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Krish Narayan (Advocate)     07 June 2012

If 1st marriage is void, 2nd marriage?

Dear Experts,

 

Greetings.

 

My client is a hindu husband. He married a women. Later he came to know that his wife already had one marriage and separated from him by divorce deed and not decree. Therefore he filed case for nullity. During the course of proceedings she stated that the 1st marriage itself is void one, because her 1st husband already had one wife as his 1st wife. Therefore her marriage with 1st husband is automatically void. Hence she submitted she need not get divorce decree from court. Under these circumstance she alleges that her (2nd) with my client is valid one and therefore my client is not entitled for nullity of marriage.

 

Is her argument correct ? A void 1st marriage will automatically validate the 2nd marriage? She neither obtained nullity decree nor divorce decree from her 1st husband.

 

Kindly clarify on this peculiar point.



Learning

 12 Replies

Krish Narayan (Advocate)     07 June 2012

 

CORRECTED VERSION

 

Dear Experts,

 

Greetings.

 

My client is a hindu husband. He married a woman. Later he came to know that the said woman being his wife already got married with a man and subsequently separated from him by a deed and not divorce decree.

 

Therefore my client filed case for nullity of marriage with the said woman. During the course of proceedings she stated that the 1st marriage itself is void one, because her 1st husband already had one wife as his 1st wife. Therefore her marriage with 1st husband is automatically void. Hence she submitted that she need not get divorce decree from court. Under these circumstance she alleges that her (2nd) with my client is valid one and therefore my client is not entitled for nullity of marriage.

 

Is her argument correct ? A void 1st marriage will automatically validate the 2nd marriage? She neither obtained nullity decree nor divorce decree from her 1st husband.

 

Kindly clarify on this peculiar point.

Sameer12345 (SSE)     07 June 2012

I Guess, Here a girl who is stating that her first marriage is void, She has to provie decree of nullity to court than and only than court will accept her appeal.

1 Like

bhagwan (owner)     07 June 2012

I am not a lawyer but n  my vew sameer12345 is correct. she has to get first nuilty  ffor first husband so whem nuilty is not at the time of her second marriage this marriage is also void.

1 Like

Krish Narayan (Advocate)     07 June 2012

Thanks for your reply.

 

She further says that her 1st marriage is no marriage in the eyes of law. Therefore it is not necessary to get any decree from the court...

SAINATH DEVALLA (LEGAL CONSULTANT)     07 June 2012

Can she prove her first husband's first marriage is a legal one?Mere oral confessions are not enough.

Sameer12345 (SSE)     07 June 2012

What is her first husband saying?

Anjuru Chandra Sekhar (Advocate )     07 June 2012

She cannot declare herself that her first marriage is a void marriage.  The court should declare that it is void marriage.  Otherwise, it is deemed that she agreed for marriage with her first husband knowingly and went as second wife.

 

She is stating that her first husband already had a wife by the time she married so her marriage with her first husband is null and void.  Who has seen it?  Who had seen that her first husband already had a wife?  At least the court had not seen.  So she needs a decree issued by competent court declaring her first marriage with her first husband is null and void.  If such decree is there, then the present court can take that decree as evidence that her first husband had already been married and some other court had already gone into the case and delivered a judgment based on the evidences found.

 

She cannot declare herself on her own that her marriage with her first husband is null and void.  A competent court should declare it.  Then only she will get relief in present proceedings against her.

vinayak (employed)     07 June 2012

I agree with Mr. Chandrasekhar, she cannot by her own sweet will declare her first marriage as void. It is the competent courts, who has the authority to adjudge about the validity of marriage. 

N.K.Assumi (Advocate)     07 June 2012

Agreed with the above responds.

Shantanu Wavhal (Worker)     08 June 2012

During the course of proceedings she stated that the 1st marriage itself is void one, because her 1st husband already had one wife as his 1st wife. Therefore her marriage with 1st husband is automatically void.

 

what was the status declaration given by wife at the time of her marriage with second husband ?

was it divorce ?

 

no formal declaration of any court is required in case of void marriage. sec. 11 r/w sec. 5 (i)

M M Malhotra vs union of India - SC

Anjuru Chandra Sekhar (Advocate )     09 June 2012

@Amit. Good point. Void marriages are void ab initio and voidable marriages become void by obtaining decree from competent court. However, here the question of evidences is there. The allegations are made by husband that his wife had a husband already, so burden of proof lies on him to prove that she married to one person. The wife is not denying the allegation altogether. She is saying she had a husband, but he already had a wife and so the marriage she contracted with him is void. As she is admitting a fact, she needs to prove it. That is why some proof is needed to the effect that her marriage is void. If not the decree of competent court some other evidence she need to present proving that the person she contracted marriage with on earlier occasion already had a wife. As you rightly said, it need not be declared by court because a void marriage is void abinitio, but it needs to be proved one way or the other, if not with a decree of court by some other instrument.
1 Like

Dr J C Vashista (Advocate)     10 June 2012

I agree with experts views


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