No subsequent act can validate a marriage that is void under the law, and the provision seeks to prohibit second marriage during the subsistence of the first marriage.

Headnote:
Hindu Marriage Act - Validity of Second Marriage During Subsistence of First Marriage - S.5(i) of Hindu Marriage Act, 1955 - Sec. 5(i), Sec. 11 - The court held that the second marriage solemnized during the subsistence of the first marriage in contravention of S.5(i) of Hindu Marriage Act, 1955, cannot be declared as valid even if the first marriage is subsequently dissolved by a decree of the Court. The court relied on Sec. 5(i) and Sec. 11 of the Act to support its conclusion that the marriage with the respondent is void under Sec. 5(i) read with Sec. 11 of the Act. The court emphasized that no subsequent act can validate a marriage that is void under the law, and that the provision seeks to prohibit second marriage during the subsistence of the first marriage.
Fact of the Case:

The appellant sought a declaration to declare her marriage with the defendant as valid, despite the fact that her first marriage was still subsisting at the time of the second marriage. The trial court concluded that the suit seeking a declaration of the marital status of the plaintiff with the defendant is not maintainable based on Ss. 5 and 11 of the Hindu Marriage Act.
Finding of the Court:

The court found that the second marriage was void under Sec. 5(i) read with Sec. 11 of the Hindu Marriage Act, and that no subsequent act can validate a marriage that is void under the law. The court also upheld the trial court's decision to treat the issue relating to maintainability of the suit as a preliminary issue and to dismiss the suit without recording evidence.
Issues: The issues included the validity of the second marriage during the subsistence of the first marriage, the maintainability of the suit, and the treatment of the issue as a preliminary issue.
Ratio Decidendi: The court emphasized that no subsequent act can validate a marriage that is void under the law, and that the provision seeks to prohibit second marriage during the subsistence of the first marriage. The court also highlighted that if admitted facts in the pleadings attract a provision of law and on the application of such law, if the judgment could be pronounced on the relief claimed in the suit, there is no need to hold the trial to record the evidence.
Final Decision: The appeal was dismissed, and the court held that the dismissal of the suit and the appeal will not come in the way of the plaintiff seeking appropriate relief available under law to seek redressal of her grievance relating to cheating or any other offence.

JUDGMENT :

Anant Ramanath Hegde, J. –

1. (a) Whether the second marriage which is solemnized during the subsistence of the first marriage in contravention of S.5(i) of Hindu Marriage Act, 1955, can be declared as valid if the first marriage is subsequently dissolved by a decree of the Court ?

This is one of the questions that is required to be answered while deciding this case.

2. The facts necessary for adjudication of the case are narrated as under;

The appellant-plaintiff before the Principal Judge, Family Court, Ballari filed a suit in O.S.No.19/2018 seeking a declaration to declare that her marriage with the defendant said to have been solemnized on 26/9/2013 is a valid marriage and that the plaintiff is legally wedded wife of the defendant.

3. According to the appellant, her marriage with the respondent is solemnized on 26/9/2013 and is registered before the jurisdictional Sub-Registrar. The suit was contested by the respondent, disputing her claim. Based on the pleadings, the family Court framed five issues and the issue No.3 relating to maintainability of the suit is treated as a preliminary issue.

4. The plaint averments itself disclose that on 19/3/2008, the plaintiff married one Pampapati. Even according to the plaintiff, the marriage with Pampapati was not dissolved by the competent Court when she married the respondent on 26/9/2013. It is further claimed that after her marriage with the respondent, the petitioner's first marriage with Pampapati was dissolved in terms of judgment and decree dtd. 17/9/2014 based on a mutual petition filed seeking divorce.

5. By referring to the above said pleadings and contentions raised by the parties, the trial Court has treated issue No.3 as a preliminary issue and has concluded that the suit seeking a declaration of the marital status of the plaintiff with the defendant is not maintainable. The trial Court has placed reliance on Ss. 5 and 11 of the Hindu Marriage Act (for short 'the Act') to support the said conclusion.

6. Sec. 5 of the Act deals with conditions for a Hindu Marriage. In terms of Sec. 5(i), for the marriage to be valid under the Act, neither party should have a spouse living at the time of marriage. As per Sec. 11 of the Act which deals with void marriages, any marriage solemnized in contravention of any one of the conditions prescribed in Sec. 5(i) (iv) (v) of the Act, is void. Applying these two provisions, the trial Court has held that the declaration as sought by the plaintiff cannot be granted, as her marriage with the respondent is void under Sec. 5(i) read with Sec. 11 of the Act.

7. The learned counsel for the plaintiff-appellant Mr Nadaf in support of his grounds urged in the appeal memo would make the following submissions.

(a) The 1st marriage of the plaintiff is dissolved in terms of the decree for divorce dtd. 17/9/2014 in MC No.288/2013 on the file of Family Court, Ballari. Thus, the marriage solemnized on 26/9/2013 between the plaintiff and defendant should be declared valid and this aspect should have been decided after holding the trial.

(b) The trial court committed error in dismissing the suit without recording the evidence of the parties. It is further urged that issue No.3 could not have been treated as a preliminary issue.

8. This Court perused the records particularly the pleadings and this Court has considered the contentions raised at the bar.

9. Sec. 5 of the Act, prescribes conditions for a Hindu marriage. As per Sec. 5 (i) a marriage may be solemnized between two Hindus if neither party has a spouse living at the time of the marriage. The remaining conditions prescribed in the said Sec. 5 of the Act are not relevant for the adjudication of this case. Sec. 11 of the Act deals with void marriages. If any one of the conditions specified in clauses (i), (iv)and (v) of Sec. 5 is contravened, then the marriage is void. Admittedly, in this case, the 2nd marriage of the plaintiff with the defendant was solemnized on 26/9/2013. The 1st marriage of the

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