Smt.Lakshmi W/O Mallikarjuna vs Sri.K.Mallikarjuna S/O K Marenna
2022 Latest Caselaw 977 Kant

                                                           R
             IN THE HIGH COURT OF KARNATAKA,
                      DHARWAD BENCH

           DATED THIS THE 21ST DAY OF JANUARY 2022

                          PRESENT

             THE HON'BLE MR. JUSTICE S.G. PANDIT
                            AND
       THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                   M.F.A. No.102129/2019
BETWEEN:

SMT.LAKSHMI W/O MALLIKARJUNA
D/O HOSAGERAPPA, AGED ABOUT 28 YEARS
R/O WARD NO.5, MUNDARGI VILLAGE
BALLARI TALUK AND DISTRICT-583101.

                                                   ...APPELLANT
(BY SRI.T.M.NADAF., ADVOCATE)

AND:

SRI K.MALLIKARJUNA S/O K. MARENNA
AGED ABOUT 31 YEARS, OCC: AGRICULTURIST
R/O WARD NO.5, GUGGARAHATTI VILLAGE
BALLARI TALUK AND DISTRICT-583101.
                                               ...RESPONDENT

(BY SRI.H.R.DESHAPANDE., ADVOCATE)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
19(1) OF FAMILY COURTS ACT, 1984 PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 30.11.2018 PASSED IN OS
NO.19/2018 ON THE FILE OF THE PRINCIPAL JUDGE FAMILY COURT
BALLARI.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
HEARING-INTERLOCUTORY    APPLICATION     THIS     DAY,
ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
                                           2



                                 JUDGEMENT

      (a)     Whether        the     second     marriage     which     is
      solemnized       during       the   subsistence   of   the     first

marriage in contravention of S.5(i) of Hindu Marriage Act, 1955, can be declared as valid if the first marriage is subsequently dissolved by a decree of the Court ?

This is one of the questions that is required to be answered

while deciding this case.

2. The facts necessary for adjudication of the case are

narrated as under;

The appellant-plaintiff before the Principal Judge, Family

Court, Ballari filed a suit in O.S.No.19/2018 seeking a

declaration to declare that her marriage with the defendant said

to have been solemnized on 26.9.2013 is a valid marriage and

that the plaintiff is legally wedded wife of the defendant.

3. According to the appellant, her marriage with the

respondent is solemnized on 26.9.2013 and is registered before

the jurisdictional Sub-Registrar. The suit was contested by the

respondent, disputing her claim. Based on the pleadings, the

family Court framed five issues and the issue No.3 relating to

maintainability of the suit is treated as a preliminary issue.

4. The plaint averments itself disclose that on

19.3.2008, the plaintiff married one Pampapati. Even according

to the plaintiff, the marriage with Pampapati was not dissolved

by the competent Court when she married the respondent on

26.09.2013. It is further claimed that after her marriage with the

respondent, the petitioner's first marriage with Pampapati was

dissolved in terms of judgment and decree dated 17.9.2014

based on a mutual petition filed seeking divorce.

5. By referring to the above said pleadings and

contentions raised by the parties, the trial Court has treated

issue No.3 as a preliminary issue and has concluded that the suit

seeking a declaration of the marital status of the plaintiff with

the defendant is not maintainable. The trial Court has placed

reliance on Sections 5 and 11 of the Hindu Marriage Act (for

short 'the Act') to support the said conclusion.

6. Section 5 of the Act deals with conditions for a Hindu

Marriage. In terms of Section 5(i), for the marriage to be valid

under the Act, neither party should have a spouse living at the

time of marriage. As per Section 11 of the Act which deals with

void marriages, any marriage solemnized in contravention of any

one of the conditions prescribed in Section 5(i) (iv) (v) of the

Act, is void. Applying these two provisions, the trial Court has

held that the declaration as sought by the plaintiff cannot be

granted, as her marriage with the respondent is void under

Section 5(i) read with Section 11 of the Act.

7. The learned counsel for the plaintiff-appellant

Mr Nadaf in support of his grounds urged in the appeal memo

would make the following submissions.

(a) The 1st marriage of the plaintiff is dissolved in terms of

the decree for divorce dated 17.9.2014 in MC No.288/2013 on

the file of Family Court, Ballari. Thus, the marriage solemnized

on 26.09.2013 between the plaintiff and defendant should be

declared valid and this aspect should have been decided after

holding the trial.

(b) The trial court committed error in dismissing the suit

without recording the evidence of the parties. It is further urged

that issue No.3 could not have been treated as a preliminary

issue.

8. This Court perused the records particularly the

pleadings and this Court has considered the contentions raised

at the bar.

9. Section 5 of the Act, prescribes conditions for a

Hindu marriage. As per Section 5 (i) a marriage may be

solemnized between two Hindus if neither party has a spouse

living at the time of the marriage. The remaining conditions

prescribed in the said Section 5 of the Act are not relevant for

the adjudication of this case. Section 11 of the Act deals with

void marriages. If any one of the conditions specified in clauses

(i), (iv)and (v) of Section 5 is contravened, then the marriage is

void. Admittedly, in this case, the 2nd marriage of the plaintiff

with the defendant was solemnized on 26.9.2013. The 1st

marriage of the plaintiff which was solemnized on 19.3.2008 was

still subsisting though the plaintiff was not residing with her 1st

husband as the relationship with the 1st husband was strained.

Admittedly, the 1st marriage was dissolved in terms of decree for

divorce granted on 17.9.2014. The order passed subsequent to

the void marriage (2nd marriage), dissolving the 1st marriage

solemnized on 19.03.2008 cannot come to the rescue of the

plaintiff to validate her marriage with the respondent which is

said to have taken place on 26.9.2013 as the 2nd marriage is not

a marriage in the eye of law. Since the said marriage is void

from inception, no subsequent act can validate a marriage that is

void under the law. If the plea of the plaintiff to validate the

marriage which contravened Sec.5(i) of the Act is to be accepted

it would defeat the object of Sec.5(i). The provision seeks to

prohibit second marriage during the subsistence of first

marriage. What cannot be done directly cannot be allowed to be

done indirectly. Thus the plea to validate the 2nd marriage which

is invalid from inception by taking into account the subsequent

dissolution of the first marriage has to be rejected.

10. Coming to the next contention raised by Mr Nadaf

that the trial court committed an error in treating the issue

relating to maintainability of the suit as a preliminary issue there

is no difficulty upholding the decision of the trial Court for the

following reasons.

11. The plaintiff herself has stated her first marriage was

dissolved based on a petition seeking a mutual divorce, in terms

of the decree dated 17.9.2014 passed in MC No.288/2013 on the

file of Family Court, Ballari. These facts are not disputed by the

defendant-respondent. Thus, it emerges from the admitted facts,

the plaintiff married the defendant during the subsistence of the

first marriage. Hence it is void as it contravened Section 5 (i) of

the Act. This being the position of law, any amount of evidence

to be led by the parties is of no consequence. Accordingly, the

declaration sought by the plaintiff cannot be granted at all by

referring to evidence to be recorded. Thus, the contention of the

plaintiff that the trial court could not have held issue No.3 in the

affirmative has no merit. The trial court did the right thing by

treating issue No.3, as a preliminary issue as no oral evidence is

necessary to give a finding on the said issue given the fact that

the plaintiff herself has asserted that she did marry the

respondent when her 1st marriage was still subsisting.

12. There is no need to record evidence on the facts,

which are admitted and borne out by the undisputed records. If

there is a ground or provision to pass the orders on merits of the

case, based on admitted facts, there is no need to hold the trial

Court or record evidence. There is no mandate that every suit

should be tried by recording evidence. If the controversy

between the parties can be adjudicated without recording

evidence and a verdict can be delivered on the final relief

claimed in the suit, based on facts admitted in the pleadings,

there is no need to hold the trial to record the evidence. In other

words, if admitted facts in the pleadings attract a provision of

law and on the application of such law, if the judgment could be

pronounced on the relief claimed in the suit, there is no need to

hold the trial.

13. The suit before the trial Court was one of such cases

where the Court based on the pleading has rightly treated issues

relating to the maintainability of the suit as a preliminary issue

and has rightly held that the suit is not maintainable. Thus, the

contention that the suit could not have been dismissed without

recording evidence has no merit.

14. It is also useful to refer to Order 14 Rule 2 of the

Code of Civil Procedure, to answer the contention raised by the

appellant. The aforesaid provision reads as under:

"Order 14 Rule 2-Court to pronounce judgment on all issues.-- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to---

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force,

and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal

with the suit in accordance with the decision on that issue.]"

15. Order 14 Rule 2(b) enables the Court to treat an

issue relating to the bar to the suit as a preliminary issue. In the

instant case, there is no dispute over the fact the plaintiff's

alleged second marriage which is said to have taken place on

26.9.2013 is during the subsistence of the first marriage. This

factual aspect which is not in dispute imposes a bar to grant the

relief of declaration of validity of second marriage which is

claimed in the plaint. In such a scenario, the Court is under a

legal obligation to pronounce judgement on the preliminary issue

without recording any evidence. Recording evidence in such

cases would be a futile exercise. In all cases where there is a

scope to decide the case on admitted facts, the Court shall

endeavour to pronounce the judgement without recording

evidence. Though the expression "may" used in Sub-rule (2) of

Order 14 Rule 2 confers a discretion to the Court to try the case

on all issues, the Court has to endeavour to dispose of the case

on the preliminary issue if the issue relates to either the

jurisdiction of the Court or to a bar to the suit created by any

law for the time being in force. The object of the said provision is

to cut short the time taken for adjudication of cases falling under

the category specified in the Sub-rule (2). Given the object of

the said Rule, the Courts have no option but to try the issues

relating to the jurisdiction of the Court or a bar to the suit

created by any law for the time being in force but to try the

issue as a preliminary issue. Thus, the word "may" found in

Order 14 Rule 2 is to be read as "shall" making it mandatory on

the part of the trial court to treat the issue as a preliminary issue

if the issue relates to the bar of suit or maintainability of suits

based on the facts admitted in the pleadings.

16. Under these circumstances, this Court finds no

reason to interfere with the judgment and decree passed by the

trial Court.

17. At this juncture, the learned counsel for the

respondent would submit that the petition filed by the

respondent-husband seeking a declaration of nullity of marriage

with the appellant is allowed and marriage with the appellant is

declared null and void. Though no material is placed for the

Court in support of his contention, the same is not disputed by

the appellant. If such a decree is granted in favour of the

present respondent, then it is yet another reason to dismiss the

present appeal.

18. At this juncture, the learned counsel for the

appellant would submit that the appellant is cheated by the

respondent and it is further alleged that the respondent has

raped the appellant on the assurance of marrying the appellant.

If this is the grievance of the plaintiff-appellant then the present

suit is not the appropriate remedy for the plaintiff. It is made

clear that the dismissal of the suit and this appeal will not come

in the way of the plaintiff-appellant seeking appropriate relief

available under law to seek redressal of her grievance relating to

cheating or any other offence. The finding in this appeal is only

confined to the relief of declaration of validity of the plaintiff's

alleged marriage dated 26.9.2013, with the defendant. If any

criminal or any other case filed by the appellant against the

respondent is pending same shall be decided on its merit.

The appeal is dismissed.

No order as to cost.

Pending applications, if any, do not survive for

consideration and accordingly, they are disposed of.

SD/-

JUDGE

SD/-

JUDGE

am.