The second marriage performed during the subsistence of the first marriage is void under Section 17 of the Hindu Marriage Act.

O R D E R

Heard Mr. S.S. Khanduja, learned counsel appearing for the appellant and Ms. Anitha Shenoy, learned counsel appearing for the respondents.

Aggrieved by the judgment and decree passed by the Family Court dismissing application preferred by the wife under Section 17 of the Hindu Marriage Act , 1955 (in short 'the Act'), which has been affirmed by the High Court vide judgment and order dated 3.1.2006 passed in F.A. No. 306 of

2003.

Prayer in the application was that second marriage between Dr. Ashok Kumar Jain and Smt. Jyoti Jain was void and it be declared that the appellant was the legally wedded Signature Not Verified Digitally signed by NEELAM GULATI Date: 2017.09.07wife of the respondent- Dr. Ashok Kumar Jain. According to

15:52:44 IST Reason:

the appellant her marriage with Dr. Ashok Kumar Jain was performed on 2.3.1992 at Kundalpur in a Jain Temple according to Hindu rites by taking seven steps and father of the appellant gave dowry of Rs.2,00,000/- (Rupees two lakhs only). Thereafter the appellant and the respondent No.1 resided together as husband and wife and admittedly gave birth to a male child- Manu in the year 1996.

She was ultimately thrown out of the house alongwith her son by Dr. Ashok Kumar Jain for not bringing sufficient dowry.

Thereafter the respondent- Dr. Ashok Kumar Jain filed an application under Section 9 of the Act for restitution of conjugal rights. It was pleaded that appellant was wife of respondent no.1- Dr. Ashok Kumar Jain and respondent no.1- Dr. Ashok Kumar Jain at several paragraphs of application mentioned that there was marriage between him and the appellant. However, the said case was dismissed in default of the appearance of Dr. Ashok Kumar Jain. Thereafter without obtaining divorce from the appellant, Dr. Ashok Kumar Jain has performed re-marriage with respondent no.2- Smt. Jyoti Jain on 13.05.2001 which was illegal and void as per the provisions of Section 17 of the Act.

The respondent- Dr. Ashok Kumar Jain in his reply contended that no marriage was performed with the applicant as per the Hindu rites, only an agreement had been entered into between the parties. He later on came to know that notarised agreement could not be said to be valid form of marriage. Respondent No.2 had performed marriage with the respondent No.1- Dr. Ashok Kumar Jain in a Jain Temple in the year 2001.

The Family Court had passed judgment on 27.2.2003 dismissing the application holding that performance of marriage in accordance with Hindu rites has not been proved by the appellant. Relatives have not been examined and only the Agreement had been relied upon. The High Court had affirmed the judgment and order passed by the Family Court hence the appellant has come up in the appeal.

Learned counsel appearing on behalf of the appellant has submitted that the averments made in the application filed under Section 9 of the Act had not been taken into consideration either by the Family Court or by the High Court in which prayer had been made for restitution of the conjugal rights. Living together had not been denied apart from the fact that the son was born out of the wedlock has also not been disputed by Dr. Ashok Kumar Jain. The statement was made by the appellant that marriage was performed as per Hindu rites. Two witnesses have been examined to support factum of marriage, it was not necessary to multiply the witnesses. As such the courts below have committed error of law while dismissing the application filed under Section 17 of the Act.

Learned counsel appearing on behalf of the respondents has strenuously urged that Agreement had been executed on 16.1.1992. There is no cogent evidence indicating that marriage as per Hindu rites had been performed. Merely execution of the agreement could not be said to be valid form of the marriage. Learned counsel had relied upon the decision of this Court in Bhaurao Shankar Lokhande & Anr. vs State Of Maharashtra & Anr . [AIR 1965 SC 1564] and Gopal Lal vs. State of Rajasthan