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2018 Supreme(P&H) 2987
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
Hon’ble Mr. Justice Rakesh Kumar Jain
Hon’ble Mr. Justice Anupinder Singh Grewal
FAO-M-284 of 2016 (O&M)
Saroj Bala
v.
Kasturi Lal
{Decided on 31/10/2018}
Mr. Bhupinder Singh, Advocate for the respondent.
Marriage--Void Marriage--Customary Divorce--One does not attain the status of divorcee by obtaining divorce (Talak) by way of Panchayati Talaknama out of the Court unless the said custom is specifically pleaded and proved
Headnote:
(A) Hindu Marriage Act, 1956, S.11 & S.29(2)--Void Marriage--Customary Divorce--Appellant (Wife) has neither pleaded in her written statement while contesting the petition filed under Section 11 that she is governed by some custom in the matter of dissolution of marriage nor any such custom was brought by the appellant into the notice of the Court even during the trial of petition filed under Section 11 of the Act--Marriage of appellant with her second husband (petitioner) rightly held to be null and void as she was not legally divorced from her first husband.
(B) Hindu Marriage Act, 1956, S.11 & S.29(2)--Void Marriage--Customary Divorce--One does not attain the status of divorcee by obtaining divorce (Talak) by way of Panchayati Talaknama out of the Court--Section 29(2) though recognises such type of Panchayati Talaknama (divorce) out of the Court if the parties follow the custom but the custom needs to be pleaded and proved.
In the absence of a specific pleading in the reply that the appellant was governed by custom which permits her to seek dissolution of the marriage outside the Court, trial Court has not erred in not framing the said issue at that time and an omnibus issue was framed about the validity of the marriage. at the time when earlier petition under Section 13 filed in the year 2012, the respondent was aware only of the status of the appellant as a divorcee and had no knowledge as to how such divorce had been obtained but as soon as he came to know the manner in which the divorce was obtained, when she appeared in the witness box on 1.4.2014 to contest the petition under Section 9 of the Act, he filed the present petition on 30.9.2014.
(C) Hindu Marriage Act, 1956, S.11--Void Marriage--Living Spouse--There is no estoppel against the Statute which provides the condition for valid marriage of Hindus in Section 5(i) of the Act which specifically provides that neither party has a spouse living at the time of the marriage which means that the other party against whom the allegation is made that there is a living spouse has to prove that either that person with whom she had earlier married is no more in this world or their marriage has been dissolved in the manner recognised by law. (Para 7 & 8)
(D) Hindu Marriage Act, 1956, S.5 & S.11--Void Marriage--Nullity of Marriage--Difference between--Section 5(i) of the Act provides the conditions of the Hindu marriage as per which a marriage may be solemnised between two Hindus if neither party has a spouse living at the time of the marriage--Section 11 deals with nullity of marriage in which it is specifically provided that any marriage solemnised after the commencement of the Act shall be null and void and may on a petition presented by either party thereto be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. (Para 6)
JUDGMENT
Mr. Rakesh Kumar Jain, J. (Oral):- This appeal is directed against the order dated 2.5.2016 by which the learned trial Court has allowed the petition filed under Section 11 of the Hindu Marriage Act, 1955 (for short ‘the Act’) for declaration of the marriage of the parties to be null and void by a decree of nullity.
2. In brief, parties to the lis got married on 15.10.2007 as per Hindu rites at Jalandhar. The respondent-husband had initially filed a petition under Section 13 of the Act for seeking dissolution of marriage by a decree of divorce in which status of the appellant-wife was mentioned as Hindu divorcee. The said petition was ultimately withdrawn on 19.9.2013. Thereafter, the respondent had filed an application under Section 9 of the Act for seeking restitution of conjugal rights in which the appellant while appearing as RW1 on 1.4.2014 stated that the she had obtained divorce by way of “Panchayati Talaknama”. The said petition was however, withdrawn by the respondent. Thereafter, the respondent filed a petition under Section 11 of the Act for declaration of their marriage as null and void on the ground that the decree of divorce has not been obtained from the competent Court of law and therefore, at the time of marriage with him the appellant was already married and therefore, at the time of his marriage with the appellant, her first marriage was already subsisting. The appellant had filed written statement to the petition under Section 11 of the Act before the trial Court in which she did not plead anywhere that the Panchayati Talaknama was obtained by following the custom. Be that as it may, the trial Court, agreeing with the contentions of the respondent and keeping in view the fact that Panchayati Talaknama has no sanctity of law, came to the conclusion that the marriage of the appellant with the previous husband was subsisting at the time when she contracted the marriage with the respondent on 15.10.2007. The learned trial Court thus taking into consideration Section 5 (i) read with Section 11 of the Act held that the marriage between the parties was null and void as Section 11 of the Act provides that any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. At the same time, Section 5 of the Act provides that a marriage may be solemnised between two Hindus when neither party has a spouse living at the time of the marriage.
3. Faced with this difficulty, counsel for the appellant has referred to Section 29(2) of the Act to contend that since divorce (Talak) was obtained by her as per custom, therefore, the provisions of the Act would not apply.
4. Section 29(2) of the Act reads as under:
“Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after the commencement of this Act.”
5. He has also submitted that the learned trial court has committed an error in not framing a specific issue in terms of Order 14 Rule 1 of the CPC in regard to the dissolution of marriage by following the custom and in this regard, he has relied upon a decision of the Supreme Court rendered in the case of Yamanaji H.Jadhav Versus Nirmala 2002 AIR (SC) 971. It is further argued by him that the petition for divorce under Section 13 of the Act was filed by the respondent on 10.12.2012 and at that time he had mentioned the status of the appellant as a divorcee and had filed the petition under Section 11 of the Act on 13.9.2014. It is argued that since the respondent had the knowledge of the status of the appellant at the time when the petition under Section 13 of the Act was filed, he could not have filed the petition seeking annulment of the marria
