Dismissed

Smt N Sangeetha v. Sri H S Prashanth Thathachar @ Kannan

Karnataka HC13 Jul 2023MFA/1802/2018

Case brief

AI extract

What is this about?

This Family Court appeal challenged a decree of nullity of marriage. The court held that the marriage was void under Section 5(i) of the Hindu Marriage Act because the wife had a subsisting marriage at the time. The limitation bar under Section 12(2) did not apply. The appeal was dismissed, confirming the Family Court's judgment.

What did the court decide?

The appeal was dismissed and the judgment and decree dated 12.01.2018 passed by the Family Court was confirmed.

Smt N Sangeetha Vs Sri H S Prashanth Thathachar @… — Matrimonial and Divorce | Karnataka HC (2023)

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NC: 2023:KHC:24287-DB MFA No.1802 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JULY, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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MISCELLANEOUS FIRST APPEAL NO.1802 OF 2018 (FC)

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BETWEEN:

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Digitally signed by RUPA V

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Location: High Court of Karnataka

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SMT. N. SANGEETHA D/O SRI. NARAYANA V.P. W/O SRI. H.S. PRASHANTH THATHACHAR @ KANNAN AGED ABOUT 40 YEARS.

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SMT. GAYATHRI DEVI W/O SRI. NARAYANA V.P. AGED ABOUT 63 YEARS.

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BOTH ARE RESIDENT OF NO.1500, CH-68, 6TH CROSS K.R.VANAM, MYSURU-570008.

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…APPELLANTS

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(BY SRI. B. LETHIF, ADV., (ABSENT))

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AND:

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SRI. H.S. PRASHANTH THATHACHAR

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@ KANNAN S/O LATE SRINIVASA THTHACHR AGED ABOUT 39 YEARS R/AT NO.523/1, F-21, 2ND RAMACHANDRA AGRAHARA, FORT MOHALLA, MYSURU-570001.

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…RESPONDENT

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(BY SRI. K. HEMANTH KUMAR, ADV.,)

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THIS MFA IS FILED U/S 19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED:12.01.2018 PASSED IN M.C.NO.576/2013 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, MYSURU, ALLOWING THE PETITION FILED U/S 11 & 12 OF HINDU MARRIAGE ACT.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, ANANT RAMANATH HEGDE J, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed under Section 19(1) of the Family Courts Act, 1984 challenging the judgment and decree dated 12.01.2018 passed by the Family Court at Mysore in M.C.No.576/2013.

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The petition seeking a decree of nullity of marriage was filed by the husband. The petitioner in the aforementioned petition alleged that the wife suppressed her earlier marriage which was still subsisting when she married him on 28.11.2010.

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The 2^nd respondent in the petition is the mother

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of the wife and she is arrayed as a party to the

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proceeding on the premise that she too misrepresented the petitioner.

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The Family Court accepted the contention of

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the husband and rejected the contention of the wife, who asserted that Sri Rajesh who is alleged to be the second husband is not her husband and granted a decree of nullity of marriage holding that wife was already married to Sri. Rajesh at the time of marriage with the petitioner.

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Aggrieved by the aforementioned judgment and decree, the wife is in appeal. The mother of the wife is arrayed as a proforma respondent in this appeal.

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The brief facts necessary for adjudication, in

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this case, can be summarized as under:

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The husband has filed a petition contending

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that on 28.11.2010, he married the wife and it was informed to him before the marriage that her first

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marriage with Gajeeban N. ended in a divorce and she is taking care of two children born to her sister. On the, representation made by the wife, as well as her mother, the husband believed that the first marriage with Gajeeban ended in a divorce and she can contract a valid second marriage. It is his contention that on 16.11.2013, the husband came to know that the second marriage of his wife with one person Sri Rajesh is suppressed and the same is still subsisting. It is further urged that his wife has twins from the second marriage who were born on 17.01.2006. It is further stated that after coming to know about this fact, the husband made enquiries and the wife started giving evasive replies thereafter and later started quarrelling with him. Thus he filed a petition seeking a decree of divorce on the ground that the marriage is void.

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The wife contested the petition. In the statement of objections, the wife has taken a stand that

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the first marriage with Gajeeban was disclosed and decree of dissolution of marriage with Gajeeban is also disclosed to the husband. She further contended that she has not married Sri Rajesh and she contends that children were not born from the relationship with Sri Rajesh and there is no marriage with Sri Rajesh. It is contended by her that at the time of her marriage, she was taking care of her two children born from an earlier marriage.

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The Family Court has recorded the evidence of both parties. The husband is examined as PW-1 and has produced 5 documents which are marked as Ex.P1 to Ex.P5. The wife is examined as DW-1 and has produced 20 documents which are marked as Ex.D1 to Ex.D20.

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After hearing the parties, the Family Court has concluded that the husband has established the fact that at the time of his marriage on 28.11.2010, the wife

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had already married one Sri Rajesh and there was no dissolution of her marriage with Sri Rajesh. Accordingly, the Court concluded that the marriage is null and void. Aggrieved by the aforesaid judgment and decree, the wife is in appeal.

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Learned counsel for the appellant/wife raised the following contentions:

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(1) The petition is filed under Section 12 of the Act on the premise that the marriage is void.

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The petition ought to have been filed within one year from the date of marriage and since it is filed beyond one year, a petition under Section 12 is not maintainable.

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(2) The marriage with Sri Rajesh is not established. That being the position, the Court could not have held that the questioned marriage is void.

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(3) Exs.R1, R2, R9 and R10 would disclose

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the fact that the present respondent is the father of the children. As such, the Family Court erred in holding that the marriage is void.

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Learned counsel appearing for the respondenthusband would contend that the fact that the wife married Rajesh before his marriage is established and it is also forthcoming from the birth certificate which is marked as Ex.P5 that the wife had twins from the previous marriage. The statement recorded in JSS Hospital would reveal that the appellant is the wife of Rajesh and she has admitted in the cross-examination that the aforementioned statement is given by her parents. In the absence of any evidencing the dissolution of marriage with Rajesh, the second marriage is void.

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It is also urged that Section 12(2) of the Act is applicable only under the circumstances mentioned in

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Section 12(2) of the Act and it does not cover all conditions enumerated in Section 5 of the Act. Referring to Section 5 (i) of the Act it is urged that the marriage is null and void as the prerequisites for valid marriage is not established.

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This Court has considered the contentions. In the light of the contentions raised it is necessary to consider Sections 5 (i) and 12 of the Act.

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Section 5(i) of the Act reads as under:

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" 5. Conditions for a Hindu marriage :- —A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

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(i) neither party has a spouse living at the time of the marriage"

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Section 12 of the Act which reads as under

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" 12. Voidable marriages: —

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(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be

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NC: 2023:KHC:24287-DB MFA No.1802 of 2018

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voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—

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(a) that the marriage has not been consummated owing to the impotence of the respondent; or

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(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

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(c) that the consent of the petitioner, or where the consent of the guardian in the marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

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(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

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(2) Notwithstanding anything contained in subsection (1), no petition for annulling a marriage - (a) on the ground specified in clause (c) of subsection (1) shall be entertained if -

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NC: 2023:KHC:24287-DB MFA No.1802 of 2018

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(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

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(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

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(b) on the ground specified in clause (d) of sub- section (1) shall be entertained unless the court is satisfied -

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(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

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(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and

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(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground."

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From a reading of Section 5(i) of the Act, it is apparent that for the marriage to be valid, at the time of marriage, neither party should have subsisting marriage. In the statement of objections filed by the wife in paragraph 6, the wife has taken a stand which reads as under:

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"In fact, at the time of marriage, the petitioner had very well known that the first respondent was the mother of two children born to her earlier marriage."

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(emphasis supplied)

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In the cross-examination, the wife has

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admitted that the name of the husband is shown as Rajesh when she was admitted to the hospital. The

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relevant cross-examination extract is as under:

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"eÉJ¸ïJ¸ï D¸ÀëvÉæAiÀÄ°è £À£Àß UÀAqÀ£À ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ «¼Á¸ÀªÀ£ÀÄß £À¤ßAzÀ¯É «ZÁj¹ PÉÃ½ ¥ÀqÉzÀÄPÉÆArzÁÝgÉ. ¸ÁQëAiÀÄÄ ¥ÀÄ£À: ºÉÃ¼ÀÄvÁÛgÉ £À£Àß vÀAzÉvÁ¬Ä ¤ÃrzÁÝgÉ. ¤¦- 5 PÉÃ¸ï ²Ãmï£À°è gÁeÉÃ±À£À ºÉAqÀw JAzÀÄ £À£Àß vÀAzÉvÁ¬ÄAiÉÄÃ §j¹zÁÝgÉ.

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From the above stand taken by the wife, it is apparent that the wife has taken a contention that she has children from her previous marriage. Admittedly, the first marriage was with Gajeeban and it is not established that she had children from Gajeeban. She referred to an earlier marriage in her statement of objection while explaining her relationship with the children. Thus, from a reading of her statement of objection where she has said that she has children from a previous marriage, the marriage she has referred to in her statement of objection extracted above has to be the marriage with Rajesh. And the marriage with Rajesh is also established from the statement before the hospital authorities where it is clearly stated that her husband is Rajesh. This marriage with Rajesh is again established from the birth certificate wherein the father’s name of the children is shown as Rajesh. From these records, it is clear that the wife had married Rajesh and from

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Rajesh, she had two children. It is not the stand of the wife that she had obtained a decree for dissolution of marriage against Rajesh.

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This being the position, this Court is of the view that the husband has established that the wife had married Rajesh and that marriage was subsisting when the husband married her on 28.11.2010.

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The contention of the wife that petition is barred by limitation contained in Section 12(2) of the Act is not tenable. The husband is seeking dissolution of marriage on the ground that the marriage is void as the wife was having a subsisting marriage. The bar contained in Section 12(2) is not applicable to the marriage which is void under Section 5(i) of the Act.

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This Court, after re-appreciating the record and after considering the contentions raised before this Court, is of the view that the marriage of the appellant with the present respondent No.1 which is solemnized

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on 28.11.2010 is void under Section 5(i) of the Act and accordingly, the Family Court is justified in granting the decree for nullity of marriage. This Court does not find any ground to interfere with the judgment and decree passed by the Family Court.

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Hence, the following:

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ORDER

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(I) The judgment and decree dated 12.01.2018 in M.C. No.576/2013 on the file of the Family Court at Mysore is confirmed.

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(ii) Accordingly, the appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

Smt N Sangeetha v. Sri H S Prashanth Thathachar @ Kannan

Case brief

What is this about?

What did the court decide?

Smt N Sangeetha v. Sri H S Prashanth Thathachar @ Kannan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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