FAO No. 50-M of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No. 50-M of 2005
Date of Decision: 10.11.2009
Gurmit Kaur ....Appellant
Vs.
Buta Singh ..Respondent
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.Gurcharan Dass, Advocates,
for the appellant.
Mr.G.S.Bhatia, Advocate,
for the respondent.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
Vinod K.Sharma,J. (Oral)
This is wife’s appeal against the judgment and decree of
nullity of marriage granted in favour of the respondent/husband by the
FAO No. 50-M of 2005 2
learned District Judge, Ludhiana,.
The marriage between the parties was solemnized on 1.8.1993
at village Chimna Tehsil Jagraon, District Ludhiana according to Sikh rites
and ceremonies. The parties lived and cohabited together as husband and
wife but no child was born out of the wed-lock. The case of the
respondent/husband was that the behaviour of the appellant/wife from the
very beginning was not good. She had hot temperament and used to pick up
quarrel with the respondent and his family members on petty matters. She
even issued threat to life. It was the case of the respondent that the appellant
even threatened the family members on a number of occasion with dire
consequences in case she was asked to do household work. Thus, it was
pleaded that he was treated with cruelty.
Other allegations were also levelled, with which we are not
concerned as the main plea on which the respondent/husband had sought
nullity of marriage was that the appellant had a living spouse on the date of
marriage.
It was pleaded case of the respondent that Surjit Singh son of
Lal Singh of village Rauwal, Tehsil Jagraon, District Ludhiana was her
spouse living at the time of marriage, as no divorce had taken place between
them. It was the case of the respondent that at the time of marriage he was
informed by the appellant that she had divorced her husband Surjit Singh,
and had two children from him i.e. Jaswinder Singh and Harvinder Singh
who were living with her previous husband Surjit Singh.
It was in November, 1998 that the appellant filed a petition
FAO No. 50-M of 2005 3
seeking divorce from her previous husband Surjit Singh. However, said
petition was thereafter dismissed as not pressed. Thus, it was claimed that
the marriage between the parties was nullity under section 5 of the Act. It
was also pleaded case that provisions of Limitation Act, 1963 were not
applicable to the petition and immediately on coming to know about fraud
played on him he sought decree of declaration that the marriage was null
and void.
The petition filed by the respondent was contested by the
appellant by raising a preliminary objection of concealment of material facts
and by raising a plea of estoppel.
On merit, it was denied that the behaviour of the appellant was
not good or that she was of hot temperament. Other allegations regarding
picking of quarrel on petty matters were also denied. The case set up was
that on coming to know that respondent/husband had illicit relations with
some other lady to which she objected, he started misbehaving and gave
beating to her. It was further pleaded case that she had caught the
respondent red handed with another lady in objectionable condition, and on
that she was given severe beating by both of them.
It was pleaded that the petition was an attempt to get rid of her.
It was the case of the appellant that the respondent was informed about
divorce in panchayat of village as per custom in their community. It was
denied that any fraud was played by the appellant.
It was denied that the marriage was a nullity. She also denied
having filed any divorce petition under section 13 of the Act in November,
FAO No. 50-M of 2005 4
1998 which was dismissed in default. It was also pleaded that the
respondent had taken signatures of the appellant on blank papers on which
he forged and fabricated the alleged petition of divorce. She never appeared
in any court. The appellant further claimed that the marriage between the
parties was performed in August, 1993 and therefore, there was no occasion
to move the divorce petition at this belated stage .
After filing of rejoinder, on the pleadings of the parties the
following issues were framed:-
1. Whether the respondent Gurmit Kaur had contracted a
marriage with Boota Singh petitioner during the
subsistence of her first marriage with Surjit Singh, if so,
its effect? OPP
1A. Whether the petition is within limitation as alleged? OPP
2. Whether petition is not maintainable? OPR
3. Whether the petitioner is barred by his own act and
conduct from filing the petition? OPR
4. Relief.
In order to prove his case the respondent examined PW 1 Miss
Pawanjit Kaur, Advocate, PW 2 Ranjit Singh, PW 3 Kuldip Singh, PW 4
Mohinderpal Inspector, Food & Supplies, PW 5 Vijay Kumar, Registry
clerk, PW 6Tarsem Lal, Vasika Nawis, Jagraon PW 7 Baljinder Singh, PW
8 Buta Singh and PW 9 Gurmail Singh and thereafter closed the evidence.
On the other hand, the appellant appeared as her own witness
as RW 1 and examined RW 2 Amar Singh, RW 3 Hoshiar Singh, RW 4
FAO No. 50-M of 2005 5
Cheta Singh, RW 5 Bir Singh Clerk Tehsildar office Jagraon.
Issues No.1 and 1-A were taken up together and on
appreciation of evidence on record the learned Additional District Judge
recorded a finding that the respondent/husband successfully proved that the
appellant had contracted marriage with the respondent/husband during the
subsistence of her first marriage with Surjit Singh. It was also held that the
Limitation Act was not applicable to the proceedings under the Act in view
of the provisions of Section 29 (3) of the Limitation Act and issues were
decided in favour of the respondent/husband.
On issues No.2 and 3 learned Additional District Judge was
pleased to record finding that the marriage between the parties was
solemnized in violation of provisions of section 5 (i) of the Act and
therefore, the petition was competent under section 11 to seek a declaration
that marriage between the parties was null and void.
It was also decided that the petition was not barred by the act
and conduct of the respondent. Consequently, the marriage between the
parties was declared to be null and void.
Mr.Gurcharan Dass, learned counsel appearing on behalf of the
appellant did not challenge the fact that on the date of marriage between the
parties i.e. on 1.8.1993 the appellant had a spouse living, as there was no
evidence on record to prove customary divorce or custom under which it
was claimed that the marriage between the appellant and her previous
husband had been dissolved.
Learned counsel for the appellant, however, contended that
FAO No. 50-M of 2005 6
Surjit Singh had died in the year 1995 and at present she does not have a
living spouse. This would, however, not make any difference as admittedly
on the date of marriage i.e. 1.8.1993 the appellant had a living spouse,
therefore, the marriage was null and void having been performed in
violation of conditions laid down under section 5 (i) of the Act.
Learned counsel for the appellant contended that the petition
filed by the respondent was liable to be dismissed on account of latches as
admittedly the marriage between the parties was performed on 1.8.1993,
whereas, this petition for divorce was filed in the year 2000 i.e. after 7 years
of marriage, but no explanation was forthcoming for such inordinate delay.
Therefore, the petition was liable to be dismissed in view of the provisions
of Section 23(d) of the Act.
In support of this contention, learned counsel for the appellant
placed reliance on the judgment of this court in the case of Shakuntala
Devi Vs. Amar Nath 1982 HLR 26, wherein this court was pleased to lay
down as under:-
“8. Apart from the merits of the controversy between the
parties, the petition was also liable to be dismissed on the
ground of laches. The marriage between the parties took place
on June, 18, 1973 whereas this petition was filed on April 24,
1978, about five years thereafter. No explanation whatsoever
has been offered by the respondent for this inordinate delay in
moving the petition. On the contrary,it appears that the petition
was filed because the wife had failed to give birth to a child and
FAO No. 50-M of 2005 7was not keeping good health for some time. As one of these
two circumstances could provide a ground for divorce,the
respondent thought of setting up the plea that the marriage
between them was a nullity because they were related to each
other within the prohibited degrees. It would not, therefore, be
just to allow the husband to claim a decree of nullity after such
an inordinate delay.
9. In view of the above findings, this appeal is allowed, the
impugned judgment and decree set aside and the petitions
dismissed. As the wife has already been allowed litigation
expenses, there would be no order as to costs.”.
Mr.G.S.Bhatia, learned counsel for the respondent/husband,
however, contended that a petition for declaration of nullity under section
11 of the Act cannot be rejected on account of delay in institution. The
contention of the learned counsel for the appellant was that no amount of
delay can stand in the way of obtaining declaration as to nullity of marriage
which is null and void.
In support of the contention,learned counsel for the respondent
placed reliance on the judgment of Division Bench of Calcutta High Court
in the case of Harendra Nath Burman Vs. Sm.Suprova Burman and
another AIR 1989 Calcutta 120, wherein Hon’ble Calcutta High Court has
been pleased to lay down as under:-
“11. We also wanted to ascertain that since under S.34(e),
“unnecessary or improper delay in instituting the proceedings”
FAO No. 50-M of 2005 8disentitles a person from obtaining relief under the Special
Marriage Act, whether this delay of about 24 years would so
disentitle the appellant/husband. But we are afraid that
whatever might be the effect of delay on a proceeding for
divorce or other matrimonial reliefs under S.34 (e), no amount
of delay would stand in the way for obtaining declaration as to
the nullity of a marriage which is null and void under the law.
As pointed out in Halsbury (4th Edition. Vol.13. Page 266, para
541), “in case of void marriages, neither delay nor conduct
constitutes a bar to a decree”. In Kappu Damayantiv C.Rama
Rao, (AIR 1969 Andh Pra 62), a Division Bench of the Andhra
Pradesh High Court refused a decree of nullity because of about
seven years delay to a husband seeking such a declaration on
the ground that he was under the age of 21 years on the date of
the marriage and the marriage was solemnized without the
consent of his guardian as required under S.2(3) of the
preceding Special Marriage Act of 1872. But as pointed out
therein,under the Special Marriage Act of 1872 a marriage of a
man below 21 years of age without the consent of the father or
the guardian was not void, but only voidable and under S.17 of
the said Act, a Court was given a discretion to grant a decree of
nullity in respect of such voidable marriage and delay in that
case was accordingly held to be a ground on which such decree
could be refused.
FAO No. 50-M of 2005 9
12. But, as already noted,under S.4 read with S.24 of the
present Special Marriage Act of 1954, such a marriage without
the qualifying age has been rendered not merely voidable, but
absolutely null and void. The marriage would be a nullity ipso
jure and ab initio and would continue to be so, whether or not a
decree to that effect is passed and would not, as in the case of
voidable marriage become a nullity only on the passing of a
decree to that effect. If the marriage is null and void under S.4
read with s.24 of the Special Marriage Act on the ground of a
person being under age, or having another spouse living, or the
parties being within prohibited degree, no amount of delay
would make that person of qualifying age, or without a spouse,
or outside the prohibited degree on the date of the marriage
and, therefore, delay, however long, can be of no relevance in
respect of such marriages which are null and void. Since no
relief in the shape of a decree of nullity or otherwise is legally
necessary to render such marriage null and void, S.34 of the
Special Marriage Act, which would apply only when a decree is
legally required for the enforcement of any matrimonial relief
would not proprio vigore apply to such a case. The decision of
Dr.Lushington in Duins V.Donovan, (1830) 162 ER 1165,
referred to in Kappu Damayanti (AIR 1969 Andh Pra 62)
(supra) may be referred to where under the then prevailing
enactment, known as Lord Hardwick’s Act, the marriage in
FAO No. 50-M of 2005 10question was an absolute nullity and it was held that in such a
case “lapse of time” would be no bar In Aina Devi Vs. Bachan
Singh, AIR 1980 Delhi 174, which was a case under S.11 of the
Hindu Marriage Act, whereunder certain marriage are declared
to be null and void it has been held by a learned single Judge
that “the grounds on which a petition for declaring a marriage
to be null and void may be filed under S.11 of the Hindu
Marriage Act are such that no amount of delay could be said to
be sufficient to disentitle a petitioner to relief thereunder in
spite of the generality of the provisions of Cl.(d) of S.23(I) of
the Act.” Section 23(i)(d) of the Hindu Marriage Act and S.34
(1)(e) of the Special Marriage Act are in pari materia, both
providing generally that delay may otherwise be a bar to reliefs
under the Act. For the reasons stated hereinbefore in some
details, we would agree with the observations made in the Delhi
(Allahabad) decision.”
Reliance was also placed on the judgment of Hon’ble Allahabad
High Court in the case of Smt.Aina Devi Vs. Bachan Singh and another
AIR 1980 Allahabad 174, wherein Hon’ble Allahabad High Court has
been pleased to lay down as under:-
“6. The primary ground on which the petition was founded
was contravention of the rule against bigamy, prescribed by
clause (i) of Section 5 of the Act. Under Section 11 of the
Hindu Marriage Act, 1955, any marriage solemnized after the
FAO No. 50-M of 2005 11commencement of the Act, “shall be null and void and may on
the petition presented by either party thereto, against the other
party be so declared by a decree of nullity if it contravened any
of the conditions specified in clauses (i), (iv) and (v) of Section
5.” The condition for a valid marriage prescribed by Section 5
(i), is that “neither party has a spouse living at the time of the
marriage.” Section 11 specifically enables either party to the
marriage to have it declared null and void by a decree of
nullity, against the other party. Section 11 does not confine the
right to present a petition thereunder to the aggrieved party
alone. On the other hand, it expressly confers the right to sue on
either party to a marriage which contravenes any of the
conditions of clause (i), (iv) and (v) of Section 5. In so far as
the allegation on which the petition was originally founded, is
concerned namely, the allegation that the respondent Bachan
Singh had a spouse living in the person of the respondent Smt.
Purna Devi at the time of the marriage in question, there could
be no question of applying the provisions of cl. (a) of sub-
section (1) of Section 23. The learned District Judge has
applied that provision in the context of the allegation
subsequently made by amendment of the petition,namely, that
the petitioner had been married to three other persons in
succession before the marriage in question,and all the three of
them were living. Apart from the question whether this
FAO No. 50-M of 2005 12allegation was true or untrue, it is difficult to say that the
petitioner was the wrong-doer in allowing her mother to take
respondent Bachan Singh as a Ghar Jawai, in spite of the fact
that three Ghar Jawais taken earlier in succession one after the
other were living at the time when Bachan Singh was taken as a
Ghar Jawai. The petitioner would, if her allegations are true,
appear to be more sinned against than a sinner, a victim of the
customs of the society in which she lived. The provisions of the
Hindu Marriage Act are uniformly applicable to all Hindus
throughout the length and breadth of India, practicing as they
did a confusing variety of customary law relating to marriage
and family relations. The petitioner happens to belong to a
village in the district of Uttar Kashi which formed part of Tehri
before its merger. The people there were practicing their own
system of customary laws relating to marriage and family
relations. The custom of taking a Ghar Jawai was prevalent in
that area. The petitioner’s marriage with the first respondent
was also contracted in that form and it cannot be said that either
party to the marriage could have, according to their notions of
morality, felt that the petitioner was committing any wrong in
having a fourth husband taken in that form were alive. I am,
therefore, unable to agree with the learned District Judge when
he held that the petitioner could not be allowed to contend that
the marriage in question was a nullity on the ground that she
FAO No. 50-M of 2005 13had three husbands living when it was contracted. Nor am I
able to agree with the learned District Judge that the petition
was liable to be dismissed on the ground of unnecessary delay
in instituting it. The Limitation Act, 1963 does not apply to a
suit or proceedings under the law, relating to marriage and
divorce, vide Section 29 (3) thereof. The question which arises
under clause (d) of sub–section (1) of Section 23 of the
Hindu Marriage Act is whether the delay in the presentation of
the petition is such as to lead to the inference that the petitioner
was guilty of laches or acquiescence is as to disentitle him or
her to the relief claimed. The respondents were in no way
prejudiced by whatever delay there was in presenting the
petition after the first respondent left the petitioner and started
living separately. The petitioner’s marriage with the first
respondent was contracted in Samvat 2025 which is equivalent
to the year 1968-69. The first respondent is said to have lived
with the petitioner for 10 months after the marriage. That brings
us to the Samvat 2026, that is the year 1969-70. In her
statement on oath which was recorded on 30th October, 1975
the petitioner stated that she had gone to the first respondent’s
place some four years ago in the month of Paush to ask him to
go to her place and arrange for the ploughing of the fields. That
might have been some time in December, 1971. The petition
was filed on 14th May, 1974. That was less than 3 years since
FAO No. 50-M of 2005 14her alleged visit to the first respondent’s place. It cannot be said
that the period of less than three years which elapsed between
the petitioner’s last visit to the first respondent’s place and the
presentation of the petition, was so long or unreasonably long
as to disentitle her to the relief on the ground of laches. Indeed
the grounds on which a petition for declaraing a marriage to be
null and void may be filed under Section 11 of the Hindu
Marriage Act, are such that no amount of delay could be said
to be sufficient to disentitle a petitioner to relief thereunder, in
spite of the generality of the provisions of clause (d) of Section
23 (1) of the Act. The policy of the law is that a marriage
solemnized in contravention of any of the conditions prescribed
by cls (i), (iv) and (v) of Section 5 of the Act is null and void.
The parties to such a marriage may not institute a petition, and
by not instituting the petition they would only be defeating the
policy of the law, for no person other than party to such a
marriage has been given a right to have it declared to be null
and void. Under the circumstances if one of the parties does file
a petition for having the marriage declared null and void under
Section 11 of the Act, he or she only does something to further
the policy of the law, and I do not think that such a petition
could properly be dismissed on the ground of unnecessary or
improper delay, for by doing as instead of advancing the policy
of the law, the court would be defeating it. I, therefore, disagree
FAO No. 50-M of 2005 15with the view of the learned District Judge that the petition was
liable to be dismissed on the ground of unreasonable delay.”
Learned counsel for the respondent thereafter referred to the
judgment of Hon’ble Supreme Court in the case of M.M.Malhotra Vs.
Union of India and Ors. AIR 2006 SC 80, to contend that the marriage
being null and void since its inception cannot be protected merely because
there is delay and laches on the part of the respondent to approach the court.
Hon’ble Supreme Court in the case of M.M.Malhotra Vs. Union of India
and Ors. (supra), has been pleased to lay down as under:-
“11. For appreciating the status of a Hindu woman marrying a
Hindu male with a living spouse some of the provisions of the
Hindu Marriage Act. 1955 (hereinafter referred to as the
`Marriage Act’) have to be examined. Section 11 of the
Marriage Act declares such a marriage as null and void in the
following terms:
11. “Void marriages. – Any marriage solemnized after the
commencement of this Act shall be null and void and may, on a
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”.
Clause (i) of Section 5 lays down, for a lawful marriage, the
necessary condition that neither party should have a spouse
living at the time of the marriage. A marriage in contravention
FAO No. 50-M of 2005 16of this condition, therefore, is null and void. By reason of the
overriding effect of the Marriage Act as mentioned in section 4,
no aid can be taken of the earlier Hindu law or any custom or
usage as a part of that law inconsistent with any provision of
the Act. So far as Section 12 is concerned, it is confined to
other categories of marriages and is not applicable to one
solemnized in violation of Section 5(i) of the Act. Sub-section
(2) of Section 12 puts further restrictions on such a right. The
cases covered by this section are not void ab initio, and unless
all the conditions mentioned therein are fulfilled and the
aggrieved party exercises the right to avoid it, the same
continues to be effective. The marriages covered by Section 11
are void ipso jure, that is, void from the very inception, and
have to be ignored as not existing in law at all if and when such
a question arises……………..”
On consideration of matter, I find no force in the contention
raised by the learned counsel for the appellant.
In the case of Shakuntala Devi Vs. Amar Nath (supra), the
petition was filed under sections 11 and 12 and not under Section 13
seeking a decree of nullity of marriage. In the said case the decree granted
was held to be bad even on merit and therefore, it was held that the petition
filed was liable to be rejected on the ground of delay. This court did not
consider the question as to “Whether in a case where the marriage is found
to be null and void still the petition was liable to be dismissed on the ground
FAO No. 50-M of 2005 17
of delay and laches?”. The findings regarding delay, therefore, are (per
incuriam) and not a binding precedent.
Hon’ble Supreme Court in the case of M.M.Malhotra Vs.
Union of India and Ors. (supra), has been pleased to lay down that even
in the absence of declaration under section 11 of the Act the marriage would
be void and therefore, the contention raised by the learned counsel for the
appellant cannot be accepted that the petition was liable to be dismissed on
account of delay and laches.
Learned counsel for the appellant thereafter placed reliance on
the judgment of Hon’ble Delhi High Court in the case of Sqr.
Ldr.J.S.Sodhi Vs. Amarjit Kaur 1981 HLR 331 to contend that guilty
party cannot take advantage of his own wrong. The contention of the
learned counsel for the appellant was that this view finds support from the
provisions of section 23 (1)(a) of the Act which bar a person to take
advantage of his or her wrong.
Section 23 (1)(a) of the Hindu Marriage act reads as under:-
“23. Decree in proceedings.
(1) In any proceeding under this Act, whether defended or
not, if the court is satisfied that-
(a) any of the grounds for granting relief exists and the
petitioner except in cases where the relief is sought by him on
the ground specified in sub-clause (a), sub-clause (b) or sub-
clause (c) of clause (ii) or section 5 is not in any way taking
advantage of his or her own wrong or disability for the purpose
FAO No. 50-M of 2005 18
of such relief,”
The contention of the learned counsel for the appellant was that
reading of section would show that Section 5 (i) of the Act is not exempted
from operation of this section, therefore, as the respondent was guilty of
marrying the appellant in spite of the fact that he was in know of the
subsisting marriage he cannot take any benefit of his own wrong.
This contention of the learned counsel for the appellant is
again misconceived. True interpretation of Section 23 (1)(a) of the Act
would be that a person who is guilty of a wrong, entitling for the relief of a
decree of nullity or divorce cannot take advantage of the said wrong to
claim decree of divorce.
The provisions of section 23 (1) (a) of the Act would have been
applicable in case the respondent was seeking divorce on the plea that he
had a living spouse at the time of marriage with the appellant but reverse
will not be correct. It is open to a party to seek a decree of nullity on the
grounds set out in Section 5 for the fault of other spouse.
In view of the findings recorded, I find no merit in this appeal.
This appeal is ordered to be dismissed nut with no order as to costs. The
plea of permanent alimony payable was not considered, as the appellant
being widow of Surjit Singh would be entitled to family pension, thus has a
source of independent income.
10.11.2009 (Vinod K.Sharma) rp Judge
