IMPORTANT POINT
Once marriage is void he same is a nullity and at any time same can be declared as nullity being a void marriage.

Headnote:Special Marriage Act, 1954 – Section 25 and Section 24 read with Section 4 – Void marriage – Supersession of factum of earlier marriage by respondent- husband – If at the time of marriage either of party has spouse living, then said marriage is a void marriage and a decree of nullity can be passed on a petition presented by either party thereto against other party – No period of limitation is prescribed so far as presentation of petition for declaration to declare a marriage being nullity/void marriage, under Section 24 of Act and rightly so – Once marriage is void he same is a nullity and at any time same can be declared as nullity being a void marriage – Both trial court as well as High Court have committed an error in observing that marriage petition was barred by limitation – Neither trial court nor even High Court at all considered Section 24 read with Section 4 of Act nor considered case on behalf of appellant that as at the time of her marriage with respondent, respondent’s first marriage was subsisting and therefore marriage between appellant and respondent would be void and nullity – There is no specific issue framed by trial court on alleged customary divorce between respondent and his first wife – Even there was no specific issue framed with respect to limitation – Even respondent-husband was required to prove that such a customary divorce was permissible in their caste/community – In absence of any such issue or any evidence, Courts below were not justified in observing that there was a customary divorce between respondent and his first wife – Both Courts below have materially erred in rejecting marriage petition – Appellant is entitled to decree of nullity of marriage between appellant and respondent – Impugned judgment and order passed by High as well as judgment and decree passed by District Court, dismissing marriage petition, quashed and set aside – Marriage solemnised between appellant-wife and respondent-husband declared as null and void. (Paras 13.1, 13.2, 14 and 15)
       Facts of Case:
       Matrimonial discord. According to appellant, respondent obtained her consent for marriage by fraud. At the time of her marriage with respondent, respondent’s first marriage was subsisting and therefore according to appellant, she is entitled for declaration of nullity of marriage. However, relief was declined by Trial Court and High Court leading to present appeal by wife.
       Findings of Court:
       There is no specific issue framed by trial court on the alleged customary divorce between respondent and his first wife. Even there was no specific issue framed with respect to limitation. There was not even an issue framed with respect to the knowledge of appellant that she was having knowledge of first marriage of respondent with his first wife. In absence of any such issue framed, trial court as well as High Court have committed a grave error in observing that there was a customary divorce between respondent-husband and his first wife. There must be a specific issue framed by Court on aforesaid and the same is required to be established and proved by leading evidence.
       Result : Appeal allowed.

JUDGMENT

M. R. Shah. J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.03.2016 passed by the High Court of Judicature at Bombay in First Appeal No. 342 of 2015 by which the High Court has dismissed the said appeal filed by the original applicant and has confirmed the judgment and decree dated 01.12.2014 passed by the learned District Judge, Pune in Marriage Petition No. 55 of 2012 by which the learned District Judge dismissed the said marriage petition, the original applicant/appellant-wife has preferred the present appeal.

3. The facts leading to the present appeal in nutshell are as under:

(a) That the appellant herein married with respondent-husband on 05.04.2010.
(b) That their marriage was an inter-caste marriage.
(c) According to the appellant-wife the respondent-husband started harassing her in various ways.
(d) That he used to come in a drunken state and he withdrew money from the bank account of the appellant by using her credit card. Therefore, on 30.06.2012 the appellant left the matrimonial house and took shelter in her parental home.
(e) According to the appellant-wife, while gathering her personal belongings for leaving the house, the appellant came across a zerox copy of Marriage Dissolution Deed, dated 14.12.2009 between the respondent and his first wife.
(f) She realized that the respondent had married her without obtaining the decree of divorce from the competent court and that at that time of marriage the respondent was having a living spouse and that he has suppressed the fact of the first marriage from the appellant.
(g) Therefore, the appellant-wife filed Marriage Petition No. 55 of 2012 in the Court of District Court, Pune under Section 25 of the Special Marriage Act, 1954, for declaration of marriage as null and void.

4. Thus, according to the appellant, the respondent obtained her consent for marriage by fraud; the appellant was ignorant to the first marriage of the respondent at the time of marriage; the respondent, at the time of registration of marriage, in the document of marriage has declared himself as bachelor; that he concealed the fact of his earlier marriage which was in existence on the date of marriage of the appellant with the respondent; and that at the time of her marriage with the respondent, the respondent's first marriage was subsisting and therefore according to the appellant, she is entitled for declaration of nullity of marriage.

5. The application was vehemently opposed by the respondent-husband. According to the respondent-husband, prior to his marriage with the applicant, they were having a love affair; that the respondent married with the daughter of his maternal uncle on 08.03.2007 at Bhusawal and the applicant was in knowledge of the said fact. According to the respondent, after his marriage he started residing with his wife at Dehu Road. According to the respondent, at the time of their marriage on 05.04.2010, the applicant was in knowledge of his first marriage and despite the same she married with him. According to the respondent, at the time of marriage, as such, he was not at all willing to marry to the applicant, however, because of the pressure of the applicant and her threat to commit suicide he was compelled to marry the applicant. It was also the case on behalf of the respondent-husband that there was a customary divorce between the respondent and his first wife, which was prior to the solemnization of the marriage between the applicant and the respondent. Therefore, it was the specific case on behalf of the respondent-husband that neither there was any fraud nor there was any suppression of his first marriage by the respondent-husband and therefore it was prayed to dismiss the petition.

6. The learned trial court framed the following issues :

"(1) Whether marriage of petitioner and respondent performed on 5.4.2010 under Special Marriage Act by suppressing previous marriage of respondent, performed on 8.3.2007 with Savita Patil i

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2019 Supreme(SC) 256

SUPREME COURT OF INDIAL. NAGESWARA RAO, M. R. SHAH, JJ.SWAPNANJALI SANDEEP PATIL – APPELLANTVERSUS SANDEEP ANANDA PATIL – RESPONDENTCIVIL APPEAL NO..........OF 2019 (ARISING OUT OF SLP(C) NO. 25080 OF 2016)Decided on : 06-03-2019

IMPORTANT POINTOnce marriage is void he same is a nullity and at any time same can be declared as nullity being a void marriage.

Cases Referred (2)

SUPREME COURT OF INDIA
L. NAGESWARA RAO, M. R. SHAH, JJ.
SWAPNANJALI SANDEEP PATIL – APPELLANT
VERSUS
SANDEEP ANANDA PATIL – RESPONDENT
CIVIL APPEAL NO..........OF 2019 (ARISING OUT OF SLP(C) NO. 25080 OF 2016)
Decided on : 06-03-2019

IMPORTANT POINT
Once marriage is void he same is a nullity and at any time same can be declared as nullity being a void marriage.