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Gitabai Vs. Fattoo and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 11 of 1964
Judge
Reported inAIR1966MP130; 1965MPLJ559
ActsHindu Marriage Act, 1955 - Sections 5, 11, 13, 13(1) and 13(2)
AppellantGitabai
RespondentFattoo and anr.
Appellant AdvocateV.S. Dabir, Adv.
Respondent AdvocateK.L. Bankwar and ;P.S. Khirwadkar, Advs.
DispositionAppeal allowed
Excerpt:
- .....section 13 of the act for divorce, on the ground that, the petitioner's husband has taken a second wife in marriage and is living with her. the petition was resisted by the husband. although he admitted that subsequent to his marriage with the petitioner, he has married a second wife and is living with her, his contention was that the second wife was taken with the consent of the petitioner. the learned additional district judge held that the respondent did not prove that the second marriage was with the consent of the petitioner. he dismissed the petition on the ground that it did not fall within the purview of sub-section (2) of section 13 inasmuch as the second marriage was solemnized after the commencement of the act.2. in our opinion, the trial judge was right when he held that.....
Judgment:

Shiv Dayal, J.

1. This is an appeal wader the Hindu Marriage Act, 1955, from the dismissal of a petition under Section 13 of the Act for divorce, on the ground that, the petitioner's husband has taken a second wife in marriage and is living with her. The petition was resisted by the husband. Although he admitted that subsequent to his marriage with the petitioner, he has married a second wife and is living with her, his contention was that the second wife was taken with the consent of the petitioner. The learned Additional District Judge held that the respondent did not prove that the second marriage was with the consent of the petitioner. He dismissed the petition on the ground that it did not fall within the purview of Sub-section (2) of Section 13 inasmuch as the second marriage was solemnized after the commencement of the Act.

2. In our opinion, the trial Judge was right when he held that Sub-section (2) of Section 13 of the Act did not come to the aid of the petitioner. Under Section 13(2), a wife is permitted to sue for divorce on the additional grounds: (1) She can seek divorce on, proving two things: (a) her marriage with the husband was solemnized before the commencement of the Act and (b) the husband has married a second wife, whether prior or subsequent to the petitioner's marriage, but before the commencement of the Act; and in either case, the other wife must be alive at the time of the presentation of the petition. (2) She can seek divorce on the ground that the husband has, after the solemnizations of the marriage, been guilty of rape, sodomy or bestiality. In the present case, the respondent married a second wife after the commencement of the Act. Therefore, Clause (i) of Section 13(2) does not apply, and the petitioner herself does not plead Clause (ii) and rightly, because the respondent's co-habitation with the second wife does not amount to rape.

3. But that is not the end of the matter. A marriage solemnized after the commencement of the Hindu Marriage Act, 1955, in the lifetime of a married spouse, renders the second marriage null and void ab initio. This is so by virtue of Section 11, read with Section 5(i) of the Act. The marriage is void ipso jure. Such a marriage is, in law, no marriage at all. It is a nullity even when no party applies for a decree of nullity. The parties can just treat it as a nullity. There is no obligation to seek a declaration of nullity. It follows as a necessary corollary that sexual intercourse between the husband and the second wife is adultery so as to attract the provisions of Sections 10(1)(f) and 13(1)(i) of the Act. In the absence of any special definition in the Act, adultery means consensual sexual intercourse between married person and another person of the opposite sex during the subsistence of the marriage.

4. The distinction between Section 10(1)(f) and Section 13(1)(i) is that in the former a single act 6f adultery is sufficient for a decree for judicial separation because there the petitioner succeeds if it is shown that the other party 'has after the solemnization of the marriage had sexual intercourse with the other person not his spouse'. But this is not sufficient under the latter provision. For a decree of divorce, it has to be established that the other party 'is living in adultery'. A single act of infidelity to the marriage bond does not afford sufficient ground for a decree of divorce.

5. In the present case, it is undisputed I that the second wife is living with the husband. The husband admits that the second wife lives with him. Thus, the ground under Section 13(1)(i) of the Act is established.

6. We uphold the finding reached by the trial Judge that the husband did not take the second wife with the consent of the petitioner. There is nothing to hold that the appellant connived at or condoned the adultery within the meaning of Section 23 of the Act. In fact that was not even pleaded in defence.

7. The appeal is allowed. The judgment and order of the trial Court are set asire. A decree of divorce shall be passed in favour of the appellant against her husband Fattoo. Their marriage is dissolved. The appellant shall get her costs from the first respondent in both the Courts. Counsel's fee in each Court Rs. 25.


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