{"id":165004,"date":"2009-11-10T00:00:00","date_gmt":"2009-11-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gurmit-kaur-vs-buta-singh-on-10-november-2009-2"},"modified":"2017-07-31T01:59:17","modified_gmt":"2017-07-30T20:29:17","slug":"gurmit-kaur-vs-buta-singh-on-10-november-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gurmit-kaur-vs-buta-singh-on-10-november-2009-2","title":{"rendered":"Gurmit Kaur vs Buta Singh on 10 November, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Gurmit Kaur vs Buta Singh on 10 November, 2009<\/div>\n
FAO No. 50-M of 2005                                          1\n\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n\n\n\n                                      FAO No. 50-M of 2005\n\n                                      Date of Decision: 10.11.2009\n\n\n\nGurmit Kaur                                             ....Appellant\n\n                         Vs.\n\nButa Singh                                              ..Respondent\n\n\n\n\nCoram: Hon'ble Mr. Justice Vinod K.Sharma\n\n\n\nPresent:     Mr.Gurcharan Dass, Advocates,\n             for the appellant.\n\n             Mr.G.S.Bhatia, Advocate,\n             for the respondent.\n\n                         ---\n\n      1.     Whether Reporters of Local Newspapers may\n             be allowed to see the judgment?\n\n      2.      To be referred to the Reporters or not?\n\n      3.      Whether the judgment should be reported in\n              Digest?\n\n                         ---\n\nVinod K.Sharma,J. (Oral)\n<\/pre>\n
             This is wife’s appeal against the judgment and decree      of<\/p>\n
nullity of marriage granted in favour of the respondent\/husband by the
\n FAO No. 50-M of 2005                                             2<\/span><\/p>\n
learned District Judge, Ludhiana,.\n<\/p>\n
             The marriage between the parties was solemnized on 1.8.1993<\/p>\n
at village Chimna Tehsil Jagraon, District Ludhiana according to Sikh rites<\/p>\n
and ceremonies. The parties lived and cohabited together as husband and<\/p>\n
wife   but no child was born out of          the wed-lock. The case of the<\/p>\n
respondent\/husband was that the behaviour of the appellant\/wife from the<\/p>\n
very beginning was not good. She had hot temperament and used to pick up<\/p>\n
quarrel with the respondent and his family members on petty matters. She<\/p>\n
even issued threat to life. It was the case of the respondent that the appellant<\/p>\n
even threatened the family members on a number of occasion with dire<\/p>\n
consequences in case she was asked to do household work. Thus, it was<\/p>\n
pleaded that he was treated with cruelty.\n<\/p>\n
             Other allegations were also levelled, with which we are not<\/p>\n
concerned as the main plea on which the respondent\/husband had sought<\/p>\n
nullity of marriage was that the appellant had a living spouse on the date of<\/p>\n
marriage.\n<\/p>\n
             It was pleaded case of the respondent that Surjit Singh son of<\/p>\n
Lal Singh of village Rauwal, Tehsil Jagraon, District Ludhiana was her<\/p>\n
spouse living at the time of marriage, as no divorce had taken place between<\/p>\n
them. It was the case of the respondent that at the time of marriage he was<\/p>\n
informed by the appellant that she had divorced her husband Surjit Singh,<\/p>\n
and had two children from him i.e. Jaswinder Singh and Harvinder Singh<\/p>\n
who were living with her previous husband Surjit Singh.<\/p>\n
             It was in November, 1998 that the appellant filed a petition
\n FAO No. 50-M of 2005                                           3<\/span><\/p>\n
seeking divorce from her previous husband Surjit Singh. However, said<\/p>\n
petition was thereafter dismissed as not pressed. Thus, it was claimed that<\/p>\n
the marriage between the parties was nullity under section 5 of the Act. It<\/p>\n
was also pleaded case that provisions of Limitation Act, 1963 were not<\/p>\n
applicable to the petition and immediately on coming to know about fraud<\/p>\n
played on him he sought decree of declaration that the marriage was null<\/p>\n
and void.\n<\/p>\n
            The petition filed by the respondent was contested by the<\/p>\n
appellant by raising a preliminary objection of concealment of material facts<\/p>\n
and by raising a plea of estoppel.\n<\/p>\n
            On merit, it was denied that the behaviour of the appellant was<\/p>\n
not good or that she was of hot temperament. Other allegations regarding<\/p>\n
picking of quarrel on petty matters were also denied. The case set up was<\/p>\n
that on coming to know that respondent\/husband had illicit relations with<\/p>\n
some other lady to which she objected, he started misbehaving and gave<\/p>\n
beating to her. It was further pleaded case that she had caught the<\/p>\n
respondent red handed with another lady in objectionable condition, and on<\/p>\n
that she was given severe beating by both of them.\n<\/p>\n
            It was pleaded that the petition was an attempt to get rid of her.<\/p>\n
It was the case of the appellant that the respondent was informed about<\/p>\n
divorce in panchayat of village as per custom in their community. It was<\/p>\n
denied that any fraud was played by the appellant.\n<\/p>\n
            It was denied that the marriage was a nullity. She also denied<\/p>\n
having filed any divorce petition under section 13 of the Act in November,
\n FAO No. 50-M of 2005                                           4<\/span><\/p>\n
1998 which was dismissed in default. It was also pleaded that the<\/p>\n
respondent had taken signatures of the appellant on blank papers on which<\/p>\n
he forged and fabricated the alleged petition of divorce. She never appeared<\/p>\n
in any court. The appellant further claimed that the marriage between the<\/p>\n
parties was performed in August, 1993 and therefore, there was no occasion<\/p>\n
to move the divorce petition at this belated stage .<\/p>\n
             After filing of rejoinder, on the pleadings of the parties the<\/p>\n
following issues were framed:-\n<\/p>\n
             1.    Whether the respondent Gurmit Kaur had contracted a<\/p>\n
                   marriage with Boota Singh petitioner during the<\/p>\n
                   subsistence of her first marriage with Surjit Singh, if so,<\/p>\n
                   its effect? OPP<\/p>\n
             1A. Whether the petition is within limitation as alleged? OPP<\/p>\n<\/blockquote>\n
             2.    Whether petition is not maintainable? OPR<\/p>\n<\/blockquote>\n
             3.    Whether the petitioner is barred by his own act and<\/p>\n
                   conduct from filing the petition? OPR<\/p>\n<\/blockquote>\n
             4.    Relief.<\/p><\/blockquote>\n
             In order to prove his case the respondent examined PW 1 Miss<\/p>\n
Pawanjit Kaur, Advocate, PW 2 Ranjit Singh, PW 3 Kuldip Singh, PW 4<\/p>\n
Mohinderpal Inspector, Food & Supplies, PW 5 Vijay Kumar, Registry<\/p>\n
clerk, PW 6Tarsem Lal, Vasika Nawis, Jagraon PW 7 Baljinder Singh, PW<\/p>\n
8 Buta Singh and PW 9 Gurmail Singh and thereafter closed the evidence.<\/p>\n
             On the other hand, the appellant appeared as her own witness<\/p>\n
as RW 1 and examined RW 2 Amar Singh, RW 3 Hoshiar Singh, RW 4
\n FAO No. 50-M of 2005                                           5<\/span><\/p>\n
Cheta Singh, RW 5 Bir Singh Clerk Tehsildar office Jagraon.<\/p>\n
            Issues No.1 and 1-A         were taken up together and on<\/p>\n
appreciation of evidence on record the learned Additional District Judge<\/p>\n
recorded a finding that the respondent\/husband successfully proved that the<\/p>\n
appellant had contracted marriage with the respondent\/husband during the<\/p>\n
subsistence of her first marriage with Surjit Singh. It was also held that the<\/p>\n
Limitation Act was not applicable to the proceedings under the Act in view<\/p>\n
of the provisions of Section 29 (3) of the Limitation Act and issues were<\/p>\n
decided in favour of the respondent\/husband.\n<\/p>\n
            On issues No.2 and 3 learned Additional District Judge was<\/p>\n
pleased to record finding that the marriage between the parties was<\/p>\n
solemnized in violation of provisions of section 5 (i) of the Act and<\/p>\n
therefore, the petition was competent under section 11 to seek a declaration<\/p>\n
that marriage between the parties was null and void.<\/p>\n
            It was also decided that the petition was not barred by the act<\/p>\n
and conduct of the respondent. Consequently, the marriage between the<\/p>\n
parties was declared to be null and void.\n<\/p>\n
            Mr.Gurcharan Dass, learned counsel appearing on behalf of the<\/p>\n
appellant did not challenge the fact that on the date of marriage between the<\/p>\n
parties i.e. on 1.8.1993 the appellant had a spouse living, as there was no<\/p>\n
evidence on record to prove customary divorce or custom under which it<\/p>\n
was claimed that the marriage between the appellant and her previous<\/p>\n
husband had been dissolved.\n<\/p>\n
            Learned counsel for the appellant, however, contended that
\n FAO No. 50-M of 2005                                             6<\/span><\/p>\n
Surjit Singh had died in the year 1995 and at present she does not have a<\/p>\n
living spouse. This would, however, not make any difference as admittedly<\/p>\n
on the date of marriage i.e. 1.8.1993 the appellant had a living spouse,<\/p>\n
therefore, the marriage was null and void having been performed in<\/p>\n
violation of conditions laid down under section 5 (i) of the Act.<\/p>\n
             Learned counsel for the appellant contended that the petition<\/p>\n
filed by the respondent was liable to be dismissed on account of latches as<\/p>\n
admittedly the marriage between the parties was performed on 1.8.1993,<\/p>\n
whereas, this petition for divorce was filed in the year 2000 i.e. after 7 years<\/p>\n
of marriage, but no explanation was forthcoming for such inordinate delay.<\/p>\n
Therefore, the petition was liable to be dismissed in view of the provisions<\/p>\n
of Section 23(d) of the Act.\n<\/p>\n
             In support of this contention, learned counsel for the appellant<\/p>\n
placed reliance on the judgment of this court in the case of Shakuntala<\/p>\n
Devi Vs. Amar Nath 1982 HLR 26, wherein this court was pleased to lay<\/p>\n
down as under:-\n<\/p>\n
             “8.   Apart from the merits of the controversy between the<\/p>\n
             parties, the petition was also liable to be dismissed on the<\/p>\n
             ground of laches. The marriage between the parties took place<\/p>\n
             on June, 18, 1973 whereas this petition was filed on April 24,<\/p>\n
             1978, about five years thereafter. No explanation whatsoever<\/p>\n
             has been offered by the respondent for this inordinate delay in<\/p>\n
             moving the petition. On the contrary,it appears that the petition<\/p>\n
             was filed because the wife had failed to give birth to a child and
\n FAO No. 50-M of 2005                                           7<\/span><\/p>\n
            was not keeping good health for some time. As one of these<\/p>\n
            two circumstances could provide a ground for divorce,the<\/p>\n
            respondent thought of setting up the plea that the marriage<\/p>\n
            between them was a nullity because they were related to each<\/p>\n
            other within the prohibited degrees. It would not, therefore, be<\/p>\n
            just to allow the husband to claim a decree of nullity after such<\/p>\n
            an inordinate delay.\n<\/p><\/blockquote>\n
            9.    In view of the above findings, this appeal is allowed, the<\/p>\n
            impugned judgment and decree set aside and the petitions<\/p>\n
            dismissed. As the wife has already been allowed litigation<\/p>\n
            expenses, there would be no order as to costs.”.<\/p><\/blockquote>\n
            Mr.G.S.Bhatia, learned counsel for the respondent\/husband,<\/p>\n
however, contended that a petition for declaration of nullity under section<\/p>\n
11 of the Act cannot be rejected on account of delay in institution. The<\/p>\n
contention of the learned counsel for the appellant was that no amount of<\/p>\n
delay can stand in the way of obtaining declaration as to nullity of marriage<\/p>\n
which is null and void.\n<\/p>\n
            In support of the contention,learned counsel for the respondent<\/p>\n
placed reliance on the judgment of Division Bench of Calcutta High Court<\/p>\n
in the case of Harendra Nath Burman Vs. Sm.Suprova Burman and<\/p>\n
another AIR 1989 Calcutta 120, wherein Hon’ble Calcutta High Court has<\/p>\n
been pleased to lay down as under:-\n<\/p>\n
            “11. We also wanted to ascertain that since under S.34(e),<\/p>\n
            “unnecessary or improper delay in instituting the proceedings”
\n FAO No. 50-M of 2005                                       8<\/span><\/p>\n
         disentitles a person from obtaining relief under the Special<\/p>\n
         Marriage Act, whether this delay of about 24 years would so<\/p>\n
         disentitle the appellant\/husband. But we are afraid that<\/p>\n
         whatever might be the effect of delay on a proceeding for<\/p>\n
         divorce or other matrimonial reliefs under S.34 (e), no amount<\/p>\n
         of delay would stand in the way for obtaining declaration as to<\/p>\n
         the nullity of a marriage which is null and void under the law.<\/p>\n
         As pointed out in Halsbury (4th Edition. Vol.13. Page 266, para<\/p>\n<\/blockquote>\n
         541), “in case of void marriages, neither delay nor conduct<\/p>\n
         constitutes a bar to a decree”. In Kappu Damayantiv C.Rama<\/p>\n
         Rao, (AIR 1969 Andh Pra 62), a Division Bench of the Andhra<\/p>\n
         Pradesh High Court refused a decree of nullity because of about<\/p>\n
         seven years delay to a husband seeking such a declaration on<\/p>\n
         the ground that he was under the age of 21 years on the date of<\/p>\n
         the marriage and the marriage was solemnized without the<\/p>\n
         consent of his guardian as required under S.2(3) of the<\/p>\n
         preceding Special Marriage Act of 1872. But as pointed out<\/p>\n
         therein,under the Special Marriage Act of 1872 a marriage of a<\/p>\n
         man below 21 years of age without the consent of the father or<\/p>\n
         the guardian was not void, but only voidable and under S.17 of<\/p>\n
         the said Act, a Court was given a discretion to grant a decree of<\/p>\n
         nullity in respect of such voidable marriage and delay in that<\/p>\n
         case was accordingly held to be a ground on which such decree<\/p>\n
         could be refused.\n<\/p><\/blockquote>\n
 FAO No. 50-M of 2005                                        9<\/span><\/p>\n
\n<\/blockquote>\n
         12.   But, as already noted,under S.4 read with S.24 of the<\/p>\n
         present Special Marriage Act of 1954, such a marriage without<\/p>\n
         the qualifying age has been rendered not merely voidable, but<\/p>\n
         absolutely null and void. The marriage would be a nullity ipso<\/p>\n
         jure and ab initio and would continue to be so, whether or not a<\/p>\n
         decree to that effect is passed and would not, as in the case of<\/p>\n
         voidable marriage become a nullity only on the passing of a<\/p>\n
         decree to that effect. If the marriage is null and void under S.4<\/p>\n
         read with s.24 of the Special Marriage Act on the ground of a<\/p>\n
         person being under age, or having another spouse living, or the<\/p>\n
         parties being within prohibited degree, no amount of delay<\/p>\n
         would make that person of qualifying age, or without a spouse,<\/p>\n
         or outside the prohibited degree on the date of the marriage<\/p>\n
         and, therefore, delay, however long, can be of no relevance in<\/p>\n
         respect of such marriages which are null and void. Since no<\/p>\n
         relief in the shape of a decree of nullity or otherwise is legally<\/p>\n
         necessary to render such marriage null and void, S.34 of the<\/p>\n
         Special Marriage Act, which would apply only when a decree is<\/p>\n
         legally required for the enforcement of any matrimonial relief<\/p>\n
         would not proprio vigore apply to such a case. The decision of<\/p>\n
         Dr.Lushington in Duins V.Donovan, (1830) 162 ER 1165,<\/p>\n
         referred to in Kappu Damayanti (AIR 1969 Andh Pra 62)<\/p>\n
         (supra) may be referred to where under the then prevailing<\/p>\n
         enactment, known as Lord Hardwick’s Act, the marriage in
\n FAO No. 50-M of 2005                                          10<\/span><\/p>\n
            question was an absolute nullity and it was held that in such a<\/p>\n
            case “lapse of time” would be no bar In Aina Devi Vs. Bachan<\/p>\n
            Singh, AIR 1980 Delhi 174, which was a case under S.11 of the<\/p>\n
            Hindu Marriage Act, whereunder certain marriage are declared<\/p>\n
            to be null and void it has been held by a learned single Judge<\/p>\n
            that “the grounds on which a petition for declaring a marriage<\/p>\n
            to be null and void may be filed under S.11 of the Hindu<\/p>\n
            Marriage Act are such that no amount of delay could be said to<\/p>\n
            be sufficient to disentitle a petitioner to relief thereunder in<\/p>\n
            spite of the generality of the provisions of Cl.(d) of S.23(I) of<\/p>\n
            the Act.” Section 23(i)(d) of the Hindu Marriage Act and S.34<\/p>\n
            (1)(e) of the Special Marriage Act are in pari materia, both<\/p>\n
            providing generally that delay may otherwise be a bar to reliefs<\/p>\n
            under the Act. For the reasons stated hereinbefore in some<\/p>\n
            details, we would agree with the observations made in the Delhi<\/p>\n
            (Allahabad) decision.”<\/p><\/blockquote>\n
            Reliance was also placed on the judgment of Hon’ble Allahabad<\/p>\n
High Court in the case of Smt.Aina Devi Vs. Bachan Singh and another<\/p>\n
AIR 1980 Allahabad 174, wherein Hon’ble Allahabad High Court has<\/p>\n
been pleased to lay down as under:-\n<\/p>\n
            “6.   The primary ground on which the petition was founded<\/p>\n
            was contravention of the rule against bigamy, prescribed by<\/p>\n
            clause (i) of Section 5 of the Act. Under Section 11 of the<\/p>\n
            Hindu Marriage Act, 1955, any marriage solemnized after the
\n FAO No. 50-M of 2005                                         11<\/span><\/p>\n
         commencement of the Act, “shall be null and void and may on<\/p>\n
         the petition presented by either party thereto, against the other<\/p>\n
         party be so declared by a decree of nullity if it contravened any<\/p>\n
         of the conditions specified in clauses (i), (iv) and (v) of Section<\/p>\n<\/blockquote>\n
         5.” The condition for a valid marriage prescribed by Section 5<\/p>\n<\/blockquote>\n
         (i), is that “neither party has a spouse living at the time of the<\/p>\n
         marriage.” Section 11 specifically enables either party to the<\/p>\n
         marriage to have it declared null and void by a decree of<\/p>\n
         nullity, against the other party. Section 11 does not confine the<\/p>\n
         right to present a petition thereunder to the aggrieved party<\/p>\n
         alone. On the other hand, it expressly confers the right to sue on<\/p>\n
         either party to a marriage which contravenes any of the<\/p>\n
         conditions of clause (i), (iv) and (v) of Section 5. In so far as<\/p>\n
         the allegation on which the petition was originally founded, is<\/p>\n
         concerned namely, the allegation that the respondent Bachan<\/p>\n
         Singh had a spouse living in the person of the respondent Smt.<\/p>\n
         Purna Devi at the time of the marriage in question, there could<\/p>\n
         be no question of applying the provisions of cl. (a) of sub-<\/p>\n
         section (1) of Section 23. The learned District Judge has<\/p>\n
         applied that provision in the context of the allegation<\/p>\n
         subsequently made by amendment of the petition,namely, that<\/p>\n
         the petitioner had been married to three other persons in<\/p>\n
         succession before the marriage in question,and all the three of<\/p>\n
         them were living. Apart        from the question whether this
\n FAO No. 50-M of 2005                                        12<\/span><\/p>\n
         allegation was true or untrue, it is difficult to say that the<\/p>\n
         petitioner was the wrong-doer in allowing her mother to take<\/p>\n
         respondent Bachan Singh as a Ghar Jawai, in spite of the fact<\/p>\n
         that three Ghar Jawais taken earlier in succession one after the<\/p>\n
         other were living at the time when Bachan Singh was taken as a<\/p>\n
         Ghar Jawai. The petitioner would, if her allegations are true,<\/p>\n
         appear to be more sinned against than a sinner, a victim of the<\/p>\n
         customs of the society in which she lived. The provisions of the<\/p>\n
         Hindu Marriage Act are uniformly applicable to all Hindus<\/p>\n
         throughout the length and breadth of India, practicing as they<\/p>\n
         did a confusing variety of customary law relating to marriage<\/p>\n
         and family relations. The petitioner happens to belong to a<\/p>\n
         village in the district of Uttar Kashi which formed part of Tehri<\/p>\n
         before its merger. The people there were practicing their own<\/p>\n
         system of customary laws relating to marriage and family<\/p>\n
         relations. The custom of taking a Ghar Jawai was prevalent in<\/p>\n
         that area. The petitioner’s marriage with the first respondent<\/p>\n
         was also contracted in that form and it cannot be said that either<\/p>\n
         party to the marriage could have, according to their notions of<\/p>\n
         morality, felt that the petitioner was committing any wrong in<\/p>\n
         having a fourth husband taken in that form were alive. I am,<\/p>\n
         therefore, unable to agree with the learned District Judge when<\/p>\n
         he held that the petitioner could not be allowed to contend that<\/p>\n
         the marriage in question was a nullity on the ground that she
\n FAO No. 50-M of 2005                                          13<\/span><\/p>\n
         had three husbands living when it was contracted. Nor am I<\/p>\n
         able to agree with the learned District Judge that the petition<\/p>\n
         was liable to be dismissed on the ground of unnecessary delay<\/p>\n
         in instituting it. The Limitation Act, 1963 does not apply to a<\/p>\n
         suit or proceedings under the law, relating to marriage and<\/p>\n
         divorce, vide Section 29 (3) thereof. The question which arises<\/p>\n
         under clause (d) of sub–section (1) of Section 23 of the<\/p>\n
         Hindu Marriage Act is whether the delay in the presentation of<\/p>\n
         the petition is such as to lead to the inference that the petitioner<\/p>\n
         was guilty of laches or acquiescence is as to disentitle him or<\/p>\n
         her to the relief claimed. The respondents were in no way<\/p>\n
         prejudiced by whatever delay there was in presenting the<\/p>\n
         petition after the first respondent left the petitioner and started<\/p>\n
         living separately. The petitioner’s marriage        with the first<\/p>\n
         respondent was contracted in Samvat 2025 which is equivalent<\/p>\n
         to the year 1968-69. The first respondent is said to have lived<\/p>\n
         with the petitioner for 10 months after the marriage. That brings<\/p>\n
         us to the Samvat 2026, that is the year 1969-70. In her<\/p>\n
         statement on oath which was recorded on 30th October, 1975<\/p>\n
         the petitioner stated that she had gone to the first respondent’s<\/p>\n
         place some four years ago in the month of Paush to ask him to<\/p>\n
         go to her place and arrange for the ploughing of the fields. That<\/p>\n
         might have been some time in December, 1971. The petition<\/p>\n
         was filed on 14th May, 1974. That was less than 3 years since
\n FAO No. 50-M of 2005                                          14<\/span><\/p>\n
         her alleged visit to the first respondent’s place. It cannot be said<\/p>\n
         that the period of less than three years which elapsed between<\/p>\n
         the petitioner’s last visit to the first respondent’s place and the<\/p>\n
         presentation of the petition, was so long or unreasonably long<\/p>\n
         as to disentitle her to the relief on the ground of laches. Indeed<\/p>\n
         the grounds on which a petition for declaraing a marriage to be<\/p>\n
         null and void may be filed under Section 11 of the Hindu<\/p>\n
         Marriage Act, are such that no amount of delay could be said<\/p>\n
         to be sufficient to disentitle a petitioner to relief thereunder, in<\/p>\n
         spite of the generality of the provisions of clause (d) of Section<\/p>\n
         23 (1) of the Act. The policy of the law is that a marriage<\/p>\n
         solemnized in contravention of any of the conditions prescribed<\/p>\n
         by cls (i), (iv) and (v) of Section 5 of the Act is null and void.<\/p>\n
         The parties to such a marriage may not institute a petition, and<\/p>\n
         by not instituting the petition they would only be defeating the<\/p>\n
         policy of the law, for no person other than party to such a<\/p>\n
         marriage has been given a right to have it declared to be null<\/p>\n
         and void. Under the circumstances if one of the parties does file<\/p>\n
         a petition for having the marriage declared null and void under<\/p>\n
         Section 11 of the Act, he or she only does something to further<\/p>\n
         the policy of the law, and I do not think that such a petition<\/p>\n
         could properly be dismissed on the ground of unnecessary or<\/p>\n
         improper delay, for by doing as instead of advancing the policy<\/p>\n
         of the law, the court would be defeating it. I, therefore, disagree
\n FAO No. 50-M of 2005                                             15<\/span><\/p>\n
            with the view of the learned District Judge that the petition was<\/p>\n
            liable to be dismissed on the ground of unreasonable delay.”<\/p><\/blockquote>\n
            Learned counsel for the respondent thereafter referred to the<\/p>\n
judgment of Hon’ble Supreme Court in the case of M.M.Malhotra Vs.<\/p>\n
Union of India and Ors. AIR 2006 SC 80, to contend that the marriage<\/p>\n
being null and void since its inception cannot be protected merely because<\/p>\n
there is delay and laches on the part of the respondent to approach the court.<\/p>\n
Hon’ble Supreme Court in the case of M.M.Malhotra Vs. Union of India<\/p>\n
and Ors. (supra), has been pleased to lay down as under:-<\/p>\n
            “11. For appreciating the status of a Hindu woman marrying a<\/p>\n
            Hindu male with a living spouse some of the provisions of the<\/p>\n
            Hindu Marriage Act. 1955 (hereinafter referred to as the<\/p>\n
            `Marriage Act’) have to be examined. Section 11 of the<\/p>\n
            Marriage Act declares such a marriage as null and void in the<\/p>\n
            following terms:\n<\/p><\/blockquote>\n
            11. “Void marriages. – Any marriage solemnized after the<\/p>\n
            commencement of this Act shall be null and void and may, on a<\/p>\n
            petition presented by either party thereto against the other party,<\/p>\n
            be so declared by a decree of nullity if it contravenes any one of<\/p>\n
            the conditions specified in clauses (i), (iv) and (v) of Section 5”.<\/p>\n
            Clause (i) of Section 5 lays down, for a lawful marriage, the<\/p>\n
            necessary condition that neither party should have a spouse<\/p>\n
            living at the time of the marriage. A marriage in contravention
\n FAO No. 50-M of 2005                                            16<\/span><\/p>\n
            of this condition, therefore, is null and void. By reason of the<\/p>\n
            overriding effect of the Marriage Act as mentioned in section 4,<\/p>\n
            no aid can be taken of the earlier Hindu law or any custom or<\/p>\n
            usage as a part of that law inconsistent with any provision of<\/p>\n
            the Act. So far as Section 12 is concerned, it is confined to<\/p>\n
            other categories of marriages and is not applicable to one<\/p>\n
            solemnized in violation of Section 5(i) of the Act. Sub-section<\/p>\n
            (2) of Section 12 puts further restrictions on such a right. The<\/p>\n
            cases covered by this section are not void ab initio, and unless<\/p>\n
            all the conditions mentioned therein are fulfilled and the<\/p>\n
            aggrieved party exercises the right to avoid it, the same<\/p>\n
            continues to be effective. The marriages covered by Section 11<\/p>\n
            are void ipso jure, that is, void from the very inception, and<\/p>\n
            have to be ignored as not existing in law at all if and when such<\/p>\n
            a question arises……………..”<\/p><\/blockquote>\n
            On consideration of matter, I find no force in the contention<\/p>\n
raised by the learned counsel for the appellant.\n<\/p>\n
            In the case of Shakuntala Devi Vs. Amar Nath (supra), the<\/p>\n
petition was filed under sections 11 and 12 and not under Section 13<\/p>\n
seeking a decree of nullity of marriage. In the said case the decree granted<\/p>\n
was held to be bad even on merit and therefore, it was held that the petition<\/p>\n
filed was liable to be rejected on the ground of delay. This court did not<\/p>\n
consider the question as to “Whether in a case where the marriage is found<\/p>\n
to be null and void still the petition was liable to be dismissed on the ground
\n FAO No. 50-M of 2005                                          17<\/span><\/p>\n
of delay and laches?”. The findings regarding delay, therefore, are (per<\/p>\n
incuriam) and not a binding precedent.\n<\/p>\n
            Hon’ble Supreme Court in the case of M.M.Malhotra Vs.<\/p>\n
Union of India and Ors. (supra), has been pleased to lay down that even<\/p>\n
in the absence of declaration under section 11 of the Act the marriage would<\/p>\n
be void and therefore, the contention raised by the learned counsel for the<\/p>\n
appellant cannot be accepted that the petition was liable to be dismissed on<\/p>\n
account of delay and laches.\n<\/p>\n
            Learned counsel for the appellant thereafter placed reliance on<\/p>\n
the judgment of Hon’ble Delhi High Court in the case of                Sqr.<\/p>\n
Ldr.J.S.Sodhi Vs. Amarjit Kaur 1981 HLR 331 to contend that guilty<\/p>\n
party cannot take advantage of his own wrong. The contention of the<\/p>\n
learned counsel for the appellant was that this view finds support from the<\/p>\n
provisions of section 23 (1)(a) of the Act which bar a person to take<\/p>\n
advantage of his or her wrong.\n<\/p>\n
            Section 23 (1)(a) of the Hindu Marriage act reads as under:-<\/p>\n
            “23. Decree in proceedings.\n<\/p>\n
            (1)    In any proceeding under this Act, whether defended or<\/p>\n
            not, if the court is satisfied that-\n<\/p>\n
            (a) any of the grounds for granting relief exists and the<\/p>\n
            petitioner except in cases where the relief is sought by him on<\/p>\n
            the ground specified in sub-clause (a), sub-clause (b) or sub-<\/p>\n
            clause (c) of clause (ii) or section 5 is not in any way taking<\/p>\n
            advantage of his or her own wrong or disability for the purpose
\n FAO No. 50-M of 2005                                           18<\/span><\/p>\n
             of such relief,”\n<\/p>\n
             The contention of the learned counsel for the appellant was that<\/p>\n
reading of section would show that Section 5 (i) of the Act is not exempted<\/p>\n
from operation of this section, therefore, as the respondent was guilty of<\/p>\n
marrying the appellant in spite of the fact that he was in know of the<\/p>\n
subsisting marriage he cannot take any benefit of his own wrong.<\/p>\n
             This contention of the learned counsel for the appellant is<\/p>\n
again misconceived. True interpretation of Section 23 (1)(a) of the Act<\/p>\n
would be that a person who is guilty of a wrong, entitling for the relief of a<\/p>\n
decree of nullity or divorce cannot take advantage of the said wrong to<\/p>\n
claim decree of divorce.\n<\/p>\n
             The provisions of section 23 (1) (a) of the Act would have been<\/p>\n
applicable in case the respondent was seeking divorce on the plea that he<\/p>\n
had a living spouse at the time of marriage with the appellant but reverse<\/p>\n
will not be correct. It is open to a party to seek a decree of nullity on the<\/p>\n
grounds set out in Section 5 for the fault of other spouse.<\/p>\n
             In view of the findings recorded, I find no merit in this appeal.<\/p>\n
This appeal is ordered to be dismissed nut with no order as to costs. The<\/p>\n
plea of permanent alimony payable was not considered, as the appellant<\/p>\n
being widow of Surjit Singh would be entitled to family pension, thus has a<\/p>\n
source of independent income.\n<\/p>\n<\/p>\n
10.11.2009                                          (Vinod K.Sharma)\nrp                                                       Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Gurmit Kaur vs Buta Singh on 10 November, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-165004","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nGurmit Kaur vs Buta Singh on 10 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gurmit-kaur-vs-buta-singh-on-10-november-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gurmit Kaur vs Buta Singh on 10 November, 2009 - 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