[ 19 ]
Supreme Court of India
M.M. Malhotra vs Union Of India And Ors on 4 October, 2005
CASE NO.: Appeal (civil) 5185 of 2001
For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act. 1955 (hereinafter referred to as the `Marriage Act’) have to be examined. Section 11 of the Marriage Act declares such a marriage as null and void in the following terms:
11. Void marriages. - 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 Section 5”.
Clause (i) of Section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. By reason of the overriding effect of the Marriage Act as mentioned in section 4, no aid can be taken of the earlier Hindu law or any custom or usage as a part of that law inconsistent with any provision of the Act. So far as Section 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnised in violation of Section 5(i) of the Act. Sub-section (2) of Section 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. The marriages covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose. The provisions of Section 16, which is quoted below, also throw light on this aspect :
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Sub-section (1), by using the words underlined above clearly implies that a void marriage can be held to be so without a prior formal declaration by a court in a proceeding. While dealing with cases covered by Section 12, sub- section (2) refers to a decree of nullity as an essential condition and sub-section (3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively by Sections 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception.
The above position was highlighted in Smt. Yamunabai Anantrao Adhav v. Anantro Shivram Adhav and Anr., (AIR) 1988 SC 644.(Page 4)
[ 20 ]
Supreme Court of India
Lila Gupta vs Laxmi Narain & Ors on 4 May, 1978
Equivalent citations: 1978 AIR 1351, 1978 SCR (3) 922
(7) Undoubtedly, where a prohibition is enacted in public interest its violation should not be treated lightly. A valid Hindu marriage subsists during the life time of either party to the marriage until it is dissolved by a decree of divorce at the instance of either party to the marriage. A decree of divorce break-. the marriage tie. Incapacity for marriage of such persons whose marriage is dissolved by a decree of divorce for a period of one year was presumably enacted to allay apprehension that divorce was sought only for contracting another marriage or to avoid dispute about the parentage of children. There was some such time lag provided in comparable divorce laws and possibly such a proviso was, therefore, considered proper and that appears to be the purpose of object behind enacting the proviso to s. 15. It appears to be purely a regulatory measure for avoiding a possible confusion. If it was so sacrosanct that its violation would render the marriage void, it is riot possible to appreciate why the Parliament completely dropped it The proviso to s. 15 is deleted by s. 9 of the Marriage Laws (Amendment) Act, 1976. The net result is that now since the amendment parties whose marriage is dissolved by a decree of divorce can contract marriage soon thereafter provided of course the period of appeal has expired. This will reinforce the contention that such marriage is not void. The fact that neither spouse could until the time for appealing had expired, in no way affects the fall operation of the decree. It is a judgment in rem unless and until a court of appeal reversed it, the marriage for all purposes is at an end. Chandra Mohini Srivastava v. Avinash Prasad Srivastava & Anr. [1967] 1 SCR 864; Marsh v. Marsh, AIR 1945 PC 188 referred to.
(8) To say that such provision continues the marriage tie even after the decree of divorce for the period of incapacity is to attribute a certain status to the parties whose marriage is already dissolved by divorce and for which there is’ no legal mention. A decree of divorce breaks the marital tie and the parties forfeit the status of husband and wife in relation to each other. Each one becomes competent to contract another marriage as provided by s. 15. Merely because each one of them is prohibited from contracting a second marriage for a certain period it could not be said that despite them being a decree of divorce for certain purposes the first marriage subsists or is presumed to subsist. Some incident of marriage does survive the decree of divorce; say, liability to pay permanent alimony but on that account it cannot be said that the marriage subsists beyond the date of decree of divorce. Section 13 which provides for divorce terms says that a, marriage solemnised may on a petition presented by the husband or the wife be dissolved by a decree of divorce on one or more of the grounds mentioned in that section. The dissolution is complete once the decree is made, subject of course, to appeal. But a final decree of divorce in terms dissolves the marriage. No incident of such dissolved marriage can bridge and bind the parties whose marriage is dissolved by divorce at a time posterior to the date of decree.
(9) An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting. During the period of incapacity the parties cannot be said to be the spouses within the meaning of cl. (i), sub-s. (1) of s. 5. The ‘spouse’ has been understood to connote a husband or a wife which term itself postulates a subsisting marriage. The ‘spouse’ in sub-section (1) of s. 5 cannot be interpreted to mean a former spouse because even after the divorce when a second marriage is contracted if the former spouse is living that would not Prohibit the parties from contracting the marriage within the meaning of (cl) (i), sub-s. (1) of s. 5 by its very context would not include within its meaning the expression ‘former spouse’.
[ 21 ]
Supreme Court of India
Maharani Kusumkumari And Anr vs Smt. Kusumkumari Jadeja And Anr
on 1 February, 1991
Equivalent citations: 1991 SCR (1) 193, 1991 SCC (1) 582
8. There is no reason to interpret section 11 in a manner which would narrow down its field. With respect to the nature of the proceedings, what the court has to do in an application under section 11 is not to bring about any change in the marital status of the parties. The effectof granting a decree of nullity is to discover the flow in the marriage at the time of its performance and accordingly to grant a decree declaring it tobe void. [201A-B] Butterfield v. Butterfield; I.L.R.(Vol.50) Calcutta 153 and Stanhope v. Stanhope, [1886] 11 P.D. 103, and Law Commission of India 59th Report Chapter 6, para 6.1A referred to.
HMA 17. Punishment of bigamy
Any marriage between two Hindus solemnized after commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code, 1860 (45 of 1860), shall apply accordingly.
[ 22 ]
Supreme Court of India
Gopal Lal vs State Of Rajasthan on 30 January, 1979
Equivalent citations: 1979 AIR 713, 1979 SCR (2)1171
..... If the marriage is void its voidness would only lead to civil consequences arising from such marriage. Section 17 makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of Section 494 of the Penal Code which has been extracted above. Section 17 clearly provides that provisions of Sections 494 and 495 of the Penal Code shall apply accordingly. In other words though the marriage may be void under Section 17, by reason of the fact that it was contracted while the first marriage was subsisting the case squarely falls within the four corners of Section 494 and by contracting the second marriage the accused incurs the penalty imposed by the said statute. Thus the combined effect of Section 17 of Hindu Marriage Act and Section 494 I.P.C. is that when a person contracts a second marriage after the coming into force of the said Act, while the first marriage is subsisting he commits the offence of bigamy. (Emphasis ours). This matter no longer res integra as it concluded by a decision of this Court in Bhaurao Shankar Lokhande and Anr. v. State of Maharashtra & Anr.(1)
(Page 3, 4)
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..... In view of the authorities of this Court, therefore, the following position emerges: where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage under Section 17 of the Hindu Marriage Act is in fact one of the essential ingredients of Section 494 because the second marriage will become void only because of the provisions of Section 17 of the Hindu Marriage Act.(Page 4)
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..... Bigamy is a serious offence and the maximum punishment under Section 494 is seven years. (Page 5)
[ 23 ]
Madras High Court
P. Mohanasundaram vs The President on 30 April, 2013
W.A.No.1662 of 2010
23. Moral turpitude means per Black's Law Dictionary (8th Edn., 2004):
Conduct that is contrary to justice, honesty, or morality. In the area of legal ethics, offenses involving moral turpitude such as fraud or breach of trust. Also termed moral depravity. Moral turpitude means, in general, shameful wickednes so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people. (emphasis in original)
24. In Pawan Kumar v. State of Haryana ((1996) 4 SCC 17) this Court has observed as under: (SCC p. 21, para 12)
12. Moral turpitude is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The aforesaid judgment in Pawan Kumar ((1996) 4 SCC 17) has been considered by this Court again in Allahabad Bank v. Deepak Kumar Bhola ((1997)4 SCC 1) and placed reliance on Baleshwar Singh v. District Magistrate and Collector (AIR 1959 All 71) wherein it has been held as under: The expression moral turpitude is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellow men or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man.
25. In view of the above, it is evident that moral turpitude means anything contrary to honesty, modesty or good morals. It means vileness and depravity. In fact, the conviction of a person in a crime involving moral turpitude impeaches his credibility as he has been found to have indulged in shameful, wicked and base activities."
19. From the above referred judgments and having regard to the fact that the appellant married another woman, while the first marriage was subsisting, and had acted contrary to the law and to his "estranged wife", we are of the view that the offence of bigamy is coming within the meaning of "moral turpitude".
