Hindu Marriage Act Bars Second Marriage When Spouse Living, Consent Of Parties Can’t Confer Validity: Delhi High Court

The Delhi High Court has ruled that once there is a legal bar on the performance of second marriage when either spouse of the parties are living, the consent of such parties cannot confer validity to the second marriage.

Noting that both the parties should not have a living spouse according to Section 5(i) of the Hindu Marriage Act, 1955, a division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna said:

“In case, there is a violation of this condition, the marriage is void in terms of Section 11 of HMA, 1955. Once there is a legal bar to the performance of the second marriage, the consent of the parties cannot confer the validity to a marriage held in violation of the condition specified in Section 5(i) of HMA, 1955.”

Section 5(i) states that neither party should have a spouse living at the time of marriage.

The court made the observations while dismissing a plea moved by a wife challenging a family court order which allowed the husband’s petition and declared their marriage null and void.

The parties got married in 2009. Admittedly, the wife had earlier got married to a man but was granted divorce in 2008. However, her first husband had preferred an appeal against the grant of divorce.

The wife admitted that she became aware of the pendency of her first husband’s appeal in December, 2008, but the said appeal was withdrawn after more than four years in 2012.

Later, due to the differences between the parties in their second marriage, the second husband preferred a petition for getting the marriage annulled on the ground that the wife’s first marriage was subsisting. He claimed that the wife’s marriage during the subsistence of first marriage was null and void.

Vide the impugned order, the family court observed that since the first husband’s appeal was pending at the time when the wife got married, the marriage was subsisting and thus, the second marriage was held to be null and void.

Upholding the impugned order, the bench said that despite being aware of the pendency of the first husband’s appeal, the wife got married to the second husband in 2009.

“In the present case, the parties had got married during the pendency of the Appeal that was in the knowledge of both the parties. Therefore, in terms of Section 15 of HMA, 1955, it has to be held that the dissolution of the first marriage was not confirmed and the marriage was subsisting on the date of marriage of the appellant with the respondent herein on 28.04.2009 which was in contravention of Section 5(i) of HMA, 1955,” the court said.

It added that even though the wife had already got married to the second husband, she claimed her maintenance from the first husband in the pending appeal which was granted in September 2009.

“The very fact that the appellant had not only claimed but also accepted pendente lite maintenance during the Appeal from the first husband fortifies that the marriage was not finally dissolved. The learned Judge, Family Court has, therefore, rightly declared the marriage between the parties as nullity under Section 11 of HMA, 1955,” the court said.

Title: X v. Y

Citation: 2023 LiveLaw (Del) 986

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