A marriage can be declared null and void under Section 11 of the Hindu Marriage Act, 1955, if either party has a living spouse at the time of the marriage.

JUDGMENT :

GOUTAM BHADURI, J.

1. Heard.

2. The instant appeal has been filed against the judgment and decree dated 04.03.2016 passed in Civil Suit No. 620/2015 passed by the Principal Judge, Family Court, Durg, District Durg (C.G.) whereby an application filed by the appellant/applicant under Section 11 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act 1955’) seeking declaration of nullity of a marriage dated 11.06.2014 in between the appellant and the respondent, was dismissed.

3. Brief facts of the case are that the appellant/husband filed an application under Section 11 read with Section 5 (i) of the Act, 1955 on the ground that he performed a marriage with the respondent on 11.06.2014 at village Arasnara, Post Office Nandkatti, Police Station Nandini Mines, Tehsil and District Durg (C.G.). It was pleaded that in the presence of the villagers on 11.06.2014 marriage was performed with the respondent which was scribed into an agreement of Rs. 50/- wherein the villagers put their signature. It was further stated that before the date of marriage with the present respondent on 11.06.2014 the appellant was already married with one Uma Nishad and out of their wedlock a child was also born. It was also pleaded that the existence of the earlier marriage was informed to the non-applicant, her parents and the witnesses. The appellant further stated that on 20.10.2015 respondent left her. It was stated that since the appellant was married at an earlier point of time on 24.02.2012 and the earlier wife since was living as such the marriage dated 11.06.2014 is required to be declared as nullity under Section 11 read with Section 5 (i) of the Act, 1955.

4. Before the learned Court below the wife/respondent appeared and admitted the fact that the appellant/husband was married at an earlier point of time was known to her. She further contended that on 11.06.2014 she was pregnant and gave birth to a child on 17.06.2014 and the father of the child was one Dinesh Sahu, not the appellant. Learned Court below dismissed the application preferred by the husband/appellant on the ground that the petition was filed in connivance with the respondent and the appellant/husband cannot be given benefit of his own wrong.

5. Learned counsel for the appellant would submit that there was no occasion to dismiss the petition as there was an admission made by the wife that she was in know of the fact that at the time of subsequent marriage the earlier spouse was living and since it was not rebutted, the Court below should have granted the decree of nullity. He would further submit that the order of the Court below, therefore, being not sustainable is required to be set aside.

6. We have heard learned counsel for the appellant and perused the documents.

7. No representation is made before this Court on behalf of the respondent.

8. Perusal of the application filed by the husband/appellant would show that marriage dated 11.06.2014 was sought to be declared as nullity in the background of the fact that the appellant/husband was already married on that date and in the lifetime of the earlier wife the second marriage was performed. It was further pleaded that in the presence of the villagers on 11.06.2014 the agreement of marriage was executed which is filed as Ex. P-1. In response to it the wife in the written statement admitted the fact that on the date of marriage on 11.06.2014 the earlier wife of the appellant namely Smt. Uma Nishad was living and out of the wedlock a child was also born whose name is Tejal and she is 2½ years old. It was further admitted that the wife and relatives had the knowledge of the fact that the earlier wife of the appellant was still living. In the additional pleading the wife contended that on 17.06.2014 she gave birth to a child whose name is Himanshu and denied the fact that the present appellant is the biological father of the said child Himanshu and it was Dinesh Sahu.

9. The evidence of the appellant Saket Nishad would show