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Monday, February 3, 2014

Sec.5 and 11 of Hindu Marriage Act - second marriage while the first marriage was subsisting is null and void - No one can give consent for void marriage but the consent of one for voidable the marriage can be considered depending on facts - since it is void marriage - High court held that nothing to interfere with the orders of lower court = Smt.B.Vasundhara...Appellant B.Aswarthanarayana Rao = 2014 ( January part )judis.nic.in/judis_andhra/filename=10797

 Sec.5 and 11 of Hindu Marriage Act - second marriage while the first marriage was subsisting is null and void - No one can give consent for void marriage but the consent of one for voidable the marriage can be considered depending on facts - since it is void marriage - High court held that nothing to interfere with the orders of lower court = 
The Hindu Law does not permit multiplicity of marriages either for a man
or a woman.  That is why the Act contains a specific provision to the effect
that a person shall not be entitled to marry another, if he or she remains
married to another person as on the date of such marriage.  Normally, the
grounds of this nature are pleaded mostly out of speculation or not being in
possession of definite material. In the instant case, hardly any scope is left
for the Court to take a different view.

The only defence pleaded by the appellant is that the respondent was very
much aware of the subsistence of marriage between the appellant and P.W.3 by the 
time he married her.  Even if that is true, consent cannot validate such void
marriage.

        The Act stipulates some grounds, which make the marriage void, and those,
which make it voidable.  It is only in respect of voidable grounds that the
consent or acquiescence of a party can sustain the marriage.  The same is not
the case with the grounds, which make the marriage void.  If the respondent was
aware of the subsistence of a valid marriage between the appellant and another
person, he was not supposed to marry the appellant.  Equally, the latter was not
supposed to give consent.  The trial Court has taken correct view of the matter.
We are not inclined to interfere with the same.


2014 ( January part )judis.nic.in/judis_andhra/filename=10797

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL
           
C.M.A.No.442 of 2009

20-01-2014

Smt.B.Vasundhara...Appellant

B.Aswarthanarayana Rao  

!Counsel for the Appellant...Sri K.Murali Krishna

Counsel for Respondent:Sri.J.Janakirami Reddy

<Gist:

>Head Note:

?Cases Referred:


JUDGMENT: (per the Hon'ble Sri Justice L.Narasimha Reddy)      


        The marriage between the appellant and the respondent took place on
24.01.2004 at Mahanandeeswara Kshetram, Karivena Brahmana Sathram, Mahanandi      
Mandal, Kurnool District.
The respondent filed M.O.P.No.14 of 2005 in the Court
of Principal Senior Civil Judge, Nandyal against the appellant under Section 5
(i) and 11 of the Hindu Marriage Act (for short 'the Act'). 
 He pleaded that
just three months after the marriage, the appellant left his company without any
intimation and on enquiries, the respondent came to know that the appellant was
married to one Sri Bhaskar Sharma S/o.Sathavelli Dattatreya Sharma of
Ramulakolanu Village, Simhadripuram Mandal, Kadapa District, on 01.05.2002.
He has also stated that as on the date of their marriage, an O.P. filed by the
first husband of the appellant was very much pending, so much so, the appellant
has also initiated proceedings under Section 125 Cr.P.C. against the first
husband. 

        The appellant opposed the O.P. by filing a counter.  She stated that the
respondent was very much aware of the subsistence of her first marriage with Sri
Bhaskar Sharma.  She pleaded that at the time of her marriage with the
respondent, cash and golden articles were presented.  It was also stated that
she had to leave the house of the respondent unable to bear the harassment and
that she has also filed a complaint under Section 498-A I.P.C. at Nandivargam
Police Station which was registered as Crime No.109 of 2004.  Other grounds were
also pleaded.

        The trial Court allowed the O.P. through order, dated 09.03.2009.  Hence,
this Appeal under Section 28 of the Act.

        Sri K.Murali Krishna, learned counsel for the appellant, submits that the
trial Court has proceeded mainly on the so-called admissions.  He contends that
though it is a fact that the appellant was married to another person, there was
a breakdown of that marriage long prior to her marriage with the respondent and
it was only with full knowledge of the state of affairs, that the respondent
married the appellant.  He contends that mere pendency of the proceedings
between the two spouses cannot be taken as a basis for the existence of a
marriage.

        Sri J.Janakirami Reddy, learned counsel for the respondent, on the other
hand, submits that the appellant did not dispute her marriage with Bhaskar
Sharma in the year 2002 or the pendency of O.P.No.63 of 2004 in the Court of
Senior Civil Judge, Kadapa filed by Bhaskar Sharma as on the date of her
marriage with the respondent.  He further submits that the appellant has grossly
misused the process of the Court even to the extent of filing maintenance cases
against both the men whom she married. 

        The respondent cited Sections 5 and 11 of the Act for divorce against the
appellant.  Therefore, the only question that arose for consideration before the
trial Court was as to whether a marriage between the appellant and another
person was subsisting as on the date she married the respondent.

        On behalf of the respondent, P.Ws.1 to 3 were examined and Exs.A1 to A11
were filed.  On behalf of the appellant, R.Ws.1 to 3 were examined and Exs.B1 to
B8 were filed.

        The trial Court allowed the O.P. and the same question arises for
consideration before this Court as well?

        The Hindu Law does not permit multiplicity of marriages either for a man
or a woman.  That is why the Act contains a specific provision to the effect
that a person shall not be entitled to marry another, if he or she remains
married to another person as on the date of such marriage.  Normally, the
grounds of this nature are pleaded mostly out of speculation or not being in
possession of definite material. In the instant case, hardly any scope is left
for the Court to take a different view.

        P.W.3 examined by the respondent is none other than the first husband of
the appellant. Their marriage took place on 01.05.2002 in a marriage hall at
Mahanandi. Incidentally, it was  at the same place that the marriage of the
appellant with the respondent has been performed.  P.W.3 filed O.P.No.63 of 2004
in the Court of Senior Civil Judge, Kadapa against the appellant for divorce.
After contest by the appellant herein, the trial Court passed a decree of
divorce on 04.08.2008.  It, therefore, clearly emerges that before 04.08.2008,
there existed a valid marriage between the appellant and P.W.3.

        There may be a remote possibility to argue that the appellant was not
aware of the filing or pendency of O.P.No.63 of 2004 by the time she contracted
marriage with the respondent.  Curiously enough, one year after she married the
respondent, the appellant filed M.C.No.3 of 2005 in the Court of Judicial
Magistrate of First Class, Banaganapalle against Bhaskar Sharma, P.W.3.
Incidentally, by that very Court the complaint under Section 498-A I.P.C. filed
by her against the respondent was tried.

        Nothing was elicited from P.W.3 contrary to what was stated by the
respondent or the said witnesses.  On the other hand, in her deposition as R.W1,
the appellant admitted her marriage with P.W.3 and the subsistence thereof by
the time she married the respondent.

        The only defence pleaded by the appellant is that the respondent was very
much aware of the subsistence of marriage between the appellant and P.W.3 by the 
time he married her.  Even if that is true, consent cannot validate such void
marriage.

        The Act stipulates some grounds, which make the marriage void, and those,
which make it voidable.  It is only in respect of voidable grounds that the
consent or acquiescence of a party can sustain the marriage.  The same is not
the case with the grounds, which make the marriage void.  If the respondent was
aware of the subsistence of a valid marriage between the appellant and another
person, he was not supposed to marry the appellant.  Equally, the latter was not
supposed to give consent.  The trial Court has taken correct view of the matter.
We are not inclined to interfere with the same.

        Hence, the appeal is dismissed.  There shall be no order as to costs.

        The miscellaneous petitions filed in this appeal shall also stand disposed
of.
       
______________________  
L.NARASIMHA REDDY,J    
______________________  
M.S.K.JAISWAL,J  
Dt:20.01.2014

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