No Limitation Period To Seek Declaration Of A Marriage As 'Null And Void':SC [Read Judgment]

The bench comprising Justice L. Nageswara Rao and Justice MR Shah observed that once the marriage is void the same is a nullity and at any time the same can be declared as nullity being a void marriage.

In this case, the 'wife' had approached the Court of District Court, Pune under Section 25 of the Special Marriage Act, 1954, for declaration of marriage as null and void, mainly on the ground that her 'husband' had married her without obtaining the decree of divorce from the competent court and that at that time of marriage he was having a living spouse and that he had suppressed the fact of the first marriage from her.

The Trial court dismissed her plea observing that it is not a ground for nullity of marriage as per the provisions of the Section 25 of the Special Marriage Act, 1954. To hold that the application was out of period of limitation, the bench referred to Section 25 of the Act, which states that 'the period of limitation is one year after the coercion had ceased or, as the case may be, the fraud had been discovered or the petitioner has with his or her free consent lived with other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.'

As the Bombay High Court dismissed her appeal and affirmed the Trial court view, she approached the Apex Court.

No period of Limitation To Seek Declaration That A Marriage Is Void

Allowing her appeal, the bench noted that as per Section 4 of the Act, the marriage between any two persons may be solemnized under the Special Marriage Act if at the time of the marriage neither party has a spouse living. Referring to Section 24 of the Act, the bench said:

"Section 24 of the Act provides that any marriage solemnized under the Special Marriage 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 any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled. Clause (a) of Section 4 provides that neither party shall have a spouse living at the time of marriage. Therefore, considering Section 24 read with Section 4 of the Act, if at the time of marriage either of the party has spouse living, then the said marriage is a void marriage and a decree of nullity can be passed on a petition presented by either party thereto against the other party."

The bench further observed that no period of limitation is prescribed so far as presentation of petition for declaration to declare a marriage being nullity/void marriage, under Section 24 of the Act and rightly so, as once the marriage is void the same is a nullity and at any time the same can be declared as nullity being a void marriage. It added that the trial court as well as the High Court erred in observing that the marriage petition was barred by limitation. It said:

"While holding so, both the trial court as well as the High Court had considered first proviso to Section 25 of the Act. In the facts and circumstances of the case, we are of the opinion that Section 25 of the Act shall not be applicable and Section 24 of the Act would be applicable which does not provide for any period of limitation like first proviso to Section 25 of the Act."

Husband required to prove that such a customary divorce was permissible in their caste/community

The bench also found fault with the High Court observation that there was a customary divorce between the husband and his first wife, as it had not framed a specific issue in that regard. The court said:

"In the present case, neither an issue has been framed nor even the respondent husband has led any evidence and proved that there was a customary divorce between respondent and his first wife. Even the respondent-husband was required to prove that such a customary divorce was permissible in their caste/community. In the absence of any such issue or any evidence, the Courts below were not justified in observing that there was a customary divorce between the respondent and his first wife. Therefore, in absence of the above, it can be said that at the time of marriage between the appellant and the respondent, the respondent had a living spouse and, therefore, considering Section 24 read with Section 4 of the Act, the marriage between the appellant and respondent was void and the appellant was entitled to a decree of nullity at her instance."

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