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2012 DIGILAW 3916 (MAD)

A. Manimekalai v. C. Mariappan

2012-09-17

R.S.RAMANATHAN

body2012
Judgment 1. The first respondent in F.C.O.P.No.264 of 2012, on the file of the Family Court, Salem, is the revision petitioner herein. The first respondent herein filed the said Petition for restitution of conjugal rights, stating that the marriage between him and the revision petitioner took place, on 30.03.2012, at his residence, as per the Hindu customs. The revision petitioner/wife deserted him and he also sent a notice and the same was returned. Therefore, the first respondent filed a Petition for restitution of conjugal rights. The said Petition is sought to be quashed in the present Civil Revision Petition. 2. Mrs. Chitra Sampath, the learned Senior Counsel for the revision petitioner submitted that no marriage had taken place between the revision petitioner and the first respondent. Admittedly, the first respondent has initiated proceedings in C.C.No.144 of 2010, against the revision petitioner under Section 138 of the Negotiable Instruments Act, 1881, and he has filed a proof affidavit, on 16.03.2012, and within a period of 14 days, he alleged that he married the revision petitioner. But, no valid proof has been produced by him to prove the marriage, except, the marriage invitation, which could be easily fabricated. Admittedly, the marriage is not registered, as per the provisions of the Tamil Nadu Registration of Marriages Act, 21 of 2009. When the marriage is not registered, the parties can be punished for violation of the provisions of the said Act. Moreover, on the alleged date filed a proof to that effect. 3. The learned Senior Counsel for the revision petitioner further submitted that admittedly, the first respondent is having a wife and that is proved by a sale deed, dated 26.11.1993, wherein, it has been stated that he along with his wife Mrs. Santhi, purchased a property under the registered Document No.2267 of 1993. Therefore, when the first respondent is having a wife living, the marriage, even assuming to be true, is not a valid marriage and it is only a void marriage. Hence, such marriage cannot be enforced by filing an Petition under Section 9 of the Hindu Marriage Act ( hereinafter referred to as 'the Act'). 4. The learned Senior Counsel for the revision petitioner relied upon a judgment rendered by the Bombay High Court, reported in (1997) 2 DMC 523 in the matter of [Ranjana Vinodkumar Kejriwal Vs. V.K. Kejriwal] in support of her contention. 4. The learned Senior Counsel for the revision petitioner relied upon a judgment rendered by the Bombay High Court, reported in (1997) 2 DMC 523 in the matter of [Ranjana Vinodkumar Kejriwal Vs. V.K. Kejriwal] in support of her contention. The learned Senior Counsel also relied upon the judgment of this Court reported in (2006) 1 L.W. 398 in the matter of [A. Sreedevi Vs. Vicharapu Ramakrishna Gowd], wherein, this Court has quashed the proceedings initiated by the alleged husband by invoking the provisions of Article 227 of the Constitution of India, when the allegations are patently false. 5. Per contra, Mr. Thiagarajan, the learned Senior Counsel for the respondent submitted that the first respondent is prepared to prove the factum of marriage during trial, and at this stage, it cannot be canvassed by the revision petitioner that the marriage was not conducted or solemnized. The learned Senior Counsel further submitted that eventhough under the provisions of the Tamil Nadu Registration of Marriages Act, 21 of 2009, the marriages are compulsorily registrable, the non registration of the marriage will not make the marriage invalid. Therefore, the fact that the marriage between the revision petitioner and the first respondent is not registered, cannot be a ground to quash the Petition filed by the first respondent. 6. The learned Senior Counsel, therefore, submitted that the first respondent is prepared to prove the factum of marriage during trial and without permitting the parties, to lead evidence, at this stage, the proceedings cannot be quashed. At this point of time, a question was put to the learned Senior Counsel for the respondent, Whether the first respondent had married one Mrs. Shanthi, as stated in the sale deed, referred to above, and whether the marriage is still subsisting, to which, the learned Senior Counsel fairly submitted that the first respondent had married the said Mrs. Shanthi, but, she is not living with the first respondent now and she is also not heard for the past 7 years. Therefore, she is presumed to be dead. Hence, there is no prohibition for the first respondent to marry the revision petitioner. If at all, any person is aggrieved by the marriage of the first respondent, only the first wife is the aggrieved person and the revision petitioner is fully aware about his earlier marriage with the said Mrs. Shanthi and the children born through them. Hence, there is no prohibition for the first respondent to marry the revision petitioner. If at all, any person is aggrieved by the marriage of the first respondent, only the first wife is the aggrieved person and the revision petitioner is fully aware about his earlier marriage with the said Mrs. Shanthi and the children born through them. Therefore, the revision petitioner cannot complain that the marriage is not a valid marriage, when she is fully aware of the earlier marriage 7. I am not inclined to accept the contention of the learned Senior Counsel for the revision petitioner that the Petition has to be quashed on the ground that the marriage was not registered, as per the Tamil Nadu Registration of Marriages Act and the revision petitioner was not in Chennai, at the time of the alleged marriage and the allegations made in the Petition are also more improbable and no marriage could have been presumed, having regard to the conduct of the parties at this stage and as rightly submitted by the learned Senior Counsel for the respondent, all these can be canvased during trial. But considering the fact that the first respondent is having a wife living at the time of his marriage with the revision petitioner, the marriage between the revision petitioner and the first respondent even presumed to be true, is not a valid marriage. As per Section 5 of the Hindu Marriage Act, a marriage may be solemnized between two Hindus and one of the conditions stated therein is that neither party has a spouse living at the time of marriage. Section 11 of the Act deals with Void Marriages and it is stated 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, [against other party] be so declared by a decree of nullity, if it contravenes any one of the conditions stated in (i) of Section 5. 8. As stated supra, as per Section (i) neither party has a spouse living at the time of marriage to have marriage, a void one. Therefore, when a marriage is solemnized by the person and when the person is having a spouse living at the time of marriage, then the marriage is null and void and prohibited under Section 11 of the Act. Therefore, when a marriage is solemnized by the person and when the person is having a spouse living at the time of marriage, then the marriage is null and void and prohibited under Section 11 of the Act. Though, it is stated in Section 11, that such marriage may be declared by a decree of nullity on petition presented by either party thereto, the validity of the marriage does not depend upon the decree of nullity. As per the first part of Section 11 of the Act, the marriage is null and void, if either party is having a spouse living at the time of marriage. In other words, a person, who is having a spouse living at the time of marriage, cannot enforce the second marriage by filing a Petition under Section 9 or 13 of the Hindu Marriage Act. 9. In the judgment rendered in Ranjana Vinodkumar Kejriwal's case, referred to above, it is held that the relief of restitution of conjugal rights cannot be granted, when the person applying for the same is already a married one and is having his first wife alive. Further, in the judgment rendered in A. Sreedevi's case, referred to supra, this Court has held that on the basis of the allegations, the Petition for restitution of conjugal rights may be quashed, if the Petition, prima facie proves that there cannot be any valid marriage. 10. In the case on hand, as stated supra, having regard to the fact that the first respondent is having his wife living at the time of marriage, it cannot be enforced by the first respondent by filing a Petition under Section 9 of the Hindu Marriage Act. Hence, the Petition filed by the first respondent, viz., F.C.O.P.No.264 of 2012, is quashed and the Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.