Void Marriage
Satish
(Querist) 29 May 2009
This query is : Resolved
Resp Experts,
One of my lady client's husband got married to another girl without divorce and during life of my client. Parties are Hindu. Now my client wants to declare the second marriage of her husband as null and void.
I have a little confusion should I go for declartion suit or suit U/s 11 of Hindu Marriage Act?
Thanks.
n.k.sarin
(Expert) 30 May 2009
Mr Satish, the second marriage of your client's husband is null and void, you must proceed for suit u/s 11 of hindu marriage act.
SANJAY DIXIT
(Expert) 30 May 2009
With due respect, My opinion defers.
In the case of a second marriage, the first wife, as she is not a party to the second marriage of her husband, can file a suit in the civil court having origional jurisdiction for a declaration of her right as a third party and such suit is governed by S. 9 CPC read with S 34 of Specific Relief Act. SHE IS NOT ENTITLED TO FILE A PETITION IN THE COURT OF A DISTRICT JUDGE FOR OBTAINING A DECLARATION OF THE SECOND MARRIAGE AS NULL AND VOID UNDER SECTION 11 OF the HINDU MARRIAGE ACT.
A V Vishal
(Expert) 30 May 2009
Hindu Marriage Act not only makes bigamous marriage void but also punishable under s.17 read with sections 494 and 495 of Indian Penal Code. What is to be established is that the second marriage is valid but for this provision and the spouse to the first marriage is the legally wedded spouse and the that marriage is having its existence on the date second marriage is solemnized- Gopal Lal v. State of Maharashtra AIR 1979 SC 713
In order to render second marriage invalid, it is necessary to establish first marriage as valid. Where an application to claim maintenance is moved by second wife, onus is upon the husband establishing the second marriage in contravention of the provisions of cl.(1) of s.5 -Mohan Ram v. Badamo Devi 1974 cr. LJ 227
Suffering from schizophrenia as a sound ground for a decree of nullity. Whether the disease is curable or not does not make any difference. Where in due course the disease is cured, it would not affect the question of validity of marriage.-Tulsi Bai v. Manoharan 1990 (1)HLR 318
It is not the requirements that a person should be insane or suffering from epilepsy at the time of marriage. It is sufficient if he or she had been subject to recurrent attacks of insanity or epilepsy-Bala Krishna v. Lalitha 1984 (1)APLJ 32
In the case of a bigamous marriage, it is necessary to establish the performance of essential ceremonies which constitute a valid marriage and thereafter leading some evidence in support thereof. -Ashok Kumar v. Krishna Kumari 1993(1) HLR 114
The expression “connivance” suggests some aiding or abetting which is active or some conduct sufficient to infer such aiding or abetting within the term “connivance”is included such conduct which would amount to passive acceptance of the lapse of the wife and the other men concerned-Krushan Chandra Patra v. Tanu Patra 1993 (1) HLR 116
The expression “procreate” having a very wide meaning, indicating capacity of spouse to give birth as also to rear up the children.-Alka Sharma v.A.C.Sharma AIR 1991 MP 205.
Where the marriage is solemnized, disregarding the provision of Child Marriage Restraint Act, the petition of the wife claiming restitution of conjugal rights is liable to be dismissed.-Dinesh v.Rekha 1986 (1)HLR 265
adv. rajeev ( rajoo )
(Expert) 30 May 2009
I go with vishal, he has given in detail. Even in case suit is filed for declaration of marriage null and void will not be much effective. so U file a bigamy case, it is criminal case it makes some difference.
N.K.Assumi
(Expert) 30 May 2009
I agree with the version of sanjay Dixit.Declaration of her rights is the proper course.
Khaleel Ahmed
(Expert) 30 May 2009
Advice your client to file a criminal complain as bigamy is a penal offence among Hindus u/s 494 of IPC.
Satish
(Querist) 30 May 2009
Thanks to all ld. members for their valuable opinions.
B.B.R.Goud.
(Expert) 31 May 2009
Yes, Mr Satish, the second marriage of your client's husband is null and void, you must proceed for suit u/s 11 of hindu marriage act.
and also advice your client to file a criminal complaint as bigamy is a penal offence among Hindus u/s 494 of IPC.
