V.D. Misra, C.J.
1. This is a wife's ap; peal against the judgment of Shri Jai Chand Malhotra, District Judge, Kangra Division at Dharamsala, dismissing her petition for a decree of nullity of marriage under Section 11 or in the alternative for judicial separation under Section 10 of the Hindu Marriage Act (referred to as the Act).
2. The parties were married on 28thApril, 1969. Sometimes in 1971 the wifemade a petition under Section 11 of theAct for a declaration that the marriagewas null and void since it contravenedthe provisions of Section 5 (i) of the Act.It appears that on 6th May, 1972 thepetitioner was absent while the husbandwas present. The result was that thepetition was dismissed.
3. Another petition was made on 20th December, 1972. This petition was also filed under Section 11 of the Act. It was alleged by the petitioner that at the time of her marriage the husband had another wife named Atti. The husband admitted that he had married Shrimati Atti but averred that she was not his wife at the time of his marriage with the petitioner. The dismissal of the previous petition was set up as a bar to the present petition.
4. The trial court came to the conclusion that the husband had a wife living at the time of his marriage with the present wife. The marriage being in contravention of Section 5 (i) of the Act, was held to be null and void. However, the trial Judge concluded that since wife's earlier petition had been dismissed under Order 9, Rule 8 of the Code of Civil Procedure, the present petition was barred under Order 9, Rule 9 of the Code of Civil Procedure. The petition was, therefore, dismissed as not maintainable.
5. Mr. Ramesh Chand, learned counsel for the appellant, contends that the provisions of Order 9 do not apply to the proceedings under Hindu Marriage Act. He submits that Section 21 of the Act makes the Code of Civil Procedure applicable to the proceedings under the Hindu Law only to the extent of 'asfar as may be'. Mr, Arun Kumar learned counsel for the respondent, refers to a Division Bench judgment at Mysore High Court in Tirukappa v. Kamalamma, AIR 1966 Mys 1; and a Division Bench judgment of Punjab and Haryana High Court in Shiv Lal v. Pt. Ishar Das, AIR 1973 Punj & Har 249, and submits that the provisions of Order 9, Rule 8 are applicable. I need not decide the question in the instant case. Assuming that provisions of Order 9, R, 8 are applicable, the question which falls for determination is that where a marriage is null and void, can the subsequent petition asking for this relief be denied on this ground.
6. Section 5 of the Act lays down the prerequisites of a valid Hindu marriage. Clause (i) provides; 'Neither party has a spouse living at the time of the marriage'. More prerequisites are laid down by other clauses. Section 11 lays down that any marriage which contravenes anyone of the conditions specified in Clauses (i), (iv) and (v) of Section 5, shall be null and void. It further provides that on a petition being presented by one party to the marriage against the other party, it may be so declared by a decree of nullity. Section 12 deals with voidable marriages. These marriages may be 'annulled by a decree of nullity'.
7. The distinction between Sections 11 and 12 is important indeed. Whereas voidable marriages may be annulled by a decree of nullity, void marriages remain null and void. In the case of voidable marriages, an aggrieved party is entitled to have the marriage annulled or to accept the marriage as valid. In other words, a voidable marriage not being void ab initio, will remain a valid marriage if the party so chooses. It may be noticed that Section 12, in respect of some grounds mentioned therein, prescribes a limitation within which a party may ask for the annulment of a voidable marriage. In other words, after the expiry of the period of limitation, the voidable marriage ceases to be voidable. But this cannot be in the case of a void marriage.
8. In a void marriage it is not the declaration by a court of law which makes the marriage void. Marriage being void, a court declares it such by passing a decree of nullity. No amount of consent of parties to that marriage can make the marriage viodable or valid,
9. Order 9, Rule 9 prohibits bringing a subsequent petition based on the same cause of action. However, for a subsequent cause of action which may be imilar to the previous one, or for a :ontinuing cause of action, the bar of Order 9, Rule 9 does not apply. For example, where the cause of action is a particular act of adultery on the part of the opposite party, it will not be available to the petitioner after the petition is dismissed under Order 9, Rule 8. However, a subsequent similar act of adultery will give rise to a fresh cause of action and the subsequent petition will be maintainable. Similarly the condonation of a particular act of adultery does not mean the condonation of subsequent similar acts, or condonation of previous desertion will not amount to condonation of subsequent desertion. Such examples can be multiplied. But in the case of s continuing cause of action, the cause ol action arises everyday and the dismissal of a previous petition does not bar 3 fresh petition. Well known examples are suits for partition and suits for redemption of mortgage.
10. Mr. Goel relies on two decisions of the Punjab and Haryana High Courl in Sheela Devi v. Piare Lal, 1975 Hindu LR 12, and in Surjit Kaur v. Jhujnai Singh, 1979 Hindu LR 128. In the case of Sheela Devi, the wife had asked for a judicial separation on the ground oi cruelty and desertion. This petition was dismissed because of the absence of the petitioner-wife while the respondent-husband was present. A subsequent petition by the wife on the same grounds relating to the same acts of cruelty and desertion was held barred under Order 9, Rule 9. The facts of this case have no application to the present case.
11. The facts of the case of Surjit Kaur were somewhat similar to the facts of the present case. The wife had a spouse living at the time of her marriage with the petitioner-husband. The wife later on had withdrawn from the society of the husband who filed a petition under Section 9 of the Act for restitution of conjugal rights. This petition was, however, withdrawn and later on another petition under Section 11 of the Act praying for a decree of nullity of marriage was brought. This petition was also dismissed as withdrawn. Still another petition was brought by the husband for the same relief under Section 11of the Act on the same ground. This petition was held barred under the provisions of Order 9, Rule 9. The learned Judge followed the decision of the Court in the case of Sheela. With all respects to the learned Judge, the case of Sheela was not at all applicable. The learned Judge also did not consider the effect of void marriage. I, therefore, cannot agree.
12. Mr. Goel contends that no declaration need be given since the marriage being void., ab initio, it will continue to be so. I am not impressed with this line of reasoning. The marital status of a party is affected by a marriage. Before marriage one may be a bachelor/spinster, or widower/widow, or a divorcee etc. After a valid marriage one acquires the status of a married person who cannot enter into marriage with another person. A void marriage casts a cloud on the status of a person. As long as this cloud remains, one can approach the court for a declaration. It is, therefore, necessary to declare the status of the parties and to remove all clouds on the fact that the wife's marriage with the respondent-husband is null and void so that she will be at liberty to enter into another valid marriage if she so desires. I will, therefore, hold that Rule 9 of Order 9 is not applicable to this case.
13. The appeal is, therefore, allowed with costs and the wife's petition is accepted. It is declared that the appellant's marriage with the respondent-husband is null and void. A decree of nullity shall follow.