioner had chosen to contract the second marriage with the respondent knowing fully well about the subsistence of his marriage with the first wife at that point of time, according to the respondent, the petitioner cannot take advantage of his own wrong and seek the relief of annulling of marriage with the respondent as prayed for and furthermore, according to him, inasmuch as the petitioner had been leading the marital life with the respondent, after the marriage for a considerable time, and out of the said wedlock, two children were also born to them and accordingly, when after a considerable period of time, as the petitioner had preferred the petition with huge delay, it is putforth that on the abovesaid latches on the part of the petitioner, he is dis-entitled to seek the annulment of the marriage with the respondent and therefore, according to the respondent's counsel the Judgment and Decree of the First Appellate Court need reversal.
14. Clauses (a) and (d) of Sub-Section (1) to Section 23 of the Act reads as follows:
http://www.judis.nic.in 13 “23. Decree in proceedings.-(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub— clause (c) of clause (ii) of section 5 is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief, and ...
...
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and”
15. Insofar as the invocation of Section 23(1)(a) of the Act to the case at hand, as abovenoted, it is not the case of the respondent that the petitioner had suppressed his marriage with his first wife Kasthuri at the time of contracting the marriage with the respondent. Per contra, as could be seen from the counter averments, the respondent is fully aware about the petitioner's first marriage with Kasthuri and also the subsistence of the said marriage, when the petitioner contracted the marriage with her. It is, thus, seen that when the marriage between the petitioner and Kasthuri was in force and subsisting, knowing fully well about the same, the respondent had developed intimacy with the petitioner and thereby, despite the above position, http://www.judis.nic.in 14 the respondent had also chosen to contract the marriage with the petitioner voluntarily and when there is no material worth acceptance placed on the part of the respondent that the petitioner had coerced or exercised force or induced her in marrying him by suppressing the earlier marriage or by assuring that he would obtain divorce from his first wife and on the other hand, when as per the admitted facts, the respondent and her parents are fully aware of the subsistence of the petitioner's marriage with Kasthuri at the time of the marriage with the respondent, in such view of the matter, the petitioner cannot be alleged that he is taking advantage of his own wrong of his marriage with the first wife and thereby, contracted the second marriage with the respondent. On the other hand, when the factum of the petitioner's marriage with his first wife is known to the respondent as well as her parents and despite the same, they had chosen to agree for the marriage with the petitioner, in such view of the matter, when the petitioner had not suppressed the factum of his marriage with the first wife in any manner, when as per Sections 5(i) and 11 of the Act, the marriage of the petitioner with the respondent, during the subsistence of his first marriage, is found to be null and void from the inception in toto, it is found that the petitioner alone could not be found fault with the abovesaid position and on the other hand, it is seen that the respondent is also a wrongdoer and in such view of the matter, the contention putforth by the respondent's counsel that the First Appellate http://www.judis.nic.in 15 Court had not taken into consideration the import of Section 23(1)(a) of the Act for rejecting the petitioner's case, as such, does not merit acceptance. Accordingly, the unreported decision of the Punjab-Haryana High Court, relied upon by the respondent's counsel, in Gurmit Kaur vs. Buta Singh, passed in FAO No.50-M of 2005, dated 10.11.2009, as such, would not be useful to uphold the contentions putforth by him as if the petitioner is the sole wrongdoer in the contract of the marriage between him and the respondent, when infact both the parties had with the open eyes knowing the subsistence of the petitioner's marriage with his first wife, chosen to contract the second marriage with the respondent and in such view of the matter, in my considered opinion, the provision of law covered under Section 23(1)(a) of the Act would not applicable to the case at hand as the petitioner is not shown to be the sole wrongdoer in the contract of the second marriage with the respondent.
16. The respondent's counsel further contended that there has been a huge delay on the part of the petitioner in instituting the petition and according to him, when after the marriage had been held between the petitioner and the respondent during August, 1992 and thereafter, they had been living together as husband and wife and subsequent thereto, the petitioner's marriage with his first wife has also been annulled and out of the http://www.judis.nic.in 16 wedlock two children were born, in such circumstances, the institution of the petition laid by the petitioner in the year 2003, after a long delay, according to him, the petition laid by the petitioner, on that ground, is liable to be dismissed, considering the import of Section 23(1)(d) of the Act.
17. However, as rightly putforth by the petitioner's counsel, when the marriage of the petitioner with the respondent is found to be void ab initio and even without any prayer for declaration of such a marriage as null and void as per law, the said marriage is null and void, in such view of the matter, the mere delay factor would not be a criteria for dis-entitling the petitioner to seek the declaration as prayed for. That apart, as could be seen from the decision relied upon the petitioner's counsel, when the marriage of the petitioner and the respondent is found to be void ab initio and also opposite to the public policy, the delay factor cannot be putforth by the respondent for negativing the relief sought for by the petitioner. In addition to that, in the decision relied upon by the petitioner's counsel in Smt.Aina Devi vs. Bachan Singh, reported in AIR 1980 Allahabad 174, it has been held that insofar as the petition seeking for declaring a marriage to be null and void, no amount of delay could be said to be sufficient to disentitle the petitioner to the relief prayed for, in spite of the generality of the provisions of clause (d) of Section 23(1) of the Act and the abovesaid decision has been outlined as follows:
http://www.judis.nic.in 17 “In fact the grounds on which a petition for declaring a marriage to be null and void, may be filed under Section 11 of the Hindu Marriage Act, are such that no amount of delay could be said to be sufficient to disentitle a petitioner to relief thereunder, in spire of the generality of the provisions of cl.(d) of Section 23(1) of the Act.”
18. Furthermore, in the abovesaid decision, as regards the import of Section 23(1)(d) of the Act to the marriage contracted in violation of Section 5(i) of the Act and the declaration of such marriage as null and void, it has been held that the institution of application, with reference to the same, is done by the parties only to further the policy of law and with reference to the said position, the Court had discussed the points as noted below:
“Indeed the grounds on which a petition for declaring a marriage to be null and void may be filed under Section 11 of the Hindu Marriage Act, are such that no amount of delay could be said to be sufficient to disentitle a petitioner to relief thereunder, in spite of the generality of the provisions of clause (d) of Section 23(1) of the Act. The policy of the law is tha a marriage solemnised in contravention of any of the conditions prescribed by cls.(i), (iv) and (v) of Section 5 of the Act is null and void. The parties to such a marriage may not http://www.judis.nic.in 18 institute a petition, and by not instituting the petition they would only be defeating the policy of the law, for no person other than a party to such a marriage has been given a right to have it declared to be null and void. Under the circumstances if one of the parties does file a petition for having the marriage declared null and void under Section 11 of the Act, he or she only does something to further the policy of the law, and I do not think that such a petition could properly be dismissed on the ground of unnecessary or improper delay, for by doing as instead of advancing the policy of the law, the court would be defeating it. I, therefore, disagree with the view of the learned District Judge that the petition was liable to be dismissed on the ground of unreasonable delay.
19. As rightly determined by the First Appellate Court, considering the decision of our High Court in Pavunambal vs. Ramaswamy and another, reported in 1979 (II) MLJ 273, it is seen that Section 23(1)(d) of the Act cannot be straightaway invoked on the mere delay factor in rejecting the application preferred under Section 5(i) of the Act and the position of law, as regards the same, has been outlined as follows:
“Hindu Marriage Act (XXV) of 1955), section 23(1)
(d) – Marriage in 1957 – Petition by wife in 1974 to declare marriage a nullity – Trial Court recording finding that marriage was bigamous – Petition however http://www.judis.nic.in 19 dismissed on the ground of delay – Appeal by wife to District Court also dismissed – Further appeal go High Court allowed.
The marriage took place in 1957. The wife moved the Court in 1974 to have it declared a nullity on the ground that the husband was already married. By that time the husband was dead. The first wife also died in 1958. The learned Subordinate Judge recorded the evidence and at the end of the enquiry entered the finding that the marriage was bigamous. However, he dismissed the petition on the ground of delay. The learned District Judge, on appeal, took the same view.
The wife filed an appeal to the High Court.
Held : It would be a mistake to suppose that the element of delay would override other considerations. In any case, the time-lag in instituting the proceedings could by no means be over-emphasised, but must be considered in the proper setting, and in the context of the various other statutory considerations the relative importance and cumulative effect of which the Court had to decide for itself in a reasonable and just fashion.
It might be noticed that section 23(1)(d) of the Hindu Marriage Act in terms, just did not refer to delay merely; what it cautioned against was “unnecessary” or “improper” delay. The former adjective might possibly have reference to the circumstances which, in given cases, might or ight not amount to extenuating circumstances for the delay. The epithet “improper” would seem to indicate that the Court has to see if the http://www.judis.nic.in 20 delay has, in any material way, rendered it difficult for the Court to come to a reasonable satisfactory determination on the issues raised in the proceedings.”
20. In the case covered under the abovesaid decision, it is noted that the petition had come to be laid with nearly 17 years delay, even then the Court had held that the abovesaid delay, that by itself, would not be the basis for dismissal of the petition preferred under Sections 5(i) and 11 of the Act as the marriage held in contravention of Section 5(i) of the Act is null and void ab initio.
21. In the light of the above discussions, the contentions putforth by the respondent's counsel that the First Appellate Court should have concurred with the Judgment of the Trial Court by invoking Section 23(1)(a) and (d) of the Act cannot be countenanced and accordingly, it is found that the First Appellate Court, on an appreciation of the materials placed on record and also considering the position of law, as regards the issues involved between the parties, rightly determined that the petitioner is entitled to seek the declaration that the marriage between him and the respondent is null and void ab initio.
http://www.judis.nic.in 21
22. Resultantly, the Judgment and Decree of the First Appellate Court do not warrant any interference. No substantial question of law is found to have involved in this civil miscellaneous second appeal.
23. In conclusion, the civil miscellaneous second appeal is dismissed with costs. Consequently, connected miscellaneous petitions are closed.
04.12.2018
Internet : Yes / No
Index : Yes / No
krk
To:
1.The District Judge,
Karur.
2.The Sub Judge,
Karur.
http://www.judis.nic.in
22
T.RAVINDRAN, J.
krk
JUDGMENT
IN
C.M.S.A. (MD) No.2 of 2007
and
M.P.(MD) Nos.1 of 2007, 1 of 2008 &
1 of 2010
04.12.2018
http://www.judis.nic.in