Delhi High Court: In a case wherein, the appeal was filed under Section 19 of the Family Courts Act, 1984 was filed on behalf of the appellant against the judgment dated 29-11-2017, whereby the petition under Section 11 of the Hindu Marriage Act, 1955 (‘the HMA’) was allowed and the marriage between the parties was declared null and void, the Division Bench of Suresh Kumar Kait and Neena Bansal Krishna, JJ.* opined that once there was a legal bar to the performance of the second marriage, the consent of the parties could not confer validity to the marriage held in violation of the condition specified in Section 5(i) of the HMA. The Court opined that the very fact that the wife had claimed and accepted pendente lite maintenance during the appeal from her first husband fortified that the marriage was not finally dissolved. Thus, the Court concurred with the Family Court’s decision that the marriage between the parties was rightly declared as nullity under Section 11 of HMA and dismissed the present appeal.
Background
In the instant case, the parties got married on 28-04-2009, as per Hindu customs and rites. The appellant-wife was earlier married, but was granted divorce in her first marriage on 31-03-2008. However, her first husband had filed an appeal against the divorce. The wife stated that she became aware of pendency of the appeal in December, 2008, but the appeal was withdrawn after more than four years on 22-07-2012.
However, due to differences between the parties in their second marriage, the husband filed a petition under Section 11 of the HMA to get the marriage annulled on the ground that the wife’s first marriage was subsisting because of the appeal pending against the divorce decree. The husband contended that the wife’s second marriage with him during the subsistence of first marriage was null and void.
The Family Court by its judgment dated 29-11-2017, observed that since the appeal was pending against the first divorce decree of the wife at the time when she got married to the present husband, the marriage subsisted as per Section 5 read with Section 15 of the HMA. Thus, the marriage between the parties was null and void under Section 11 of the HMA and accordingly, the marriage was annulled.
Thereafter, the wife filed the present appeal.
Analysis, Law, and Decision
The Court noted that it was admitted by the wife in her testimony that she became aware of the pendency of the appeal before the marriage to her present husband on 28-04-2009. However, the wife asserted that the husband was also aware about her appeal before they got married and he assured that the pendency of appeal was no deterrence for him to get married to the wife.
The Court noted that though it was provided under Section 23 of HMA that a party could not be allowed to take benefit of its own wrong. But on considering the issue that whether a legal ban could be circumscribed by the consent of the parties, the Court opined that in case where there was a violation of Section 5(i) of the HMA, the marriage was void as per Section 11 of the HMA. The Court opined that once there was a legal bar to the performance of the second marriage, the consent of the parties could not confer validity to the marriage held in violation of the condition specified in Section 5(i) of the HMA.
The Court relied on Chandra Mohini Srivastava v. Avinash Prasad Srivastava, AIR 1967 SC 581, wherein it was held that as per Section 15 of the HMA, a spouse could lawfully remarry only if the time for filing the appeal had expired or the appeal was dismissed. The Court opined that in the present case, the parties married during the pendency of the appeal and that was in the knowledge of both the parties. Since, the dissolution of first marriage was not confirmed and the wife’s first marriage subsisted on the date of marriage, therefore, as per Section 15 of the HMA, the marriage between the wife and the present husband on 28-04-2009 was in contravention of Section 5(i) of HMA.
The Court noted that the wife had sought interim maintenance from her first husband in pending appeal, which was granted vide order dated 03-09-2009 and opined that the very fact that the wife had claimed and accepted pendente lite maintenance during the appeal from her first husband fortified that the marriage was not finally dissolved.
Thus, the Court opined that the Family Court had rightly declared that the marriage between the parties as nullity under Section 11 of HMA and dismissed the present appeal.
[Sunita v. Sanjay Kumar, 2023 SCC OnLine Del 6622, decided on 12-10-2023]
*Judgment authored by- Justice Suresh Kumar Kait and Justice Neena Bansal Krishna
Advocates who appeared in this case :
For the Appellant: Ajay Bahl, N.K. Nangia and Vikash Sharma, Advocates;
For the Respondent: Mukesh Gupta, Raghav Gupta and Ishant Sharma, Advocates
