Chet Ram Thakur, J.
1. This appeal has arisen out of an application under Section 9 of the Hindu Marriage Act brought by Mansha/ Ram respondent against Sodha (appellant) alleging Smt. Sodha to be his wile. It was alleged that after their marriage they lived as husband and wife at the house of the respondent and put of that wedlock a son was born, who is about 2 years of age. In August, 1964, the wife left his house at the instigation of her father and did not return to the matrimonial home despite several efforts on thepart of the husband and notice in this behalf sent by him. This way the wife had withdrawn from the society of the husband without any reasonable cause and he, therefore, sought a decree for restitution of conjugal rights.
2. The petition was resisted and it was pleaded that she was not a legally wedded wife of the petitioner. She had eloped with him who kept her in his house for about three months in the year 1964 and the child was not that of the petitioner. She also made allegations of cruelty, and further alleged that the petitioner had been compelling her for sexual intercourse with his other brothers and he himself was a drunkard and she has a reasonable apprehension in her mind that it will not be safe for her to live with him. Allegations of desertion were also made. The following issues were framed by the Senior Sub-Judge, who had the delegated powers of a District Judge to hear cases under the Hindu Marriage Act:--
1. Whether there is a valid marriage subsisting between the petitioner and the respondent? O.P.P. (onus objected to).
2. Whether the respondent has withdrawn from the society of the petitioner without any reasonable cause?. .. . O.P.P.
3. Whether the petitioner has treated the respondent with such cruelty as to cause reasonable apprehension in her mind that it will be harmful and injurious for her to live with him? .. .. . . . . O. P. R.
4. Whether the petitioner has deserted the respondent for a period of more than two years?.... .... .. .. .. . .O. P. R.
Issues 1 and 2 were found for the petitioner and issues Nos 3 and 4 were decided against the respondent. In fine the court passed a decree for restitution of conjugal rights in favour of the petitioner (respondent in appeal).
3. It is a common ground between the parties that Smt. Sodha was formerly married to Hukmi (P.W. 2). The case of the respondent is that the appellant had obtained a divorce from Hukmi and it was thereafter that she contracted a Parena marriage with him. But the contention of the appellant is that she is still the wife of Hukmi Ram as there was no valid and legal divorce between them. Her further contention is that Mansha Ram had taken her away from her father's house and during her stay at the house of respondents she was maltreated and compelled to have sexual intercourse with his brothers. Hence she was forced to leave the house of the respondent. The respondent argued that the divorce was quite legal and there was a valid marriage between the parties as stood admitted by the present appellant in her reply to the notice sent by the petitioner respondent to the appellant through her counsel. Besides he argues that the long residence and co-habitation of Smt. Sodhawith the respondent raised a presumption of marriage.
4. In view of the admitted facts on both hands that Sodha was formerly the wife of Hukmi it is to be determined whether there was or could there be any valid divorce between Sodha and Hukmi? If it is found that there was no legal divorce, then the second point whether there was any marriage with Mansha Ram will be of no avail.
5. Hukmi Ram the previous husband has appeared as P.W. 2 and he was examined on 25th July, 1967 and on that date he stated his age 20 years. According to his statement his marriage with Sodha was solemnised about four years ago, meaning thereby that he was about 16 years of age at that time. From his statement it is further revealed that the divorce was effected two months after the marriage. Thus it is obvious that Hukmi Ram was a minor at the time of the divorce.
6. It is also evident from the statement of Hukmi Ram that it was Daulat Ram the younger brother of Sodha, who had approached him for a Talaq (divorce) and he also gave the talaq and two copies of the divorce deed were prepared one was given to the brother of Sodha and the other was retained by his uncle Jania. He had stated the age of Daulat Ram 15/16 years at that time. It is also admitted that Smt. Sodha was a minor at the time of the divorce and that she was not present at the time of the divorce. Hence it is obvious, that the divorce was brought about by the younger brother of Smt. Sodha, who was a minor and by her minor husband for the minor. This divorce, therefore, could not be said to be a valid divorce. According to Section 11 of the Indian Contract Act every person is competent to contract, who is of the age of majority, but here in the instance case they were not competent to contract.
7. It has also been admitted by Hukmi Ram that in case the parties to the marriage are minors then a divorce could be brought about by parents, but in the instant case there is no evidence on the record to prove that the divorce was brought about with the consent of the parents or the guardian of the minors. This divorce, therefore, having been brought . about by minors without the consent of the parents or the guardians is void.
8. The counsel for the respondent had contended that in the notice Ex. P. B. she has not taken a specific plea to the effect that she was a minor at the time of divorce but it may be stated here that it is the story of the petitioner Mansha Ram as is unfolded in his evidence that she was formerly the wife of Hukmi Ram and he had divorced her and it was the petitioner himself who had produced Hukmi Ram to establish this fact. It was Hukmi Ram whostated that she was a minor and he too was a minor and the divorce was obtained by Daulat Rani the brother of Sodha, who was younger to Sodha. Therefore, the absence of any specific plea in her reply to the notice is not fatal to her case when the petitioner himself had chosen to lead evidence to prove that before he contracted marriage Hukmi Ram had divorced her and the parties were minors.
9. As the divorce is void, therefore, the marriage shall be deemed to be subsisting. In the presence of her first husband she could not contract any valid second marriage. Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of marriage. Section 11 of the Hindu Marriage Act says that any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, 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. Hence this marriage even if admitted and proved to have been contracted by Smt. Sodha with Mansha Ram is void under the provision of Section 11 of the Hindu Marriage Act.
10. In the light of the above observations the divorce being illegal and void the first marriage subsisted between Smt. Sodha and Hukmi Ram and there could be no legal, and valid marriage with Mansha Ram in the lifetime of her husband Hukmi Ram. Therefore the question of admission in the notice about marriage is not binding on her, and it is an illegal and a wrong admission. The long residence and co-habitation with Mansha Ram also does not raise any presumption of marriage and their relations could be said to be adulterous as the previous marriage still subsists. Hence the appeal succeeds and the judgment and order of the court below are set aside and the petition of Mansha Ram is dismissed, however, I leave the parties to bear their own costs throughout.