JUDGMENT Heard Sri Arvind Vashistha, counsel for the appellants and Sri Rajendra Dobhal, counsel for the respondent. 2. By the present first appeal filed under Section 96 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 25.5.2005 passed by the District Judge, Tehri Garhwal by which the suit filed by the plaintiff-appellants has been dismissed. 3. Briefly stated, a suit was filed by the plaintiffs-appellants for declaration to the effect that they are the successor of late Mohan Singh. According to the plaint case, late Mohan Singh (hereinafter referred as ‘the deceased’) was posted in the Indian Army on the rank of Naik, who died on 15.11.2003. The deceased was married with Smt. Usha Devi, the defendant. There was no issue from the wedlock of the deceased and Usha Devi. Later on, the deceased married the plaintiff-appellant no. 1 Rajani Devi with the consent of Usha Devi in September, 1989 and there were three issues from their wedlock as a result of which plaintiff-appellants no. 2, 3 and 4 became the heirs of the deceased. Smt. Usha Devi has filed an application under Section 125 of the Cr.P.C. and a compromise has taken place between the parties on 31.10.1990 and thereafter, the deceased started giving a sum of Rs. 300/- per month towards the maintenance of his wife. In paragraph 12 of the plaint, she (sic) has claimed that she is entitled for the movable and immovable property including the family pension and amount of life insurance also. 4. A written statement was filed by the defendant stating therein that she is the legally married wife of the deceased. It has been stated that she has been left in her parental house by the deceased. In paragraphs 15 and 16 of the additional pleas, it has been stated as under :- ß1- fd lgh rF; ;g gS fd izfroknuh Loñ eksgu flag dh fookfgrk ifRu gS ,oa blh izdkj Loñ eksguflag ds lsok vfHkys[kksa esa iathÑr gSA vr% izfroknuh gh Loñ eksgu flag ds leLr ns;dksa dks ikus dh ,dek= vf/kdkfj.kh gSA 2- fd okLrfodrk ;g gS fd izfroknuh vikfgt gksus ij Loñ eksgu flag us izfroknuh dks ek;ds NksM+ fn;k ,oa oknuh lañ 1 ls uktk;t “kkjhfjd lEcU/k LFkkfir dj fn;sAÞ 5. The defendant has also stated that neither the plaintiff-appellant no.1 nor the plaintiff-appellants nos.2 to 4 are entitled for any claim by way of the present suit. 6. Smt. Rajni Devi has filed her own affidavit, paper no. 31 ka and she has stated regarding the second marriage with the deceased. P.W.2 Jitar Singh and P.W.3 Raghuvar Dayal have also filed their affidavit i.e. paper no. 32 ka and 33 ka respectively. All the plaintiff witnesses have stated that all the plaintiff-appellants are the children from the wedlock of Smt. Rajni Devi and the deceased and the plaintiff-appellants are the legal heirs and the successor of the deceased. 7. Smt. Usha Devi has filed her affidavit D.W.1, paper no. 36 ka and she has asserted that she is the legally wedded wife of the deceased. Paragraph nos. 4 and 5 of the affidavit are quoted below :- ß4- ;g fd “kiFkdrkZ ,d vikfgt efgyk gS ,oa “kiFkdrkZ dk vikfgt gksus dk uktk;t ykHk mBkdj Loñ eksgu flag us “kiFkdrkZ dh bPNk ,oa vuqefr ds fo#) oknuh ls uktk;t “kkjhfjd lEcU/k LFkkfir fd;s ,oa mls vius ?kj ykdj O;kfHkpkjiw.kZ thou O;rhr djus yxk ,oa tc “kiFkdrkZ us Loñ eksguflag ds vkpj.k ij vkifÙk dh ,oa mlds mPp vf/kdkfj;ksa dks bldh f”kdk;r dh rks Loñ eksgu flag us “kiFkdrkZ ds fo#) fofHké U;k;ky;ksa esa >wBs eqdnes izLrqr fd;s tks lHkh “kiFkdrkZ ds i{k esa U;k;ky;ksa }kjk fu.khZr fd;s x;sA 5- fd oknuh dk ;g dFku fd Loñ Jh eksguflag dh iq=h dqekjh eerk ugha gS fcYdqy xyr ,oa vlR; gS tcfd lR;rk ;g gS fd Loñ eksguflag ,oa “kiFkdrkZ dh ,d iq=h dqekjh eerk mez 14 o’kZ thfor gS ,oa “kiFkdrkZ gh mldk ikyu&iks’k.k djrh gSAÞ 8. A compromise application dated 31.10.1990 was also filed by Smt. Usha Devi and the deceased with regard to the suit filed under Section 125 of the Cr.P.C. The compromise application reads as under :- ßmDr gLo nQk 125 lhñvkjñihñlhñ ds eqdnesa esa lk;yk o foi{kh dk vkil esa bu “krks± ij jkthukek gks x;k gS %& 1- fd lk;yk Jherh m’kk nsoh us tks mDr izkFkZuk i= 125 dk fn;k gS mlesa foi{kh eksgu flag vkthou lk;yk dks bl eqdnesa ds izLrqr djus dh rkjh[k ls izfrekg 350@& #i;s xqtkjk HkÙkk nsrk jgsxk vkSj foi{kh dh bl le; ru[okg tks fd orZeku le; esa 1300-00 #ñ ds vk/kkj ij gSA 1300-00 #ñ ru[okg rd esa og lk;yk dks 350-00 #ñ izfrekg nsrk jgsxk vkSj mlds ckn ru[okg esa 100-00 izfrekg c<+us ij og 15-00 #ñ izfrekg c<+ksÙkjh nsrk jgsxkA mDr Hkqxrku og eghus dh 10 rkjh[k rd dj nsxkA 2- fd foi{kh ds isU”ku tek Q.M o vU; lEifÙk ij lk;yk dk vk/kk vf/kdkj jgsxk o mlesa vk/kh lEifÙk ikus dh vf/kdkjh gSA 3- fd lk;yk dk foi{kh ds ikl nks rksys dk jksycUn ¼lksus dk½ o vkB vkus Hkj lksus dh ckfy;k¡ gSa og lk;yk dh gSa vkSj lk;yk gh mldh gdnkj jgsxhA rFkk vU; tsojksa dks ,d lky ckn okil dj nw¡xk rFkk ckdh 2 lky ds ckn vnk dj nw¡xkA 4- fd lk;yk us foi{kh dks nwljh “kknh djus dh btktr ns j[kh gS vkSj lk;yk dks mldh nwljh “kknh gksus esa dksbZ vkifÙk ugha gSA D;ksafd lk;yk ,d ikao ls vikfgt gS o lk;yk dh dksbZ lUrku ugha gSA mijksDr “krs± nksuksa i{kksa dks eatwj gSaA vr% vnkyr ls fuosnu gS fd mijksDr jkthukes ds vk/kkj ij ge i{kdkjksa dk mijksDr eqdnek lekIr djus dh Ñik djsaAÞ 9. The C.J.M. New Tehri Garhwal has passed the order to the following effect :- ß31-10-90 vkt is”k gqvkA Jherh m’kk nsoh o eksgu flag vius&vius vf/koDrkvksa ds lkFk mifLFkr vk;s rFkk nksuksa us lqygukek nkf[ky fd;kA lqygukek i{kdkjksa dks i<+dj lquk;k x;k ftl ij nksuska us viuh&viuh lgefr nhA izkFkZuk i= Jherh m’kk nsoh iRuh eksguflag ds }kjk /kkjk 115 tkIrk QkStnkjh ds vUrxZr foi{kh eksgu flag ls 500 #ñ Hkj.k iks’k.k HkÙkk fnyk;s tkus dh izkFkZuk dh gSA lqygukesa ds vuqlkj foi{kh us m’kk nsoh dks vius osru ls 350@& #ñ izfrekg rFkk 100@& #ñ osruo`f) gksus ij mls 15@& #ñ izfrekg fn;k tkuk rFkk mlds tsojkr vk/ks ,d o’kZ esa rFkk vk/ks vxys o’kZ fn;k tkuk Lohdkj fd;k gSA bl ij nksuksa i{k lger gSa vr% ;g izkFkZuk i= Lohdkj fd;k tkrk gSA vr% eqdnek lqygukek ds vk/kkj ij r; fd;k tkrk gS tks nksuksa i{kksa ds chp fMxzh dk Hkkx gksxkAÞ 10. As will appear from the aforesaid statement that she has completely denied about the second marriage with the deceased. From the record, it appears that suit no. 36/1991, paper no. 30 C/5, was filed for divorce and the said suit was dismissed on 17.8.1992. The finding recorded by the court in the said suit is quoted below :- ß;g LokHkkfod gS fd lu~ 1990 dh nks ekg dh Nqêh dh vof/k esa eksgu flag us mlds ek;ds tkdj mlls lgokl lEHkksx fd;k ftlds QyLo:i m’kk nsoh us ,d dU;k dks tUe fn;kA vr% Li’V gS fd Jherh m’kk nsoh us fdlh Hkh izdkj ls fifV”kuj dk ifjR;kx ugha fd;k cfYd mijksDr ifjfLFkfr;ksa ls LokHkkfod ;g yxrk gS fd fifV”kuj us gh Jherh m’kk nsoh dk fujLdkj dj mls ?kj ls fu’dkf’kr dj fn;k gSAÞ 11. The trial court has dismissed the suit on the ground that she is not entitled on account of the fact that first wife is alive and no benefit can be given till the first wife is alive and the second marriage is completely barred by the provisions of the Hindu Marriage Act. 12. Second 5 of the Hindu Marriage Act provides as under :- “5. 12. Second 5 of the Hindu Marriage Act provides as under :- “5. Conditions for a Hindu marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :- (i) neither party has a spouse living at the time of the marriage; [(ii) at the time of the marriage, neither party- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.” 13. In contravention of the provision of the Section 5 of the Hindu Marriage Act, second marriage renders the marriage as void under Section 11 of the Hindu Marriage Act. The same is quoted below :- “11. Void marriages – Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clause (i) [(iv) and (v) of Section 5.] 14. Section 17 of the Hindu Marriage Act also provides the punishment for bigamy. “17. Punishment of bigamy.- Any marriage between two Hindus solemnized after the commence of this 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.” 15. Counsel for the respondent has referred the judgment of Savitaben Somabhai Bhatiya v. State of Gujarat reported in (2005) 3 SCC 636 where it has been held that on a subsisting marriage, the second marriage will be void. Counsel for the respondent has referred the judgment of Savitaben Somabhai Bhatiya v. State of Gujarat reported in (2005) 3 SCC 636 where it has been held that on a subsisting marriage, the second marriage will be void. Para 15 is relevant and the same is quoted below :- “15. In Yamunabai case it was held that the expression “wife” used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word “wife” is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of the law preceding that status. The expression must therefore be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with Hindu rites with a man having a living spouse is a complete nullity in the eye of the law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short “the Marriage Act”). Marriage with a person having a living spouse is null and void and not voidable. However, the attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 of the Code has been enacted in the interest of a wife and one who intends to take benefit under sub-section (1) (a) has to establish the necessary condition, namely, that she is the wife of the person concerned. The issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes such status or relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the provision in Section 125 of the Code is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be answered except by reference to the appropriate law governing the parties.” 16. The trial court has also disbelieved the marriage with the appellant no. 1 being void on account of Section 5 of the Hindu Marriage Act. The issue whether the section is attracted or not cannot be answered except by reference to the appropriate law governing the parties.” 16. The trial court has also disbelieved the marriage with the appellant no. 1 being void on account of Section 5 of the Hindu Marriage Act. The findings of the trial court is quoted below :- ßvr% /kkjk 5 ds mijksDr izkfo/kku dk vuq”khyu fd;k tk; rks izFke fookfgrk L=h }kjk vxj vuqefr rFkk lgefr Hkh ns nh tkrh gS rks f}rh; fookg dks oS/k ugha ekuk tk;sxkA vr% orZeku okn ftl :i esa Jherh jtuh nsoh }kjk nwljs fookg dks igyh iRuh dh lgefr ls gksuk dgk x;k gS og Lo;a esa ,d voS/k dk;Z gksuk Li’V gksrk gSAÞ 17. With regard to the issue as to whether the plaintiffs are entitled to get any share out of Group Insurance Pension after the death of Shri Mohan Singh, the trial court has recorded the finding to the following effect :- ßmijksDr vfHkfu/kkZj.kksa ls ;g fl) gks pqdk gS fd oknuh dh “kknh fgUnw fookg ds vuqlkj fl) ugha gS vkSj e`rd eksgu flag dh igyh iRuh ftUnk jgrs gq, Hkh nwljk fookg djus dk vfèkdkj izkIr ugha FkkA ukSdjh ds nkSjku bl rF; dk Kku lEcfU/kr foHkkx dks gks tkrk rks mls f}fookg ds vkjksi esa ukSdjh ls gVk;k tk ldrk FkkA iqu% ;g Hkh Li’V gS fd igyh iRuh ds ftUnk jgrs gq, nwljk fookg djuk Hkkjrh; n.M lafgrk ds vUrxZr n.Muh; cuk;k x;k gSA vr% mldh e`R;q ds mijkUr ,sls rF; dks dkuwuh laj{k.k nsrs gq, mldh iqf’V djuk Hkh fd;s x;s ÑR; dks c<+kok nsus ds cjkcj gksxkA vr% bl vk/kkj ij oknhx.k e`rd eksguflag ds ukSdjh ls mikftZr ykHkksa dks izkIr djus ds vf/kdkjh ugha ik;s tkrs gSaA 18. Counsel for the appellant has referred Section 16 of the Hindu Marriage Act. The aforesaid provision is fully inapplicable inasmuch as the marriage itself has been treated to be null and void. 19. In view of the aforesaid, I find no merit in the submissions made on behalf of the appellants. The appeal lacks merit and is dismissed. No order as to costs.