THE HON’BLE SMT. JUSTICE MOUSHUMI BHATTACHARYA AND THE HON’BLE SMT. JUSTICE M.G.PRIYADARSINI JUDGMENT: (Per Hon’ble Justice Moushumi Bhattacharya No one appears for the respondents despite respondent being served on 10.06.2024.

2. Heard Sri R.Pavan Reddy, learned counsel for the appellant.

3. The appeal arises out of an impugned order dated 28.04.2023 by which the appellant’s petition for a decree of divorce was dismissed by the Trial Court.

4. A perusal of the petition filed by the appellant however shows that the said petition was filed under Section 11 of The Hindu Marriage Act, 1955 as opposed to Section 13(i) of the said Act.

5. The case of the appellant is that the marriage between the appellant and the respondent should be declared null and void for non-conformity with Section 5(i) of the Act. In other words, Section 11 of the Act deals with void marriages and stipulates that any marriage solemnized after the commencement of the Act shall be rendered null and void on a petition presented by either party to the marriage and be declared as such by a decree of nullity if it contravenes any one of the conditions specified under Section 5(i), (iv) and (v)

of the Act.

6. Section 5(i) of the Act provides that the marriage may be solemnized if neither party has a spouse living at the time of marriage amongst other conditions. Learned counsel for the petitioner submits that the petitioner discovered the fact of the respondent’s earlier marriage soon after the petitioner and the respondent became husband and wife, respectively. Counsel also submits that the petitioner and the respondent stayed together as a married couple only for 11 days.

7. We have carefully read the petition filed under Section 11 of the Act, i.e, for a declaration of marriage as being rendered null and void on account of the respondent allegedly being married to her first husband at the time of her marriage to the petitioner. The petition is however singularly devoid of any material particulars to substantiate the allegations made therein. Paragraph Nos.6 and 7 of the petition contains bare allegations that the respondent revealed the fact of her first marriage and left her matrimonial home on 06.12.2020 for her parents’ home without any notice or knowledge of the petitioner. Apart from these bare and unsubstantiated statements, there was admittedly no evidence produced by the petitioner before the Trial Court to bring the case within Section 11 and Section 5(i) of the Act.

8. Counsel submits that after dismissal of the petition filed for declaration and divorce, the petitioner came across subsequent facts which would prove that the respondent indeed was married at the time of contracting her second marriage with the petitioner. This evidence was admittedly not before the Trial Court. Hence we do not propose to consider this evidence in the appeal.

9. Section 5(i) and Section 11 of the Act contemplates a petition for a decree of nullity to contain evidence in satisfaction of the fact that the other party had a spouse living at the time of the marriage. The required evidence is a sine qua non and mere statements of facts/allegations of a form as entire marriage spoise living as on the date of the second marriage, will simply not do.

10. We accordingly find no reason to interfere with the impugned order. The appeal lacks merit.

11. C.M.A.No.522 of 2023 along with all other connected applications is accordingly dismissed. There shall be no order as to costs.

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MOUSHUMI BHATTACHARYA, J _______________________________

M.G.PRIYADARSINI, J July 03, 2024 BMS