Karnataka High Court
Smt N Sangeetha vs Sri H S Prashanth Thathachar @ ... on 13 July, 2023
Bench: Alok Aradhe, Anant Ramanath Hegde
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MFA No.1802 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO.1802 OF 2018 (FC)
BETWEEN:
1. SMT. N. SANGEETHA
D/O SRI. NARAYANA V.P.
W/O SRI. H.S. PRASHANTH
THATHACHAR @ KANNAN
Digitally
signed by AGED ABOUT 40 YEARS.
RUPA V
2. SMT. GAYATHRI DEVI
Location:
W/O SRI. NARAYANA V.P.
High Court
of Karnataka AGED ABOUT 63 YEARS.
BOTH ARE RESIDENT OF
NO.1500, CH-68, 6TH CROSS
K.R.VANAM, MYSURU-570008.
...APPELLANTS
(BY SRI. B. LETHIF, ADV., (ABSENT))
AND:
1. SRI. H.S. PRASHANTH THATHACHAR
@ KANNAN
S/O LATE SRINIVASA THTHACHR
AGED ABOUT 39 YEARS
R/AT NO.523/1, F-21, 2ND RAMACHANDRA
AGRAHARA, FORT MOHALLA, MYSURU-570001.
...RESPONDENT
(BY SRI. K. HEMANTH KUMAR, ADV.,)
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MFA No.1802 of 2018
THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS
ACT, AGAINST THE JUDGMENT AND DECREE
DATED:12.01.2018 PASSED IN M.C.NO.576/2013 ON THE FILE
OF THE PRINCIPAL JUDGE, FAMILY COURT, MYSURU,
ALLOWING THE PETITION FILED U/S 11 & 12 OF HINDU
MARRIAGE ACT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, ANANT RAMANATH HEGDE J, DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed under Section 19(1) of the
Family Courts Act, 1984 challenging the judgment and
decree dated 12.01.2018 passed by the Family Court at
Mysore in M.C.No.576/2013.
2. The petition seeking a decree of nullity of
marriage was filed by the husband. The petitioner in
the aforementioned petition alleged that the wife
suppressed her earlier marriage which was still
subsisting when she married him on 28.11.2010.
3. The 2nd respondent in the petition is the mother
of the wife and she is arrayed as a party to the
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proceeding on the premise that she too misrepresented
the petitioner.
4. The Family Court accepted the contention of
the husband and rejected the contention of the wife,
who asserted that Sri Rajesh who is alleged to be the
second husband is not her husband and granted a
decree of nullity of marriage holding that wife was
already married to Sri. Rajesh at the time of marriage
with the petitioner.
5. Aggrieved by the aforementioned judgment and
decree, the wife is in appeal. The mother of the wife is
arrayed as a proforma respondent in this appeal.
6. The brief facts necessary for adjudication, in
this case, can be summarized as under:
7. The husband has filed a petition contending
that on 28.11.2010, he married the wife and it was
informed to him before the marriage that her first
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marriage with Gajeeban N. ended in a divorce and she is
taking care of two children born to her sister. On the,
representation made by the wife, as well as her mother,
the husband believed that the first marriage with
Gajeeban ended in a divorce and she can contract a
valid second marriage. It is his contention that on
16.11.2013, the husband came to know that the second
marriage of his wife with one person Sri Rajesh is
suppressed and the same is still subsisting. It is further
urged that his wife has twins from the second marriage
who were born on 17.01.2006. It is further stated that
after coming to know about this fact, the husband made
enquiries and the wife started giving evasive replies
thereafter and later started quarrelling with him. Thus
he filed a petition seeking a decree of divorce on the
ground that the marriage is void.
8. The wife contested the petition. In the
statement of objections, the wife has taken a stand that
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the first marriage with Gajeeban was disclosed and
decree of dissolution of marriage with Gajeeban is also
disclosed to the husband. She further contended that
she has not married Sri Rajesh and she contends that
children were not born from the relationship with Sri
Rajesh and there is no marriage with Sri Rajesh. It is
contended by her that at the time of her marriage, she
was taking care of her two children born from an earlier
marriage.
9. The Family Court has recorded the evidence of
both parties. The husband is examined as PW-1 and
has produced 5 documents which are marked as Ex.P1
to Ex.P5. The wife is examined as DW-1 and has
produced 20 documents which are marked as Ex.D1 to
Ex.D20.
10. After hearing the parties, the Family Court has
concluded that the husband has established the fact
that at the time of his marriage on 28.11.2010, the wife
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had already married one Sri Rajesh and there was no
dissolution of her marriage with Sri Rajesh.
Accordingly, the Court concluded that the marriage is
null and void. Aggrieved by the aforesaid judgment and
decree, the wife is in appeal.
11. Learned counsel for the appellant/wife raised
the following contentions:
(1) The petition is filed under Section 12 of
the Act on the premise that the marriage is void.
The petition ought to have been filed within one
year from the date of marriage and since it is filed
beyond one year, a petition under Section 12 is
not maintainable.
(2) The marriage with Sri Rajesh is not
established. That being the position, the Court
could not have held that the questioned marriage
is void.
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(3) Exs.R1, R2, R9 and R10 would disclose
the fact that the present respondent is the father
of the children. As such, the Family Court erred
in holding that the marriage is void.
12. Learned counsel appearing for the respondent-
husband would contend that the fact that the wife
married Rajesh before his marriage is established and it
is also forthcoming from the birth certificate which is
marked as Ex.P5 that the wife had twins from the
previous marriage. The statement recorded in JSS
Hospital would reveal that the appellant is the wife of
Rajesh and she has admitted in the cross-examination
that the aforementioned statement is given by her
parents. In the absence of any evidencing the
dissolution of marriage with Rajesh, the second
marriage is void.
13. It is also urged that Section 12(2) of the Act is
applicable only under the circumstances mentioned in
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Section 12(2) of the Act and it does not cover all
conditions enumerated in Section 5 of the Act. Referring
to Section 5 (i) of the Act it is urged that the marriage is
null and void as the prerequisites for valid marriage is
not established.
This Court has considered the contentions. In the
light of the contentions raised it is necessary to consider
Sections 5 (i) and 12 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"
Section 12 of the Act which reads as under
"12. Voidable marriages:--
(1) Any marriage solemnised, whether before or
after the commencement of this Act, shall be
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voidable and may be annulled by a decree of
nullity on any of the following grounds,
namely:--
(a) that the marriage has not been
consummated owing to the impotence of the
respondent; or
(b) that the marriage is in contravention of the
condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where
the consent of the guardian in the marriage of
the petitioner was required under section 5 as it
stood immediately before the commencement of
the Child Marriage Restraint (Amendment) Act,
1978 (2 of 1978), the consent of such guardian
was obtained by force or by fraud as to the
nature of the ceremony or as to any material
fact or circumstance concerning the respondent;
or
(d) that the respondent was at the time of the
marriage pregnant by some person other than
the petitioner.
(2) Notwithstanding anything contained in sub-
section (1), no petition for annulling a marriage -
(a) on the ground specified in clause (c) of sub-
section (1) shall be entertained if -
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(i) the petition is presented more than one year
after the force had ceased to operate or, as the
case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full
consent, lived with the other party to the
marriage as husband or wife after the force had
ceased to operate or, as the case may be, the
fraud had been discovered;
(b) on the ground specified in clause (d) of sub-
section (1) shall be entertained unless the court
is satisfied -
(i) that the petitioner was at the time of the
marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the
case of a marriage solemnised before the
commencement of this Act within one year of
such commencement and in the case of
marriages solemnised after such
commencement within one year from the date of
the marriage; and
(iii) that marital intercourse with the consent of
the petitioner has not taken place since the
discovery by the petitioner of the existence of
the said ground."
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14. From a reading of Section 5(i) of the Act, it is
apparent that for the marriage to be valid, at the time of
marriage, neither party should have subsisting
marriage. In the statement of objections filed by the
wife in paragraph 6, the wife has taken a stand which
reads as under:
"In fact, at the time of marriage, the petitioner
had very well known that the first respondent
was the mother of two children born to her
earlier marriage."
(emphasis supplied)
15. In the cross-examination, the wife has
admitted that the name of the husband is shown as
Rajesh when she was admitted to the hospital. The
relevant cross-examination extract is as under:
"eÉJ¸ïJ¸ï D¸ÀëvÉæAiÀÄ°è £À£Àß UÀAqÀ£À ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ
«¼Á¸ÀªÀ£ÀÄß £À¤ßAzÀ¯É «ZÁj¹ PÉý ¥ÀqÉzÀÄPÉÆArzÁÝgÉ.
¸ÁQëAiÀÄÄ ¥ÀÄ£À: ºÉüÀÄvÁÛgÉ £À£Àß vÀAzÉvÁ¬Ä ¤ÃrzÁÝgÉ.
¤¦-5 PÉÃ¸ï ²Ãmï£À°è gÁeÉñÀ£À ºÉAqÀw JAzÀÄ £À£Àß
vÀAzÉvÁ¬ÄAiÉÄà §j¹zÁÝgÉ.
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16. From the above stand taken by the wife, it is
apparent that the wife has taken a contention that she
has children from her previous marriage. Admittedly,
the first marriage was with Gajeeban and it is not
established that she had children from Gajeeban. She
referred to an earlier marriage in her statement of
objection while explaining her relationship with the
children. Thus, from a reading of her statement of
objection where she has said that she has children from
a previous marriage, the marriage she has referred to in
her statement of objection extracted above has to be the
marriage with Rajesh. And the marriage with Rajesh is
also established from the statement before the hospital
authorities where it is clearly stated that her husband is
Rajesh. This marriage with Rajesh is again established
from the birth certificate wherein the father's name of
the children is shown as Rajesh. From these records, it
is clear that the wife had married Rajesh and from
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Rajesh, she had two children. It is not the stand of the
wife that she had obtained a decree for dissolution of
marriage against Rajesh.
This being the position, this Court is of the view
that the husband has established that the wife had
married Rajesh and that marriage was subsisting when
the husband married her on 28.11.2010.
17. The contention of the wife that petition is
barred by limitation contained in Section 12(2) of the
Act is not tenable. The husband is seeking dissolution of
marriage on the ground that the marriage is void as the
wife was having a subsisting marriage. The bar
contained in Section 12(2) is not applicable to the
marriage which is void under Section 5(i) of the Act.
This Court, after re-appreciating the record and
after considering the contentions raised before this
Court, is of the view that the marriage of the appellant
with the present respondent No.1 which is solemnized
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on 28.11.2010 is void under Section 5(i) of the Act and
accordingly, the Family Court is justified in granting the
decree for nullity of marriage. This Court does not find
any ground to interfere with the judgment and decree
passed by the Family Court.
Hence, the following:
ORDER
(I) The judgment and decree dated 12.01.2018 in
M.C. No.576/2013 on the file of the Family
Court at Mysore is confirmed.
(ii) Accordingly, the appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
RV
