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Harmesh Singh vs Renu Kumari on 15 January, 2019

CR No.5060 of 2016 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CR No.5060 of 2016
Date of Decision: 15. 01.2019

Harmesh Singh
…Petitioner

versus

Renu Kumari @ Seema Rana
…Respondent

CORAM: HON’BLE MR. JUSTICE AMOL RATTAN SINGH

Present:- Mr. Parvinder Singh, Advocate
for the petitioner.

Mr. Gurcharan Dass, Advocate,
for the respondent.

Amol Rattan Singh, J.

This is a revision filed by the respondent in a petition instituted

against him by the respondent herein (Renu Kumari) under Section 11 of the

Hindu Marriage Act, 1955 (hereinafter to be referred to as the Act), seeking

a decree of nullity as regards the marriage between the parties, on the

ground that the present petitioner, Harmesh Singh, was already a married

man having a wife and two children and therefore the marriage between him

and the respondent herein, Renu Kumari, was null and void, with no divorce

having been obtained by the present petitioner from his ‘first wife’, Anita

Kumari.

2. In the present petition, the petitioner herein is aggrieved of the

order of the trial court (District Judge, Family court, SBS Nagar), dated

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CR No.5060 of 2016 2

19.07.2016 by which the present petitioners’ application under Order 7 Rule

11 of the CPC, seeking rejection of the petition (filed under Section 11 of

the Act), has been dismissed by that court.

3. A perusal of the application filed by the present petitioner

(copy annexed as Annexure P-7), shows that he sought rejection of the

‘Section 11 petition’ on the ground that no decree of divorce between the

respondent herein (petitioner in the Section 11 petition), and her husband

Ravinder Kumar, having been placed on record despite the present

petitioners’ application seeking that the needful be done, showed that

actually there was no decree of divorce ever issued qua her marriage to the

aforesaid Ravinder Kumar and therefore the question of any declaration of

any subsequent marriage between her (Renu Kumari) and the present

petitioner (Harmesh Singh) did not arise.

It was further contended in the application that in any case

since the applicant, (present petitioner) Harmesh Singh, has denied the

marriage with Renu Kumari altogether, the petition filed by her under

Section 11 itself was not maintainable and therefore deserves to be rejected

(on that ground too).

4. A reply to the application (under Order 7 Rule 11 CPC) having

been filed by Renu Kumari (respondent herein and petitioner in the petition

under Section 11), a perusal thereof shows that other than taking the usual

grounds of the application not being maintainable etc., it has been stated that

in fact it was the 3rd application filed by Harmesh Singh and that he should

be directed to file a reply to the application under Section 24 of the Act.

It is further stated (all in the preliminary objections of that

reply) that Harmesh Singh had at one stage admitted Renu Kumari to be his

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wife and had even obtained a warrant under Section 100 of the Code of

Criminal Procedure, 1973, for obtaining her custody and that there was

overwhelming evidence to the effect that a marriage had taken place

between the parties and consequently “the production of the earlier marriage

of the petitioner with Ravinder Kumar is not relevant at this stage”. (Sic.

Obviously what is sought to be contended is that production of a divorce

decree qua the marriage with Ravinder Kumar was not relevant).

5. In the reply on merits, to the application under Order 7 Rule 11

CPC, the respondent herein has stated that earlier also the trial court (in the

present lis) had already decided an application filed by Harmesh Singh and

that the words ‘husband’ and ‘wife’ used in Section 24 of the Act, had to be

given a wide interpretation, especially as in the present petition, there were a

large number of documents to prove that the marriage had taken place

between the parties.

6. Having considered the aforesaid pleadings, the learned trial

court, vide the impugned order, has observed that when the case was fixed

for filing a reply to the application under Section 24 of the Act, Harmesh

Singh (present petitioner) moved an application on 07.11.2015, seeking that

a direction be issued to Renu Kumari to produce the judgment and decree of

divorce qua her marriage to Ravinder Kumar, so as to enable him (Harmesh

Singh-present petitioner), to file a proper reply to the application under

Section 24.

Thereafter, he moved another application on 22.01.2016

seeking a direction that just the particulars of the decree of divorce with

Ravinder Kumar be given so that he (Harmesh Singh) could procure the

same and thereafter file a reply to the application under Section 24.

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As per the impugned order, the application dated 22.01.2016

was disposed of with the trial court stating that an adverse inference would

be taken against “the respondent/petitioner” at the time of decision of the

petition.

Further, it was observed (in the impugned order) that although

the controversy regarding the alleged marriage of Renu Kumari with

Ravinder Kumar “had already been disposed of” in the present lis vide the

order dated 18.02.2016, another application (this time under Order 7 Rule

11 CPC) had been intentionally moved, just to linger the matter on, so that

the present petitioner did not have to file a reply to the application under

Section 24. Thus, further observing that if he was aggrieved of the order

dated 18.02.2016 he could have preferred an appeal or revision against that

order, which he had not done, the application under Order 7 Rule 11 CPC

was dismissed.

7. Before proceeding further ahead, the order dated 18.02.2016 is

reproduced hereinunder, it having been reproduced in paragraph 3 of the

present petition:-

“Heard on application moved by the
Applicant/Respondent Harmesh Singh for directing the
Respondent/Petitioner to furnish the particulars of decree of
divorce with Ravinder Kumar son of Mangal Singh.

Respondent/Petitioner has allegedly stated herself to be
divorced wife of Ravinder Kumar, whereas said marriage has
not been dissolved by divorce and that marriage still subsists. In
reply, Respondent/Petitioner has stated that she did not
remember particulars of divorce decree with Ravinder Kumar
and Applicant/Respondent is filing similar type of application
to delay the matter. Thus, keeping in view the reply submitted
by the Respondent/Petitioner, application stands disposed of

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with a view of taking adverse inference against the
Respondent/Petitioner at the time of decision of the present
petition.

Case is adjourned to 02.03.2016 for filing reply to
petition under Section 24 of Hindu Marriage Act and
consideration on said application.”

8. Before that, the statement of the respondent herein, i.e. Renu

Kumari, made before the trial court in respect of any divorce from Ravinder

Kumar, is also produced in the present petition which reads as follows:-

“Statement of Renu Kumari, Petitioner.

At present I have not in possession of divorce deed. As
per my knowledge, my previous husband obtain the decree of
divorce.”

9. Before this Court, Mr. Parvinder Singh, learned counsel for the

petitioner, submitted that once it was admitted by the respondent herein that

she had been married earlier to Ravinder Kumar and she was refusing to

even give the details of the decree of divorce issued by a competent court

qua that marriage, therefore, it was very obvious that no such divorce had

taken place and consequently, the question of declaring any marriage

between the present petitioner and the respondent herein did not arise, with

such marriage if at all it took place (which is vehemently denied by the

present petitioner), in any case being void ab initio.

He further submitted that in such a situation, there was no

question of even the petitioners’ liability to pay her any maintenance in

terms of Section 24 of the Hindu Marriage Act.

10. Per contra, Mr. Gurcharan Dass, learned counsel for the

respondent, submitted that whether or not the respondent had obtained any

divorce from her first husband would be a matter of evidence before the trial

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court, and simply because she could not produce any divorce decree at this

stage, would not make the petition itself filed by her under Section 11 of the

Act, to be non-maintainable.

11. Mr. Gurcharan Dass then pointed to Section 11 of the Act to

submit that in any case, even to declare any marriage solemnized after the

commencement of the Act, to be null and void, a petition has to be presented

by either party for such decree of nullity to be issued, and consequently, the

application under Order 7 Rule 11 CPC was wholly misconceived and

deserves to be rejected on that short ground alone, even though that reason

has not been explicitly stated by the trial court in the impugned order,

though the inference obviously is that it was a frivolous application filed,

only to avoid filing a reply to the application under Section 24 of the Act.

12. Mr. Gurcharan Dass also relied upon an order of a Division

Bench of this Court in Sunita Rani v. Manjit Singh, passed in CMM-140-

2014 in FAO-M-322 of 2014, to submit that even when the parties had been

living together as husband and wife for ten long years, with one of them

thereafter having taken a plea that the other was already married,

maintenance pendente lite was required to be paid by the husband.

13. In rebuttal, learned counsel for the petitioner submits that the

petitioner having wholly denied the factum of any marriage between the

parties to the present lis, though he admitted to a live in relationship in his

written statement (copy annexed as Annexure P-2), even the issuance of a

decree of nullity is unnecessary, with both the parties admittedly having

been married earlier, with none of them having been divorced.

Hence, he submitted that the impugned order deserves to be set

aside and the application under order 7 Rule 11 CPC filed by the present

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petitioner before the trial court, allowed.

14. Having considered the arguments on both sides, as also having

seen the application filed under Order 7 Rule 11 CPC before the trial court,

and reply thereto, in my opinion, this petition cannot be allowed even in

terms of what is stipulated in Section 11 of the Hindu Marriage Act, 1955,

which 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.”

Hence, in the opinion of this court, the contention of Mr.

Gurcharan Dass that even a void marriage has to be declared to be so, is a

contention that is correct and consequently, the petition filed by the

respondent herein under that provision, before trial court, cannot be rejected

simply on the ground that the respondent herein herself not having produced

a decree of divorce from her ‘first husband’ (Ravinder Kumar), the petition

filed by her itself is not maintainable.

This is especially so because a perusal of the pleadings in the

petition under Section 11 itself (copy Annexure P-1 with the present

revision petition), shows that the respondent has alleged that the present

petitioner, Harmesh Singh, had actually married her and had even shown her

to be his wife in his passport.

Thereafter, in her reply to the application under Order 7 Rule

11, she has, as already noticed, also referred to a warrant stated to have been

obtained by the petitioner under Section 100 Cr.P.C. from a competent

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court, in order to obtain her custody, on the ground that she is his wife.

15. Consequently, keeping in view all the aforesaid facts, especially

as the respondent herein is claiming that a marriage did take place in front of

witnesses, between the petitioner herein and her, but which is contended to

be a void marriage on account of the petitioners’ earlier marriage with one

Anita Kumari not having annulled, the petition under Section 11 would be

very much maintainable, in my opinion.

Whether or not the respondent herein is able to prove that any

actual marriage took place between the petitioner and her, is something to

be gone into by the trial court on the basis of the evidence led before it, with

no observation made by this Court in this petition to be taken as any

comment on the merits of the case of either of the parties.

Even the reference by this court to the ‘first wife/first husband’

of either of the parties, is specifically given in inverted commas (” “), only

for the sake of reference, without this court having accepted or rejected the

fact that there was any first wife or first husband with whom a marriage (if

any) was still subsisting, on the date of any marriage between the petitioner

and the respondent herein.

16. As regards the contention of Mr. Gurcharan Dass, learned

counsel for the respondent, in terms of the order of the Division Bench of

this Court in Sunita Ranis’ case (supra), no comment is being made by this

court on that, because that order applies to maintenance being payable under

Section 24 of the Hindu Marriage Act, with the application filed by the

respondent herein still to be adjudicated upon by the trial court, in the

present lis.

Naturally, with no order passed by that court on that application

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having been impugned in this petition, it would be improper for this court to

make any comment on that issue at this stage.

In the light of what has been held hereinabove, this petition is

dismissed, with costs of Rs.5000/- imposed upon the petitioner.

January 15, 2019 (AMOL RATTAN SINGH)
dinesh JUDGE

1.Whether speaking/reasoned? Yes
2. Whether reportable? Yes

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