ORDER
R.P. Sethi, J.
1. Aggrieved by the judgments and decrees of the trial Court and the appellate Court, the defendant has preferred this second appeal formulating the following questions as substantial questions of law:
“(1) Whether a marriage can be declared as null and void by a civil court without its having been got so declared during the life time of one of the spouses?
(2) What is meant by ‘custom’ and how it can be proved and could a custom pleaded by a party be refused to be adjudicated if the same is not found to be ancient in nature and
on the other hand being of recent origin?
(3) Can oral evidence led by a party be held as inadmissible in evidence when the documentary evidence thereof has to be in possession of the opposite party and could Sections 91 and 92 of the Evidence Act be pressed into service to render oral evidence inadmissible in respect of a document which is claimed to be compulsorily required to be in writing?
(4) When the cause of action shall be deemed to have accrued to a plaintiff in a suit for declaration? And
(5) Can a Court declare the party of a lis
invalid without putting the parties to specific
issues regarding the invalidity of the mar
riage?”
Some of the facts relevant for determining the questions of law formulated hereinabove are: that the respondent Kamla Devi filed a suit for declaration to the effect that she was the only legal heir entitled to inherit the estate of Inder Parkash, her husband with a prayer for directing the appellant herein not to proclaim herself as the widow of — said Inder Parkash. The suit was resisted mainly on the ground that the same was barred by time and that Kamla Devi had been divorced by said Inder Parkash in accordance with the custom prevalent in Rajouri district. The appellant claimed to be the only legally wedded wife of the deceased.
2. On the pleadings of the parties, the trial Court framed the following issues:
“1. Whether plaintiff alone is entitled to the assets of deceased Inder Parkash and she is in possession of the assets of the deceased? OPP
2. On the proof of Issue No. 1, whether defendant is claiming herself to be the sole heir of deceased Inder Parkash and thus make a claim over the assets of the deceased? OPP.
3. Whether a custom is prevalent in the locality by virtue of which a Hindu can divorce his wife and, if so, whether Inder Parkash had divorced the plaintiff and defendant was taken as his wife and whether parties are governed by the custom? OPD
4. Whether the suit is time-barred? OPD
5. To what relief are the parties entitled? OPD”
The trial Court decreed the suit and the appeal filed by the appellant herein was also dismissed by the appellate Court below.
3. I have heard learned counsel for the parties and perused the record.
4. A cursory glance at the pleadings of the parties and the issues framed in the case would show that except the point regarding the custom, the other points raised, in fact, do not arise in the case. There does not appear to be any substantial question of law in this case in terms of the tests laid down by this Court in Surram Singh v. Lal Chand, 1987 SLJ 345, wherein it was held:
“If a question of law finally determines the rights between the persons and is debatable in view of the authorities or that the authorities require reconsideration or the judgment has been passed completely ignoring the evidence of the parties or that the judgment has not taken into account the statutory provisions of the settled proposition of law or that there was lack of jurisdiction in the Court deciding the rights of the parties or when the rights of the parties are directly and substantially affected on a point of law not finally settled by the High Court, the Privy Council, Federal Court or that the judgment has been passed completely ignoring the pleadings of the parties, would be “substantial question of law” for the purpose of this section irrespective of the fact that the said substantial question of law is not of general public importance.”
However, as the point of law regarding the validity of the marriage has been argued at ength and dealt with by the Courts below, I have preferred to adjudicate upon the same in this appeal.
5. Section 11 of the J. and K. Hindu Marriage Act, 1980 (hereinafter called ‘the Act’) declares the marriages solemnised in contravention of the conditions specified in Clauses (i), (ii) and (iv) of Section 5 of the Act to be void. The word “void” is not defined in the Act, but, generally in the strict sense means
that an instrument or transaction which is nugatory and ineffectual being not curable. It means empty, without force, null, ineffectual and having no legal force or binding effect. Presumed to be non-existent in the eye of law, no duty is cast upon any aggrieved party to seek a declaration from a court under the Act regarding the factum of a marriage being void. Giving any other interpretation would amount to legalising the action of the guilty at his instance or at the instance of the erring spouse solemnising the second marriage in existence of the first marriage. Marriages under the Act can be declared void or voidable or a decree of divorce and judicial separation can be passed only at the instance of a party to the marriage who is aggrieved within the meaning of the provisions of Sections 10, 11, 12 and 13 of the Act. It means, therefore, that a void marriage can be got declared as such by the second wife and by no other person or party. To defeat the provisions of law the erring parties solemnising a second marriage can allow the marriage to continue during their lifetime and thereby frustrate the provisions of the Act aimed at achieving social objective. The legislature clearly made a distinction between ‘void’ and ‘voidable’ marriages by making specific provision in Section 12 of the Act. The innocent party can treat the marriage nullity and ignore it because the erring party is presumed to be aware of the position of law and treat such second marriage to be non-existent in the eye of law. The Bombay High Court in Bajirao Raghoba Tambare v. Tolanbai Bhagwan Tonga 1980 Cri LJ 473, dealt with the matter and held at page 475 :
“A marriage in contravention of Section 5(l), Hindu Marriage Act, is null and void and it cannot create a legal status of husband and wife between the parties, though the necessary ceremonies may have been gone through. Though Section 11 gives a right to the parties to file a petition for a decree declaring the marriage a nullity, the filing of such a petition is not a condition precedent for putting an end to the marriage. What ultimately is declared on such a petition is nothing but the status of the party, as on the date of marriage and, therefore, the marriage does not continue to
remain valid until a decree is passed. What is null and void cannot be deemed to be in existence for any purpose whatsoever. If, therefore, a marriage is solemnised in contravention of Section 5(i), the woman cannot get the status of a wife, nor can the male get the status of husband qua her. For a valid marriage which alone can confer the status of wife, not only the ceremonies under the personal law must be gone through, but the marriage must conform to the statutory requirements of Sections 5 and 11, Hindu Marriage Act, in the case of Hindu. A clear distinction is made between void and voidable marriages. While Section 11 contemplates void marriage, Section 13 postulates marriages that are voidable.”
In Sheelawati v. Ram Nandani, AIR 1981 All 42 a Single Bench of the Allahabad High Court, however, disagreeing with the views of some other High Courts, held at page 45:
“………. the Hindu Marriage Act having
conferred exlusive jurisdiction on a District Court, and prescribed null and void, which is void according to Section 11 thereof, such declaration could be granted only by the District Court and in the manner prescribed by it, and by no other Court and in no other manner. The observations in Lakshmi Ammalv. Ramaswami, AIR 1960 Mad 6 and Kedar Nath v. Smt. Suprava, AIR 1963 Pat 311; to the effect that although Section 11 of the Hindu Marriage Act does not give the right to the first wife, on account of whose being living with second marriage of her husband with another woman is void, to have the second marriage of her husband with the other woman declared a nullity by a petition presented under the Act, she may yet have it declared to be so by a suit in the ordinary jurisdiction of a civil court, are with respect, obiter, and are in my opinion not correct……”
I am of the opinion that the approach adopted by Deoki Nandan, J. in Sheelawati’s case (supra) has ignored the purpose and object of the enactment declaring the second marriage to be void and consequences of restricting such marriages to be declared void only under the Act. I am not inclined to agree with the view taken in Sheelawati’s case. The judgment
on Sheelawati’s case was not approved and while dissenting with the said decision, B. N. Sapru, J. of that Court (Allahabad High Court) referred the following question to a Division Bench:
“Whether the view taken in Smt. Sheela-wati v. Smt. Ram Nandani, AIR 1981 All 42 is correct in so far as it lays down that the validity of a void marriage being in contravention of the provisions of Section 5 (i) read with Section 11 of the Hindu Marriage Act cannot be gone into at the instance of a third aggrieved party after the death of the spouses to the marriage.”
The Division Bench of the said court in Ram Piari v. Dharam Dass, AIR 1984 All 147 considered all the aspects of the matter and referred to various judgments on the point pronounced by the Indian Courts and the Courts in England and held at page 149:
“At this place it appears relevant to refer to the distinction between a void and voidable marriage. We have noted above that Section 12 of the Hindu Marriage Act deals with the cases where a marriage is void at the option of either party thereto. Its object is to lay down that until avoided, a voidable marriage should be regarded as good for all purposes. It also lays down the circumstances under which a marriage shall be held to be voidable and annulled by a decree of nullity. Sections 11 and 17 deal with void marriages. Under Section 17 a person committing breach of Clauses (i), (iv) and (v) of Section 5 after the commencement of the Hindu Marriage Act is liable to be punished under Sections 494 and 495 of the Penal Code. It is true that the two sections deal with and lay down that the marriages performed in contravention of the clauses referred to above would be void but it will be a folly to think that the legislature has enacted two provisions for the same purpose. Section 11 simply declares a marriage to be void whereas Section 17 makes a party contravening Clauses (i) (iv) and (v) of Section 5 liable to punishment. These two sections, however, cannot be read as confining the rights only of the parties to a void marriage. There is a distinction between a void and voidable marriage. A void marriage is one which is
regarded as non-existent or as never having taken place. It could be so treated by both the parties to it without the existence of any decree annulling the said marriage.
A marriage is void where there is bigamy, consanguinity or within the degrees of prohibited relationship. In these cases the court will regard the marriage as never having taken place and no status of matrimony as ever having been conferred. Consequently, the parties never having been husband and wife, either is competent to be called against the other. Consent of the parties performing the marriage in breach of Clause (i) of Section 5 cannot validate it. Such is not the position in case of a voidable marriage. A voidable marriage is regarded as valid and subsisting unless a competent court annuls it. Until the decree of nullity is obtained in accordance with Hindu Marriage Act, the tie remains binding. So long as there is no decree they will live and die married persons with all the incidents that attach to that state. The expression ‘void’ means null, ineffectual having no force or bidning effect. Since a marriage performed in contravention of Clauses (i), (iv) and (v) of Section 5 is void, it is incapable of being cured or ratified.
Precisely for the above reason that it has been recognised by the Courts that a third party can bring a suit in a Civil Court for its annulment even after their deaths. If this is not held the rights of the third party would be seriously prejudiced without having any right in them to seek redress in a Court of law. The case of a voidable marriage, as stated above, stands on a different footing. The right given to annulment of marriage is confined to the parties.
In Twenty v. Twenty (1946) l All ER 564, it has been held:
“Where the marriage is void ab initio any person who has got any interest in the matter can challenge the marriage by filing a regular civil suit for the declaration that the marriage is a nullity. Such a marriage is no marriage at all and any spouse can ignore such a marriage.”
In R.v. Algar (1933) 2 All ER 1381, a distinction between a void and voidable marriage has been brought above and it has been laid down that a void marriage has no existence in the eye of law. Our view, therefore, is that where a marriage is a bigamous marriage, the marriage is regarded as null and void from the very beginning. The law Commission while considering the question of amending Section 11 observed :
“The Hindu Marriage Act is a piece of matrimonial law and decrees of nullity, contemplated by it, are decrees passed by matrimonial Courts. It is fundamental that matrimonial Courts have concern only with the marital rights of the parties to marriage (and incidentally with the rights of the children) but with nothing else. A petition for a decree of nullity in respect of a void or a voidable marriage can be made only by either the husband or the wife. It would not be appropriate to provide that a petition for the purpose can be made by a stranger to the marriage. A third party (for example, a person interested in the estate of either the husband or the wife) can certainly question the validity of their marriage in a civil suit and obtain a finding, or he may even bring a suit for a declaration that the marriage was void. But such a decree made by a civil court will not be a decree of nullity as contemplated by matrimonal law.”
The above report would show that a third person has a right of bringing the suit.
Apart from a civil suit the question of validity of second marriage when raised in other proceedings was examined and adjudicated upon. In Naurang Singh v. Sapla Devi, (AIR 1968 All 412) the claim for maintenance made by the second wife was rejected on the ground that her marriage was void on account of Sections 5(i) and 11 of the Hindu Marriage Act. In Mohd Iqram Hussain v. State of U.P., AIR 1964 SC 1625, the Supreme Court observed at page 1631 :
“Under Sections 5 and 11 of Hindu Marriage Act (Act No. XXV of 1955) a second marriage with a previous married wife living is null and void.”
The claim for maintenance made by the second wife was also rejected on the ground of her marriage being a nullity in Banshindhar Jha v. Chhabi Chatterji, AIR 1967 Pat 277. In Bajirao Rashoba Tambra v. Tolanbru, 1980 Cri LJ 473 the Bombay High Court took a similar view. The Allahabad High Court in Ishwar Singh v. Hukan Kour, AIR 1965 All 464 : (1965 (2) Cri LJ 449(1) held that the second marriage during the lifetime of the previous wife was since invalid the second wife was not entitled to maintenance.
In Ram Kripal v. State of U.P. 1980 All WC 369 and Phool Chandra v. State of U.P., 1978 All LR 198 : AIR 1978 NOC 143 the view taken was that the second marriages when the first wives were alive were invalid and conferred no right on them to get land allotted under the U.P. Imposition of Ceiling on Land Holdings Act to themselves.
The learned counsel for the appellant has referred to some of the decisions for the submission that the jurisdiction of the civil court to entertain the suit was barred. These decisions are reported in Premier Automobiles Ltd. v. K.S. Wadke AIR 1975 SC 2238, Bata Shoe Company Ltd. v. Jabalpur Corporation, AIR 1977 SC 955 and S.C. Mudada Chayanna v. Karnam Narayana, AIR 1979 SC 1320. All of these decisions are inapplicable. Each one of the Act which the Supreme Court was called upon to deal within these cases created as bar to the jurisdiction of Civil Courts. These cases are of no assistance for deciding the controversy involved.
For what we have said above we do not agree with the law laid down in Sheelwati v. Smt. Ram Nandani, AIR 1981 All 42. We answer the question by saying that the validity of a void marriage being in contravention of the provisions of Section 5(i) read with Section 11 of the Hindu Marriage Act can be gone into at the instance of the third aggrieved party even after the death of one of the spouses to the marriage.”
The judgment of the Division Bench of the Allahabad High Court has, therefore, overruled the earlier judgment in Sheelwati’s cate
(supra) and I have no hesitation to agree with the reasons and conclusions arrived at by the Division Bench.
6. It is true that under Section 36 of the Act, any right recognised by the custom has been saved and the Act is not to have any effect on such custom. ‘Custom’, however, has been defined under Section 3 to mean “Any Rule which, having been continuously and uni-formally observed for a long time, has obtained the force of law among Hindus, in any local area, tribe, community, group of family”. This definition is based upon numerous pronouncements of Indian High Courts, Privy Council and the Hindu jurists. The Privy Council in Harparsad v. Sheo Dayal, (1876) 3 IA 259-288 held that the custom is a Rule of law which in a particular family or in a particular district has from long usage obtained force of law. It must be ancient certain and reasonable and being in derogation of the general rules must be construed strictly. Manu and Yajanvalkaya have referred the custom to be a SADACHAAR and defined it as, “the custom handed down in regular succession since time immemorial among the court chief castes and the mixed races of the country”. The essential attributes of a valid custom are, therefore, that it should be ancient, reasonable, must have continued or observed without interruption, and must be certain of its nature and the persons to whom it is alleged to affect, besides being uniform and obligatory. It should not be immoral or opposed to public policy. The English rule that “A custom in order that it may be legal and binding must have been used so long that the memory of a man can run, cannot be applied to Indian conditions as was held by the Supreme Court in Gokal Chand v. Parveen Kumar, AIR 1952 SC 231. In that case the Supreme Court considered all aspects of the matter and specified the principles to be kept in view while dealing with the question on customary law. In this case Act No. IV of 1980 was enacted after the repeal of Act No. VIII of 1955 on 14-4-1980. Section 36 of the New Act provided that the repeal of the Act shall not affect the validity, effect or consequences of anything done or suffered to be done under the old Act, any application or
liability already incurred before the commencement of the new Act and legal proceedings or remedy in respect of any privilege, application, liability and such legal proceedings or remedy which may be instituted, continued or enforced under the new Act.
7. It is not disputed that Section 3 of the new Act existed in Act No. VIII of 1955 by defining the custom and usage and holding that in order to apply the custom or usage, it has to be shown that the same was certain and not unreasonable or was ancient in character, not necessarily being beyong the human memory. The evidence in the case showed that the isolated marriages being three to four in number were dissolved on the basis of so called custom from 1947 onwards which means that for a period of seven to eight years before the Act regualting the Hindu marriages was enforced in the State of Jammu and Kashmir. The custom relied upon by the appellant cannot, therefore, be treated to be a custom within the meaning of Section 3 of the Act.
8. The other points raised by the appellant in this appeal are no questions of law muchless substantial questions of law, as argued by learned counsel for the appellant inasmuch as this Court has in a number of cases, dealt with the scope of Sections 91 and 92 of the Evidence Act or the scope of the term “cause of action” or framing of issues in a litigation. These questions have rightly been dealt with and decided by both the courts below and require no interfernce or even interpretation by this Court.
9. The present appeal does not involve any substantial questions of law within the meaning of Section 100, C.P.C. and is accordingly dismissed along with C.M.P. No. 468 of 1991.