N.D. Ojha, J.
1. The opposite party No. 1 Ashok Kumar Anand made an application under Section 25 of the Special Marriage Act against opposite party No. 2, Smt. Salma, praying for a decree of nullity on the ground that the opposite party No. 2 was married to opposite party No. I on the 14th February, 1975, and that at the time of marriage she was pregnant by some person other than opposite party No. 1. During the pendency of the aforesaid application Smt. Santosh Kumari the applicant in the present revision made an application for being impleaded as a party in the case. Her case was that she had been married according to Hindu rites to opposite party No. 1 on 14th February, 1975. She too has filed an application under Section 11 of the Hindu Marriage Act for being granted a decree of nullity on the ground that on 14th February, 1975, when the opposite party No. 1 married her he had already a spouse living on that date. The case of Smt. Santosh Kumari for being impleaded was that since she had already made an application under Section 11 of the Hindu Marriage Act on the ground referred to above, the decree that may be passed in proceedings under Section 25 of the Special Marriage Act was likely to affect her interest and as such it was desirable that before passing any decree she may be given an opportunity of being heard. This application was dismissed by the I Additional Disrict Judge Meerut, by his order dated 28th July, 1975. The present revision has been directed against this order.
2. It was urged by learned counsel for the applicant that the application under Section 25 of the Special Marriage Act has been filed by opposite party No. 1 in order to obtain a collusive decree and if such a decree is allowed to be passed behind the back of the applicant, it is likely to affect prejudicially her own application made under Section 11 of the Hindu Marriage Act which is pending at Budaun. Reliance was placed on the fact that opposite party No. 2 was not putting any contest in the application. My attention was invited to Clause (c) of the first proviso to Section 25 of the Special Marriage Act which is to the effect that the court shall not grant a decree in the case specified in Clause (ii) of that section unless it is satisfied that marital intercourse with consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree. My attention was also invited to Section 34(1)(d) of the Special Marriage Actwhich provides that in any proceeding under Chapter V or Chapter VI, whether defended or not, if the Court is satisfied that the peti-tion is not presented or prosecuted in collusion with the respondent, then and in such a case buit not otherwise the court shall grant the decree prayed for. It was urged that if the applicant is made a party to the application of opposite party No. 1, she would be in a position to bring these facts to the notice of the Court so that no decree may be passed in favour of respondent No. 1. I am not very much impressed by this line of submission inasmuch as Clause (c) of the first proviso to Section 25 as well as Section 34(1)(d) of the Special Marriage Act enjoins a duty upon the court to be satisfied in respect of the requirements referred to therein before passing a decree and I have no manner of doubt that the Court below before passing a decree will certainly look into the relevant provisions even though the applicant is not there to bring them to its notice.
3. Coming to the question as to whe-ther the applicant was a necessary party to those proceedings, it was urged that since an application under Section 11 of the Hindu Marriage Act filed by her was already pending it was expedient in the ends of justice that she may be added as a party in the application filed by opposite party No. 1 under Section 25 of the Special Marriage Act. In my opinion, this submission too cannot be accepted. The application which has been made by opposite party No. 1 is not under Section 24 of the Special Marriage Act but under Section 25 of the Act. It would be seen that Section 24 deals with a decree of nullity in respect of void marriages whereas Section 25, in respect of voidable marriages. The distinction between a void and voidable marriage is obvious. In Re Eaves; Eaves v. Eaves, (1939) 4 All ER 260 it was held :--
'Be that as it may, the marriage is valid until it is annulled by a decree of the Court, and transactions which have taken place during the marriage on the footing that it is subsisting, or in direct contemplation of a marriage which afterwards takes place, cannot be affected by a subsequent decree of annulment. I need hardly add that quite different considerations would apply were the marriage void, and not merely voidable.'
Similarly, in R. v. Algar, (1953) 2 All ER 1381 it was held:--
'But impotence only makes a marriage voidable. Until it has been avoided at the suit of the aggrieved party it will be regarded by every court as valid and subsisting. The parties are husband and wife till, a decree hasbeen pronounced, and if one party dies before or without one being obtained the other is the widow or widower of the deceased.'
4. The question which would be re-levant in the application made by Smt. Santosh Kumari under Section 11 of the Hndu Marriage Act would be whether on 14th February, 1975, when she was married ,o opposite party No. 1 the said opposite party had a spouse living. Even if in the application under Section 25 of the Special Marriage Act the applicant is not made a party and a decree is passed, the status of opposite party No. 1 vis-a-vis the applicant on 14th February, 1975, would in view of the aforesaid decisions, be not different. That apart, Section 44 of the Evidence Act. in my opinion, completely safeguards the inter-est of the applicant. The decree that may ultimately be passed under Section 25 of the Special Marriage Act would be one as contemplated by Section 41 of the Evidence Act. Section 44 of that Act provides that any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. On a decree being passed under Section 35 of the Special Marriage Act if the case of the applicant be that the said decree was obtained by fraud or collusion, it would always be open to her to establish it while prosecuting her own application under Section 11 of the Hindu Marriage Act. For all these reasons I am of opinion that the court below cannot be said to have committed any error such as contemplated by Section 115 of the Civil P. C. which may justify interference with its order.
5. In the result, the revision fails and is accordingly dismissed but in the circumstances of the case there will be no order as to costs. The record of the Court below shall be seat down forthwith.