UMA CHARAN ROY Vs. KAJAL ROY

JUDGEMENT

(1.) This is an appeal at the instance of a husband against whom a decree of nullity of his marriage with the respondent has been passed by a learned Additional District Judge at Alipore. The appellant seems to be rather unfortunate in his matrimonial ventures. He was first married with one Durga Bala Roy in or about 1947, and on the 2nd of October, 1958. Durga EaJa died leaving five issues. In less than three and half months from the date of the death of Durga Bala the appellant married again one Susama, to be precise, on the 15th of January, 1959. On the 11th of September, 1963. he filed a suit for dissolution of his marriage with Susama on the ground that she had been suffering from venereal disease in a communicable form for a period of not less than three years immediately preceding the presentation of the petition. It would further appear that before this suit was filed he and the present respondent Kajal fell in love with each other. The suit for dissolution of the marriage was decreed on the 23rd of March, 1964, under Section 13(1) (v) of the Hindu Marriage Act (Ext. B). Admittedly the appellant Susama as also Kajal are all Hindus. On the 18th of March, 1964, that is to say five days before the appellant got his decree of divorce of the marriage with Susama he filed a notice of marriage with Kajal before the Marriage Officer for Calcutta and 24 Parganas District (Ext. 2). On the 21st of April, 1964, the appellant and Kajal were married under the Special Marriage Act and exhibit 3 is the certificate of marriage. On the 17th of June, 1964. Kajal filed the instant suit mainly on the allegation that her marriage with the appellant was void as the appellant's marriage with Susama was continuing upto the date of the marriage or, in other words, as her marriage with the appellant contravened the provision of Clause (a) of Section 4 of the Special Marriage Act. She had also made allegations in her petition that by fraud and misrepresentation she was induced to enter into this form of marriage and she was actually not aware of the fact that the appellant had a wife living on that date. But the appellant contested that suit and denied these charges of fraud and misrepresentation and further alleged that Kajal was aware of everything and that as a matter of fact it was she who induced him to enter into this marriage. He further contended that in no view of the law could Susama be considered as his spouse on the date of his marriage with Kajal and as such the marriage was not a nullity. The learned Additional District Judge was of the opinion that in view of Clause (4) of Section 29 of the Hindu Marriage Act, Section 15 of the Hindu Marriage Act did not apply to the instant impugned marriage but he held that the marriage is bad in view of Section 30 of the Special Marriage Act and granted a decree of nullity. Hence this appeal by the husband.

(2.) The first point that is pressed by Mr. Himangshu Kumar Bose, the learned Advocate for the appellant, is to the effect that the learned Judge erred in applying Section 30 of the Special Marriage Act to this impugned marriage. In our view, he is quite justified in this criticism of the learned Judge's judgment. Section 30 of the Special Marriage Act, as it stands, would apply to the dissolution of a marriage under the Special Marriage Act. Here the marriage with Susama was dissolved, not under the Special Marriage Act, but under Section 13(1) (v) of the Hindu Marriage Act.

(3.) Mr. Amarendra Mohan Mitra, learned Advocate appearing on behalf of the respondent, however submits that Section 15 of the Hindu Marriage Act would also apply and that accordingly the marriage between the appellant and Susama must be deemed to be subsisting on the 21st of April. 1964, when the appellant and Kajal entered into a marriage under the provisions of the Special Marriage Act. Section 15 of the Hindu Marriage Act stands as follows:--