GITABAI Vs. FATTOO

JUDGEMENT

(1.) THIS is an appeal wader the Hindu Marriage Act, 1955, from the dismissal of a petition under Section 13 of the Act for divorce, on the ground that, the petitioner's husband has taken a second wife in marriage and is living with her. The petition was resisted by the husband. Although he admitted that subsequent to his marriage with the petitioner, he has married a second wife and is living with her, his contention was that the second wife was taken with the consent of the petitioner. The learned Additional District Judge held that the respondent did not prove that the second marriage was with the consent of the petitioner. He dismissed the petition on the ground that it did not fall within the purview of Subsection (2) of Section 13 inasmuch as the second marriage was solemnized after the commencement of the Act.

(2.) IN our opinion, the trial Judge was right when he held that Sub-section (2) of section 13 of the Act did not come to the aid of the petitioner. Under Section 13 (2), a wife is permitted to sue for divorce on the additional grounds: (1) She can seek divorce on, proving two things: (a) her marriage with the husband was solemnized before the commencement of the Act and (b) the husband has married a second wife, whether prior or subsequent to the petitioner's marriage, but before the commencement of the Act; and in either case, the other wife must be alive at the time of the presentation of the petition. (2) She can seek divorce on the ground that the husband has, after the solemnizations of the marriage, been guilty of rape, sodomy or bestiality. In the present case, the respondent married a second wife after the commencement of the Act. Therefore, Clause (i) of Section 13 (2) does not apply, and the petitioner herself does not plead Clause (ii) and rightly, because the respondent's co-habitation with the second wife does not amount to rape.

(3.) BUT that is not the end of the matter. A marriage solemnized after the commencement of the Hindu Marriage Act, 1955, in the lifetime of a married spouse, renders the second marriage null and void ab initio. This is so by virtue of section 11, read with Section 5 (i) of the Act. The marriage is void ipso jure. Such a marriage is, in law, no marriage at all. It is a nullity even when no party applies for a decree of nullity. The parties can just treat it as a nullity. There is no obligation to seek a declaration of nullity. It follows as a necessary corollary that sexual intercourse between the husband and the second wife is adultery so as to attract the provisions of Sections 10 (1) (f) and 13 (1) (i) of the Act. In the absence of any special definition in the Act, adultery means consensual sexual intercourse between married person and another person of the opposite sex during the subsistence of the marriage.