A marriage is void if one party is still married at the time of the subsequent marriage, and customary divorce must be legally recognized to be valid.

JUDGMENT :

(BIREN VAISHNAV, ACJ.)

1 This First Appeal has been filed by the appellant who was the original applicant in Family Suit No.285 of 2017 before the Family Court at Rajkot. By the judgement and order dated 15.10.2022, the family suit of the appellant for declaring the marriage with the respondent void has been dismissed.

2 Facts in brief are as under:

2.1 The appellant got married with the respondent on 30.05.2013. This marriage, according to the appellant, was after he obtained a divorce on 24.09.2012 in Family Suit No.85 of 2012. The appellant approached the Family Court by filing Family Suit No. 285 of 2017 requesting that the marriage with the respondent be declared void. It was his case that the marriage between the appellant and the respondent which was performed on 30.05.2013 be declared void. This was on account of the applicant’s case that on the date of their marriage, the respondent was already married. Therefore, the marriage between the appellant and the respondent be declared as void since the respondent, on the date of their marriage, was married and it was only on 13.05.2016 that the respondent obtained a decree of divorce by mutual consent from her previous husband.

2.2 It was the appellant’s case before the Family Court therefore that though the respondent had by a Deed of Customary Divorce dated 05.02.2013 obtained a customary divorce, the actual legal separation of the earlier marriage happened only when the respondent obtained a decree of divorce in the Family Court on 13.05.2016.

2.3 Obviously therefore, when the practice of obtaining a customary divorce had no sanctity in law, the present marriage, solemnized in the year 2013, be declared void as the previous marriage between the respondent and her husband was subsisting till 13.05.2016. A prayer accordingly was made before the Family Court.

2.4 The respondent filed a reply before the Family Court denying these allegations. It was her case that the Customary Divorce was obtained in the year 2012 prior to the marriage intended to between the appellant and herself. It was her case that the appellant was earlier married to one Sonika Chhibar, from whom he took a divorce by mutual consent on 24.09.2012. In her reply, she made allegations that the appellant was in a relationship with one Niharika Singh. She also in the reply, stated that though the marriage between the appellant and herself was subsisting, the appellant was still in a relationship with his previous wife Sonika Chhibar. She submitted that though a Customary Divorce was taken on 05.02.2013, a need occurred for obtaining a decree of divorce and therefore, a decree of divorce was obtained on 13.05.2016.

2.5 Based on the evidence on record, essentially Exh.30- the deposition of the appellant read with his cross- examination, Exh.36, the customary Deed of Divorce dated 05.02.2013 between the respondent and one Pratik Vasantrai Manek, Exh.37 Hindu Marriage Petition under Sec.13(B) between the respondent and the previous husband Pratik Vasantrai Manek and Exh.38 a decree dated 13.05.2016 obtained by the respondent of dissolution of the previous marriage and after examination and cross-examination of the respondent at Exh.47, the Family Court came to the conclusion that the provisions of the Hindu Marriage Act for declaring the marriage void could not have been invoked by the appellant as he had knowledge of the customary divorce which the respondent had obtained at the time of his marriage. The Family Court observed that by taking false shelter of obtaining a legal decree by the respondent from her previous marriage for the purposes of facilitating the respondent to move to a foreign country, the whole mechanizm was nothing but abuse. The Family Court held that after having enjoyed married life for over a period of four years with the respondent and having accepted her as his wife though there was no legal decree of divorce, the present suit so filed by the petitioner to declare his marriage null an