Madras High Court

Vaitheeswari vs Samidurai on 4 September, 2024

Author: J.Nisha Banu

Bench: J.Nisha Banu

                                                                                 C.M.A.No.2269 of 2019
                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 04.09.2024
                                                             CORAM

                                    THE HONOURABLE MRS.JUSTICE J.NISHA BANU
                                                             AND
                                   THE HONOURABLE MRS.JUSTICE R.KALAIMATHI

                                                  C.M.A.No.2269 of 2019

                     Vaitheeswari                                     ... Appellant

                                                         Versus

                     Samidurai                             ... Respondent


                     PRAYER : Civil Miscellaneous Appeal has been filed under Section 19

                     of the Family Courts Act against the Fair and Decreetal Order passed in

                     F.C.H.M.O.P.No.126 of 2017 dated 23.01.2019 on the file of the Family

                     Court at Ariyalur, Ariyalur District.

                                      For Appellant       : Mr.R.Jayaprakash

                                      For Respondent      : Mr.C.Prakasam




                                                         JUDGMENT

(Judgment of the Court was made by Mrs.R.Kalaimathi, J.,)

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This Civil Miscellaneous Appeal is preferred against the Order

passed in H.M.O.P.No.126 of 2017 on the file of the Family Court,

Ariyalur.

2. The appellant herein filed the above said H.M.O.P., under

Section 13(1)(i-a) of Hindu Marriage Act, 1955, for grant of an order of

divorce on the ground of cruelty.

3. The Family Court did not accept the contentions raised by the

petitioner/wife and chose to dismiss the petition. Aggrieved the

petitioner/wife has preferred this appeal.

4. The facts led to the filing of the Original Petition by the wife is

set out in brief:

The marriage between the petitioner/wife and the

respondent/husband was solemnised on 16.09.2013 as per Hindu rites

and customs, at the residence of the respondent situate at Aadhanur.

After marriage, for two years, the respondent was living along with the

petitioner happily. The respondent used to come to his house during

night under intoxication and he would assault the petitioner/wife blindly.

Without disclosing the 1st marriage, the respondent/husband got married

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the petitioner for the second time. As the respondent wants to reunite

with the 1st wife, the petitioner was beaten up by the

respondent/husband and thereby caused cruelty. The petitioner without

informing the respondent, went to Tiruppur on 07.10.2017. On

10.10.2017, the respondent lodged a complaint about missing of the

petitioner/wife before the Tuthur Police Station. Based on the said

complaint, on 23.10.2017, the petitioner was produced by the police

before the Ariyalur Judicial Magistrate No.II and at her instance, she

was sent along with her parents and the case was closed. On

24.10.2017, a talk was held to reunite the petitioner with the respondent,

the respondent told that he cannot stop drinking and therefore petitioner

states that there is no chance for reunion. In order to annul the marriage

held between the petitioner and the respondent, this petition was filed.

5. The counter details are stated in brief:

In fact, the marriage between the petitioner and the respondent

held at Aadhanur Mariamman Temple on 08.07.2012. At the time of

marriage, either gold jewels or Sridhana articles were not presented by

the parents of the petitioner/wife. As the parents of the petitioner(wife)

demanded him to part with his property, his father executed a document

resembling sale deed on 04.07.2012 without any consideration. The

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said property is still in possession and enjoyment of the

respondent/husband family members. His 1st wife is none other than his

sister's daughter. As per the village custom, the said marriage was

annulled and at present she married another person and living at

Tiruppur. This fact is known to the petitioner and her family members.

The respondent is ready to reunite with the petitioner.

6. Heard Mr.R.Jayaprakash, learned counsel appearing for the

appellant/wife and Mr.C.Prakasam, learned counsel appearing for the

respondent/husband.

7. At trial, the appellant / wife has examined herself as PW1 and

her father Arjunan was examined as PW2 and 5 documents were

marked through PW1. Marriage invitation is Ex.P1. Her school transfer

certificate (copy) is Ex.P4. On the respondent side respondent has

examined himself as RW1 and one Pounraj who was the Panchayat

President of Pungankuli Village was examined as RW2 and two

documents were marked through RW1.

8. It has come on record through the evidence of

PW1/Vaitheeswari(petitioner) that the marriage between herself and the

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respondent was held on 16.09.2013 as per Hindu Rites and Customs in

the presence of relatives at the respondent's Aadhanur residence. It is

her further evidence that they lived happily as husband and wife for two

years and thereafter, it was his routine affair to consume alcohol and he

would blindly assault her. She would further state that during the said

period when she question him about this, she was beaten up by him.

The state of poverty of her family was taken advantage and the

1st marriage details were hidden by him and he got married her. She

came to know that no order of divorce was granted in respect of 1st

marriage of the respondent/husband. Due to the acts of cruelty, she has

filed the petition for divorce.

9. Her father-PW2 Arjunan would state that the marriage of the

petitioner and the respondent was held at his residence. Regarding

acts of cruelty, he has also spoken about the acts of cruelty committed

by the respondent on the petitioner/wife.

10. Though the factum of marriage was admitted by the

respondent/husband, the alleged acts of cruelty was totally denied by

the respondent.

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11. The date of marriage stated by the petitioner is not accepted

by the respondent/husband. Further, from the evidence of PW2, who is

none other than the father of the petitioner (Arjunan), it is made clear

that the marriage of the petitioner with the respondent is the 2nd

marriage for the respondent/husband. It is also evident that originally the

marriage between the respondent and his sister's daughter was held

long before and due to misunderstanding, they got separated, would go

to show that the marriage between the respondent and his sister's

daughter is still subsisting. On the date of marriage, the respondent was

not a bachelor, which is in clear violation of Section 5(i) of the Hindu

Marriage Act. It is relevant to refer to the provisions of Sections 5 and 11

of the Hindu Marriage Act.

''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

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kind or to such an extent as to be unfit for marriage and the procreation of children; or

(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 petition presented by either party thereto 2 [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.

12. Section 11 in terms lay-down that non-fulfillment of any one of

the conditions mentioned in Section 5, renders a marriage solemnised

after the commencement of the Act, null and void from its inception and

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either party to such marriage can obtain decree of nullity from the Court.

Therefore, a hindu husband cannot, after the Act came into force, marry

another wife as long as his previous marriage is subsisting.

13. The testimony of RW1 and PW2 (father of the petitioner/wife),

the respondent had not obtained decree of divorce before entering into

the second union. Therefore, as the marriage was held in defiance to

Section 5 of the Hindu Marriage Act, we are of the firm view that once

the marriage is covered by Section 11, in this case, the marriage was

held in defiance to clause-1 of Section 5 of Hindu Marriage Act.

Therefore, we have no hesitation to hold that the marriage is void ipso

jure, i.e., void from the very inception. The effect is that the marriage has

to be ignored as not existing in law. Our views are fortified by the

observations of the Apex Court in Yamunabai Anantrao Adhav v.

Anantrao Shivram Adhav and Another reported in (1988) 1 SCC 530.

The relevant portion is extracted as follows:

''7.Lastly it was urged that the appellant was not informed about the respondent's marriage with Lilabai when she married the respondent who treated her as his wife, and, therefore, her prayer for maintenance should be allowed. There is no merit in this point either. The appellant cannot rely on the principle of

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estoppel so as to defeat the provisions of the Act. So far as the respondent treating her as his wife is concerned, it is again of no avail as the issue has to be settled under the law. It is the intention of the legislature which is relevant and not the attitude of the party.

8. We, therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code.''

14. Based on the aforestated discussions, we are to conclude that

the marriage held between the appellant/wife and the

respondent/husband is one covered by Section 11 of the Hindu Marriage

Act which is void ipso jure. Sequel to this, considering the nature of

marriage it has been ignored as not existing in law at all.

15. Accordingly, this Civil Miscellaneous Appeal stands allowed

and the order of the Family Court, Ariyalur, granted in

F.C.H.M.O.P.No.126 of 2017 dated 23.01.2019 stands set aside and the

marriage of the appellant/wife and the respondent/husband is declared

as null and void. There is no order as to costs.

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(J.N.B. J.,) (R.K.M.J.,) 04.09.2024