Ex parte divorce decree by foreign court invalid- Delhi High Court.

Ex parte divorce decree by foreign court invalid: Delhi High Court.

"The court has also held that a divorce granted by a foreign court on the ground of "irretrievable" breakdown of marriage is not recognised under the Hindu Marriage Act and the dissolution of marriage cannot be valid."

NEW DELHI: In what can have serious implications for divorces involving NRIs, Delhi high court has held that a divorce obtained by an NRI from a foreign court without the spouse's submission to the jurisdiction of that court is invalid.

The court has also held that a divorce granted by a foreign court on the ground of "irretrievable" breakdown of marriage is not recognised under the Hindu Marriage Act and the dissolution of marriage cannot be valid. The court's ruling came while rejecting the claim of an Indian-origin UK resident that the Ilford County Court, UK, had in 2011 already granted a divorce.

The man had challenged the trial court's order which had declared that divorce invalid. He sought dropping of the divorce proceedings against him on his wife's plea for dissolution of marriage under the Hindu Marriage Act. The woman, through her counsel, Prashant Mendiratta, claimed that the foreign divorce decree was an ex parte decree which she had been unable to contest. "The said decree is not recognised in India, and as such, the petitioner is not entitled to any relief," the counsel said.

The court cited a Supreme Court judgment which had held that a decree of divorce granted by a foreign court is not valid in India if the ground is not recognised by Indian law.

"Both parties are Indians and the marriage between them was solemnized at New Delhi according to Hindu rites and both are governed by the Hindu Marriage Act (HMA). Their marriage has been dissolved by a court in the UK on the ground of having broken down irretrievably which is not a ground for divorce under HMA ..." Justice Veena Birbal said.

The court also rejected the man's argument that the UK court had made the decree "absolute" on the ground of "irretrievable breakdown" of marriage and his wife was also informed about the proceedings there.

Accepting the wife's argument that the divorce granted by the court in the UK was an ex parte divorce decree, Justice Birbal said, "Respondent (wife) never submitted herself to the jurisdiction of the said (UK) court. On June 15, 2011, she had lodged a representation before the Ilford County Court informing that she was in India and had filed a divorce petition here.

"She also informed (the court) that she was in acute financial difficulty (and won't be able) to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the UK court not to make the divorce decree 'absolute" ... In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court," the court said.

The Resources with Thanks to Times of India:

see and read the articles:

http://articles.timesofindia.indiatimes.com/2013-04-25/delhi/38816029_1_ilford-county-court-divorce-petition-hindu-marriage-act

Law of Divorce in Australia who married in India.

I married overseas(India) – can I get a divorce in Australia?

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:

regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or

are an Australia citizen by birth or descent

are an Australia citizen by grant of an Australia citizenship

ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file:

an English translation of it, and

an affidavit from the translator which:

states his or her qualifications to translate

attaches a copy of the marriage certificate

attaches the translated marriage certificate

states that the translation is an accurate translation of the marriage certificate, and

states that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.

Grounds for Divorce in USA-US Divorce Law

Most Common Grounds For Divorce in USA

The following list comprises the most common grounds for filing for a divorce in the United States:

Irreconcilable differences - This is synonymous with a no-fault divorce. Couples need not demonstrate any form of misconduct in the marriage to file for divorce. The only decision that needs to be made and agreed upon is to end the marriage. Some jurisdictions call it an irretrievable breakdown of marriage.

Separation - Lengthy separation is also a common ground for divorces. Each state has its own requisite time period for separation. Time periods can range from six and 12 months on the lower end to 18 and 36 months on the higher end. Couples must demonstrate that they have not had a physical relationship during that period and they have not cohabitated.

Abandonment - This ground is similar to separation. In some jurisdictions, it is called willful desertion. The couple must establish that they have not lived together as a married couple and cohabitated in a long time.

Cruelty - This ground is often cited, and it encompasses a vast array of issues that can lead to the dissolution of a marriage. Cruelty can involve verbal and/or physical abuse, neglect of emotional needs, neglect of physical needs, alienation and the like. The ground of cruelty is broad, in that anything that hurts a person can technically constitute cruelty. Some jurisdictions call it cruel and inhuman treatment, instead. This ground for divorce is often cited along with adultery.

Adultery - This ground of divorce is common. Adultery can be difficult to establish. The allegation(s) are usually hotly contested and defended. In many states, alimony or spousal support is not awarded to spouses who desert the marriage and commit adultery. The evidence required to establish adultery must be convincing because of the high stakes of potentially costing a spouse his/her support and maintenance. Adultery is defined in many jurisdictions as sexual activity with any party other than a person's spouse. In some localities, sexual intercourse must actually occur, but in others, there is no such literal requirement. This ground for divorce is often cited along with cruelty. Because the proof required to establish adultery is so significant, parties buffer themselves by having a second ground for divorce upon which to fall back on, should the adultery ground fail.

Grounds for Divorce in England-UK Divorce Law.

DIVORCE IN ENGLAND - UK DIVORCE LAW. Divorce in England & Wales

Grounds for divorce in U.K.

You must show there are good reasons for ending your marriage.

You can give 5 grounds for a divorce:

1. Adultery

Your husband or wife had sex with someone else of the opposite sex, and you can no longer bear to live with them.

You can’t give adultery as a reason if you lived with your husband or wife for 6 months after you found out about it.

2. Unreasonable behaviour

Your husband or wife behaved so badly that you can no longer bear to live with them.

This could include:

·         physical violence

·         verbal abuse, eg insults or threats

·         drunkenness or drug-taking

·         refusing to pay for housekeeping

3. Desertion

Your husband or wife has left you:

·         without your agreement

·         without a good reason

·         to end your relationship

·         for more than 2 years in the past 2½ years

You can still claim desertion if you have lived together for up to a total of 6 months in this period.

4. You have lived apart for more than 2 years

You can get a divorce if you’ve lived apart for more than 2 years and both agree to the divorce.

Your husband or wife must agree in writing.

5. You have lived apart for more than 5 years

Living apart for more than 5 years is usually enough to get a divorce, even if your husband or wife disagrees with the divorce.

Divorce FAQ

1.Can I File divorce petition without coming to India

Yes, you can file divorce petition without coming to India. You can file Divorce petition from the place of residence of the respondent(in case if husband is petitioner or in case wife is petitioner), or the place of marriage or the place where the couple last lived together. wife can file wherever she resides after separation.

2. How many times I have to attend the court hearing  for divorce  case in India?

Its depends upon circumstances. Means if your cross examination is over on the same day then rest of proceedings are for lawyers.

3. How many times I have to attend the court for mutual consent divorce ?

In case of mutual consent divorce you have to attend/appear in court twice for the purpose of recording the statement in court. In so many courts now camera/video conferencing has been started and you can record your statement through the video conferencing but its totally depends upon the court to court as there are so many complication.

3. Should both the spouses attend the court hearing for divorce in India?

If it is for divorce by mutual consent, both of them should attend the hearing for the purpose of recording the statement but some time court may consider one if other is out of country and he or she has given the power of attorney to represent her or him in court, but remember its totally depends upon court.

4.  can a person seek divorce Under Hindu Law within a year of marriage?

Under Section 14 of the Hindu Marriage Act, 1955, no petition for divorce can be filed within one year of the marriage. But in  exceptional circumstances, The Honorable High Court is in empowered to grant leave to file the case before the expiry of one year.

5. How much time it will take to get divorce in India?

If it is a divorce by mutual consent of the spouses, Six months from the date of filing. It is possible to get divorce before six months, recently The Honorable Supreme court has dissolved the marriage before expiry of six months.

6. How much it will cost me for getting in India?

It depends on the lawyer to lawyer as in India there is no fix fees schedules.

7. What are the Documents require for mutual consent divorce?

Address proof, passport size photograph of petitioner, marriage card if available, marriage certificate, marriage photographs and ID proof..etc.

8.how I can annulled or Nullity of my marriage ?or what is the procedure to annulment of marriage in India?

Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

9.can I claim or seek maintenance in divorce case proceeding?

 As per section 24 of Hindu marriage act, Maintenance Pendente lite and expenses proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner' s own income and the income of the respondent, it may seem to the court to be reasonable

10.can I seek child custody or child visitation in divorce ?

As per section 26 of HMAct,

Custody of children. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such, orders and provisions with respect to the custody, maintenance and education of such children as, might have been made by such decree or interim orders in case the

proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made

11.Judicial separation in India meaning and procedure.

Petition for Judicial separation may be presented on any of the grounds specified in divorce like--adultery, desertion, cruelty, chronic illness etcor on grounds of failure to comply with RCR--then it shall be no longer obligatory for the petitioner to cohabit with the respondent.

12.How I can transfer divorce petition from court where its filed by my husband  at my place ?

The Supreme Court has the power to transfer the cases from one High Court to another and even from one District Court of a particular state to another District Court of the other state. In such transfer cases the Hon’ble Supreme Court transfer only those cases if they really lack appropriate territorial jurisdiction and those cases which were otherwise supposed to be filed under the transferred jurisdiction. Hon’ble Supreme Court often looks at the real ground / reason for such transfer.

transfer petition in supreme court ,transfer divorce petition, petition for divorce in supreme court, transfer of divorce case from one state to other

13.I am in USA and got divorce, is it valid in India ?

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction.

(b) where it has not been given on the merits of the case.

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.

(d) where the proceedings in which the judgment was obtained are opposed to natural justice.

(e) where it has been obtained by fraud.

(f) where it sustains a claim founded on a breach of any law in force in India.

14.I am in India my husband/wife  filed divorce petition in USA/UK/Australia/foreign, I am not able to contest the proceeding, if he or she obtain the decree of divorce in foreign, is it valid in India ?

foreign judgment/decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgments. The very first condition is with regard to Jurisdiction of such foreign court, what it means that both or either of the parties should be residing in the foreign country where from such decree of divorce has been obtained. The second important condition is with regard to merits of the case for divorce, whether those merits considered by the foreign court to arrive on this conclusion or not. Next, a proper notice was served to the other party with regard to such divorce proceedings & the other party was assigned a sufficient time to file his or her defense against the case, hence following the principle of natural justice. There was no fraud or force involved in such case & both the parties either mutually agreed to surrender itself to such foreign court for getting the decree of divorce or neither of them objected to such foreign court proceeding with such matter & deciding it accordingly. Lastly the decree so passed by the foreign court should not be such which may not be executable in India

First wife can file declaration suit to declare second marriage null and void

“FISRT WIFE CAN FILE A DECLARATION SUIT AGAISNT SECOND MARRIAGE TO DECLARE NULL AND VOID.

It is clear from the above provisions that if the marriage between the plaintiff and defendant No. 1 is to be declared null and void, then either of them can file the petition, or if dispute arises between defendant No. 1 and defendant No. 2 regarding the marriage, then either of them can file a petition under Section 11. But plaintiff is not a party to the particular marriage which is sought to be declared as void. Therefore, when plaintiff files a suit for declaration that the marriage of defendant No. 1 with defendant No. 2 is void, the suit is to be filed according to the provisions of Section 9 of the Civil P. C. read with Section 34 of the Specific Relief Act (Section 42 of the old Act)”

Harmohan Senapati vs Smt. Kamala Kumari Senapati And ... on 29 August, 1978

Equivalent citations: AIR 1979 Ori 51

Author: N Das

Bench: N Das

JUDGMENT

N.K. Das, J.

1. Defendant No. 1 is the appellant against a confirming decision. The case of the plaintiff is that she and defendant No. 1 are husband and wife and their marriage took place in 1958 according to Hindu rites. After she gave birth to a child, defendant No. 1 drove her out of his house. Subsequently, without dissolution of her marriage with defendant No, 1, the latter married defendant No. 2 on 8-2-66 and started living with her. So, she has prayed for a declaration that the marriage of defendant No. 1 with defendant No. 2 is null and void.

Defendant No. 2 did not contest, nor appeared in Court. Defendant No. 1 in his written statement contends that he has no connection with defendant No. 2 and the allegation of second marriage is not true. According to him, plaintiff left his residence to her parents' house in 1964 against his will and did not return in spite of several requests and when plaintiff came to know that defendant No. 1 was intending to file a case for judicial separation, she has filed this suit on false allegations.

2. Both the Courts below have concurrently found that plaintiff is the married wife of defendant. No. 1. Defendant No. 1 married defendant No. 2 and the said marriage is null and void. Marriage of defendant No. 1 with plaintiff is not now disputed.

3. Two points have been canvassed on behalf of the appellant (defendant No. 1). Firstly, the suit was not maintainable in the Court of the Munsif and it should have been filed in the Court of the District Judge, or the Subordinate Judge, as provided in the Hindu Marriage Act; and secondly, the onus of proof of the second marriage being on the plaintiff, she has failed to discharge the onus, inasmuch as she has not established the ingredients required under law for proof of marriage of defendant No. 1 with defendant No. 2.

4. As regards the first point, the contention of the appellant is that Section 11 of the Hindu Marriage Act, 1955 envisages that a marriage can be declared to be null and void on a petition to be presented if there is contravention of any of the provisions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. Section 5(i) provides that a marriage of a person can be performed according to law if neither party has a spouse living at the time of the marriage. Reference was made also to Section 19 of the Act which provides that every petition under the Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction either the marriage was solemnised or the respondent, at the time of the presentation of the petition, resides, or the parties to the marriage last resided etc. 'District Court' has been defined in Section 3(b) which means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt within this Act.

It is not disputed that petitions under the Hindu Marriage Act are to be filed either in the district court or in the Court of the Subordinate Judge, as notified by the State Government of Orissa. Appellant contends that the suit being for a declaration that the marriage of defendant No. 1 with defendant No. 2 is null and void, the petition should have been filed in the Court of the District Judge, or the Subordinate Judge. This contention has no force. Section 11 of the Act clearly states that any marriage solemnised 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. So also in case of divorce, as provided in Section 13 of the Act, a petition is to be presented by either the husband or the wife. It is clear from the above provisions that if the marriage between the plaintiff and defendant No. 1 is to be declared null and void, then either of them can file the petition, or if dispute arises between defendant No. 1 and defendant No. 2 regarding the marriage, then either of them can file a petition under Section 11. But plaintiff is not a party to the particular marriage which is sought to be declared as void. Therefore, when plaintiff files a suit for declaration that the marriage of defendant No. 1 with defendant No. 2 is void, the suit is to be filed according to the provisions of Section 9 of the Civil P. C. read with Section 34 of the Specific Relief Act (Section 42 of the old Act).

The aforesaid view of mine is fortified by the decisions of the Allahabad High Court, Andhra Pradesh High Court, Madras High Court, Patna High Court and Madhya Pradesh High Court. In Jokhan Prasad Shukla v. Lakshmi Devi, ILR (1973) 2 All 853, it has been held that a suit filed by the previous wife for declaration that the second marriage of her husband was null and void is not barred by Section 19 of the Act. 'Either party thereto' clearly means either party to the marriage sought to be declared null and void. A petition by a person who is not a party to the marriage sought to be declared null and void, will not lie under Section 11. Reliance has been placed on the case reported in Lakshmi Ammal v. Ramaswami Naicker, AIR 1960 Mad 6. In the Madras case, it has also been held that the first wife cannot apply under Section 11 for declaring the marriage of the second wife as void and that the first wife can file a suit under the ordinary law for a declaration that the marriage of her husband with the second wife is illegal and void under the Hindu Marriage Act. The aforesaid Lakshmi Ammal case has also been followed by the Andhra Pradesh High Court in Rajeswar Reddy v. Lakshmi Bai, (1964) 2 Andh WR 142, wherein it has been held that under the Hindu Marriage Act, if the marriage of the 2nd defendant with the 1st defendant was performed after coming into force of the Act, it would be void and the plaintiff can file a suit in the Civil Court for a declaration to that effect. Her right to file such a suit is under Section 9, Civil P. C. read with Section 42 of the Specific Relief Act. So far as Section 11 of the Hindu Marriage Act is concerned, it is a special remedy given to either party to the marriage which was sought to be declared void. That remedy is not open to the plaintiff at all.

A Division Bench of the Patna High Court in Kedar Nath Gupta v. Sm. Supraya, AIR 1963 Pat 311, has also held that a petition for the annulment of second marriage under Section 11 can be presented only by the husband or his second wife, who were the parties to the marriage in question and the first wife, who is not a party to the second marriage, is not entitled to present such petition under the Act. She may seek her remedy, if any, under the general law. In this case, the decision reported in Lakshmi Animal case (supra) has also been followed. A decision of the Madhya Pradesh High Court in Amarlal Goru v. Vijayabai, AIR 1959 Madh Pra 400, which is on the very same point, has also been followed by the Patna High Court.

On the aforesaid analysis, I hold that the suit was maintainable in the Munsif's Court by virtue of Section 9 of the Civil P. C. read with Section 34 of the Specific Relief Act.

5. As regards the second point, it is contended by Mr. Das, the learned counsel for the appellant, that plaintiff has not established the ingredients of marriage of defendant No. 1 with defendant No. 2 and, as such, the Courts below have erred in finding that the marriage has been proved. Reliance has been placed on Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564. This is a case under Section 494 of the Indian Penal Code for punishment for bigamy. The appellant also relies on Rabindra Nath Dutta v. State, AIR 1969 Cal 55 and Venkata Subbarayudu Chetty v. Tanguturu Venkatiah Shresti, AIR 1968 Andh Pra

107. All the aforesaid cases are under Section 494 of the I.P.C. for punishment for bigamy, and were criminal cases. In a criminal case, the prosecution has to prove the offence beyond all reasonable doubts, but such position is not attracted in a civil suit where the allegations are to be proved by preponderance of probabilities". The Supreme Court in Dr. N.G. Dastane v. Mrs. S. Dastane, AIR1975 SC 1534, while deciding a case of judicial separation under the Hindu Marriage Act, has distinguished the position relating to proof between a criminal case and a civil suit under the Hindu Marriage Act. The question that was answered in the aforesaid case is that though the burden lies on the party to establish the charge, what is the standard of proof to be applied in order to judge whether the burden has been discharged. The Supreme Court has stated (at pp. 1539, 1540):--

"The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man. so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second, Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. xx xx In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.

XX XX XX

Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to tha accused. It is wrong to import such considerations in trials of a purely civil nature,"

6. Both the Courts below, after analysing the evidence available on record, both oral and documentary, have concurrently come to the conclusion that marriage of defendant No. 1 with defendant No. 2 has been proved by the plaintiff. P.W. 7 is the son of the tailor from whom the father of the appellant had learnt the trade of tailoring before the appellant's father became a rich man. This fact has not been disputed. His evidence is to the effect that he is close to the family of defendant No. 1 and accordingly he was invited to attend the marriage of defendant No. 1 with defendant No. 2 at Ladu Baba. He has given the details of the performance of marriage which took place in his presence. According to him, the priest from Puri attended the marriage, Homa was performed and fathers of defendant No. 1 and defendant No. 2 were also present and Kanyadan was done. His testimony is corroborated by the evidence of subsequent conduct of defendants 1 and 2 by P.W. 8, an advocate of Nayagarh and an admitted neighbour of defendant No. 1 at the relevant time. He has stated that he has seen defendant No. 1 and defendant No. 2 moving together and had the information that defendant No. 2 was the second wife of defendant No. 1 and the marriage took place in 1966. P. W. 5, a businessman of the locality has also deposed the similar effect. Though attempt has been made on behalf of defendant No. 1 to deny his marriage with defendant No. 2, there are glaring materials on record which go against this contention,

D. W. a is the father of defendant No. 1 and admittedly they are living together. From his evidence, it appears that he is suppressing the truth. He states that he cannot say if defendant No. 1 has married defendant No. 2. He is a man of proficiency and is having business. His testimony indirectly indicates that marriage of defendant No. 1 took place with defendant No. 2 and this supports the contention of P. W. 7. An attempt was made on behalf of the appellant to show that the priest said to have acted in the second marriage was dead and reliance was placed on a voter list. It has been rightly held by the Courts below that the voter list is of no help and by the time of the second marriage the priest was alive. P. W. 6 was a business associate of defendant No. 1 which is admitted. Undisputedly, this witness had fallen out from defendant No. 1 and entered into litigation with him. This witness has produced letters relating to the second marriage. He did not conceal the fact that he had played treachery and tricks to secure the letters for proof against defendant No. 1. He has stated that he is acquainted with the handwriting of defendant No. 1. For this, his evidence cannot be thrown out. He identifies Exts, 6 and 6/a to be the letters written by defendant No. 1. Ext. 6/a is an inland letter bearing postal seals. This letter has been written by defendant No. 1 to the father of the second defendant and the latter has been described as "father-in-law". Ext. 6 is in the letter pad of defendant No. 1 and the addressee is the brother of defendant No. 2. The handwriting expert compared these two letters with the admitted handwriting of defendant No. 1 in the Vakalatnama. Defendant No. 1 was asked to give his specimen handwriting.

A look at this specimen writing would give an impression that the writer laboured hard to suppress his mode of writing. Defendant No. 1 has admittedly read up to B.A. standard. But a look at the writing would clearly show that defendant No. 1 tried to write in a manner as if he has no experience in writing. The conduct of suppressing evidence, which he could have well supplied, would lead to the inference that he was under fear of presenting evidence would have gone against him had he supplied the same. The Courts below have examined this in detail and have rightly come to the conclusion that these were written by defendant No. 1. There are two other documents, Ext. 3 series, which are entries in the Admission Register of a school at Puri. It is in evidence that defendant No. 1 has got four children through defendant No. 2. One of the daughters was admitted by defendant No. 1 in the school and defendant No. 1 has been described as the father of the girl and has signed the same. After going through the evidence in detail, I am in agreement with the finding of the Courts below that defendant No. 1 has got her admitted in school as his daughter. On ultimate analysis and after going through the records, I am fully convinced that the evidence of P. W. 7 has been corroborated by the testimony of P. Ws. 5 and 8 as well as Ext. 3 series and Ext. 6 series. The evidence of D. W. 3 also to a great extent supports the testimony of P. W. 7.

If the evidence regarding second marriage is examined according to the die-turns of the Supreme Court in Dr. N.G. Dastane case (supra), the findings of the Courts below appear to have been based on reasonable grounds and the contention of the appellant is without any force.

This Court has also held in Linga Malik v. Ajodhya Malikani, (1973) 2 Cut WR 1108 : (AIR 1974 Orissa 107) that it is well established that where a marriage in fact has been performed, it will be presumed that necessary ceremonies have also been duly performed and it is incumbent on him who challenges the legality of the marriage to rebut the presumption and to establish by evidence that the form of marriage is invalid in some respect or the other. It is not necessary that the witnesses to the marriage should prove all the details which taken together constitute a valid marriage under the Hindu Law. This Court relied on a decision of the Privy Council in Mouji Lal v. Chandrabati Kumari, (1911) ILR 38 Cal 700 (PC).

For the aforesaid reasons, I hold that plaintiff has discharged the onus of proving the second marriage of defendant No. 1 with defendant No. 2 and the finding of the Courts below on this point is sustained.

7. In the result, there is no merit in this appeal arid it is accordingly dismissed. In the circumstances, I make no order as to costs.

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.