Void marriage under Section 11 HMA for subsisting prior spouse upheld; admission via affidavit post-notice suffices without proving ceremonies; 654-day appeal delay not condoned for lack of bona fide explanation.

JUDGMENT :

Arindam Sinha, J.

1. Mr. Saurabh Sachan, learned advocate appears on behalf applicant- appellant and presses for admission of the appeal on condonation of reported delay of 654 days. Mr. Ajai Kumar Srivastava, learned advocate appears for respondent.

2. Applicant-appellant was wife in the marriage declared void by judgment dated 18th August, 2023 of the Family Court. Mr. Sachan presses for admission on submission that respondent took ground under section 12(1)(c) in Hindu Marriage Act, 1955. Sub-clause (ii) under clause (a) in sub-section (2) of section 12 bars respondent from having taken the ground since he, subsequent to filing of the petition, cohabitated with his client and there was a baby from the union.

3. The application for condonation of delay was moved on 18th February, 2026. Paragraph 3 from our order made that day is reproduced below.

"3. There is an element of necessity to hear merits of applicant's case, even for answering the question on condonation of delay. As such list the application and appeal on 12th March, 2026 marked at 02:00 pm."

4. Mr. Sachan relies on several judgments. Firstly, view taken by a Division Bench of Calcutta High Court on judgment dated 9th February, 1988 in C.O. no.3334 of 1987 [Binapani Hatui (Smt.) Vs. Ashoke Kumar Hauti] reported in 1987(92) Cal WN 900 . Paragraph 3 from the judgment (Law Finder print) is reproduced below.

"3. It appears from the plaint of the said suit that the plaintiff opposite party filed a suit for declaration that the marriage solemnized between the plaintiff opposite party and the defendant petitioner Sm. Binapani Hatui under the Hindu Marriage Act was null and void because the said defendant petitioner was pregnant by some other person at the time of the marriage. It appears to us that any marriage solemnized after the commencement of the Hindu Marriage Act is not null and void on the ground that the wife was at the time of marriage pregnant by some other person but such marriage shall be voidable and it may be annulled by a decree of nullity under section 12 of the Hindu Marriage Act. The learned Counsel for the defendant-petitioner is justified in his contention that for annulling a marriage on such ground, an application is to be made under the provisions of the Hindu Marriage Act before the appropriate forum, and a declaratory suit cannot be instituted. In any event, no declaration can be made in the suit that such marriage was null and void from the beginning. He has, therefore, rightly contended that the application for injunction should not have been entertained in a suit which on the face of it appears to be misconceived."

(emphasis supplied)

He next relies on view taken by a learned single Judge of Punjab and Haryana High Court on judgment dated 19th January, 2007 in F.A.O. no.76-M of 2002 (O&M) ( Balwinder Kaur Vs. Gurmukh Singh ) Paragraph 12 from the judgment (Law Finder print) is reproduced below.

"12. The consequences of declaring a marriage as void are serious and far-reaching. Such declaration not only effects parties to the marriage but it also effects the innocent persons, such as children born from the marriage. Therefore, the question of declaring a marriage nullity should not be lightly taken and decided until and unless it is clearly established that a ground provided under Section 11 of the Act for declaring the marriage void exists. of the Act provides that a marriage can be declared null and void on a petition presented by either of the parties, if it was performed in contravention of any of the conditions specified