Madhya Pradesh High Court
Smt. Nirmala Devi vs Anil Kumar Tiwari on 30 November, 2021
Author: Sheel Nagu
FA No.1197/2018
-:- 1 -:-
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. FIRST APPEAL NO.1197 OF 2018
Parties Name Smt. Nirmala Devi
vs.
Anil Kumar Tiwari
Date of order 30/11/2021
Bench Constituted Division Bench : Justice Sheel Nagu and
Justice Purushaindra Kumar Kaurav
Order passed by Justice Purushaindra Kumar Kaurav
Whether approved for Yes
reporting
Name of counsel for parties For Appellant: Shri Kamal Singh
Baghel.
For Respondents/ : Shri Dileep Kumar
Pandey
Law laid down Held:
Section 5 (i) and Section 11 of the Act of
1955, makes it clear that if either party has
a spouse living at the time of the marriage
and if such marriage is solemnized after
commencement of the Act of 1955, the
same is void ipso-jure. The fact that
whether the other party had the knowledge
of existing spouse living at the time of
marriage is immaterial.
Section 11 of the Act of 1955 only
prescribes marriages which are
solemnized after commencement of the
Act, as null and void, if such marriages
contravene any of the conditions specified
in Clauses (i), (iv) and (v) of Section 5.
The Scheme of Section 11 of the Act of
1955 does not envisage that the
FA No.1197/2018
-:- 2 -:-
contravention of Section 5 (iii) of the Act
of 1955 will entail in marriage to be void,
neither Section 12 of the Act of 1955
envisages such marriage as voidable.
The only consequences of contravention
of Section 5 (iii) of the Act of 1955 is
prescribed under Section 18 of the Act of
1955 where the contravention of such
condition is made punishable which may
extend to two years or with fine which
may extend to one lakh rupees or both
and there is no other consequences
provided under the Act of 1955.
Significant paragraph 9
numbers
JUDGMENT
(30/11/2021)
1. This is a wife's appeal under Section 19 of the Family Courts Act
1984, against the judgment and decree dated 13th April 2018, passed by
the Principal Judge, Family Court, Rewa in Civil Suit No.48-A/2015,
by which the petition of the respondent-husband under Section 11 of
the Hindu Marriage Act 1955 [hereinafter in short 'the Act of 1955"]
has been allowed and the marriage solemnized between the parties has
been declared as null and void.
2. Some of the admitted facts for the decision of the present appeal
are as under:-
FA No.1197/2018
-:- 3 -:-
(i) On 18.05.2014, the marriage between the parties was solemnized at
village Khandora, Tahsil Deosar, District Singrauli (M.P) according to
Hindu rites and rituals.
(ii) The appellant-wife had already been married in the year 1984 as per
Hindu rites and rituals with one Amarjeet Pandey, when she was only
aged about 8-10 years.
(iii) The marriage of appellant-wife with her earlier husband Amarjeet
Pandey, was dissolved on 15.07.2015 (Ex-D-7) vide judgment and
decree under Section 13(B) of the Act of 1955, passed by Additional
District Judge Deosar, District Singrauli.
(iv) On 14.05.2015, the respondent-husband preferred a petition under
Section 11 of the Act of 1955, before the Family Court for declaring the
marriage with the appellant as null and void on the ground that the
same is in contravention of Section 5 (i) of the Act of 1955, as on the
date of marriage, the appellant had a living spouse which has been
decreed by the impugned judgment and decree, hence this appeal is
presented by wife.
3. Learned counsel appearing for the appellant-wife has mainly raised the
following grounds:-
(i) The earlier marriage of appellant with Amarjeet Pandey, was very
much in the knowledge of the respondent-husband and despite the said
fact, the marriage was solemnized, therefore, the respondent can not
subsequently take the plea of earlier marriage.
(ii) According to Section 5(iii) of the Act 1955, for any legal marriage,
the age of bride and bridegroom must be 18 and 21 years respectively
at the time of marriage. Since in the instant case, the marriage of the
FA No.1197/2018
-:- 4 -:-
appellant in the year 1984 was solemnized when she was only aged
about 8-10 years, therefore, such illegal marriage cannot be construed
to be a valid marriage in the eye of law.
(iii) On the date of the impugned judgment and decree dated
13.04.2018, the earlier so called marriage of the year 1984 was already
dissolved by the competent Court under Section 13 (B) of the Act of
1955 by judgment and decree dated 15.07.2015 (Ex-D-7) and,
therefore, on the date of passing of the impugned judgment and decree,
there was no living spouse of the appellant.
4. Learned counsel appearing for the respondent-husband has vehemently
contradicted the submissions made by the appellant-wife and has made the
following submissions:-
(i) The respondent was not aware of the fact of earlier marriage of the
appellant with Amarjeet Pandey and even otherwise also, such
knowledge is immaterial in view of the specific provision of Sections
11 and 5 (i) of the Act of 1955.
(ii) The requirement of provision of Section 5 (i) of the Act of 1955 is
that neither of the party should have a living spouse at the time of
marriage between two Hindus and the consequences of contravention
of the provision of Section 5(i) of the Act of 1955, is very much
prescribed in Section 11 of the Act of 1955, which says that any such
marriage solemnized after the commencement of the Act shall be null
and void on a petition presented by either party thereto against the other
party.
(iii) The fact of declaring the earlier marriage of the appellant as
dissolved vide judgment and decree dated 15.07.2015 (Ex-D-7) further
FA No.1197/2018
-:- 5 -:-
strengthen his case and proves beyond doubt that on the date of
marriage of the respondent with the appellant i.e. on 18.05.2014, the
appellant had a living spouse.
5. We have heard the learned counsel for the parties and perused the
record.
6. The following questions arise for our consideration in this appeal:-
(a) Whether on the date of marriage i.e. on 18.05.2014 between the
parties their exists a living spouse of the appellant/wife ?.
(b) Whether the marriage of the appellant-wife solemnized in the year
1984 with Amarjeet Pandey, is null and void in view of Section 5 (iii)
of the Act of 1955 and, therefore, cannot attract provision of Section 5
(i) of the Act of 1955 ?.
7. The respondent-husband has examined himself as witness before the
Family Court, who was extensively cross-examined by the appellant-wife. In
his evidence before the Family Court he has clearly stated that on the date of
his marriage with the appellant on 18.05.2014, he had no knowledge about the
earlier marriage of the appellant with Amarjeet Pandey. On 15.05.2014, i.e.
about two months before the present marriage, the appellant did file a case for
dissolution of her earlier marriage with Amarjeet Pandey and on the said
date she executed an affidavit, however, said petition was not prosecuted and,
therefore, it is again on 15.07.2015 vide Ex-D-7, the earlier marriage was
dissolved under Section 13 (B) of the Act of 1955. The respondent also
examined one Shyam Kishore Dubey, who has also supported the fact of
existence of earlier marriage of the appellant with Amarjeet Pandey. Certified
FA No.1197/2018
-:- 6 -:-
copy of the petition under Section 13(B) filed by the appellant and Amarjeet
Pandey before the Court of Addl. District Judge Deosar, District Singruli
dated 15.05.2014 has been produced by the respondent-husband as Ex-P-2.
8. The appellant-wife herself appeared as a witness and has also examined
Purnendra Prakash Chaturvedi and Gulab Prasad Pandey as witnesses to
substantiate her case before the Family Court. According to the evidence
produced by the appellant her case was that she never lived with Amarjeet
Pandey and the marriage with Amarjeet Pandey was solemnized when she
was only 8-10 years old. Since her marriage with Amarjeet Pandey was illegal
as per Section 5(iii) of the Act of 1955, therefore, although there was no
requirement of decree and divorce, however, she did apply before the
competent Court under Section 13(B) of Act of 1955 and finally the decree of
divorce dissolving her marriage with Amarjeet Pandey was passed.
9. The question-wise discussion follows as under:-
Discussion with respect to question No.(a) whether on the date of
marriage i.e. on 18.05.2014 between the parties their exists a living
spouse of the appellant ?
(i) It is seen from the evidence of the parties that the fact of earlier
marriage of the appellant with Amarjeet Pandey in the year 1984 is not
disputed. The decree of divorce under Section 13 (B) dated 15.07.2018
(Ex-D-7) clearly proves that the appellant had a living spouse namely;
Amarjeet Pandey, as on 18.05.2014. The marriage was dissolved only
on 15.07.2015 and, therefore, on the basis of material available on
record, it is concluded that as on 18.05.2014, the appellant had a living
spouse.
FA No.1197/2018
-:- 7 -:-
(ii) A careful reading of Section 5 (i) and Section 11 of the Act of
1955 makes it clear that if either party has a spouse living at the time of
the marriage and if such marriage is solemnized after commencement
of the Act of 1955, the same is void ipso-jure. The fact that the other
party had the knowledge of existing spouse living at the time of
marriage, is immaterial. The Supreme Court in the case of Lily Thomas
and others vs. Union of India and others1 has held that Section 5 (i)
read with Section 11 indicates that any marriage with a person whose
previous marriage was subsisting on the date of marriage, would be
void ab initio. The Supreme Court further held in the case of
Krishnaveni Rai vs. Pankaj Rai and another that a marriage which
is null and void is no marriage in the eyes of law.
(iii) Although as per the law laid down by the this Court in the matter
of Mst. Rajula Bai vs. Suka Dukal,3 existence of spouse living at the
time of performance of the second marriage need not be established by
direct evidence and that fact may be inferred from other facts, however,
in view of the aforesaid discussion and on the basis of material
available on record, it is concluded that their exists a living spouse of
the appellant-wife on 18.05.2014 i.e. on the date of her marriage with
the respondent-husband.
Discussion with respect to question No.(b), whether the marriage of
the appellant solemnized in the year 1984 with Amarjeet Pandey, can
be said to be null and void in view of Section 5 (iii) of the Act of
1955 ?
(i) Section 11 of the Act of 1955 only prescribes marriages which are
solemnized after commencement of the Act as null and void if such
1 (2000) 6 SCC 224
2 (2020) 11 SCC 253
3 AIR 1972 MP 57
FA No.1197/2018
-:- 8 -:-
marriages contravene any of the conditions specified in Clauses (i), (iv)
and (v) of Section 5. Clause (i) of Section 5 talks about a living
spouse at the time of marriage, Clause (iv) of Section 5 talks about the
parties within the degrees of prohibited relationship unless the custom
or usage governing each of them permits of a marriage between the two
and Clause (v) talks about the parties should not sapindas of each
other, unless the custom or usage governing each of them permits of a
marriage between two. It is, therefore, seen that the Scheme of Section
11 of the Act of 1955 does not envisage that the contravention of
Section 5 (iii) of the Act of 1955 will entail in marriage to be void,
neither Section 12 of the Act of 1955 envisages such marriage as
voidable.
(ii) It is, therefore, clear that the marriage of appellant in the year 1984
with Amarjeet Pandey, is neither void nor voidable. The only
consequences of contravention of Section 5 (iii) of the Act of 1955 is
prescribed under Section 18 of the Act of 1955 where the contravention
of such condition is made punishable which may extend to two years or
with fine which may extend to one lakh rupees or both and there is no
other consequences provided under the Act of 1955.
(iii) In the instant case, it is true that in the year 1984, the appellant was
not of the marriageable age, as per Section 5 (iii) of the Act of 1955 but
when the law does not provide for any consequences except the one as
prescribed under Section 18 of the Act of 1955, it cannot be presumed
that such marriage is a nullity. If the legislature intended otherwise, the
Act certainly would have made a specific provision in that regard in the
like manner, as it has been done in the case of contravention of Clauses
(i), (iv) and (v) of Section 5 of the Act of Gindan vs. Barelal4 1955.
Thus, the marriage of the appellant which was solemnized in the year
4 AIR 1976 MP 83.
FA No.1197/2018
-:- 9 -:-
1984 with Amarjeet Pandey would remain valid, enforceable and
recognized.
10. In view of the aforesaid, it is thus concluded that the judgment and
decree passed by the trial Court is based upon proper appreciation of evidence
and law. Hence, the appeal is accordingly dismissed. No order as to the costs.
[SHEEL NAGU] [PURUSHAINDRA KUMAR KAURAV]
Judge Judge
pb
Digitally signed by PRASHANT BAGJILEWALE
Date: 2021.12.01 14:55:29 +05'30'
