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JHARKHAND HIGH COURT
H.C. Mishra and Dr. S.N. Pathak, JJ.
Sushil Kumar Yadav —Appellant
versus
Smt. Indu Devi —Respondent
First Appeal No.219 of 2012
Decided on 10.5.2017
Counsel for the Parties:
For the Appellant:Mr. Gautam Kumar, Advocate
For the Respondent:Mr. Naresh Prasad Thakur, Advocate
IMPORTANT POINT
Where marriage was performed by a wife who has a living spouse, in that case second marriage is null and void.
Headnote:Special Marriage Act, 1954—Section 24—Null and void marriage—Declaration of—Suppression of factum of earlier marriage by wife—Defendant/respondent has married plaintiff/appellant during lifetime of her first husband—Even if it is presumed that this was well within knowledge of plaintiff/appellant, defendant/respondent cannot be absolved from liability of seeking divorce from her first husband—Status of a Hindu women marrying a Hindu male with a living spouse, such marriage would be treated to be null and void—Trial court erred in law as well as in fact while deciding issues in favour of defendant/ respondent in as much as defendant/ respondent did not take divorce from her first husband and in violation provisions of Section 4(a) of Special Marriage Act, 1954 she married plaintiff/appellant—Second marriage of defendant/respondent-wife has no legal sanctity in eye of law during living of spouse—Second marriage is ipso jure void and as such, second marriage has to be ignored as not existing in law at all—Z Marriage of defendant/respondent with plaintiff/appellant be declared null and void. (Paras 9, 10 and 11)
Result: Appeal allowed.
Dr. S.N. Pathak, J.—Heard learned counsel for the parties.
2. The appellant is aggrieved by the Judgment dated 27.09.2012, passed in MAT Case No. 36 of 2006/S.L. No. 79 of 2009, by Principal Judge (Family Court), Sahibganj whereby the suit preferred by the plaintiff under Section 24 of the Special Marriage Act, 1954 to get decree of declaration of marriage as null and void, has been dismissed.
3. The case of the plaintiff/appellant in brief is that his marriage was solemnised on 27.09.2002 with Indua Devi (defendant/respondent) at Maldah (West Bengal) under the provisions of Special Marriage Act, 1954 and a Marriage Certificate to this was issued by Special Marriage Officer, Maldah which is in possession of defendant/respondent. After their marriage both the parties started living together at village Lalban, P.S. Rajmahal, District - Sahibganj and was consummated. After few days of their marriage, the appellant came to know that respondent was earlier married to one Sri Ram Bilas, resident of village - Chakrafu Ekchari, P.S. Kahalgaon, District - Bhagalpur (Bihar) and out of said wedlock, she has a 13 years son who was studying at Mundli Mission School at Mundli, P.S. Rajmahal, District - Sahibganj. The appellant further came to know that prior to her second marriage, the appellant had undergone operation for Vasectomy and as such she would not be able to conceive and give birth to the child. It is alleged that in order to claim paternal property of the appellant, the respondent had hatched a conspiracy and succeeded in solemnisation of second marriage with the appellant by playing fraud by concealing previous relationship. This led to strange relationship between the appellant and the respondent and resultantly there is no relationship between both of them and are living separately since long and Matrimonial Suit has been filed for declaring the marriage as null and void.
4. On being noticed, the defendant/respondent appeared and filed her written statement denying the allegations made in the plaint. The respondent further disclosed that at the time of marriage the appellant was doing job as a Government contractor and was also employed in a Truck and earning more than Rs.2 Lac. per year. It is further alleged that the appellant used to earn more than Rs.2,00,000/- per annum out of his ancestral properties. The appellant was well aware about first marriage of the respondent with Ram Bilash. He was also well aware about her son Abhishek Kumar since his childhood who was born out of wedlock from her first husband. The respondent was friend of appellant’s sister and this family relations developed into love affairs. Respondent had ended marital relation with previous husband and left the house under unavoidable circumstance to marry the appellant. Nothing was secret and appellant was well aware about entire things. It is further alleged that after their marriage, both the parties started living together with her son Abhisek Kumar. In the agreement dated 12.06.2002 executed by the appellant Sushil Kumar Yadav, all the previous matter has been duly disclosed. It is further alleged that there was no conspiracy to grab the properties of the appellant and she was treated by the doctor to reopen Vasectomy. The respondent has lodged an F.I.R. against the appellant as he has married with another lady Sanjy Kumar on 04.12.2006. The appellant is also known as Suhil Kumar Singh and Sushil Kumar.
5. On the basis of pleadings of the parties, following issues have been framed by the trial court.
(1) Whether the present suit/ petition is maintainable?
(2) Whether the plaintiff/petitioner has got valid cause of action to sue?
(3) Whether respondent/ defendant Indu Devi is legally married wife of petitioner/ plaintiff?
(4) Whether the plaintiff/ petitioner was fallen in love since the school period?
(5) Whether the petitioner/ plaintiff had executed an agreement dated 12.06.2002 prior to registration of marriage?
(6)
