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5. The application was vehemently opposed by the respondent-husband. According to the respondent-husband, prior to his marriage with the applicant, they were having a love affair; that the respondent married with the daughter of his maternal uncle on 08.03.2007 at Bhusawal and the applicant was in knowledge of the said fact. According to the respondent, after his marriage he started residing with his wife at Dehu Road. According to the respondent, at the time of their marriage on 05.04.2010, the applicant was in knowledge of his first marriage and despite the same she married with him. According to the respondent, at the time of marriage, as such, he was not at all willing to marry to the applicant, however, because of the pressure of the applicant and her threat to commit suicide he was compelled to marry the applicant. It was also the case on behalf of the respondent-husband that there was a customary divorce between the respondent and his first wife, which was prior to the solemnization of the marriage between the applicant and the respondent. Therefore, it was the specific case on behalf of the respondent-husband that neither there was any fraud nor there was any suppression of his first marriage by the respondent-husband and therefore it was prayed to dismiss the petition.

11.1 Further, it is vehemently submitted by Shri Navare that though it was the case on behalf of respondent-husband that there was a customary divorce between the respondent-husband and his first wife, which was prior to the marriage between the appellant and the respondent, neither there was any specific issue framed by the learned trial court nor even the respondent-husband led any evidence and prayed for the customary divorce between the respondent-husband and his first wife. It is submitted, therefore, in absence of proving customary divorce between the respondent-husband and his first wife, there was a subsisting marriage between the respondent-husband and his first wife at the time of the marriage between the appellant and the respondent and therefore Section 24 read with Section 4 of the Act was required to be considered.

11.3 Making the above submissions, it is prayed to allow the present appeal.

12. Present appeal is vehemently opposed by Shri Jain, learned Senior advocate appearing as an Amicus Curiae on behalf of the respondent-husband. It is vehemently submitted by Shri Jain that, in the facts and circumstances of the case, both the learned trial court as well as the High Court have rightly dismissed the marriage petition and have rightly refused to grant the relief of declaration of nullity of marriage between the appellant and the respondent, considering Section 25 of the Act and by observing that the marriage petition was barred by period of limitation, as provided under Section 25 of the Act. 12.1 It is further submitted by Shri Jain that it was the specific case on behalf of the respondent-husband that, at the time of marriage, the appellant was in the knowledge of the first marriage of the respondent with his first wife. It is submitted that as such she was the root cause for the divorce between the respondent and his first wife. It is submitted that as such the customary divorce had taken place between the respondent-husband and his first wife much prior to the date of marriage between the appellant and the respondent. It is submitted, therefore, when there was already a dissolution of marriage between the respondent and his first wife, by way of customary divorce, which was much prior to the marriage between the appellant and the respondent and, therefore the marriage between the appellant and the respondent cannot be said to be void under Section 24 of the Act.

14. Now, so far as the submission on behalf of the respondent-husband that there was already a customary divorce between him and his first wife, which was much prior to the marriage between the appellant and the respondent and that the appellant was in the knowledge of his first marriage is concerned, at the outset, it is required to be noted that as such there is no specific issue framed by the learned trial court on the alleged customary divorce between the respondent and his first wife. Even there was no specific issue framed with respect to the limitation. There was not even an issue framed with respect to the knowledge of the appellant that she was having the knowledge of the first marriage of the respondent with his first wife. In absence of any such issue framed, the learned trial court as well as the High Court have committed a grave error in observing that there was a customary divorce between the respondent-husband and his first wife. There must be a specific issue framed by the Court on the aforesaid and the same is required to be established and proved by leading evidence. In the present case, neither an issue has been framed nor even the respondent husband has led any evidence and proved that there was a customary divorce between respondent and his first wife. Even the respondent-husband was required to prove that such a customary divorce was permissible in their caste/community. In the absence of any such issue or any evidence, the Courts below were not justified in observing that there was a customary divorce between the respondent and his first wife. Therefore, in absence of the above, it can be said that at the time of marriage between the appellant and the respondent, the respondent had a living spouse and, therefore, considering Section 24 read with Section 4 of the Act, the marriage between the appellant and respondent was void and the appellant was entitled to a decree of nullity at her instance. Therefore, both the Courts below have materially erred in rejecting the marriage petition. For the reasons stated above, we are of the opinion that the appellant is entitled to a decree of nullity of the marriage between the appellant and the respondent.