Madhya Pradesh High Court
Surendra Kumar Mishra vs Smt. Sandhya Punjabi on 1 September, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:42083
1 FA-1850-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 1 st OF SEPTEMBER, 2025
FIRST APPEAL No. 1850 of 2018
SURENDRA KUMAR MISHRA
Versus
SMT. SANDHYA PUNJABI
Appearance:
Shri Ashok Kumar Jain - Advocate for appellant.
Smt. Amrit Kaur Ruprah - Advocate for respondent.
JUDGEMENT
Per: Justice Vishal Dhagat
Appellant has preferred this appeal under Section 19 of Family Courts
Act against the judgment and decree dated 09.08.2018 passed in Hindu
Marriage Case No. 269-A/2015 by Principal Judge, Family Court, Katni
(M.P.).
2. Counsel appearing for appellant submitted that appellant had filed
petition under Section 11 of Hindu Marriage Act, 1955 before Family Court,
Katni. Appellant and respondent were married to each other on 26.08.2001 at
Gayatri Temple, Katni. Appellant was not informed by respondent that she
was married in 1987 and have living spouse namely one Kuldeep Khera.
Respondent is having two daughters from the wedlock. Marriage between
appellant and respondent was void, as respondent was having living spouse
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and marriage was barred under Section 5(i) of Hindu Marriage Act, 1955. It
is submitted that aforesaid fact was admitted by respondent in cross-
examination and it was also stated that there was no divorce between them
when second marriage was solemnized. Learned counsel for the appellant
further submitted that trial Court had committed an error of law in relying on
Order 2 Rule 2 of Code of Civil Procedure, 1908 in dismissing petition under
Section 11 of Hindu Marriage Act. It was argued by him that in matrimonial
proceedings, concept of same cause of action does not apply, whereas in
civil proceedings, concept of same cause of action is applied as provided
under Order 2 Rule 2 of CPC. It was also argued that Order 2 Rule 2 was not
applicable in the present case as former suit was for judicial separation,
whereas later proceedings were related to dissolution of marriage, therefore,
there was no applicability of Order 2 Rule 2 of CPC. Reliance is placed on
judgment passed by Apex Court in Civil Appeal Nos. 372-373 of 2025 ,
judgment dated 20.01.2025 and also on judgment passed by Kerala High
Court in case of Smt. N. Asha vs Sri Srinivasa dated 30.01.2024. Learned
counsel for the appellant also argued that even if it is admitted on part of
appellant that he was having knowledge regarding live first marriage of
respondent, then too, provision of Section 5 of Hindu Marriage Act cannot be
ignored. Any marriage solemnized contrary to Section 5(i) of Hindu
Marriage Act, 1955 shall be void under Section 11 of the Act. Knowledge of
husband or wife regarding first subsisting marriage will not make second
marriage valid if done contrary to provisions of Section 5(i) of Hindu
Marriage Act, 1955.
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3. In view of aforesaid submissions, learned counsel appearing for
appellant made a prayer for setting aside of judgment and decree passed by
the trial Court and to grant decree of divorce in favour of appellant.
4. Learned counsel appearing for respondent relied upon Order 2 Rule 2
of CPC and submitted that whole relief, which a party could have prayed in
former suit but omitted to pray, could not be prayed in a subsequent suit.
Every suit shall include whole of the claim which plaintiff is entitled to make
in respect of cause of action. If relief is not prayed, then said relief is said to
have been relinquished by the party and in subsequent suit, said relief cannot
be prayed. No error has been committed by trial Court in dismissing suit
under Order 2 Rule 2 of CPC. Appeal filed by appellant be dismissed.
5. Heard the counsel for the parties.
6. Cause of action is not defined in Code of Civil Procedure, 1908.
Section 20 of CPC lays down that suit is to be instituted in jurisdiction of
Court where defendant resides or where cause of action arises. Apex Court in
case of Rajasthan High Court Advocates' Association vs Union of India ,
reported in (2001) 2 SCC 294 : AIR 2001 SC 416 held that expression "cause
of action" has acquired judicially settled meaning. Cause of action means
circumstances forming infraction of the right or immediate occasion for
action. In wider sense, it means necessary conditions for maintenance of suit,
including not only infraction of right, but infraction coupled with right itself.
Every fact, which would be necessary for plaintiff to support his right to
judgment of Court, comprises cause of action. It has to be left to be
determined in each individual case as to where cause of action arises.
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7. As per Order 2 Rule 1 of CPC, every suit shall include whole of the
claim which plaintiff is entitled to make in respect of cause of action. Order
2 Rule 1 also permits plaintiff to relinquish any portion of his claim based
upon said cause of action. If any portion of claim has been intentionally
relinquished without leave of Court, then afterwards plaintiff cannot claim it
in subsequent suit. Order 2 Rule 3 of CPC also lays down that if more than
one relief can be sought in respect of same cause of action, then he may sue
for such reliefs in the suit and if there is occasion to sue for a relief based on
said cause of action and said relief is not prayed for, then afterwards he is not
permitted to file fresh suit for said relief on basis of same cause of action
unless and until leave is granted to him.
8. Under Section 13 of Hindu Marriage Act, any party to marriage may
ask for dissolution of marriage by decree of divorce. Section 13 pre-supposes
valid marriage between the parties, which is to be dissolved on ground which
is enumerated under Section 13. However, Section 11 is entirely different
and marriage can be declared void and a nullity if it contravenes conditions
specified in Section 5(i), 5(iv) and 5(v) of the Act. Under Section 11, if a
party is successful, then marriage itself is nullity and there is no requirement
for getting it dissolved by decree of divorce on grounds mentioned in Section
13. Cause of action under Section 11 is enumerated under Section 5(i), 5(ii),
5(iv) and 5(v).
9. Ex.D/3 is former suit, which was preferred by appellant under Section
13 of Hindu Marriage Act, for divorce. Cause of action mentioned in said
suit was cruel behavior of respondent towards appellant and his family
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members. She used to fight with appellant and has also deserted appellant
after 2006. Cause of action arose in year 2005-06 when appellant was treated
cruelly and respondent started living separately from appellant. Subsequent
suit was filed by appellant under Section 11 of Hindu Marriage Act, 1955 on
grounds and cause of action that respondent had done first marriage with one
Kuldeep Khera in 1987 and had two child from said marriage. First marriage
was not dissolved by decree of divorce, therefore, second marriage is invalid
and a nullity. Cause of action in both the suits are different and not same.
Relief not claimed in former suit on a cause of action cannot be claimed in a
subsequent suit. In present case, cause of action in both suits are different
and grounds are also entirely different. Trial Court had committed an error in
dismissing the suit on grounds that same is barred under Order 2 of CPC.
10. On going through facts of the case, it is found that respondent in para
13 of her cross-examination had admitted that she was married when she met
appellant and was having a living spouse. There was no dissolution of first
marriage by Court by issuing decree of divorce at the time of second
marriage between appellant and respondent. She stated that first marriage
was dissolved by mutual agreement, which is no legal procedure to dissolve
the marriage and no reliance can be placed on it by Court.
11. On going through aforesaid facts, it is clear that on date of marriage of
appellant and respondent i.e. on 26.08.2001, first marriage of respondent was
subsisting and alive, therefore, second marriage conducted between appellant
and respondent is hit by Section 5(i) of Hindu Marriage Act. Marriage
between appellant and respondent was contrary to law and same is void
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under Section 11 of Hindu Marriage Act.
12. Resultantly, appellant succeeds and appeal is allowed. Judgment and
decree dated 09.08.2018 passed in Hindu Marriage Case No. 269-A/2015 by
Principal Judge, Family Court, Katni (M.P.) is set aside. Marriage of
appellant and respondent was void as same is hit by Section 5(i) of Hindu
Marriage Act, 1955.
13. Appeal is allowed and disposed off accordingly.
(VISHAL DHAGAT) (ANURADHA SHUKLA)
JUDGE JUDGE
vkt
