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IN THE HIGH COURT OF ALLAHABAD
Deoki Nandan, J.
AINA DEVI - Appellant
Versus
BACHAN SINGH - Respondents
First Appeal 286 Of 1976
Decided On : 01/07/1980
HINDU MARRIAGE ACT - SECTION 5(I) - NULLITY OF MARRIAGE - BIGAMY - WIFE LIVING AT THE TIME OF MARRIAGE - DELAY IN FILING PETITION - LACHES - ACQUIESCENCE - SECTION 23(1)(D) - INTERPRETATION.
Fact of the Case:
The petitioner, a woman, filed a petition under Section 11 of the Hindu Marriage Act, 1955, seeking a declaration of nullity of her marriage with the first respondent on the ground that he had a wife living at the time of their marriage. The first respondent denied the allegation and claimed that the second respondent, who was alleged to be his wife, was actually the wife of his brother. The petitioner also alleged that she had been married to three other men before her marriage to the first respondent, and that all three of them were living at the time of her marriage to the first respondent.
Finding of the Court:
The court found that the petitioner had failed to prove that the first respondent had a wife living at the time of their marriage. However, the court also found that the petitioner had been married to three other men before her marriage to the first respondent, and that all three of them were living at the time of her marriage to the first respondent. The court held that this constituted a contravention of the condition prescribed by Clause (i) of Section 5 of the Hindu Marriage Act, 1955, and that the marriage between the petitioner and the first respondent was therefore null and void.
Issues: 1. Whether the first respondent had a wife living at the time of his marriage to the petitioner? 2. Whether the petitioner had a spouse living at the time of her marriage to the first respondent? 3. Whether the petition was unnecessarily delayed? 4. To what relief, if any, is the petitioner entitled?
Ratio Decidendi: The court held that the marriage between the petitioner and the first respondent was null and void because the first respondent had a wife living at the time of their marriage. The court also held that the petitioner's delay in filing the petition did not disentitle her to relief, as the policy of the law is to further the policy of the law, and not to defeat it.
Final Decision: The court allowed the appeal and declared the marriage between the petitioner and the first respondent to be null and void. The court also ordered the first respondent to pay the costs of the proceedings.
( 1 ) THIS is a wifes first appeal from a judgment dated 8th May, 1976 of the Court of the District judge, Tehri Garhwal, dismissing her petition for declaring her marriage with the first respondent a nullity under Section 11 of the Hindu Marriage Act on the ground that the first respondent was already married and had a wife living in the person of the second respondent, when he married the petitioner-appellant.
( 2 ) THE appellants case as set out in her petition which is dated 13th May, 1974, was that the first respondent had married the second respondent some 10 years ago and a daughter Kamla was born to them prior to Samvat 2025, that is 1968-69, and they were living as husband and wife since long before, it was then pleaded that the petitioners father having died when she was about 7 or 8 years old, that is, some 15-16 years before the filing of the petition; and the pe-tioners mother having become a cripple some 10 years ago and being unable to look after her cultivation, she needed a Ghar Jawai, and with that intention the first respondent was taken by the petitioners mother as a Ghar Jawai, that is, as the petitioners husband who had to live at the petitioners place and look after the cultivation and maintain the petitioner. The first respondent was alleged to have been taken as Ghar Jawai by the petitioners mother in Samvat 2025 that is in the year 1968-69, but the first respondent lived with the petitioner for only about 10 months and that too intermittently as a Ghar Jawai and left her thereafter for good. On these facts, the petitioners marriage with the first respondent was alleged to be void as the first respondent already had a wife living in the person of the second respondent with whom the first respondent had continued to live after leaving the petitioner, and had even begotten two more children thereafter on the second respondent. By an amendment of the petition it was further claimed that even before the first respondent was kept as a Ghar Jawai by the petitioners mother, three more ghar Jawais had been successively kept by the petitioners mother as the petitioners husbands and had one alter the other left her. They were, however, all living, and on this ground also it was alleged that the petitioners marriage with the first respondent was void, for contravening the condition against bigamy.
( 3 ) IN defence, the two respondents pleaded that Smt. Purna Devi was not the wife of the first respondent, but was the wife of his brother Yudhvir Singh, and the children born of the second respondent were begotten on her by Yudhvir Singh and not by the first respondent. The allegation of the petitioners earlier marriages with the three named persons in succession, was denied. In the alternative it was pleaded that even if it was assumed for the sake of argument that the second respondent was the wife of the first respondent, although that was denied as incorrect and false, the petitioner was not entitled to any relief for having condoned the first respondents past conduct by voluntarily co-habiting with him. It was also pleaded that the petition was liable to be dismissed on account of the inordinate delay in filing it, more than five years after the event.
( 4 ) THE following were the issues framed by the learned District Judge, who tried the suit:
1. Did the opposite party No. 1 have opposite party No. 2 as his wife at the time of his marriage with the petitioner? 2. Did the petitioner have a spouse living at the time of her marriage with opposite party No. 1? 3. Is the petition unnecessarily delayed? If so its effect? 4. To what relief if any is the petitioner entitled?
( 5 ) ON the first issue, the learned District Judge found that the petitioner had failed to establish that the first respondent Bachan Singh was married to the second respondent Purna Devi; on the second issue, that the petitioner had also failed to establish that she had spouse living at the time of her marriage with the first resp
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