ANU THOMAS Vs. MATHOW THOMAS

JUDGEMENT

(1.) Appellant herein is the respondent in O. P. (Divorce) No. 4603/94 W. Husband filed a petition before this Court under S.18 of the Indian Divorce Act, 1869 praying for a declaration that the marriage between the petitioner and the respondent as null and void on the ground that his consent to the marriage was obtained by practising fraud. Even though the marriage was solemnized in accordance with the Christian rites, it was found out that the wife was earlier married. According to the respondent, he consented to the marriage as he was made to believe that the appellant was an unmarried virgin girl. It is not disputed that the wife was earlier married according to the Christian rites on 26.10.1981 and the above marriage was subsisting and there was a child in that wedlock. It came to know only later and when petitioner questioned, respondent admitted that the child is her own child on the first wedlock and the child is put in a boarding school. In fact, the wife sought maintenance from her previous husband by filing an application under S.125 of the Code of Criminal Procedure as M. C. No. 11/83 before the Judicial First Class Magistrate, Changanassery and maintenance was ordered. A second marriage when the first marriage was subsisting is null and void. The fact that the wife had an earlier marriage and that marriage was subsisting at the time of the second marriage is not disputed.

(2.) Grounds for obtaining a decree declaring the marriage null and void is mentioned in S.19. A decree can be granted under S.19(4) on the ground that former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in force. Nullity of marriage can also be granted if consent of either party was obtained by force or fraud. The learned Single Judge found in favour of the husband.

(3.) The decision of the Calcutta High Court reported in Mrs. Rose Simpson v. Binimoy Biswas ( AIR 1980 Cal. 214 ) was cited by the appellant stating that second marriage may be invalid but not necessarily void ab initio. We are not considering the question whether marriage was ab initio void. As rightly held by the learned Single Judge, husband is entitled to get a declaration that the marriage is null and void as the wife was already a legally married woman and the earlier marriage was subsisting at the time of the present marriage and the former husband is still living. S.19(4) will apply in this case.