RITU Vs. SUSHIL

JUDGEMENT

(1.) With consent of learned counsel for the parties, heard finally. By the instant petition filed under Article 227 of the Constitution of India, the petitioner / wife is challenging the legality, validity and propriety of the impugned order dtd. 3/8/2018 (Annexure-P/1) passed in C.S. No.220-A of 2015 by learned 1st Additional Principal Judge, Family Court, Jabalpur, rejecting the counter claim as not maintainable filed by the petitioner / wife under Sec. 23-A of the Hindu Marriage Act for declaration of second marriage of the respondent / husband as illegal and void.

(2.) The facts lying in the narrow compass are that the parties are Hindus by faith. They got married to each other on 20/5/2007 and out of their wedlock, one baby child begotten. On 20/2/2015 the respondent - husband has filed a civil suit under Sec. 13 (1) (ia) of the Hindu Marriage Act for dissolution of marriage on the ground of cruelty and also on the ground that the petitioner - wife has been convicted under Ss. 302 and 203 of the IPC for committing murder of her own child aged about 6 months and has been sentenced to undergo imprisonment for life vide judgment dtd. 28/9/2016 in S.T. No.753/14 by this Court. The petitioner / wife has already filed written statement on 8/5/2015 denying the allegations made by the respondent / husband. During the pendency of the instant suit, the husband is said to have entered into another wedlock with a girl namely Jaya in the month of January, 2017 and he is said to have now procreated a respectable sized family and immediately thereafter when this fact came into knowledge of the wife and her parents, the petitioner / wife through her father filed a counter claim under Sec. 23A of the Hindu Marriage Act for declaring the second marriage of her husband as illegal and void ab initio under Sec. 11 of the Hindu Marriage Act. However, the learned Family Court by the impugned order has rejected the counter claim of the petitioner -wife as not maintainable holding that the petitioner - wife is a third party and under Sec. 11 of the HMA, the counter claim is not maintainable because only either party to the marriage can seek relief to declare marriage null and void. However, a liberty is afforded to the wife to file civil suit separately to declare marriage as null and void.

(3.) Learned counsel for the petitioner/wife submits that during the pendency of the divorce petition, the respondent - husband performed bigamous with a girl namely Jaya in the year 2017, whereas the petitioner / wife is in jail. The petitioner - wife as soon as came to know about such fact, she filed a counter claim under Order 8 Rule 6A of the C.P.C. on 12/7/2017 before the trial Court for declaration of the second marriage of her husband as illegal and null and void. The said counter claim was found not maintainable by the trial Court and the same was rejected vide order dtd. 18/12/2017 and the petitioner/wife challenged the aforesaid order by filing a M.P.No.87/18 before this Court but the same was withdrawn with liberty to file afresh application under appropriate Provision of Sec. 23A of the Hindu Marriage Act vide order dtd. 13/4/2018. At the strength of the order passed by this Court, the petitioner - wife filed a counter claim under sec. 23A of the Hindu Marriage Act before the Family Court seeking relief to declare the marriage between respondent and Jaya as null and void but the learned Family court vide impugned order dtd. 3/8/2018 dismissed the counter claim of the petitioner - wife as not maintainable stating that the respondent/wife is a third party, therefore, under Sec. 11 of the Hindu Marriage Act, the counter claim is not maintainable. However, the respondent was at liberty to file a civil suit separately to declare the marriage as null and void.