Calcutta High Court (Appellete Side)
Bodhirupa Mukherjee vs Milinda Lahiri on 17 April, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present : The Hon'ble Mr. Justice Sabyasachi Bhattacharyya
&
The Hon'ble Mr. Justice Uday Kumar
FA No. 68 of 2024
+
CAN 2 of 2025
Bodhirupa Mukherjee
-vs-
Milinda Lahiri
For the appellant : Mr. Partha Pratim Roy,
Ms. Sudeshna Basu Thakur,
Ms. Upasana Das
For the respondent : None.
Heard on : April 17, 2025.
Judgment on : April 17, 2025.
Sabyasachi Bhattacharyya, J.:
1. The present appeal has been preferred by the plaintiff/wife in a
suit filed under Section 24 of the Special Marriage Act, 1954
(in short “the Act of 1954”), seeking declaration that the
2
marriage solemnized between the parties on December 1,
2021 and registered on June 7, 2022 is void ab initio and for a
direction on the Marriage Registrar, Siliguri, to strike off the
registration of the marriage from the Marriage Register with
immediate effect.
2. Despite repeated service, none appears to contest the appeal
and as such, the same is taken up for hearing ex parte as per
our previous direction.
3. The premise of the suit was that the respondent/husband
married the appellant herein under Hindu rites and customs on
December 1, 2021, which subsequently culminated in a
registration under Section 13 of the Act of 1954 on June 7,
2022. The said marriage, it is alleged, was solemnized by the
husband practicing deception on the appellant inasmuch the
respondent/husband suppressed his subsisting previous
marriage with a third party (whose name is deliberately not
being disclosed here in order to protect her privacy) on
November 8, 2018.
4. It is contended that the prior marriage of the
respondent/husband was an admitted position. To prove the
same, the present appellant exhibited the plaint of a
3
Matrimonial Suit, bearing Matrimonial Suit No. 3338 of 2019,
filed by the respondent before the learned District Judge at
Alipore, District- South 24 Parganas, where it was categorically
admitted by the husband that he had solemnized a marriage
with the defendant therein and sought a decree of divorce.
5. In the said suit, the defendant therein filed her written
statement, substantially admitting the factum of such previous
marriage.
6. The learned Trial Judge, in the present case, proceeded on
the premise that the previous suit for divorce was fixed for ex
parte hearing, which according to the learned Trial Judge
meant that the said suit was yet to be decided. The learned
Trial Judge observed that it was not established that the
husband had a prior subsisting marriage, since the previous
matrimonial suit was yet to be decided and that before the suit
is decided, the learned Court cannot opine that the marriage is
void ab initio as her husband had a spouse living at the time of
marriage.
7. It is submitted that the culmination of the previous suit had
nothing to do with the present suit, since the factum of
4
suppression was borne out by the admitted position as evident
from the pleadings of the husband in his previous suit.
8. Upon a careful perusal of the exhibits in the present suit, we
find that the plaint of Matrimonial Suit No. 3338 of 2019, filed
by the respondent/husband against a third party, was marked
as Exhibit P2. From the said document, it is clear that the
respondent/husband admitted therein that he had solemnized
a marriage with the defendant in the said suit on November 8,
2018 whereas the solemnization of the marriage with the
present appellant/wife took place on December 1, 2021. The
registration of the marriage between the present parties under
Section 13 of the Act of 1954 took place on June 7, 2022, both
during subsistence of the said marriage.
9. Notably, the learned Trial Judge, in the impugned judgment,
found that even as on the date of the judgment, the previous
suit of the husband was pending and the same was fixed for
ex parte hearing on March 11, 2024. As such, it was clearly
proved by the appellant in the trial court that at least between
November 8, 2018, that is, the date of the admitted previous
marriage of the respondent/husband, and the date of the
judgment impugned herein, the said marriage was subsisting,
5
as the previous suit of the husband seeking divorce was still
pending.
10. Thus, on the date of the marriage between the present
parties, the prior marriage of the husband was clearly
subsisting.
11. The learned Trial Judge proceeded on an erroneous
premise in proceeding on the basis that the outcome of the
present suit depended on the result of the previous suit of the
husband. However, nothing hinges on the same, since even if
the husband was successful in obtaining a divorce decree
against his previous wife, the same would not purge the guilt of
the husband, within the contemplation of the relevant
provisions of the Act of 1954 as well as the Hindu Marriage
Act, 1955 (in short ” the 1955 Act”), of suppression of his
previous marriage to the appellant at the time of their
marriage.
12. Section 4(a) of the Act of 1954 provides that one of the
conditions relating to solemnization of a special marriage is
that neither party has a spouse living. Section 24 of the Act of
1954 provides that in case of non fulfillment of any of the
6
conditions specified in Section 4(a), any marriage solemnized
under the Act shall be null and void.
13. On the other hand, Section 5(i) of the Hindu Marriage Act,
1955 similarly provides that one of the conditions of a valid
Hindu marriage is that neither spouse has a spouse living at
the time of marriage. Section 11 of the 1955 Act provides that
on a petition presented by either party against the other, such
a marriage, solemnized in contravention of Section 5(i) of the
Act, can be declared to be a nullity.
14. Thus, the relevant juncture is the point of time when the
marriage between the present parties took place, since if on
such date there was a valid subsisting marriage of the
respondent with a third party, the present marriage would be
rendered null and void ab initio, under the respective
provisions of Section 4 of the Act of 1954 and Section 5 of the
1955 Act, irrespective of a declaration being granted on a
petition filed under Section 24 of the Act of 1954 or Section 11
of the 1955 Act.
15. Such position of law is sanctioned by the judgment
rendered by the Supreme Court in the case of Smt.
Yamunabai Anantrao Adhav A Vs. Ranantrao Shivram Adhav
7
and another reported at (1988) 1 SCC 530, cited by the
appellant, where it was observed categorically that it is not
essential to obtain a formal declaration of nullity from a court in
a proceeding specifically commenced for the purpose and a
marriage which is covered by the respective provisions of
Section 11 of the 1955 Act is void ipso jure, that is, void from
the very inception and has to be ignored as not existing in law
at all, if and when such question arises. The Supreme Court
went on to observe in the said reported judgment, in
connection with a proceeding under Section 125 of the
Criminal Procedure Code, that such a marriage is a complete
nullity in the eye of law and can be totally ignored.
16. Finding support from such ratio, we are of the clear opinion
that in view of the specific admission of the husband in his
plaint in Matrimonial Suit No. 3338 of 2019 filed before the
Learned District Judge at Alipore, District- South 24 Parganas
that he had a subsisting valid marriage with a third party on the
date of the marriage contracted with the present appellant.
Thus, the learned Trial judge acted with palpable illegality in
refusing to grant a decree declaring the marriage between the
present parties to be a nullity.
8
17. Irrespective of whether subsequently the previous marriage
of the respondent is severed by a decree of divorce or not, the
very admission of subsistence of a prior marriage on the date
of the marriage between the present parties is sufficient to
grant a decree declaring that the marriage between the
present parties to be a nullity ab initio under Section 5 of the
1955 Act, alternatively, under Section 4 of the Act of 1954.
18. At this juncture, it may be recorded that this Court is not
unmindful of the fact that the appellant admitted in paragraph 4
of her plaint that a marriage was solemnized between the
present parties as per Hindu rites and customs on December
1, 2021, prior to the registration of the marriage between them
under Section 13 of the Act of 1954 on June 7, 2022.
19. Thus, a question may arise as to whether a Hindu marriage
having been solemnized earlier that the registration under the
Act of 1954, the former prevails and the suit ought to have
been filed under the 1955 Act and not the Act of 1954.
20. However, considering the complexity of the situation, since
in the present case, the parties chose to avail of the relevant
provisions of both statutes and a single composite application
under the two statutes is not maintainable, as well as taking
9
into consideration that the lives of several people are
concerned in the matter, we are loathe to relegate the
appellant to a further suit under the 1955 Act.
21. In any event, even if such a suit was to be filed, all the
reliefs sought in the present suit might not have been granted
there as well, since even if the Hindu marriage was declared to
a nullity, the marriage solemnized by registration under
Section 13 of the Act of 1954 would still survive and the
conundrum which is before us would be perpetuated.
22. As such, we propose to proceed on the premise that the
parties elected to have a marriage between themselves under
Section 13 of the Act of 1954 and that the application from
which the instant appeal arises was a valid application in the
eye of law.
23. In any event, following the ratio of the judgment of the
Supreme Court as cited above, we are of the opinion that
either way, even the marriage contracted between the present
parties under the 1955 Act was a nullity and void ab initio and
as such, can be ignored by the parties.
24. Keeping in view of such considerations, the impugned
judgment cannot survive the scrutiny of law.
10
25. Accordingly, FA No. 68 of 2024 is allowed ex parte, thereby
setting aside the impugned judgment and decree dated
January 19, 2024 passed by the learned Additional District
Judge, Third Court at Asansol, District- Paschim Bardhaman,
in Matrimonial Suit No. 77 of 2023 (CIS No. Mat 420 of 2023).
26. We hereby declare the marriage solemnized between the
parties herein on December 1, 2021 and subsequently
registered on June 7, 2022 to be void ab initio and a nullity in
the eye of law.
27. Consequentially, we direct the Marriage Registrar, Siliguri,
to strike off the particulars regarding registration of the
marriage between the parties from the concerned Marriage
Register with immediate effect.
28. There will be no order as to costs.
29. A formal decree be drawn up accordingly.
30. In view of disposal of the appeal, the connected application,
bearing CAN 2 of 2025 is also disposed of.
I agree. (Sabyasachi Bhattacharyya, J.) (Uday Kumar, J.)
[ad_1]
Source link