JUDGMENT Tarlok Singh Chauhan, J. - Defendant No.3 is the appellant, who after having lost in both the learned Courts below, has filed the instant Regular Second Appeal. 2. The parties shall be referred to as the ''plaintiffs'' and the ''defendants''. 3. The plaintiffs filed a suit for declaration and permanent injunction to the effect that plaintiff No.1 is the only legally wedded wife of late Shri Ram Gopal and this marriage was solemnized in the year 1978 according to Hindu rites and customs and out of this wedlock one girl named Sangeeta, plaintiff No.2, was born. Late Shri Ram Gopal died in harness in the year 1992 as he was serving as Senior Clerk in the Office of the Deputy Commissioner, Shimla. It was averred that defendant No.3 had been wrongly entered as a wife of late Shri Ram Gopal as she had manipulated in some way or the other and is receiving pension of late Shri Ram Gopal as legally wedded wife for which she is not legally entitled. It was further averred that name of plaintiff No.1 has been mentioned as nominee in the service record/GPF final payment of late Shri Ram Gopal. Defendant No.3 has wrongly been given the benefit of wife of late Shri Ram Gopal. The plaintiffs further prayed for a decree of permanent injunction restraining respondents No.3 and 4 i.e. State of Himachal Pradesh and the Senior Accountant General, respectively, from paying the pensionary and retiral benefits to defendant No.3 and for restraining her from withdrawing the same. 4. The suit was contested by the defendants. Defendant No.1 filed the written statement wherein preliminary objections qua cause of action, jurisdiction, non-compliance of the mandatory provisions of Section 80(2) CPC and valuation, have been taken. On merits, the defendant has denied the averments contained in the plaint. It was averred that a complaint dated 14.05.1993 regarding pensionary benefits to plaintiffs No.1 and 2 was received in the office under the signatures of plaintiff No.2 which was got enquired into through SDO (Civil), Rural, Shimla, who reported that plaintiff No.1 was the first wife of late Shri Ram Gopal and plaintiff No.2 was born out of the said wedlock. Shri Ram Gopal had contracted second marriage in the year 1985 with one Smt. Subhadra, who gave birth to two male children namely Krishan Gopal and Inder Pal. Shri Ram Gopal had contracted second marriage in the year 1985 with one Smt. Subhadra, who gave birth to two male children namely Krishan Gopal and Inder Pal. Plaintiffs No.1 and 2 were reported to have been living separately from late Shri Ram Gopal since 1985 and plaintiff No.1 also gave birth to two children while living separately from Shri Ram Gopal. According to the Panchayat record, the plaintiff has been entered as wife of Shri Roshan Lal, the brother of Shri Ram Gopal and Pramod Kumar and Sangeeta, daughter, have been shown as family members of Shri Roshan Lal. The SDO (Civil) also reported that according to the Panchayat record, Smt. Subhadra has been entered as wife of late Shri Ram Gopal and Kumari Sangeeta, Krishan Gopal and Inder Pal, their children. According to the certificate issued by the SDO (Civil), defendant No.3 Smt. Subhadra Devi, Smt. Phool Dass mother, Kumari Sangeeta daughter, Krishan Gopal and Inder Pal sons, have been shown as legal heirs of late Shri Ram Gopal and on the basis of the certificate, the pension papers so prepared were transmitted to the office of the Accountant General, H.P. There was no record regarding nomination of plaintiff No.1 in the GPF subscription. This document was not available in the record of this office and thus the GPF final withdrawal presented by defendant No.3 was accepted on the basis of the legal heir certificate and the same was transmitted to the office of the Accountant General, H.P. 5. Defendant No.2 filed separate written statement wherein it was averred that the family pension case of late Shri Ram Gopal was submitted by D.C.,Shimla vide letter dated 20.05.1992 to defendant No.2 and the legal heir certificate issued by the Collector SDO(Rural) was also enclosed with other pension case in which defendant No.3 was shown as one of the legal heirs of deceased late Shri Ram Gopal on the basis of this record. Defendant No.2 finalized the pension case and issued the certificate and report vide letter dated 18.06.1992 and indicated the family pension of Rs.630/- upto 28.02.1999 and thereafter Rs.378/- and deathcum-retirement gratuity of Rs.15,120/- was also sanctioned in favour of Smt. Subhadra Devi. The case was finally settled and no representation was received from plaintiff No.1. 6. Defendant No.2 finalized the pension case and issued the certificate and report vide letter dated 18.06.1992 and indicated the family pension of Rs.630/- upto 28.02.1999 and thereafter Rs.378/- and deathcum-retirement gratuity of Rs.15,120/- was also sanctioned in favour of Smt. Subhadra Devi. The case was finally settled and no representation was received from plaintiff No.1. 6. Defendants No.3, 4 and 5 filed separate written statements wherein they took preliminary objections qua maintainability, locus standi, cause of action, jurisdiction and estoppel. On merits, the defendants also denied the averments contained in the plaint. The case of defendants No.3 to 5 was that plaintiff No.1 was not the legally wedded wife of late Shri Ram Gopal. It was denied that marriage between Shri Ram Gopal and plaintiff No.1 was solemnized in the year 1978 and plaintiff No.2 was born out of the said wedlock. It was averred that defendant No.3 was married with late Shri Ram Gopal on 07.12.1985 according to Hindu Rites and Customs and marriage between them was duly recorded in the marriage register of Gram Panchayat, Kotgarh. After solemnization of marriage, defendant No.3 and late Shri Ram Gopal lived and cohabited together as husband and wife and out of the said wedlock defendants No.4 and 5 were born and they are the legitimate sons of late Shri Ram Gopal. It was further averred that during the life time of Shri Ram Gopal, plaintiffs No.1 and 2 never raised any objection nor they visited the deceased. The plaintiff herself deserted Shri Ram Gopal soon after the alleged marriage and procured customary divorce. It was also averred that plaintiff No.1 remarried with one Shri Roshan Lal in the year 1981 and three children were born. Defendant No. 3 has been entered as wife of late Shri Ram Gopal in the marriage register and at the time of solemnization of this marriage, plaintiff No.1 did not raise any objection against this marriage since 1985 till the death of late Shri Ram Gopal. The defendants averred that the legal heir certificate has been duly issued in favour of defendant No.3 along with other legal heirs after due verification by the concerned authorities and they are rightly giving pensionary benefits to defendant No.3 after verifying true facts and even no representation was ever made by plaintiff No.1 to the concerned authorities. The defendants averred that the legal heir certificate has been duly issued in favour of defendant No.3 along with other legal heirs after due verification by the concerned authorities and they are rightly giving pensionary benefits to defendant No.3 after verifying true facts and even no representation was ever made by plaintiff No.1 to the concerned authorities. According to the defendants, letter dated 18.09.1993 was sent to defendant No.1 by defendant No.3 and reply to this letter was sent by defendant No.2 on 12.10.1992 and true facts were reported to the concerned authorities. The marriage of late Shri Ram Gopal and plaintiff No.1 was dissolved through customary divorce and she remarried with Shri Roshan Lal. Therefore, the defendants prayed for dismissal of the suit. 7. Plaintiffs filed replication wherein they denied the averments contained in the written statements and reaffirmed the averments as contained in the plaint. 8. The learned trial Court on 11.01.1995 framed the following issues: "1. Whether the plaintiff is only legally wedded wife of late Shri Ram Gopal, if so, its effect? OPP. 2. Whether the plaintiff is entitled to relief of permanent prohibitory injunction, as prayed? OPP. 3. Whether the suit is bad for want of notice under Section 80 CPC? OPD. 4. Whether the plaintiff is estopped to file the suit by his act and conduct? OPD. 5. Whether the court has no jurisdiction to try and decide the suit? OPD. 6. Whether the defendant No.3 is wife of Sh. Ram Gopal as alleged? OPD. 7. Relief." 9. After recording evidence and evaluating the same, the learned trial Court on 04.08.2006 decreed the suit and aggrieved thereby, defendant No.3 filed an appeal before the learned first appellate Court which too came to be dismissed vide judgment and decree dated 17.05.2008, constraining her to file the instant appeal. 10. On 23.07.2009, the appeal was admitted on the following substantial questions of law: "1. Whether the courts below have erred in not considering/appreciating the impact of the documents Ex.DW-3/A, Ex. DW-3/B, Ex. DW-3/C, Ex. DW-3/D, Ex.DW-3/E, Ex. DW-4/E, Ex. DW-5/F and Ex. DW-5/H, which clearly belies the stand taken by the respondents/plaintiffs? 2. Whether a custom has a legal force especially when it is proved on the record that there is custom of customary divorce prevailing in the area, caste and society of the parties, if so, its effect? 3. DW-3/B, Ex. DW-3/C, Ex. DW-3/D, Ex.DW-3/E, Ex. DW-4/E, Ex. DW-5/F and Ex. DW-5/H, which clearly belies the stand taken by the respondents/plaintiffs? 2. Whether a custom has a legal force especially when it is proved on the record that there is custom of customary divorce prevailing in the area, caste and society of the parties, if so, its effect? 3. Whether the courts below have misappreciated the documents Ex. PW-3/A, Ex. PW-6/A and Ex. PW-7/C, which have caused grave injustice to the appellant? 4. Whether there has been continuous misappreciation of evidence and material on the record of the case, which has caused injustice to the appellant/defendant, which itself is a substantial question of law?" 11. I have heard the learned counsel for the parties and gone through the records of the case. Substantial Questions of Law No.1 to 4. 12. Since, all the questions are intrinsically interlinked and interconnected with each other, therefore, they are taken up together for consideration and have been disposed of by common reasoning. 13. At the outset, it needs to be noticed that plaintiff No.1 indisputably is the wife of deceased Shri Ram Gopal as the specific case of defendant No.3 is that she had contracted second marriage with the deceased Shri Ram Gopal in the year 1985 and has also given birth to two children. Once that be so, obviously, marriage performed by defendant No.3 with deceased Shri Ram Gopal cannot be recognized in view of Section 5 of the Hindu Marriage Act (for short the ''Act'') which reads 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; 1 [(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 2 [***];] (iii) the bridegroom has completed the age of 3 [twenty-one year. and the bride, the age of 2 [eighteen years. and the bride, the age of 2 [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 a 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; 4 [***]" 14. It is more than settled that a void marriage is no marriage. It is a marriage which does not exist from its beginning. In other words, no legal consequences flow from a void marriage. Clause (i) of Section 5 lays down that for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition is, therefore, null and void. 15. Learned counsel for the appellant would then argue that there was a customary divorce between plaintiff No.1 and Shri Ram Gopal and it was thereafter that as per custom defendant No.3 got married to Shri Ram Gopal. However, I find no merit in this contention for more than one reasons. 16. Firstly, Section 4 of the Act provides for an overriding effect of the Act and, therefore, no aid can be taken of the earlier Hindu law or any custom or usage as a part of that law that is inconsistent with any provision of the Act. 17. Section 4 of the Act reads as under: "4. Overriding effect of Act.- Save as otherwise expressly provided in this Act,- (a) any text, rules or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act." 18. Once, the marriage is void, therefore, the same cannot be approbated or ratified. Clause (i) of Section 5 otherwise introduces a monogamy which is essentially the voluntary union for life of one man with one woman to the exclusion of all others. Once, the marriage is void, therefore, the same cannot be approbated or ratified. Clause (i) of Section 5 otherwise introduces a monogamy which is essentially the voluntary union for life of one man with one woman to the exclusion of all others. It enacts that neither party must have a spouse living at the time of marriage. The expression "spouse" means a lawfully married husband or wife. Meaning thereby, before a valid marriage can be solemnized, both parties to such marriage must be either single or divorced or a widow or a widower and then only they are competent to enter into a valid marriage. However, if at the time of performance of the marriage rites and ceremonies, one or other of the parties had a spouse living and the earlier marriage had not been set aside, the later marriage is no marriage at all being in contravention of the conditions laid down in Clause (i) (supra) as it is void ab initio. 19. Secondly, the custom as alleged has not at all been pleaded much less proved by defendant No.3. 20. Shri Bawa, learned counsel for the appellant, at this stage, would argue that defendant No.3 and late Shri Ram Gopal had not only been living as wife and husband, but they even had two children born out of the said relationship. Therefore, the learned Courts below were wrong in upholding that defendant No.3 was not a legally wedded wife of late Shri Ram Gopal. However, I find no merit in this contention. 21. Apart from the reasons already set out above, it has to be remembered that the mere fact that the man and woman were living as husband and wife does not at any rate normally give them a status of husband and wife, even though they may have held themselves before the society and even the society may treat them as such. 22. Reference in this regard can conveniently be made to the judgment of the Hon''ble Supreme Court in B.S. Lokhande vs. State of Maharashtra, (1965) 2 SCR 837 : AIR 1965 SC 1564 wherein it was observed as under: "Prima facie, the expression ''whoever... marries'' must mean ''whoever... marries validly'' or ''whoever... marries and whose marriage is a valid one''. 22. Reference in this regard can conveniently be made to the judgment of the Hon''ble Supreme Court in B.S. Lokhande vs. State of Maharashtra, (1965) 2 SCR 837 : AIR 1965 SC 1564 wherein it was observed as under: "Prima facie, the expression ''whoever... marries'' must mean ''whoever... marries validly'' or ''whoever... marries and whose marriage is a valid one''. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife." 23. One of the essential ingredients of a valid Hindu marriage is that neither party should have a spouse living at the time of marriage. If the marriage takes place in spite of the fact that a party to that marriage had a spouse living, such marriage would be void under Section 11 of the Act. 24. In Yamunabai Anantrao Adhav vs. Anantrao Shivaram Adhav, (1988) AIR SC 644 , the Hon''ble Supreme Court held as under: "We, therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law." 25. Once, that be the legal position, then I really wonder how the documents as referred to in the substantial questions of law are in any way relevant for the decision of this case when the alleged marriage of defendant No.3 with late Shri Ram Gopal is no marriage in the eyes of law. Therefore, even if, any one of the documents states anything to the contrary or even mentions defendant No.3 to be the wife of late Shri Ram Gopal, the same is of no consequence as there is no evidence available on the record that late Shri Ram Gopal during his life time had given divorce to plaintiff No.1 and only thereafter had contracted second marriage with defendant No.3. Rather, there is an overwhelming evidence on record that at the time when defendant No.3 claims to have got married to late Shri Ram Gopal, even as per the case set up by defendant No.3, he was already married to plaintiff No.1. In such circumstances, no fault can be found with the findings recorded by the learned Courts below. 26. The substantial questions of law are answered accordingly. 27. In view of the aforesaid discussion, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.