S.11 Hindu Marriage Act | Parents Of Husband Can Contest Proceedings For Declaring Marriage Void After His Death: Allahabad High Court

The Allahabad High Court has held that after the death of the husband who had filed for declaration (of marriage as void) under Section 11 of the Hindu Marriage Act, 1955, his parents have a right to pursue the proceedings under Order 22 Rule 3 CPC as such matrimonial disputes include questions of inheritance.

While hearing an appeal filed by the wife against the order of the Family Court, the bench of Justice Vivek Kumar Birla and Justice Syed Qamar Hasan Rizvi held,

“the Legal Representative who is not "either of the parties" and was not one of the spouse to the marriage in question can pursue the petition filed under Section 11 of the Act that marriage should be declared void and therefore, their application filed under Order 22 Rule 3 CPC would be maintainable.”

Relevant Legal Provisions

Section 5 of the Hindu Marriage Act, 1955 provides marriage between two Hindus can be solemnized only if the conditions given therein are fulfilled. The conditions include that neither party to the marriage should have a living spouse at the time of the marriage.

Section 11 of the Act provides that marriages can be declared void if either party presents an application for such declaration against the other party when either party to the marriage has a living spouse at the time of marriage, parties are within prohibited degrees as per customs governing then or are sapindas of each other.

Section 7 of the Family Courts Act, 1984 provides for jurisdiction of Family Court. Section 10 of the Act of 1984 provides that Subject to the other provisions of this Act and the rules provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.

Order 22 Rule 3 CPC states that if the right to sue survives upon death of one or more plaintiffs, the legal representative of the deceased, on an application made, may step into the shoes of the deceased.

Factual Background

One Deepak Mahendra Pandey filed a petition for declaration of his marriage with the appellant as void under Section 11 of the Hindu Marriage Act on 05.04.2022 alleging that the marriage was based on fraud. It was alleged that the appellant had hidden her first marriage at the time of her marriage with Deepak. Further, it was alleged that she had not converted to Hinduism prior to her marriage with Deepak.

Deepak passed away in 2023. Subsequently, his parents applied and were made party to the proceedings.

Counsel for petitioner argued that by virtue of death of the husband, the suit was abated, and the parents could not be made party to the suit. It was argued that the provisions of Order 22 CPC would be applicable in view of Section 10 of the Family Courts, Act, 1984 could not be applied in this case.

Per contra, counsel for respondent argued that since the property rights of the appellant and the parents of the deceased were dependent on the outcome of the application under Section 11, the application was rightly allowed.

High Court Verdict

The two issues before the Court were:

“(1) whether the provisions of CPC particularly Order 22 CPC are applicable in the proceedings before the Family court or not?; and

(2) whether the parents can be substituted as legal representatives of the deceased to pursue the proceedings pending before the Family Court under Section 11 of the Act?”

Regarding the first question, the Court held that Order 22 of CPC is applicable to the proceedings under the Family Courts Act, 1984.

In Garima Singh v. Pratima Singh and another, the Supreme Court held that the words “either party thereto" and "against the other party" in Section 11 of the Act must be read harmoniously. The Court held that “either party thereto" cannot be interpreted narrowly, restricting the equal protection guaranteed under Article 14 of the Constitution.

“If the first wife is deprived of seeking a remedy under Section 11 of the Hindu Marriage Act, it would defeat the very purpose and intent of the Act. The protection offered to legally wedded wives under sections 5, 11, and 12 of the Hindu Marriage Act would become insignificant in such a scenario,” held the Apex Court while deciding the claim of the first wife against the second marriage of her husband.

The bench headed by Justice Birla held that since property rights are involved in matrimonial cases where a marriage is sought to be declared void ab initio by one party, the parents of the deceased had rightfully stepped into his shoes.

Further, the Court relied on the decision of the Supreme Court in Maharani Kusumkumari and another v. Smt. Kusumkumari Jadeja and another where the Court was dealing with the petition filed by the second wife under Section 11 of the Act. The Court allowed the second wife to contest as property rights of the family members including the legitimacy of children of void and voidable marriage were involved in a case of claim for property. The Court held that application under Section 11 was maintainable even after the death of the spouse.

The Court relied on Samar Kumar Roy (Dead) through Legal Representative (Mother) v. Jharna Bera, where the mother of the deceased-husband was allowed to step into his shoes after his death in a suit filed by the deceased seeking injunction against his wife from calling him her husband.

Accordingly, the Court held that parents of the husband can contest the application for declaring marriage void under Section 11 of the Hindu Marriage Act after his death. It was held that the parents have a right to be substituted as legal representatives under Order 22 Rule 3 CPC and to pursue the proceedings.

Accordingly, the appeal filed by the wife was dismissed.

Case Title: Shatakshi Mishra v. Deepak Mahendra Pandey (Deceased) And 2 Others 2024 LiveLaw (AB) 373 [FIRST APPEAL No. - 394 of 2024]

Citation: 2024 LiveLaw (AB) 373

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