The second marriage is null and void if divorce is not given between the parties and the other marriage is performed

The second marriage is null and void if divorce is not given between the parties and the other marriage is performed written by Himanshu Garg student of Maharashtra National Law University Aurangabad

SHIROMANI JAIN v. ASHOK KUMAR JAIN AND ORS. (2018) 14 SCC 310

RELEVANT FACTS

Shiromani Jain (woman/appellant) was married to Ashok Kumar Jain (Respondent 1) in a Jain temple according to the Hindu rites and Manu (son) born out of this wedlock. Respondent 1 leaves his wife and his son out of the house because of not bringing sufficient dowry and had married Jyoti Jain (respondent 2) in a Jain temple under Hindu rites and had a daughter born out of this wedlock.

Appellant filed a petition before the Family Court to declare 2nd marriage as null and void and she also demanded maintenance from her husband. But in the absence of evidence of her marriage, the Family court and High Court both dismiss the application holding that performance of marriage in accordance with Hindu rites has not been proved by the Appellant. Relatives have not been examined. Now appellant filed an appeal before Hon’ble Supreme Court to allow her marriage to be valid and to provide maintenance.

ISSUES

• Whether there is allowed maintenance to the appellant and her son?
• Whether there is 1st and 2nd marriage valid and void respectively?

LAW POINTS/ RULE OF LAW

• Section 9 and 17 of Hindu Marriage Act, 1955.
• Section 494 and 495 of Indian Penal Code, 1860.

JUDGEMENT WITH REASONING

Learned counsel of the respondent stated that there is only an agreement had been entered into between appellant and respondent 1 that notarised agreement could not be said to be a valid form of marriage. And there is no proof of marriage between the appellant and respondent 1 but there is a valid marriage performed between respondent 1 and 2 in the Jain temple according to the Hindu rites. And according to the case law Gopal Lal v. the State of Rajasthan, Merely execution of the agreement could not be said to be a valid form of the marriage.

So, Family Court dismissed the application holding that performance of marriage in accordance with Hindu rites has not been proved by the Appellant. And High Court also affirmed with the judgment of the Family Court. 

Now learned counsel of the appellant stated in Hon’ble Supreme Court that declaration made in the application filed Under Section 9 of the Act had not been taken into consideration either by the Family Court or by the High Court for restitution of the conjugal rights and there are two witnesses who examined to support the fact of marriage.

There was also stated that the appellant and her son have not lived together with respondent 1 for the last 18 years. So, there should be given a maintenance of Rs. 8 Lakhs and 6000 per month. And marriage between respondent 1 and 2 is null and void according to section 17 of the Hindu Marriage Act, 1955, and respondent 1 should be punished on the basis of section 494 and 495 of the Indian Penal Code, 1860.

Finally, the Hon’ble Supreme Court stated that both the marriage solemnized according to the Hindu Rites but there is also not allowed bigamy to any Hindu person under section 17 of the Hindu Marriage Act, 1955. So, the court held that the marriage between respondent 1 and 2 is null and void and there should be given maintenance to the appellant by the Respondent.