This post covers Null and Void Marriage and why it is important to prove a valid marriage exists by performing the essential ceremonies.
Declaring Marriage Null & Void Through Courts in India
TITLE: BALWINDAR KAUR vs. GURUMUKH SINGH CASE
Appeal was filed by the appellant to challenge the order passed by the lower court that the marriage between the appellant and respondent was void. The appellant argued that only on the basis of the registration certificate and a passport application, marriage is not proved to be solemnized. The HC verified the evidences and rejected the order of the lower court.
FACTS OF THE CASE:
The appeal is filed by the appellant challenging the order of the Add. District Judge of holding her marriage void with respondent gurumukh singh on date 08.02.2002. The marriage between the appellant and respondent happened in 1997 and a daughter was born to them. The appellant died in November 2002 while the court proceeding was still pending. Her minor daughter took the in charge of the case and filed an application that she wants to continue the appeal. The respondent, gurumukh singh pleaded that she has no right to sue because one of the spouses in the marriage is dead which means there is no need for dissolution of marriage. The daughter pleaded that this decision is important for her legal and social right. By the decision of the lower court judge, she is not the legitimate child of her parents and will have no right to inherit the ancestral property and it will also create a bad impact on her image in the society. The judge allowed the daughter to take over the case on behalf of her mother.
Also Read- WHAT’S THE DIFFERENCE BETWEEN DIVORCE AND DISSOLUTION?
ARGUMENTS ADVANCED
RESPONDENT’S ARGUMENTS
Respondent Gurmukh Singh filed petition for a decree of nullity of marriage on the ground that on 4-9-1996, at the time of solemnization of his marriage with deceased appellant, she was already married with one Jaswinder Singh, which was still subsisting and this fact was concealed from him, therefore, the marriage between the parties was void and the same is to be declared as nullity. He also sought dissolution of marriage on the ground of cruelty. It has been alleged that in the month of November. 1999, the respondent came to know that the deceased appellant was already married with one Jaswinder Singh and without getting the divorce from him, she performed marriage with him. Before the marriage, parents of the deceased appellant represented to the respondent that she was unmarried. Believing this representation, he performed marriage with the deceased appellant. It has been further alleged that after the marriage, the deceased appellant started harassing and maltreating the respondent on various grounds and thus, caused cruelty to him.
In order to prove that the deceased appellant was married with Jaswinder Singh prior to her marriage with the respondent and the said marriage was subsisting at the time of the marriage of the parties, the respondent proved the marriage certificate issued by the Registrar of Marriage at Nawanshahr regarding the marriage between deceased appellant and Jaswinder Singh. He has also proved the statements of Jaswinder Singh and Balwinder Kaur appellant, made before the Registrar of Marriage with regard to their marriage. He also examined P.W. 3 Birbal UDC, Passport Office, Jalandhar, who proved the applications made by the deceased appellant for issuance of passport stating therein herself to be the wife of Jaswinder Singh. The respondent also examined one Maghar Singh as P.W. 4, who has stated that Balwinder Kaur appellant was married with Jaswinder Singh about 91/2 years back and marriage party had come from Banga.
Also Read- null and void marriage – Indian Kanoon
APPEALLANTS’ ARGUMNETS
Counsel for the appellant submitted that only the Certificate of Marriage and an application filed by appellant Balwinder Kaur for obtaining the passport has been proved to establish that before the marriage in question, she performed marriage with Jaswinder Singh and the said marriage was never dissolved and was subsisting at the time of marriage in question. But these documents and evidence are not sufficient to prove that before the marriage in question, Balwinder Kaur was married with Jaswinder Singh in accordance with Hindu Law. There is no direct evidence of the marriage between Balwinder Kaur and Jaswinder Singh, inasmuch as no person came forward to state on oath that he had seen the marriage being solemnized and the ceremonies of marriage were performed at that time. Counsel submitted that for getting declared a marriage void alleged to have been performed in contravention of Section 5(i) of the Act, it has to be first established that the alleged earlier marriage was solemnized with proper ceremonies, as required to be performed for a valid marriage under Section 7 of the Act.
None of the witnesses including the respondent himself has stated in their statements that when the alleged marriage between Balwinder Kaur and Jaswinder Singh was solemnized. all the essential ceremonies of a valid marriage were performed. Counsel submitted that Maghar Singh, who stated that 91/2 years back, the marriage between Balwinder Kaur and Jaswinder Singh was solemnized and marriage party came from Banga, himself stated that he did not attend the marriage. His statement is merely based on hearsay evidence. In view of these facts, counsel for the appellant submitted that the trial Court has committed grave illegality while declaring the marriage between the respondent and the appellant as nullity on the ground that the appellant was already married with Jaswinder Singh and the said marriage was subsisting at the time of the marriage in question.
Also Read- Nullity of Marriage in India – Void Marriage – Voidable Marriage
FINDINGS OF THE COURT
The consequences of declaring a marriage as void are serious and far-reaching. Such declaration not only effects parties to the marriage but it also effects the innocent persons, such as children born from the marriage. Therefore, the question of declaring a marriage nullity should not be lightly taken and decided until and unless it is clearly established that a ground provided under Section 11 of the Act for declaring the marriage void exists. To establish that there was a previous valid marriage, he is required to plead and prove the essential ceremonies of the said marriage. To prove a valid marriage under the Hindu Law. The factum of performance of essential ceremonies at the time of previous marriage has not been even pleaded by the respondent. Maghar Singh has stated that marriage between Balwinder Kaur and Jaswinder Singh was performed 91/2 years ago and the marriage party came from Banga, but in his cross-examination, he has admitted that he did not attend the said marriage. His statement, which has been relied upon by the trial Court, does not prove that at the time of previous marriage, essential ceremonies as required under Section 7 of the Act were performed.
Also Read- Annulment of Marriage Appeal (FAO) Dismissed at High Court
CONCLUSION
The witness, who proved the marriage certificate, has not slated anything about performance of the marriage ceremonies at the time of the alleged previous marriage. In view of these facts and circumstances, the respondent has failed to prove that prior to the marriage in question, the appellant had performed valid marriage with Jaswinder Singh and the said marriage was subsisting at the time of marriage in question: In view of the above, this appeal is allowed and the impugned judgment and decree dated 8-2-2002, passed by Additional District Judge, Ludhiana, is set aside.
SIMILAR JUDGEMENT
In Joyita Saha v. Rajesh Kumar Pandey, a Division Bench of Calcutta High Court held that a certificate issued under Section 16 of the Special Marriage Act is not conclusive proof of marriage solemnized under the Act. The marriage under the Act can be said to be solemnized only if ceremonies of marriage are performed as per Section 7 of the Act. In Priya Bala Ghosh v. Suresh Chandra Ghosh, the Supreme Court has held that even an admission of marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery, when the witnesses have not proved that the essential ceremonies had been proved.
Also Read- Marriage Anullment Legal Advice
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