Shantanu Wavhal (Worker) 07 November 2011

Can decree of ''nullity of marriage'' be obtained ?

FACTS :

(1) A (age 35 - husband) got married to B (age 34 - wife) - according to Hindu Vedic ceremony - at Alandi (Pune, Maharashtra)

(2) For both, this is 2nd marriage.

(3) A is separated from 1st spouse through the decree of divorce from family court.

(4) B is separated from 1st spouse (C) customarily

(i.e. - they took divorce in front of their relatives and respected people from their community.)

Further a divorce deed (on Rs. 200 /- stamp paper) was registered at sub-registrar's office.

QUESTIONS :

(1) is the marriage of A & B valid ?

(2) if no, does A (2nd husband) need to prove that - the marriage between B & C (1st husband) was valid ?

(3) are the following 2 points sufficient to prove the validity of marriage between B & C ? -

(a) In so called divorce deed between B and C it is quoted that - "we have married according to Hindu rituals and as per the customary rituals of eachother"

(b) In the marriage certificate (marriage of A & B) issued by the Vedic ceremony performer, the status of both A & B is mentioned as divorcee. (Dose this prove that B was already married ?)

(4) Before marriage B told A that I am a divorcee.

Now if A files petition for decree of "nullity of marriage between A & B", and B inturn says that - the first marriage was not legally valid, isn't this breach of trust with respect to A (ie.- a cause to declare nullity of marriage between A & B)

Kindly enlighten me on this issue.

thanx

Shantanu

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8 Replies

niranjan (civil practice) 07 November 2011

If A challenges his marriage with B as nullity,in that case If B proves that customary divorce and is accepted by the court ,then marriage of A and B is valid,otherwise not. By producing customary divorce deed,the marriage of B and C is automatically proved.However if A has by lapse of time condoned the act of B marriage cannot be declared nullity.

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Shantanu Wavhal (Worker) 07 November 2011

A & B got married before 5 months.

A, B, C - all belong to Hindu - Sali community

customary divorce is not prevalant in Hindu - Sali community

Shantanu Wavhal (Worker) 07 November 2011

if customary divorce is prevalant, then why did B & C approach a govt. institution (ie. subregistrar) after getting divorce according to custom. this means - they themself do not believe in customary divorce.

SURESH GODBOLE (ADVOCATE) 07 November 2011

In my knowledge

there is no provision of Divorce thro custom and before B&C's relatives

In Muslim personal laww their is a provision of 'Talaq" ,

Here also if one party challange , the Law of land will prevail , because in Muslim law also Talaq is allowed in certain special conditions in which one is consent of the other party

But , to my knowledge there is no such Law in Hindu Law

There has to be a decree of Divorce thro legal process of law

And if the divorce of B&C is not valid , IF , IF "C" OBJECTS then the marraige of B&C will also be INVALID

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SURESH GODBOLE (ADVOCATE) 07 November 2011

Sorry , it was

If divorce of B and C is INVALID , the Marraige of A and B will also be INVALID

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Shantanu Wavhal (Worker) 07 November 2011

Hindu Marriage Act, 1955, ss. 9 and 13-B -A divorce got through the panchayat as per the local customs of a particular community will not be recognised by any court of law. A divorce, in order to be legalised, mandatorily requires a judicial decree from a court of law and nothing less would do. Dissolution of marriage through panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under Section 13 of the Act, 1955. HC has rightly held that dissolution of marriage through Panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce u/s. 13 of the Act, 1955 – Moreover, in case the appellant wanted a decree on the basis of customary dissolution of marriage through Panchayat, he would not have filed a petition u/s. 13 of the Act, 1955 – Filing this petition itself means that none of the parties was of the view that the divorce granted by the Panchayat was legal – No reason to interfere with the well-reasoned judgment of the HC – Appeal dismissed.

Supreme Court of India

Civil Appeal No. 1801 of 2007
Hon’ble Judge(s): P. Sathasivam & Dr. B.S. Chauhan
Date of Judgment: 25 August, 2010

Mahendra Nath Yadav vs Sheela Devi

Sameer12345 (SSE) 08 November 2011

Dear Amit,

Collect the judgments and show the same into court while fighting the case. Your points will be considered valid in the eyes of law.

If B has broken the peace in your house and continue doing the same than you can move to court.

You can go thru my earlier post and queries.

https://www.lawyersclubindia.com/forum/Is-second-wife-legally-married-wife--40292.asp?1=1&offset=2

Further References

https://www.indiarightsonline.com/Sabrang/gender.nsf/9ad8c95d52b7d568e5256abc00320f4c/ab8dd0014e1191b9e5256f80004092e1?OpenDocument

https://mynation.net/docs/399-2005/

https://www.indiankanoon.org/doc/377333/

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K.P.Satish Kumar (Advocate) 08 November 2011

You can get null and void decree only if you find the above fraud after the marriage and you should file the case within one year after the fraud is found. But you know by marrying such person knowing all the facts there rise no question of null and void.

For experts opinion:

Daniel & Boaz

Ph:-9962111818.

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