A marriage solemnized during the subsistence of a previous marriage is void.

CHET RAM THAKUR, J. :- This appeal has arisen out of an application under Section 9 of the Hindu Marriage Act brought by Mansha Ram respondent against Sodha (appellant) alleging Smt. Sodha to be his wife. It was alleged that after their marriage they lived as husband and wife at the house of the respondent and out of that wedlock a son was born, who is about 2 years of age. In August, 1964, the wife left his house at the instigation of her father and did not return to the matrimonial home despite several efforts on the part of the husband and notice in this behalf sent by him. This way the wife had withdrawn from the society of the husband without any reasonable cause and he, therefore, sought a decree for restitution of conjugal rights.

2. The petition was resisted and it was pleaded that she was not a legally wedded wife of the petitioner. She had eloped with him who kept her in his house for about three months in the year 1964 and the child was not that of the petitioner. She also made allegations of cruelty, and further alleged that the petitioner had been compelling her for sexual intercourse with his other brothers and he himself was a drunkard and she has a reasonable apprehension in her mind that it will not be safe for her to live with him. Allegations of desertion were also made. The following issues were framed by the Senior Sub-Judge, who had the delegated powers of a District Judge to hear cases under the Hindu Marriage Act :-

1. Whether there is a valid marriage subsisting between the petitioner and the respondent? O.P.P. (onus objected to).

2. Whether the respondent has withdrawn from the society of the petitioner without any reasonable cause?.... O.P.P.

3. Whether the petitioner has treated the respondent with such cruelty as to cause reasonable apprehension in her mind that it will be harmful and injurious for her to live with him?........O. P. R.

4. Whether the petitioner has deserted the respondent for a period of more than two years?................O. P. R.

5. Relief.

Issues 1 and 2 were found for the petitioner and issues Nos 3 and 4 were decided against the respondent. In fine the court passed a decree for restitution of conjugal rights in favour of the petitioner (respondent in appeal).

3. It is a common ground between the parties that Smt. Sodha was formerly married to Hukmi (P.W. 2). The case of the respondent is that the appellant had obtained a divorce from Hukmi and it was thereafter that she contracted a Parena marriage with him. But the contention of the appellant is that she is still the wife of Hukmi Ram as there was no valid and legal divorce between them. Her further contention is that Mansha Ram had taken her away from her father's house and during her stay at the house of respondents she was maltreated and compelled to have sexual intercourse with his brothers. Hence she was forced to leave the house of the respondent. The respondent argued that the divorce was quite legal and there was a valid marriage between the parties as stood admitted by the present appellant in her reply to the notice sent by the petitioner respondent to the appellant through her counsel. Besides he argues that the long residence and co-habitation of Smt. Sodha with the respondent raised a presumption of marriage.

4. In view of the admitted facts on both hands that Sodha was formerly the wife of Hukmi it is to be determined whether there was or could there be any valid divorce between Sodha and Hukmi? If it is found that there was no legal divorce, then the second point whether there was any marriage with Mansha Ram will be of no avail.

5. Hukmi Ram the previous husband has appeared as P.W. 2 and he was examined on 25th July, 1967 and on that date he stated his age 20 years. According to his statement his marriage with Sodha was solemnised about four years ago, meaning thereby that he was about 16 years of age at that time. From his statement it is further revealed that the divorce was effected two months after the mar