When Hindu marriage is NULL and VOID

 IN THE HIGH COURT OF JHARKHAND AT RANCHI

F.A.No. 72 of 2008
Manbodh Kr. Pradhan. V Kalpana Pradhan

CORAM : HON’BLE MR. JUSTICE H. C. MISHRA,HON’BLE MR. JUSTICE Dr. S.N. PATHAK

Citation: AIR 2017 Jharkhand 40

2. The appellant is aggrieved by the Judgment and Decree dated 13th February, 2008, passed by the learned 1st Additional District Judge, Seraikella, in Matrimonial Case No. 13 of 1997, whereby the case filed by the appellant under Section 11 of the Hindu Marriage Act, for declaration of the marriage between the parties as void by a decree of nullity of marriage, has been dismissed by the Court below.

3. The case of the appellant is that the marriage between the parties was performed on 11.06.1996 in the Temple situated in the premises of Kharsawa Police Station under the pressure of the police and accordingly, the consent of the petitioner appellant was not a valid consent. On this ground the petition was filed for declaration of the marriage as void with a decree of nullity of the marriage. It is an admitted case that after the marriage at the police station on 11.06.1996, the appellant took the respondent No.1 wife to his house and she started living at the house of the appellant, though in a separate room, and the marriage was not consumated, as alleged by the appellant. The suit for nullity of the marriage was filed only on 22.07.1997, i.e., more than lapse of one year of the said marriage.

4. On the other hand, the case of the respondents is that there was an affair between the respondent No.1 and the appellant from before, due to which there was sexual relationship between them on the assurance of the appellant to marry her. When the appellant refused to marry her, the matter was brought to the police station by the father of the respondent No.1, and it is stated that the petitioner appellant readily agreed to marry the respondent No.1 and accordingly, a priest was called and the marriage was solemnized in presence of several persons in the Temple. After the marriage, the respondent wife was brought to -2- the matrimonial home, where they lived together as husband and wife, consumating the marriage for about one year. Only thereafter due to greed for dowry, the respondent wife was being subjected to cruelty and torture, due to which she was forced to leave her matrimonial home.

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5. The evidences were adduced by both the sides, both oral and documentary, and taking into consideration the contradictions in the evidence of the appellant’s side, fully discussed in the judgment, as also the evidence brought on record by the respondents, the Court below came to the conclusion that the marriage between the appellant petitioner and the respondent No.1 was solemnized with their sweet will without any pressure and coercion, and the related issues have accordingly, been decided in favour of the respondent No.1 and against the petitioner.

6. The court below has also held that the appellant had filed the suit under Section 11 of the Hindu Marriage Act to declare the marriage void by a decree of nullity of marriage, but the case of the petitioner appellant did not fall within the perview of Section 11 of the Hindu Marriage Act and accordingly, the petition filed by the petitioner has been dismissed by the Court below on this score also.

7. Learned counsel for the appellant has submitted that the impugned Judgment and Decree passed by the court below is absolutely illegal and cannot be sustained in the eyes of law.

8. Learned counsel for the respondents on the other hand has opposed the prayer and has submitted that the suit was not maintainable under Section 11 of the Hindu Marriage Act.

9. Having heard learned counsels for both the sides and upon going through the record, we find that the lust for sex and subsequently, the greed for dowry, has given rise to this case. However, the fact remains that the case filed by the appellant was not maintainable in the eyes of law, for the reasons discussed hereinafter.

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10. Section 11 of the Hindu Marriage Act reads as follows:-

“11. Void marriages.- Any marriage solemnized after the
commencement of this Act shall be null and void and may, on a
petition presented by either party thereto, against the other party,
be so declared by a decree of nullity if it contravenes any one of
the conditions specified in clauses (i),(iv) and (v) of section 5.” -3-
Section 5 (i), (iv) and (v) of the Hindu Marriage Act reads as
follows:-
“5. Conditions for a Hindu marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) ————
(iii) ————
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;”

11. Thus from a bare reading of these provisions it apparent that
the marriage between the parties could have been declared void by a decree of
nullity of marriage, only in case, the case of the petitioner had fallen within
Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act, i.e., neither of
the party had a spouse living at the time of the marriage, or that the parties were
within the degrees of prohibited relationship, or that the parties were sapindas of
each other.

12. In view of the fact that the case of the appellant did not fall in
either of the above three categories, the marriage between the parties could not
have been declared void by the Court below and the case filed by the appellant
was not at all maintainable. As such, the case has rightly been dismissed by the
Court below.

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13. Since the case filed by the appellant is not at all maintainable on
the point of law itself, there is no need of discussing the evidences on record,
which, upon going through the impugned Judgment, we are satisfied that they
have been rightly appreciated by the Court below.

14. There is no merit in this appeal and the same is accordingly, hereby
dismissed.

( H. C. Mishra, J.)
(Dr. S.N. Pathak, J.)
P.K.S./Anjali

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