A spouse can file an application for a declaration to declare his or her marriage with his husband or her wife as null and void on the ground that, at the time of their marriage, the first marriage of the respondent with his first wife or first husband was subsisting. On the allegation that the other spouse has committed a fraud and suppressed the material fact of his or her first marriage.
If a spouse suppressed his or her first marriage which is still subsisting at the time of second marriage, then the aggrieved party can file an application to declare null and void within a period of one year when such fraud came to known to him or her.
The null and void, would fall within Section 25 of the Special Marriage Act and to declare the marriage as null void on the ground that one of the party to the marriage was already married and it is still subsisting. The provisions under the special marriage Act has not framed any limitation to file an application on the above ground. And even in lapse of several years of the second marriage the applicant can file an application on the above ground.
It is required to be noted that, the appropriate court to considered Section 24 read with Section 4 of the Act and to considered the case on behalf of the applicant that as at the time of his or her marriage with the other spouse, the other spouse first marriage was subsisting and therefore the marriage between the appellant and the respondent would be void and nullity.
As per Section 4 of the Special Marriage Act, the marriage between any two persons may be solemnized under the Special Marriage Act if at the time of the marriage neither party has a spouse living. Section 24 of the Act provides that any marriage solemnized under the Special Marriage 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 any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled. Clause (a) of Section 4 provides that neither party shall have a spouse living at the time of marriage. Therefore, court considering Section 24 read with Section 4 of the Act, if at the time of marriage either of the party has spouse living, then the said marriage is a void marriage and a decree of nullity can be passed on a petition presented by either party thereto against the other party. No period of limitation is prescribed so far as presentation of application for declaration to declare a marriage being nullity/void marriage, under Section 24 of the Act and rightly so, as once the marriage is void the same is a nullity and at any time the same can be declared as nullity being a void marriage. In the facts and circumstances of the cases regarding the second marriage is performed when the first marriage is subsisting, then Section 25 of the Act shall not be applicable and Section 24 of the Act would be applicable which does not provide for any period of limitation like first proviso to Section 25 of the Act.
The spouse cannot plead that his first marriage was put an end by customary divorce. Unless a matrimonial tie up ended by the death of the one of the spouse or by the decree of divorce by the competent court, it is presumed that the first marriage is still subsisting.
The Spouse cannot plead that the party to marriage have knowledge about the first marriage is still subsisting. Special Marriage Act clearly states that neither parties at the time of marriage should have a spouse living. The Supreme court has also confirmed this legal position in Swapnanjali Sandeep Patil Versus Sandeep Ananda Patil case.