Madhya Pradesh High Court
Smt.Meena vs Shailesh Verma on 21 August, 2025
Author: Vivek Rusia
Bench: Vivek Rusia, Vishal Dhagat
NEUTRAL CITATION NO. 2025:MPHC-JBP:39875
1 FA-626-2006
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 21st OF AUGUST, 2025
FIRST APPEAL No. 626 of 2006
SMT.MEENA
Versus
SHAILESH VERMA
Appearance:
Shri Ashok Tiwari - Advocate for the appellant.
WITH
CONTEMPT. PETITION No. 1406 of 2007
SMT.MEENA
Versus
SHAILESH VERMA
Appearance:
Shri Ashok Tiwari - Advocate for petitioner.
ORDER
Per: Justice Vivek Rusia
The present appeal has been filed against the judgment and decree
dated 13.07.2006 in C.S. No.48-A/2005 whereby the learned District Judge,
Sagar, has granted a decree of divorce under Section 13 of the Hindu
Marriage Act, 1955, on a petition filed by the respondent/husband.
Facts of the case in short are as under:-
NEUTRAL CITATION NO. 2025:MPHC-JBP:39875
2 FA-626-2006
2. The brief facts, as emerging from the record, are that the
respondent/husband was married in the year 1993 to one Rekha, daughter of
K.P. Shrivastava. It is alleged that she became paralyzed and suffered from
mental imbalance, due to which she was unable to perform her marital
obligations. Thereafter, on 13.12.1998, the respondent/husband performed a
second marriage with the present appellant/wife.
3. It is further alleged by the respondent that the appellant was not a
virgin at the time of marriage, and due to this, he deserted her. Subsequently,
he filed a petition under Section 13 of the Hindu Marriage Act, 1955 seeking
divorce. The appellant/wife appeared before the trial Court and denied all the
allegations. She alleged that the respondent/husband had concealed the fact
of his first marriage, which she came to know later. Thereafter, she lodged an
FIR at Police Station - Mahila Thana, Sagar. During the police proceedings,
a compromise was entered into, wherein the respondent agreed to record the
appellant's name in his service records as his wife and also agreed to pay her
maintenance of Rs. 3,000/- per month.
4. On the basis of the pleadings, the trial Court framed five issues for
adjudication.
5. Both parties adduced oral and documentary evidence in support of
their respective claims.
6. Upon appreciation of the evidence on record, the learned District
Judge, vide judgment dated 13.07.2006, granted a decree of divorce in favour
of the respondent/husband. Hence, the present appeal has been filed by the
appellant/wife before this Court.
NEUTRAL CITATION NO. 2025:MPHC-JBP:39875
3 FA-626-2006
Heard learned counsel for the appellant.
7. It is evident from the record that both parties have made counter
allegations against each other. It is not disputed that the respondent/husband
performed the second marriage with the appellant during the subsistence of
his first marriage. However, this issue was not raised by the appellant before
the trial Court. She appears to have attempted to derive the benefits of the
second marriage. Nonetheless, the trial Court ought to have taken into
consideration the fact that the second marriage was performed during the
subsistence of the first marriage. Therefore, the marriage between the
appellant and the respondent was void ab initio, and the trial Court ought to
have declared it null and void under Section 11 of the Hindu Marriage Act,
rather than dissolving it under Section 13.
8. Section 5 and Section 11 of Hindu Marriage Act are reproduced
below:-
"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;
(ii)at the time of the marriage, neither party
(a)is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
(b)though capable of giving a valid consent, has been suffering
from mental disorder of such a kind or to such an extent as to be
unfit for marriage and the procreation of children; or
(c)has been subject to recurrent attacks of insanity ***;
(iii)the bridegroom has completed the age of twenty-one years and
the bride, the age of eighteen years at the time of the marriage;
(iv)the parties are not within the degrees of prohibited relationship
unless the custom or usage governing each of them permits of a
marriage between the two;
(v)the parties are not sapindas of each other, unless the custom or
usage governing each of them permits of a marriage between the
two;
11. Void marriages.- Any marriage solemnised after the
commencement of this Act shall be null and void and may, on a
NEUTRAL CITATION NO. 2025:MPHC-JBP:39875
4 FA-626-2006
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.
9. The present case clearly falls under Clause (i) of Section 5 of the
Hindu Marriage Act, 1955, which prohibits a marriage between two Hindus,
if either party has a living spouse at the time of the marriage. In such a case,
the marriage is void under Section 11 of the Act. Therefore, a marriage that
is void cannot be dissolved by a decree of divorce under Section 13 of the
Act.
10. In view of the above, the decree of divorce dated 13.07.2006
passed by the District Judge, Sagar is hereby set aside. The marriage between
the appellant and the respondent is declared null and void under Section 11
of the Hindu Marriage Act, 1955.
11. With the above, First Appeal is disposed of.
12. Record of the Trial Court be sent back.
13. Decree be drawn, accordingly.
CONTEMPT. PETITION No. 1406 of 2007
In view of the above finding given in First Appeal No.626/2007,
Contempt Petition No.1406/2007 is disposed.
(VIVEK RUSIA) (VISHAL DHAGAT)
JUDGE JUDGE
Praveen
