Author: Rushikesk U. Patil National Law University, Nagpur Editor: Grishma Mahatme Symbiosis Law School, Pune
In this case, we will cover and give an overview of the case ‘Balbir Singh vs Baljinder Kaur’ and it will give you a brief yet precise outline regarding all the major facts and issues involved in this particular case which basically revolves around provisions of ‘Hindu Marriage Act, 1955’, nullity and voidance of a marriage.
Petitioner: Balbir Singh
Respondent: Baljinder Kaur
Bench:- HON’BLE MR. JUSTICE RAKESH KUMAR JAIN
HON’BLE MR. JUSTICE HARNARESH SINGH GILL
Court:- Punjab-Haryana High Court
Decision/ Judgement Date:- 28.03.2019
Timeline of events:-
11.5.2012: Marriage was solemnized as per Hindu Sikh Rites
17.6.2013: Both the parties entered into an agreement of divorce.
24.8.2016: Husband confessed of having another living spouse.
28.03.2019: Petition dismissed.
Facts of the case: The respondent-wife had filed a petition under Section 11 read with Section 5(i) of the Act, inter-alia, with the averments that marriage between the parties was solemnized on 11.5.2012 at Amritsar as per Hindu Sikh rites. After marriage, the parties cohabited together as husband and wife, but no issue was born out of the wedlock. At the time of engagement and solemnization of the marriage, the appellant-husband was stated to be a divorcee, having taken a valid divorce, but no document to that effect was shown to the respondent-wife. Sufficient dowry articles were given in the marriage. After a few days the behaviour and conduct of the appellant-husband and his family members was changed. Appellant-husband, started saying that he did not like the respondent-wife and that he had married her with an intention to grab her income. The petitioner was taunted and harassed for not bringing sufficient dowry and for this reason the respondent-wife was abused, insulted and maltreated. The appellant-husband was a man of vices. She was earlier married to one Shamsher Singh and from that wedlock, she was having a son, who was adopted by the appellant- husband with the assurance that he would treat him as his own son, but later on she came to know that he was having plans to kill the said child. The appellant-husband was in the habit of leaving the respondent-wife alone in the house and would come after two/three days, when he was in need of money. He would often lock the kitchen with a view to causing mental pain and agony in the mind of the respondent-wife. Her son (from the previous marriage) was occasionally dragged from his hair and beaten up by the appellant-husband. When she refused to accede to the demand of the respondent-husband and his family members regarding grant of a share to them in her house, they all gave her beatings and further levelled the allegations of her having illicit relations with some persons. Both the parties entered into an agreement of divorce dated 17.6.2013. The appellant-husband filed a false complaint before the Police Station Sultanwind against the respondent-wife and her father. And thereafter, the police raided their house. Earlier, the respondent-wife had filed a petition under Section 13 of the Act. During the evidence in the said proceedings, on 24.8.2016, the appellant-husband deposed that he was having a living spouse at the time of his marriage with the respondent-wife. Thereafter, the respondent-wife withdrew the said petition and filed the present petition under Section 11 read with Section 5(i) of the Act.
The contentions made by the appellant are: 1) parents of the respondent-wife disclosed that she was having a child of 7 years of age from her first marriage, but later on the appellant husband came to know that the child Gurpreet Singh was 20 years old and had completed his 10+2 in March, 2013.
2) The respondent-wife and her parents were informed before marriage that there was a Panchayati divorce effected between the appellant-husband and his previous wife and that it was only thereafter, the respondent-wife and her parents gave their consent for the marriage.
3) The marriage between the parties was solemnized on 11.5.2012, whereas the present petition was filed on 15.9.2016 i.e. after a gap of four years and hence, the present petition is barred by limitation.
Issues/ Controversies involved:-
The controversy involved in the present petition is with regard to marriage between the parties being a nullity for the reason that at the time of his marriage, the appellant- husband was having a living spouse.
Findings of the court:- Section 17 of the Act provides for the punishment for the act of bigamy. It stipulates that any marriage between two Hindus solemnized after the commencement of the Act, is void if at the date of such marriage either party had a husband or wife living and the provisions of Sections 494 and 495 of the Indian Penal Code, shall apply accordingly. Thus, it is clear that any act of bigamy entails punishment under Sections 494 and 495 IPC.
However, Section 29(2) of the Act, is an exception to the aforesaid provisions, provided the parties are governed by the custom. Thus, the provisions of Section 29(2) shall have overriding effect over the provisions of Sections 11 and 5 of the Act, subject to the conditions that the parties are governed by the customary provisions, protecting their rights emerging therefrom.
Section 5(i) of the Act creates within itself a concept of monogamy, which is essentially the voluntary union for life of one man with one woman to the exclusion of all others. The word `spouse’ Balbir Singh vs Baljinder Kaur on 28 March, 2019 Indian Kanoon – mentioned therein means a lawfully married husband or wife. Thus, before a valid marriage can be solemnized, both the parties to such marriage must be either single or divorced or a widow or a widower and only then they are competent to enter into a valid marriage.
The general rule of matrimonial law is that, a party to a marriage of which the other party is incompetent to join in the celebration because of the existence of a previous husband or wife, is entitled, without recourse to any court, to marry anyone else because that particular marriage is not in law a marriage at all, is applicable equally well to marriages under the Act. A person, an innocent party to a bigamous marriage, may go to a court for a declaration that the bigamous marriage is null and void. That would be for the purpose of precaution or record, or evidence. However, the bigamous marriage is non-existent and simply because there is no recourse to the court, it cannot be said that it exists unless and until a decree is passed declaring it to be null and void. Section 17 in terms lays down that such a marriage is null and void and imposes punishment for bigamy as provided in the Indian Penal Code, 1860.
A decree of divorce terminates the status of the parties as married persons and is, after such a decree, competent to remarry and the prior marriage having been dissolved is no impediment to such remarriage. Reference may be made to S.15. Divorce, though not allowed by Hindu law is by custom and usage recognized in certain communities, and remarriage of either party is also Balbir Singh vs Baljinder Kaur on 28 March, 2019 Indian Kanoon – Section 29 expressly saves from the operation of the Act all rights recognized by custom or any special enactment to obtain dissolution of marriage whether solemnized before or after the commencement of this Act.”
Thus, from the above, it would be crystal clear that a bigamous marriage is null and void and not a marriage in the eyes of law and that an innocent spouse, unaware of the bigamous marriage of the other spouse, may approach the Court for annulment of such marriage. Any contravention of such condition, as per the provisions of Section 11 of the Act, renders the marriage as null and void. More so, the act of bigamy entails punishment as prescribed under Section 17 of the Act. Hence, not only the marriage contracted in contravention of Section 5(i) of the Act, shall be null and void, but any party, who solemnizes a second marriage, during the subsistence of his/her earlier marriage, shall also be liable to be prosecuted and punished under Sections 494 and 495 of the Indian Penal Code. Section 494 IPC provides that whoever, having a husband or wife living, marries in any case in which such marriage is void by the reason of its taking place during the life of such husband or wife, shall be punished with an imprisonment which may extend to seven years and shall also be liable to fine. Section 495 IPC provides for punishment for a term which may extend to 10 years as also the fine, if the offence of bigamy is committed by concealing the factum of earlier marriage from the person with whom the second marriage is contracted.
The Hon’ble Supreme Court in its very recent judgment in Special Leave Petition (C) No.25080 of 2016 delivered on 6.3.2019 in Swapnanjali Sandeep Patil Vs. Sandeep Ananda Patil, has held that for a petition filed with a view to getting the marriage declared as null and void, there is no period of limitation. The Hon’ble Court has held as under:- “13.1 At the outset it is required to be noted that the appellant filed the marriage petition for a declaration to declare her marriage with the respondent as null and void on the ground that, at the time of their marriage, the first marriage of the respondent with his first wife was subsisting; that the respondent committed a fraud and suppressed the material fact of his first marriage, and in fact, in the registration form he stated himself to be a bachelor. On the other hand, it was the case on behalf of the respondent that neither there was any suppression nor any fraud committed by him. It was the case on behalf of the respondent that the appellant was in the knowledge of his first marriage and that as such there was a customary divorce between the respondent and his first wife, which was much prior to the marriage between the appellant and the respondent. That the learned trial court dismissed the marriage petition on the ground that none of the grounds stated in the plaint for declaration of the marriage between the appellant and respondent as null and void, would fall within Section 25 of the Act and that, even otherwise, the marriage 17 of 19 FAO-M-74-2019 (18) petition is beyond the period of limitation as prescribed in explanation to Section 25 of the Act. It is required to be noted that, however, neither the trial court nor even the High Court at all considered Section 24 read with Section 4 of the Act nor considered the case on behalf of the appellant that as at the time of her marriage with the respondent, the respondent’s first marriage was subsisting and therefore the marriage between the appellant and the respondent would be void and nullity.
It may be noticed that though the said judgment has been delivered under the Special Marriage Act, 1954, yet the legal issue being the similar as is involved in the present case, we respectfully follow the said judgment.
Conclusion:- Even though there being no period of limitation for seeking a decree of nullity as regards a void marriage, the plea raised can be rejected considering the facts and circumstances of the respective case.
Judgements quoted on settled law:-
Kala Singh Vs. Jaspreet Kaur, 2016(3) RCR (Civil)
Manpreet Kaur Vs. Balkar Singh, 2015(5) RCR (Civil) 510
Abbayolla M. Subba Reddy Vs. Padmamma, 1998(4) RCR (Civil) 314
Mohan Lal Sharma Vs. Parveen, 2009 (4) RCR (Civil)
Swapnanjali Sandeep Patil Vs. Sandeep Ananda Patil SLP (C) NO.25080 OF 2016.