MAHADEV LAXMAN WACHKAWADE Vs. SOU SINDHU MAHADEV WACHKAWADE

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 19.4.2005 rendered by the Family Court, Pune in Petition No.A-434 of 2003, by which the appellant's petition has been dismissed. The appellant and the respondent are husband and wife. The petition was filed by the appellant seeking declaration that their marriage is nullity, since it was performed in contravention of the provisions under Section 5(i) of the Hindu Marriage Act, 1955.

(2.) THE appellant and the respondent got married on 26.12.2002 as per the Hindu rites and rituals and their marriage was registered under the Maharashtra Regulation of Marriage Bureau and Registration of Marriages Act, 1998. There is no dispute that both the spouses had married earlier. In so far as the appellant is concerned, his first wife died on 12.4.1997, whereas the respondent claims that her earlier husband namely Shri Ramdas Surle had divorced her. According to the appellant, the respondent had informed him that she had married Ramdas Surle on 28.4.1986 and by a Deed of Divorce executed on 13.5.1996 (Exh.55), their marriage was dissolved. In view thereof, the appellant claims that he married to the respondent on 26.12.2002. After the marriage, the appellant and the respondent stayed together till 05.05.2003. On this date, according to the respondent, she left the matrimonial home last. Thereafter, the appellant claims that he tried to find out about her earlier marriage and it was revealed that there was no legal document dissolving the marriage of the respondent and Ramdas Surle. He, therefore, instituted the Petition on 01.7.2003 for declaration that their marriage is nullity.

(3.) THE learned Counsel for the appellant submits that in this backdrop the Court below ought to have considered the appellant's prayer for declaration that their marriage is nullity and he is entitled for a decree under Section 11 R/w. Section 5(i) of the Hindu Marriage Act, 1955. From the facts as disclosed in the foregoing paragraphs, it is clear that when the appellant and the respondent got married, her marriage with Ramesh Surle was subsisting and / or it was not dissolved by a decree of divorce by a competent Court. Even when the instant petition was filed by the appellant seeking declaration that their marriage is nullity, the marriage of the respondent and Ramdas Surle was subsisting. Even the decree of divorce obtained by the respondent dated 08.09.2003, was subsequently set aside in the appeal vide judgment and order dated 19.4.2006. Thus, even today the respondent's earlier marriage is subsisting. In the circumstances, the marriage of the appellant and the respondent deserves to be declared as nullity as contemplated under Section 11 R/w. Section 5(i) of the Hindu Marriage Act, 1955. Learned Counsel for the respondent could not and did not dispute this position of law so also the facts on the basis of which we are holding that the marriage of the appellant and the respondent is nullity. There is no dispute that Ramdas Surle is living even today and there is no divorce between him and the respondent. In these circumstances, we allow this appeal.