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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Biren Vaishnav, Maulik J.Shelat, JJ.
Nishaben W/O Nareshkumar Dalabhai Bochiya - Appellant
Versus
Nareshkumar Dalabhai Bochiya – Defendant
R/First Appeal No. 2318 of 2022, With, Civil Application (For Stay) No. 1 of 2022, Civil Application (For Interim Relief) No. 1 of 2024, R/First Appeal No. 2319 of 2022
Decided On : 16-12-2024
(A) Family Courts Act, 1984 - Section 19 - Hindu Marriage Act, 1955 - Sections 5(i) and 11 - Appeals arising from Family Suit No. 33 of 2020 and Family Suit No. 17 of 2021 - The Family Court's decree allowing restitution of conjugal rights while rejecting the wife's divorce petition was overturned due to the husband's prior undissolved marriage, rendering the second marriage void. (Paras 4, 9, 15, 16)
(B) Validity of Marriage - The court held that a marriage solemnized while a previous marriage is subsisting is null and void unless legally dissolved by a competent court, reaffirming the necessity of a valid divorce decree. (Paras 12, 13, 15)
Facts of the case:
The parties married on 06.12.2019, but the husband had not legally divorced his first wife, leading to disputes and subsequent legal actions for restitution and divorce.
Findings of Court:
The marriage of the appellant with the respondent was declared null and void due to the existence of the husband's first marriage.
Issues: Whether the plaintiff proved he was the legally wedded husband, and whether the defendant was entitled to a decree of divorce.
Ratio Decidendi: A marriage is void if one party is still married to another; the Family Court erred in validating an informal divorce deed.
Result: Family Suit No. 33 of 2020 dismissed; Family Suit No. 17 of 2021 allowed.
JUDGMENT :
MAULIK J.SHELAT, J.
1. Both these appeals are filed under Section 19 of Family Courts Act, 1984 (herein after referred as the Act, 1984) arising out of the common judgment and decree passed by Principal Judge at Palanpur, Family Court, District Banaskantha in Family Suit no. 33 of 2020 and Family Suit No.17 of 2021 respectively.
2. The parties to the appeal are appellant - wife and respondent - husband who have solemnized their marriage on 06.12.2019 according to Hindu rites and rituals and their marriage was registered on 10.12.2019. After sometime, the dispute started between the couple, which eventually broken their matrimonial life, whereby wife has left her matrimonial home, which has resulted into filing of Family Suit No.33 of 2020 by husband – respondent under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act, 1955”) for obtaining restitution of conjugal rights. Likewise, the appellant – wife has also preferred a suit as Family Suit No. 17 of 2021, albeit, under the Act, 1955 for obtaining decree of divorce from the respondent – husband. Both these suits appear to have been consolidated and decided by way of impugned common judgment. We also would like to decide lis between the parties by way of this common judgement.
3. The common evidence appears to have been led wherein following oral and documentary evidence submitted by the respective parties.
| Sr. No. | Oral and Documentary Evidence | Ex.No. |
| 1. | Deposition of plaintiff. | 23 |
| 2. | True copy of marriage certificate of parties. | 25 |
| 3. | True copy of affidavit of defendant before notary public. | 26 |
| 4. | True copy of complaint filed by defendant before Mahila Police Station, Palanpur. | 27 |
| 5. | True copy of complaint given by defendant to D.S.P., Palanpur. | 28 |
| 6. | Copy of defendant's statement in Mahila Police Station, Palanpur. | 29 |
| 7. | Copy of statement of Rameshpuri (defendant's father) in Mahila Police Station, Palanpur. | 30 |
| 8. | Copy of statement of Shilpaben (defendant's mother) in Mahila Police Station, Palanpur. | 31 |
| 9. | Copy of statement of Bhanuben (defendant's aunt) in Mahila Police Station, Palanpur. | 32 |
| 10 | Copy of defendant's statement in Palanpur city east police station. | 33 |
| 11. | Copy of written application given by plaintiff at Palanpur city west police station. | 34 |
| 12 | Copy of written application given by plaintiff at Palanpur city west police station. | 35 |
| 13 | Copy of interim order passed in R/CRIMINAL MISC. APPLICATION NO.14716/2020 in Hon. Gujarat High Court on dtd. 08/10/2020. | 36 |
| 14 | Copy of interim order passed in R/CRIMINAL MISC. APPLICATION NO.14716/2020 in Hon. Gujarat High Court on dtd. 28/10/2020. | 37 |
| 15. | Copy of rent agreement of plaintiff. | 38 |
| 16. | 60 Photographs of parties. | 39 |
| 17. | Copy of CRMA No.627/2020 (637/2020) filed by plaintiff before the Hon. Gujarat High Court to quash the F.I.R. No. 114/2019 filed in the Palanpur City Police Station | 40 |
| 18. | Copy of plaintiff's reply in case filed against him i F.I.R. No.45/2014 in Deodar police station. | 41 |
| 19. | Copy of written application given by plaintiff to D.A.F Banaskantha. | 42 |
| 20. | Copy of acknowledgment receipt. | 43 |
| 21 | Deposition of witness, Montukumar Shankarbh Thakor. | 48 |
| 22. | Copy of divorce deed executed between plaintiff an his first wife, Manjulaben. | 62 |
| 23 | Depostion of defendant | 51 |
| 24 | Deposition of witness, Rameshpur Manipur Goswami | 54 |
| 25 | Deposition of witness, Shilpaben Rameshpur Goswami | 56 |
4. The issues were framed at Exh. 22 which have been answered by the Family
A marriage is invalid if one party is still married to another; informal divorce deeds lack legal standing unless recognized by a competent court.
The appeal was partly allowed to remand the application for permanent alimony, confirming the divorce decree as unchallenged.
The statutory provision allows for divorce if no restitution of conjugal rights occurs for over a year post-decree, validating the grounds for divorce.
Mutual consent divorce can be granted even if one party did not initially contest, provided both parties agree to the terms and conditions.
A subsequent marriage is void if one party is still married at the time of the new marriage, violating the Hindu Marriage Act.
Restitution of conjugal rights – Remedy of restitution of conjugal rights is a positive remedy that requires both parties to live together and cohabit – Rights and duties arising out of marriage are ....
The main legal point established in the judgment is that the appellant failed to prove her marriage with the respondent and her claim of living together as husband and wife, leading to the dismissal ....
Point of law: Bigamous marriages are illegal as per the provisions of law but they are not immoral hence a financially dependent women cannot be denied maintenance, on the ground of being a second wi....
The Family Court can nullify its own divorce decree if obtained through fraud, emphasizing the necessity of meeting legal prerequisites for mutual consent divorce.
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