SAROJ BALA Vs. KASTURI LAL

JUDGEMENT

(1.) This appeal is directed against the order dated 2.5.2016 by which the learned trial Court has allowed the petition filed under section 11 of the Hindu Marriage Act, 1955 (for short 'the Act') for declaration of the marriage of the parties to be null and void by a decree of nullity.

(2.) In brief, parties to the lis got married on 15.10.2007 as per Hindu rites at Jalandhar. The respondent-husband had initially filed a petition under Sec. 13 of the Act for seeking dissolution of marriage by a decree of divorce in which status of the appellant-wife was mentioned as Hindu divorcee. The said petition was ultimately withdrawn on 19.9.2013. Thereafter, the respondent had filed an application under Sec. 9 of the Act for seeking restitution of conjugal rights in which the appellant while appearing as RW1 on 1.4.2014 stated that the she had obtained divorce by way of "Panchayati Talaknama". The said petition was however, withdrawn by the respondent. Thereafter, the respondent filed a petition under Sec. 11 of the Act for declaration of their marriage as null and void on the ground that the decree of divorce has not been obtained from the competent Court of law and therefore, at the time of marriage with him the appellant was already married and therefore, at the time of his marriage with the appellant, her first marriage was already subsisting. The appellant had filed written statement to the petition under Sec. 11 of the Act before the trial Court in which she did not plead anywhere that the Panchayati Talaknama was obtained by following the custom. Be that as it may, the trial Court, agreeing with the contentions of the respondent and keeping in view the fact that Panchayati Talaknama has no sanctity of law, came to the conclusion that the marriage of the appellant with the previous husband was subsisting at the time when she contracted the marriage with the respondent on 15.10.2007. The learned trial Court thus taking into consideration Sec. 5 (i) read with Sec. 11 of the Act held that the marriage between the parties was null and void as Sec. 11 of the Act provides that any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Sec. 5. At the same time, Sec. 5 of the Act provides that a marriage may be solemnised between two Hindus when neither party has a spouse living at the time of the marriage.

(3.) Faced with this difficulty, counsel for the appellant has referred to Sec. 29(2) of the Act to contend that since divorce (Talak) was obtained by her as per custom, therefore, the provisions of the Act would not apply.