A petition for declaration of nullity of marriage under Sec. 11 of the Hindu Marriage Act, 1955, can only be filed by the parties to the marriage.

Ramratna Singh, J.

1. This appeal arises out of a petition filed before the District Judge of Purnea by the respondent under Sec.17 of the Hindu Marriage Act, 1955 . The respondent in this Court is the first wife of the appellant. He married for the second time another girl named Radha Rani Gupta. According to the respondent, the second marriage of the appellant took place on the 26th May, 1957, that is, long after the commencement of the said Act. The respondent, therefore, prayed in her petition that the appellant be adjudged guilty under Sec.17 of the Act. She added in her petition that she preserved the right to seek remedy against the appellant under Sec.11 of the Act. The petition was transferred by the District Judge to the Court of the first Additional District Judge, Purnea; and during the arguments before the learned Additional District Judge it was verbally prayed on behalf of the respondent that a decree in terms of Sec.11 be passed, that is, the marriage between the appellant and Radharani Gupta be declared null and void. The appellant opposed the petition on the ground that his marriage with Radha Rani Gupta took place on the 26th April, 1955, that is, about three weeks before the 18th May, 1955, when the said Act came into force.

2. The learned Additional District Judge accepted the case of the respondent and held that she was entitled to a declaration that the second marriage was null and void. Hence, this appeal.

3. Besides challenging the finding of fact, the learned Advocate for the appellant raised two legal questions, namely, (1) the petition could not be maintained at the instance of the first wife, and (2) the learned Additional District Judge was not competent to hear and decide the matter.

4. I shall take up first the contention that the petition cannot be maintained at the instance of the first wife. Sec.11 of the Act enacts: --

"Any marriage solemnized after the commencement or this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any of the conditions specified in Clauses (i), (iv) and (v) of Sec. 5." Sec. 5 enumerates the conditions of a valid Hindu Marriage; and Clause (i) thereof contains the condition that "neither party has a spouse living at the time of the marriage".

It was, therefore, conceded at the bar that, if the marriage of the appellant with Radharani took place on the 26th April, 1957, it would be null and void.

The question, however, is whether the Court was competent to grant a declaration under Sec.11 on a petition presented by the first wife of the appellant.

According to Sec.11, the petition must be presented by "either party" to the marriage solemnized after the commencement of the Act. It is plain, therefore, that such a petition can be entertained only if it is made by either of the two parties to the marriage. This was the view expressed by a Single Judge of the Madhya Pradesh High Court in Amarlal Gour V/s. Vijayabai, AIR 1959 Madh Pra 400 and a Single Judge of the Madras High Court in Lakshmi Ammal V/s. Ramaswami Naicker, AIR 1960 Mad 6; and we are of the opinion that this is the correct view. Hence, in the instant case, only the appellant or his second wife, who were the parties to the marriage in question, could file such a petition; and as the first wife, Suprava Gupta (the respondent) was not a party to this marriage, she was not entitled to present a petition under Sec.11.

5. What remedy has she then got? The scheme of the Act shows that it is not exhaustive except so far as it makes specific provisions. Sec. 4 lays down that the law in force" immediately before the commencement ot the Act shall "cease" to have effect with respect to any matter for which provision is made in this Act and in so far as it is inconsistent with any of the provisions contained in the Act. Sections 9, 10, 12 and 13 provide, respectively, for restitution of conjugal rights, judicial separation,