Rajani Kanta Acharya vs Jyotshna Rani Tripathy

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(Ori) 277

HIGH COURT OF ORISSA
SANJU PANDA AND B.R. SARANGI, JJ.
Rajani Kanta Acharya and another - Appellants
Versus
Smt. Jyotshna Rani Tripathy & another – Respondent
Rajani Kanta Acharya & another – Appellants
Versus
Smt. Jyotshna Rani Tripathy & another - Respondents
MATA No. 89 and 90 of 2010
Decided on 25th September, 2013

Advocates:
Advocate Appeared
For Appellants : Mr. Prasanta Ku. Panda
For Respondents: Mr. Sabyasachi Tripathi (R.1), Mr. H.K. Panigrahi (R.2)

Headnote:HINDU MARRIAGE ACT, 1955 - Sec. 5(1) and 11 - For a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage - A marriage in contravention of this condition, therefore, is null and void - Marriage of a woman in’ accordance with Hindu rites with a man having living spouse is complete nullity in the eye of law.
The plea that the marriage should not be treated as void because such a marriage was earlier recognized in law and custom cannot be accepted. By reason of the overriding effect of the Act as mentioned in Section 4, no aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. Such a marriage cannot also be said to be voidable by reference to Section 12. So far as Section 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnized in violation of Section 5 (i). Section 12(2) puts further restrictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. The marriages covered by Section 11 are void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a Court in a proceeding specifically commenced for the purpose. The provisions of Section 16 also throw light on this aspect. Section 16(3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively by Sections 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. (Para - 22)

JUDGMENT

S. PANDA, J. - Challenge has been made in MATA No. 89 of 2010 by the legal heirs of one Subhakanta Acharya to the judgment dated 11.11.2010 passed by the learned Judge, Family Court, Ganjam, Berhampur in Civil Proceeding No. 268 of 2010 with a prayer to declare the marriage between Subhakanta and respondent No.1 (hereinafter referred to as "J") as null and void.

2. The aforesaid appellants have also filed MATA No. 90 of 2010 challenging the judgment dated.11.11.2010 so far as Civil Proceeding No. 271 of 2010 is concerned. As both the appeals arise out of common judgment, they were heard together and are being disposed of by this common judgment.

3. The respective pleas of the applicants in the aforesaid civil proceedings are as follows:

It is contended by the applicant in Civil Proceeding No. 268 of 2010 that Subhakanta Acharya married to "J" on 6.3.2003 as per Hindu customs. Out of their wedlock, a daughter born. It came to the knowledge of Subhakanta that prior to his marriage, "J" married to respondent No.2 (hereinafter referred to as "N") on 24.12.2002. "J and "N" were married under the Special Marriage Act before the Marriage Officer following the statutory provision. During subsistence of the said marriage and having lived in spouse, "J" again married to him. As such, his marriage with her was a void marriage and to be declared the same as such. During pendency of the aforesaid application, Subhakanta died. After receiving notice, "N" who-was defendant No.2 before the Court below, neither filed any written statement nor contested the case. "J: who was defendant No. 1 before the Court below, filed her written statement contending that "N" is her cousin being son of her mother's sister and he is coming within the prohibited degree of relationship. Therefore, the alleged marriage is voidable. She also contended that "N" fraudulently created the documents which were treated as marriage documents though there was actually no marriage and they never resided as husband and wife. Subhakanta husband demanded dowry for which the dispute arose and he filed a false case. Hence, she prayed for dismissal of the proceeding.

4. In support of their respective pleas, 'J' examined three witnesses including herself •as P.W.1. The parents of Subhakanta examined two witnesses in C.P. No. 271 of 2010. The father of Subhakanta was examined as D.W.2.

5. "J" filed C.P. No. 271 of 2010 after receiving notice in C.P. No.268 of 2010 and filed her written statement. She contended that "N" being her cousin had access to her family. They were in visiting terms. On 24.12.2002, they went to Bhubaneswar to meet a friend but his friend was absent at Bhubaneswar. "N" brought some forms and at his instance, she signed on those papers in good faith. Practicing fraud, "N" created documents only to harass her. As they were within the prohibited degree of relationship and the alleged marriage was void "J" prayed for declaration of the said marriage as null and void. "J" married to one Subhakanta Acharya on 6.3.2003 and a daughter born out of the said wedlock. She was residing 'with her husband and girl child. "N" by playing mischief, informed Subhakanta that he married "J" earlier for which disturbance was started thereof. She was able to know all these fraudulent acts of "N" after receiving notice on divorce from said Subhakanta. "J" could know that her signatures were utilized by preparing a marriage certificate dated 24.12.2002. Hence, she filed an application to declare the alleged marriage with "N" to be void.

6. "N" filed his written statement in C.P. No. 271 of 2010 contending that the allegations were false and 'J' wanted to marry him. She collected all required papers and produced witnesses before the Marriage Officer for the said purpose. At that time, she was aged about 26 years. She is an educated lady. "N" disclosed her at that time that the papers were marriage papers and he promised not to disclose anyone about her signatures on those papers

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