SURJIT SINGH Vs. MOHINDER PAL SINGH

JUDGEMENT

(1.) In these two R.S. As. Nos. 1932 of 1976 and 41 of 1977 the learned single Judge has referred the following question of law for our considerations :-

(2.) The facts which have led to the above reference have been set out in detail in the order of the learned single Judge. All that be noted is that the learned First Appellate Court held that the marriage of Jasmail Kaur with Hari Singh, which allegedly took place after the coming into force of the Act was void as his previous wife was alive. The learned counsel for Jasmail Kaur had contended before the learned single Judge in the second appeal that the mere fact that the previous wife of Hari Singh was alive would not make her marriage with Hari Singh invalid because the decree of annulment of this marriage had not been passed under S.11 of the Act. It was maintained that this marriage could be got annulled only on a petition presented either by Jasmail Kaur or Hari Singh and no third person was competent to challenge the validity of the marriage. In support of this contention, the learned counsel placed reliance in a single Bench judgement of this Court in Baboo Ram v. Mst. Karmi, 1983 Marriage LJ 314. after setting out his reasons and placing reliance on a Division Bench judgement of the Allahabad High Court in Smt. Ram Pyari v. Dharam Das, AIR 1984 All 147, the learned single Judge observed that the law laid down in Baboo Ram's case (supra) that a third party is prohibited to question the validity of a void marriage even in a civil suit is open to doubt and needs a second look by a larger Bench. This is how the aforesaid question of law has come up for consideration before us.

(3.) Clause (i) of S.5 of the Act lays down that a marriage may be solemnised between any two Hindus, if neither party has a spouse living at the time of the marriage. Section 11 lays down, inter alia, that any marriage solemnised after the commencement of the Act shall be null and void if it contravenes the conditions specified in cl.(i) of S.5. The Act deals with void marriages and voidable marriages. Section 11 deals with cases where the marriages are null and void. Section 12, on the other hand, provides for a marriage which is voidable at the option of the either party thereto. The object of the latter provision is to lay down that until avoided a voidable marriage should be regarded as good for all purposes. The position of marriage which is void under S.11 is, however, different. It is void ab initio and can be questioned at any time. Any person who has not any interest in the matter can challenge a marriage by filing a regular civil suit for the declaration that the marriage is a nullity. Such a marriage is not a marriage at all in the eye of law. Section 11 of the Act, after its amendment by the Marriage Laws (Amendment) Act, 1976 is to the following effect :-