First wife cannot file application for void of marriage.

First wife cannot file an application under section 11 of Hindu marriage Act,1955

“Nowhere say that a lady claiming to be the first wife i.e. third party, has a right to initiate a proceeding under Section 11 of the Act. On the contrary, all these case laws also support the view that petition under Section 11 of the Act cannot be filed by a lady claiming to be first wife against second wife.”

“the clear legal position is that the first wife cannot prefer an applicant along with her husband against second wife under Section 11 of the Act, although she is entitled to file a civil suit in this regard invoking Section 9 of C.P.C. read with Section 34 of the Specific Reliefs Act”.

Chattisgrah High Court:

Sona Ralsel vs Smt Kiran Mayee Nayak on 13 July, 2009

WRIT PETITION C No 284 OF 2007

Sona Ralsel

...Petitioner

Versus

1 Smt Kiran Mayee Nayak

2 Vinod Kumar Nayak

...Respondents

! Shri Uttam Pandey Advocate for the petitioner

^ Respondent No 1 Smt Kiran Mayee Nayak in person Shri JR Verma Adv for the respondent No 2

CORAM: HONBLE SHRI JUSTICE NK AGARWAL

Dated: 13/07/2009

: Judgement

ORDER

1372009

The instant petition is directed against the part of the order dated 19-12-2006 passed by Second Additional Principal Judge, Family Court, Raipur in H.M. No. 16-A/2006 whereby and whereunder application under Order 1 Rule 13 read with Section 151 of C.P.C. filed by the petitioner herein has been dismissed by the Trial Court.

2. Brief facts of the case giving rise to this petition are that the respondents herein jointly filed petition under Section 11 of the Hindu Marriage Act (briefly, the Act) against the petitioner herein for claiming a relief of declaration to the effect that the marriage solemnized between the petitioner and the respondent No. 2 is a nullity.

3. The petitioner preferred an application (Annexure P-2) under Order 1 Rule 13 read with Section 151 of C.P.C. submitting that as far as respondent no. 1 is concerned, she has no right to prefer an application under Section 11 of the Act and, therefore, the application filed by the respondents suffers from mis-joinder of parties. The respondents herein filed a joint reply (Annexure P-4) and opposed the application on the ground stated in their reply.

4. Learned trial Court upon hearing the parties held that the respondent No.1 herein is not an unnecessary party and dismissed the application preferred by the petitioner. Hence this petition.

5. Shri Uttam Pandey, learned counsel for the petitioner submitted that a bare perusal of Section 11 of the Act would reveal that a petition under this section can only be filed by either party to the marriage against each other for a relief of declaration that the marriage solemnized between them being void is invalid, whereas the instant petition filed by the respondent No. 1 would be of the nature that she being the first legally wedded wife of respondent No. 2, so the marriage solemnized between the respondent No. 2 and the petitioner be declared void by passing a decree in this regard and, therefore, the petition at least filed by the respondent No. 1 is not maintainable in accordance with the provisions of Section 11 of the Act and, therefore, the petition suffers from mis-joinder of party and the name of respondent No. 1 be deleted from the cause title of the petition filed by the respondents jointly. In support of his submissions, he placed reliance on the decisions in the case of Ajay Chandrakar and others -v- Smt. Ushabai reported in 2000(2) MPLJ 112, Harmohan Senapati -v- Smt. Kamala Kumari Senapati and another reported in AIR 1979 Orissa 51, Kedar Nath Gupta -v- Smt. Suprava reported in AIR 1963 Patna 311 and Amarlal Goru and another -v- Vijayabai reported in AIR 1959 MP 400.

6. Shri J.R. Verma, learned counsel appearing for respondent No. 2 submitted that as far as the respondent no.2 is concerned, the petition has been validly filed and, therefore, even if the Court comes to a conclusion that the respondent no. 1 is not necessary party or proper party in the petition filed under Section 11 of the Act, it will not affect the petition, which has also been filed by the respondent No. 2.

7. Per contra, Smt. Kiranmayee Nayak, respondent No.1 appearing in person, submitted that she being the first legally wedded wife of respondent No. 2, is entitled to institute action along with her husband against the petitioner, whose marriage with respondent no. 2 is on the face of record void and deserves to be declared as such. Section 11 of the Act has to be read along with Section 5(i) of the Act while interpreting the words `either party thereto' in Section 11. Therefore, she being necessary/proper party, the order passed by the trial Court deserves to be upheld as there is no jurisdictional irregularity or illegality committed by the trial Court. Reliance has been placed by respondent No. 1 on the judgments in the case of Smt. Ram Pyari -v- Dharam Das and others reported in AIR 1984 Allahabad 147, Banshidhar Jha -v- Chhabi Chatterjee reported in 1967 Cr.L.J. 1176, Naurang Singh Chuni Singh -v- Smt. Sapla Devi reported in 1968 Cr.L.J. 1636, Smt. Rajeshbai and others -v- Smt. Shantabai reported in AIR 1982 Bombay 231, and Savitaben Somabhai Bhatiya -v- State of Gujarat and others reported in AIR 2005 SC 1809.

8. I have heard learned counsel for the parties, perused the record as also the order impugned.

9. Core question for decision making in this case is whether the first wife has a right to file a petition along with her husband against the second wife under Section 11 of the Act ?

10. Section 5(i) and Section 11 of the Hindu Marriage Act, 1955 read thus:-

"Section 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 marriage;"

"Section 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 clause (i), (iv) and (v) of section 5."

11. A bare reading of the above provisions would show that section 5 speaks of conditions of valid marriage which may be solemnized between any two Hindus and one of the conditions as enumerated in Section 5(i) of the Act is that neither party shall have a spouse living at the time of the marriage.

12. Sub-section 11 of the Act speaks of void marriages if solemnized in contravention of the conditions specified in Clause (i) and other clauses of section 5 of the Act. A conjoint reading of the above two provisions would reveal that any marriage solemnized between two Hindus would be void if either party has a spouse living at the time of marriage. Meaning thereby any marriage solemnized by anyone in the lifetime of his or her wife or husband, as the case may be, is void under Section 11 of the Act as it would be in contravention of Section 5 (i) of the Act. So, this would be the cause of action for declaring a marriage as void under Section 11 of the Act, but at the same time, section 11 speaks of the party who may bring petition under Section 11 of the Act. The language used in Section 11 is that "on a petition presented by either party thereto against the other party". The language used is unambiguous and clear and it straightway gives a right to file a petition to a party to marriage against the other and not to any third party who may be claiming that she is the first wife. It does not mean that such wife who claims to be first legally wedded wife has no remedy. She certainly can bring a civil suit for declaring the marriage between her husband and that second wife under Section 9 of C.P.C. read with Section 34 of the Specific Reliefs Act but she has no right to bring a petition under Section 11 of the Hindu Marriage Act. A single bench of M.P. High Court in the case of Amarlal Goru (supra) in para 4 observed thus:_

"4. The respondent as a previously married wife of the appellant No. 1 Amarlal was entitled under S. 10 of that Act only to a decree for judicial separation so far as she was concerned. She could not prefer any application to have the marriage between the appellants declared void under S. 11.That section can be invoked by only those persons who are party to a marriage as would clearly appear from the words, "either party thereto" used therein. The relief of declaring a marriage void has been intentionally confined to the parties to the marriage and it is not open to any other person to make an application under S. 11.

It is true that the marriage between the appellants was contrary to the provisions in S. 5 of the Act and was, therefore, invalid; but that is not the point in the case. The real question is whether any third party has a right to file an application under S. 11 to have the marriage declared null and void. The language used in that section admits of no doubt that the right cannot be exercised by anyone except the parties to the marriage which is challenged. Under these circumstances, it was not open to the Court to declare the marriage between the appellants null and void."

In Ajay Chandrakar's(supra) case, reliance has been placed upon the judgments reported in Rajeshbai (supra) and Ram Pyari (supra), which have been cited by the respondent No. 1 and in para 5, it has been observed that :-

"5. It has been argued that a declaratory decree could not be granted if the marriage was void. This argument is not acceptable. Section 11 of the Hindu Marriage Act, 1955 provides that "any marriage in contravention of Clause (i) of Section 5 shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity. Thus the law envisages the judicial declaration of such a marriage as nullity though void ab initio. Remedy under Section 11 of this Act is available to a person who is a party to the second marriage. First wife cannot avail the remedy provided by Section 11 of this Act and therefore, she has to file a suit for declaration under Section 34 of the Specific Relief Act for declaration of such marriage as void..".

The judgments in Harmohan Senapati (supra) and in Kedar Nath Gupta (supra), also support the contention of the petitioner.

13. The judgments cited by the respondent No. 1 nowhere say that a lady claiming to be the first wife i.e. third party, has a right to initiate a proceeding under Section 11 of the Act. On the contrary, all these case laws also support the view that petition under Section 11 of the Act cannot be filed by a lady claiming to be first wife against second wife.

14. In the light of the aforesaid discussion and the view expressed by the High Court of M.P., Orissa, Patna, Bombay and Allahabad, to which I am in respectful agreement, the clear legal position is that the first wife cannot prefer an applicant along with her husband against second wife under Section 11 of the Act, although she is entitled to file a civil suit in this regard invoking Section 9 of C.P.C. read with Section 34 of the Specific Reliefs Act. Therefore, the application filed by the petitioner under Order 1 Rule 13 ought to have been allowed by the Trial Court.

15. Therefore, the petition is allowed. The name of respondent No. 1 be deleted from the cause title of the petition filed by the respondents jointly and the part of the order dated 19-12-2006 is quashed. However, it is made clear that this order will not affect the petition and its proceedings and the trial Court shall proceed to decide the petition in accordance with law.

16. No order as to costs.