IMPORTANT POINT
A marriage otherwise void under Section 11 on any ground like on the ground of Section 5 (i) cannot be refused taking shelter of Section 23.

B.P.Dharmadhikari, J.—Judgment delivered on 15th June, 2011 by the Judge, Family Court, Aurangabad in Petition No.B-1/2010 is questioned by the husband in Appeal No.21/2011 and by wife in Appeal No.22/11. Proceedings before the Family Court, Aurangabad were presented on 15th March, 2010 by husband – Dheeraj against wife – Kavita U/Section 11 of the Hindu Marriage Act, 1955 [ In short, “the Act”.] for declaring marriage between them performed on 20th December, 2009 as null and void.

2. Considering the nature of controversy, it appears, the earlier this Court has made efforts to dispose of these Appeals finally however, the Judgment could not be delivered.

3. We have heard Mr. Pramod Patni, learned counsel for Dheeraj – husband and Mr. Rajendra Deshmukh, learned counsel for Kavita – wife, in both the matters.

4. Basic facts are not in dispute. Family Court, Aurangabad framed following issues and answered the same as mentioned below

Issues Findings

1. Whether the petitioner proves that, the respondent was having a spouse living at the time of marriage with him on 20/12/2009.? Yes.

2. Whether the petitioner further proves that, the respondent malafidely suppressed aforesaid fact from him.? No.

3. Whether the respondent proves that the petitioner fabricated affidavit-cum-bond by obtaining her signature on blank paper as pleaded in Para No.5 of her Written Statement.? No.

4. Whether the petitioner is entitled for declaration, as prayed.? No.

5. What order and decree.? As per final order.

5. A fact that, Kavita was already married with Rajesh Naik [Rathod] on 22nd February, 1994 as per Hindu rites at Aurangabad, is not in dispute. The marriage between Kavita and Rajesh Naik [Rathod] came to be dissolved on 21st August, 2010 by decree of divorce by mutual consent U/Section 13(B) of “the Act”. Thus, marriage between Dheeraj and Kavita took place prior to said dissolution.

6. Though the Family Court recorded finding of the fact that Kavita was having spouse living at the time of her marriage with Dheeraj on 20th December, 2009, it recorded the findings that said fact was not suppressed by Kavita from Dheeraj and it further found that because of knowledge of that fact, husband – Dheeraj could not have taken advantage of said marriage and the Family Court used Section 23 of “the Act” against Dheeraj. It found that said Section confers discretion upon it either to grant or refuse relief however, such discretion needs to be exercised judiciously. It’s finding show that marriage between Kavita and Rajesh was within the knowledge of Dheeraj since 4 to 5 years before his marriage with Kavita and that he had sexual relations with Kavita, during the said period and, therefore, he could not be permitted to take benefit of his own legal wrong for ousting Respondent – Kavita as his wife. It found that, grant of declaration U/Section 11 of “the Act” by itself would amount to furthering “use and throw theory”.

7. The Judge, Family Court, Aurangabad recorded finding against Kavita on Issue No.3. It held that she could not prove that Dheeraj fabricated affidavit-cum-bond by obtaining her signature on blank paper. Said finding is questioned by Kavita in her Appeal No.22/11.

8. Mr. Pramod Patni, learned counsel for Dheeraj – husband has submitted that provisions of Section 23 of “the Act” does not supersede the provisions of Section 5(i) of “the Act” and if view of the Family Court is accepted, marriage which is void since its inception may cast legal obligation upon the parties thereto. He contended that, the provisions of Sections 5 and 23 of “the Act” need harmonious understanding and approach of the Family Court is, therefore, erroneous. According to him, Sec.11 of “the Act” declares such marriage void and obtaining a declaration from Court of law in that regard is not necessary. He supported his contention by placing reliance upon following authoritative pronouncements:-

Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 S.C.C. 530; A. Suba