HINDU MARRIAGE ACT SUPPRESSION OF EARLIER MARRIAGE, THE SECOND MARRIAGE IS VOID = A decree for declaration of marriage as void needs very strong evidence.=The 2nd respondent filed O.S.No.1034 of 1998 against the petitioner and 1st respondent for the relief of perpetual injunction. In the course of recording of the evidence in that suit, he deposed that the 1st respondent is his wife. He made an attempt to correct it by saying that though she is living with him, she is not legally wedded. - The Hindu Marriage Act, mandates that no person, who has a subsisting marriage, shall marry another person. If there existed a subsisting marriage between a spouse and another, the subsequent marriage becomes void. ;No Relief under sec.24 of Hindu Marriage Act as the second marriage is void one = Though a request is made on behalf of the 1st respondent that permanent alimony be granted under Section 24 of the Act, we are not inclined to deal with the same, particularly, when the marriage itself is declared as void.

Published in http://judis.nic.in/judis_andhra/filename=9728

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE K.G.SHANKAR              

C.M.A.No.1012 of 2005

25.03.2013

Kollu Malathi

1) Gaddam Nagarajakumar Reddy 2) Virupavajjula Ravindra

Counsel for the appellant: Sri E.V.V.S. Ravi Kumar

Counsel for respondent No.1: Sri V. Narayana Reddy

<Gist :

>Head Note :

?Citations:

JUDGMENT : (Per Hon'ble Sri Justice LNR,J)

This appeal is filed against the order and decree passed by the Court of I
Additional Senior Civil Judge, Nellore, in H.M.O.P.No.106 of 1998.  The 1st
respondent in the O.P. is the appellant herein.

For the sake of convenience the parties are referred to, as arrayed in the O.P.

The petitioner was a resident of Adhyakshamvari Street in Nellore.  Opposite to
his residence, the 1st respondent was residing together with her parents in the
year 1989. 
 The petitioner is said to have developed intimacy with the 1st
respondent and that led to their marriage on 15-12-1991.  
However, the
petitioner is said to have realized that the 1st respondent was married to the
2nd respondent and they had two children out of their wedlock. 
 Stating that the
1st respondent suppressed her marital status at the time of their marriage, the
petitioner prayed for a decree declaring the marriage between him and the 1st
respondent as a nullity.

The 1st respondent on the other hand, stated in her counter that she did not
marry the 2nd respondent at any point of time, and that the allegations made
against her are not true.  
She stated that she has only brought up the children
of her deceased- sister, Papayamma and mistaking those children to be her, the
petitioner has made wild allegations against her.  
The trial Court decreed the
O.P., as prayed for through order, dated 12-04-2005.  Hence, this appeal.

Learned counsel for the 1st respondent/appellant submits that except making some
general and unsubstantiated allegations, the petitioner did not prove that the
1st respondent was married on earlier occasion, that too, with the 2nd
respondent and that there was no basis for the trial Court to declare the
marriage as void.  He also submits that the trial Court has misread the evidence
and gave excessive importance to certain equivocal documents and declared the
marriage as void.

Learned counsel for the petitioner/1st respondent, on the other hand, submits
that the factum of the existence of marriage between the respondents 1 and 2,
was amply proved, through oral and documentary evidence.
He contends that PW.4,
who is none other than the relation of the 1st respondent has spoken to the
marriage and
apart from that PW.3 a person who attended the marriage between
respondents 1 and 2 has also deposed.
He further submits that 2nd respondent as
RW.2 filed O.S.No.1034 of 1998 in the Court of I Additional Junior Civil Judge, Nellore, against the petitioner and 1st respondent for the relief of perpetual injunction and in that suit he has categorically stated that the 1st respondent
is his wife.   
Learned counsel also submits that the trial Court has taken into
account, the oral and documentary evidence and the findings recorded therein do
not warrant interference.

A decree for declaration of marriage as void needs very strong evidence.  
Unlike
the grounds pleaded for grant of divorce, the facts that are required to be
proved for declaring a marriage as void must lead to an unequivocal finding and
for that purpose, clinching evidence is necessary.

The marriage between the petitioner on the one hand and the 1st respondent on
the other hand is not in dispute.
 The plea of the petitioner was that by the
time of his marriage with the 1st respondent on 15-12-1991, the marriage between
the 1st respondent and 2nd respondent subsisted and that he was not aware of it.

Though the marriage between petitioner and 1st respondent took place on 15-12-
1991, it was registered on 10.07.1992.  Heavy burden rested upon the petitioner
to prove the factum of existence of the marriage between the respondents 1 and 2
by 15-12-1991 or 10-07-1992.

The self-serving version of PW.1 cannot be given much weight.  PW.2 is a friend
of 2nd respondent.  However, his evidence was not that reliable for variety of
reasons.
He stated that the 2nd respondent married 1st respondent at Sri
Venkateswara Swamy temple at Kakinada, about 30 years back, according to Hindu  
rites and customs and that he was invited to the marriage.
He has also spoken to the presence of Ramesh and Sharma who performed the marriage.
 One K.   Venkataramanaiah Sarma, whose presence PW.2 has mentioned was examined as PW.3.      
He stated that he was present through out the marriage of respondents 1 and 2
performed at Kakinada.
Though he was cross-examined extensively, it was mostly 
about his knowledge, pertaining to the ceremonies to be performed in relation to
a Hindu marriage.  
Nothing substantial was elicited from him to contradict his
version as to his presence at the time of marriage between respondents 1 and 2.
No enmity between PWs.2 and 3, on the one hand and the 2nd respondent on the   
other hand, was suggested.  
Conversely it was not even mentioned that they are in any way interested in the petitioner.

PWs.2 and 3 are third parties to the families of the petitioner and respondents.
PW.4 is a witness who is a close relation of PW.1.  He has categorically stated
that the 1st respondent married 2nd respondent.  No suggestion that can
discredit his version was put to him.
There was no reason for him to speak
against PW.1.  Notwithstanding the independent nature of PWs.2, 3 and 4, their
evidence cannot be equated to the admission, if any, on the part of the
respondents 1 and 2.
The 2nd respondent filed O.S.No.1034 of 1998 against the
petitioner and 1st respondent for the relief of perpetual injunction.  
In the course of recording of the evidence in that suit, he deposed that the 1st
respondent is his wife.  He made an attempt to correct it by saying that though
she is living with him, she is not legally wedded.
The deposition was brought
on record as Ex.B.8 and the decree passed in that suit as Ex.B.10.  The trial
Court interpreted the evidence of PWs.2, 3 and 4 together with Ex.B.8, and has
arrived at a conclusion that there was subsistence of marriage between
respondents 1 and 2 by the time the 1st respondent married the petitioner.

The Hindu Marriage Act, mandates that no person, who has a subsisting marriage,
shall marry another person.  If there existed a subsisting marriage between a
spouse and another, the subsequent marriage becomes void. 
That exactly is what
had happened in the instant case.  Apart from the clinching evidence adduced by
PW.1, the petitioner and the admission on the part of the 2nd respondent as
Rw.2, the 1st respondent was not able to explain several circumstances, be it as
regards the bringing up of children, or the version of PWs.2 to 4 about her
marriage, with the 1st respondent.
We are not inclined to interfere with the
findings recorded by the trial Court.

Though a request is made on behalf of the 1st respondent that permanent alimony
be granted under Section 24 of the Act, we are not inclined to deal with the
same, particularly, when the marriage itself is declared as void.


The CMA is accordingly dismissed.  There shall be no order as to costs.
The miscellaneous petition filed in this appeal shall also stand disposed of.
_______________________  
L. NARASIMHA REDDY, J.    
_______________________  
K.G.SHANKAR, J.  
Dt:25.03.2013

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