Madras High Court
M.Suguna vs K.Prakash on 2 February, 2021
C.M.A.Nos.3968 & 3975 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.A.Nos.3968 & 3975 of 2019
M.Suguna
W/o K.Prakash .. Appellant in both the Appeals
-vs-
K.Prakash .. Respondent in both the Appeals
Memorandum of Grounds of Civil Miscellaneous Appeals filed under
Section 19(1) of the Family Courts Act, 1984, against the common order
and decree dated 06.02.2019 made in F.C.O.P.Nos.30 & 279 of 2017 on the
file of the Judge, Family Court, Vellore.
For Appellant :: Ms.A.Vinupradha
For Respondent :: Mr.C.Anbu for
Mr.M.R.Thangavel
JUDGMENT
(Judgment of the Court was made by T.RAJA, J.)
These two civil miscellaneous appeals have been directed against the
impugned common order and decree dated 06.02.2019 made in
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C.M.A.Nos.3968 & 3975 of 2019
F.C.O.P.Nos.30 & 279 of 2017 by the learned Judge, Family Court, Vellore,
in and by which the learned trial Judge has allowed the petition filed by the
respondent/husband seeking dissolution of marriage under Section 13(1)(ia)
of the Hindu Marriage Act solemnized between the appellant/wife and the
respondent/husband on 01.11.2009, invoking Section 11 read with Section
5(i) of the Hindu Marriage Act, and dismissed the petition filed by the
appellant/wife seeking restitution of conjugal rights under Section 9 of the
Hindu Marriage Act.
2. The facts in brief leading to the filing of the appeals are as follows:-
The appellant and the respondent got married on 01.11.2009 as per
the Hindu rites and customs. Before this marriage, the respondent already
got married with one Padmavathy who had given birth to two children
namely, daughter and son during her lifetime. But due to her ill-health, she
died and thereafter, the respondent married this appellant as his second wife.
At the time of the death of the first wife, the respondent's daughter and son
were too young and the respondent also was working as a Cable Operator, it
has been pleaded that for the welfare of the children, he got married the
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C.M.A.Nos.3968 & 3975 of 2019
appellant. When the appellant failed and neglected to take care of the
children and never acted as a dutiful wife and started ill-treating the
respondent and his two children born through the first wife, problems have
occurred. The story of the appellant also is equally the same. She also got
married with one Hari, S/o Munusamy and lived at Bangalore. Out of the
said wedlock, she gave birth to two children through the said Hari.
Thereafter, she had deserted the said Hari and started living separately. By
giving false particulars to the respondent, the appellant married him. But she
has not got the decree of divorce from the first husband, namely, Hari
through a Court of law and in addition thereto, even after the second
marriage with the respondent, she started cooking for herself and not for the
respondent and his daughter and son and that during 2011, when the
appellant started torturing the second husband as well as his daughter and
son, to buy peace, the respondent/husband, on the compulsion of the
appellant, executed a registered Will in favour of the appellant on 1.4.2011
bequeathing the immovable property as stated in the schedule of the
document. Subsequently, she also forced him to cancel the said Will, as she
wanted an immovable property in her name through a direct sale deed.
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C.M.A.Nos.3968 & 3975 of 2019
Although the respondent has purchased the property in the name of the
appellant for a valuable sale consideration of Rs.1,00,000/-, when the actual
value was Rs.8,50,000/-, she did not stop the ill-treatment towards the
respondent and his daughter and son. Finally, the respondent's daughter
lodged a police complaint before the All Women Police Station, Ambur on
1.4.2016 and a CSR was registered. But no action was taken against the
appellant. Then the respondent's daughter approached this Court in
Crl.O.P.No.10135 of 2016 and as per the direction of this Court, the Ambur
Police registered a case against the appellant under Sections 323, 294(b),
506(i) of IPC. Thereafter, the appellant is said to have given more torture to
the respondent's daughter through her brother, who is working in the
Military service. The appellant also is said to have threatened the daughter
of the respondent that unless she marries the appellant's brother, nobody
would marry her. But the respondent's daughter refused the said proposal.
Thereafter, the appellant's brother also went to the extent of pushing the
respondent's daughter from the staircase. The appellant lodged a police
complaint and also started gathering support from the ruling party and also
threatened the respondent to face dire consequences. Therefore, the
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C.M.A.Nos.3968 & 3975 of 2019
respondent was constrained to file a police complaint and also filed the
petition for divorce on the ground of cruelty under Section 13(1)(i-a) of the
Hindu Marriage Act. It is also stated that the appellant also filed a
maintenance case before the Judicial Magistrate No.III, Vellore in M.C.No.1
of 2016. In addition thereto, she also filed a case of domestic violence in
D.V.C.No.19 of 2016 against the respondent before the Judicial Magistrate
No.III, Vellore and also filed the petition for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act.
3. The trial Court, taking into account the crucial issue whether the
appellant has concealed the subsistence of her first marriage with one Hari
while contracting the second marriage with the respondent herein, came to
the conclusion, on the evidence of P.Ws.1 to 4, that the appellant/wife has
failed to reveal the fact of her first marriage with one Hari before the second
marriage and that fact has not been also revealed to the respondent herein.
The trial Court further held that when the appellant has admitted that she
got married with one Hari at the age of 13, she failed to produce any decree
for annulment of the first marriage and also the death certificate of the first
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C.M.A.Nos.3968 & 3975 of 2019
husband, if he is not alive. Therefore, on the ground that the appellant has
come to the Court with unclean hands, invoking Section 11 read with
Section 5(i) of the Hindu Marriage Act, has declared the marriage that took
place between the appellant and the respondent on 01.11.2009 as null and
void. The relevant portion of the finding of the trial Court is extracted
hereunder:-
“But she herself has admitted that she got married
with one Hari before this marriage. As such, she is
already a married woman, when she is a married
woman, unless she gets a divorce from her first
husband, she is not supposed to get marry with any
one. Though she has stated that her husband is
stated to be dead, for such allegation there is no
ptoof before this Court. Even she has not
approached any competent court to get an order for
declaration of civil death also. As such the
presumption is that her first husband is still in
existence. While so, when the first marriage is in
alive according to law, the marriage that got
solemnized in between this petitioner and the
respondent is null and void as per Sec.11 of the
Hindu Marriage Act. Though this case is being
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C.M.A.Nos.3968 & 3975 of 2019
filed u/s 13(1)(i-a) of Hindu Marriage Act for
causing cruelty, this court suo-motu invoking the
provision u/s 11 of Hindu Marriage Act. When
there is no proof for the death of the first husband
of this respondent, by way of invoking sec.11 r/w
Sec.5(1) of Hindu Marriage Act and this court
hereby declares that the marriage took place in
between the petitioner and the respondent on
01.11.2009 as nullity since it contravenes the
condition u/s 5(i) of the Hindu Marriage Act.
Finally, from the above said discussion, the
marriage that has been held in between this
petitioner and the respondent dated 01.11.2009 is
hereby declared as null and void and this point is
answered accordingly.”
4. The above finding of facts has not been proved to be wrong by the
appellant. When the appellant herself has admitted the fact that she got
married with one Hari, before marrying the respondent herein, she was
already a married woman, therefore, unless she gets a decree of divorce from
her first husband, she is not supposed to have married anyone. But when she
has pleaded that her first husband died, she has neither produced any death
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C.M.A.Nos.3968 & 3975 of 2019
certificate showing his death nor produced any decree of divorce from the
Court to say that she contracted the second marriage after the decree of
divorce was granted. When the appellant has come to the Court with
unclean hands concealing her first marriage, the trial Court, invoking Section
11 read with Section 5(i) of the Hindu Marriage Act, has rightly declared the
marriage that took place between the appellant and the respondent as null
and void. Therefore, we are unable to find any infirmity or error in the
impugned common order and decree. Accordingly, the civil miscellaneous
appeals filed by the appellant are dismissed with costs throughout.
Consequently, C.M.P.Nos.22457 & 22480 of 2019 are also dismissed.
Speaking order (T.R.,J.) (G.C.S., J.)
Index : yes 02.02.2021
ss
To
1. The Judge
Family Court
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C.M.A.Nos.3968 & 3975 of 2019
Vellore
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C.M.A.Nos.3968 & 3975 of 2019
T.RAJA, J.
and
G.CHANDRASEKHARAN, J.
ss
C.M.A.Nos.3968 & 3975 of 2019
02.02.2021
http://www.judis.nic.in
