Supreme Court: It is mandatory to hear second wife in appeal filed by first wife if husband has performed second marriage after divorce decree

 The Appellant herein is the second wife of Respondent No. 1 (husband). It is the case of the Appellant that after passing of the ex parte decree for dissolution of marriage of Respondent No. 1 with Respondent No. 2 and expiry of period of limitation for filing appeal, Respondent No. 1(husband) entered into matrimony with her (appellant). On the other hand, Respondent No. 2 (first wife of Respondent No. 1) filed the aforesaid appeal of which the Appellant had no knowledge, but the fact of Respondent No. 1 having married the Appellant was indeed stated before the High Court. However, when Respondent No. 1 stated that she was having no problem with the appellant, the High Court set aside the ex parte decree passed on 23.08.2003 in C.S. No. 09-A of 2002 and directed that, the parties shall live together as husband and wife. The Appellant herein (second wife of Respondent No. 1), on coming to know of the aforesaid order dated 09.08.2011 passed by the Single Judge of the High Court in M.A. No. 709/2005, filed review petition (R.P. No. 48 of 2014) before the High Court. The Division Bench of the High Court, by order dated 17.10.2014, dismissed the said review petition. Challenging both the orders, the Appellant has filed the present appeals by way of special leave in this Court.

10. The need to remand the case has occasioned because we find that the Appellant was not made a party to the appeal and nor she was heard by the High Court.

11. On perusal of the impugned order dated 09.08.2011, we find that the High Court, even after taking note of the factum of the marriage of the Appellant with Respondent No. 1, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance.

12. In such a situation, where the impugned order was passed without hearing the Appellant and not issuing any notice of the appeal to her and yet giving such directions, which may not be capable of being carried out, the impugned order, in our view, is wholly without jurisdiction and legally unsustainable and it has to be set aside on this short ground alone.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4847-4848 of 2019 

Decided On: 09.05.2019

 Karuna Kansal Vs. Hemant Kansal and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: (2019) 6 SCC 581

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Whether claim of first wife can be rejected if her husband has suppressed marriage with her from court?

In   the   present   case,     Indubai   had   filed   criminal   case   for
maintenance under section 125 of Cr. P.C.  In the written statement,

Jaydeo has admitted his marriage with Indubai and he did not state
anything about his marriage with Draupada.  On the basis of evidence
tendered in the said case, the learned Magistrate held that fact of
marriage between Draupada and Jaydeo is proved and held that she
was entitled to maintenance and awarded the same.  Thus, under that
order, Jaydeo was paying maintenance to her during his life time.
The learned Judge of the trial Court has erred in accepting the finding
of the learned Magistrate as a final word while  determining the issue
of valid marriage of Indubai and Draupada with Jaydeo.  Draupada
has four children out of this wedlock.  The trial under section 125 of
Cr. P.C. conducted before the learned Magistrate was in absence of
Draupada.   The suppression of the fact of first marriage by Jaydeo
was obvious because he was in Government service and if he would
have   stated   about   the   first   marriage,   then   he   would   have   been
charged   for   misconduct   under   Rule   26   of   the   Maharashtra   Civil
Services (Conduct) Rules and that might have been affected adversely
on his service.  Thus, silence of Jaydeo about his first marriage with
Draupada in the written statement cannot be given any weightageand a circumstance against Draupada.  His efforts to hide the fact of
first marriage from Court was successful and therefore, Indubai was

declared to be entitled to receive maintenance and which she was
receiving during his lifetime.   The learned Judicial Magistrate First
Class in that maintenance application gave the correct finding on the
basis of the evidence available to him.   Draupada was never before
him to plead her case.  Under such circumstances, if one wife does not
come before the Court to plead her case and the fact of two marriages
are   never   brought   before   the   Court,   then   the   finding   given   and
judgment passed in respect of validity of one marriage is always a
subject of challenge before the Civil Court and in that event, the Civil
Court has to consider the evidence independently of both the parties

and is required to give its verdict. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.577 OF 2015

Draupada @ Draupadi Jaydeo Pawar vs. Indubai d/o. Kashinath Shivram Chavan

CORAM : MRS.MRIDULA BHATKAR, J.

 Dated  : 10th FEBRUARY, 2016
Citation: 2017(1) ALLMR197

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Whether second wife is entitled to get pension with consent of first wife?

 For the reasons and law stated, hereinabove, the second wife cannot claim pension on the consent of the first wife, even if the second wife is eligible under the Rules to receive family pension, as long as, the first wife is alive or does not remarry.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 57990 of 2014

Decided On: 26.02.2015

Ram Mohini Devi Vs. State of U.P. and Ors.

Hon'ble Judges/Coram:Suneet Kumar, J.
Citation: 2015 LAB I C2395 ALL

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Whether second wife can be treated as legally wedded wife if second marriage was performed with consent of first wife?

In so far as submission of the learned counsel appearing for the petitioners that petitioner no.1 solemnized marriage with the said deceased after such writing was received from the first wife giving her no objection in favour of the said deceased in getting married again and petitioner no.1 would be one of the legal heirs of the said deceased is concerned, in my view, this issue is concluded by the judgment of the Supreme Court delivered on 15th March, 2013 in case ofNagendrappaNatikar (supra) when Supreme Court considered similar consent letter addressed by the first wife of the deceased. After considering such writing, Supreme Court held that under section 25 of the Contract Act, any agreement which is opposed to public policy is not enforceable in a court of law and such an agreement is void, since the object is unlawful. In my view, only a competent court can grant decree of divorce and no divorce can be granted to a party governed by Hindu Marriage Act or Special Marriage Act, based on such consent letter. In my view divorce can not be granted by parties by such writing unless decree is passed by competent court annulling such marriage. In my view, marriage of the first petitioner with the said deceased is thus void and petitioner no.1 therefore cannot be considered as a legal heir of the said deceased. Petitioner nos.2 and 3 being daughters born out of such wedlock would be entitled to share in the property of the said deceased. Mother of the said deceased is also one of the legal heir of the said deceased and would be one of the legal heir and would be entitled to share in the property of the said deceased.

BOMBAY HIGH COURT

Vandana Bhimrao Jadhav and Others Vs. Sagar Bhimrao Jadhav

Citation;2014(2) MHLJ 274 Bom

Court : Mumbai

Judge : R.D. DHANUKA

Decided On : Oct-22-2013

Case Number : Misc. Petition No. 110 of 2011 In Misc. Petition No. 91 of 2009

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Whether first wife can legally give consent to her Husband to perform second marriage?

 In so far as submission of the learned counsel appearing for the petitioners that petitioner no.1 solemnized marriage with the said deceased after such writing was received from the first wife giving her no objection in favour of the said deceased in getting married again and petitioner no.1 would be one of the legal heirs of the said deceased is concerned, in my view, this issue is concluded by the judgment of the Supreme Court delivered on 15th March, 2013 in case ofNagendrappaNatikar (supra) when Supreme Court considered similar consent letter addressed by the first wife of the deceased. After considering such writing, Supreme Court held that under section 25 of the Contract Act, any agreement which is opposed to public policy is not enforceable in a court of law and such an agreement is void, since the object is unlawful. In my view, only a competent court can grant decree of divorce and no divorce can be granted to a party governed by Hindu Marriage Act or Special Marriage Act, based on such consent letter. In my view divorce can not be granted by parties by such writing unless decree is passed by competent court annulling such marriage. In my view, marriage of the first petitioner with the said deceased is thus void and petitioner no.1 therefore cannot be considered as a legal heir of the said deceased. Petitioner nos.2 and 3 being daughters born out of such wedlock would be entitled to share in the property of the said deceased. Mother of the said deceased is also one of the legal heir of the said deceased and would be one of the legal heir and would be entitled to share in the property of the said deceased.

BOMBAY HIGH COURT

Vandana Bhimrao Jadhav and Others Vs. Sagar Bhimrao Jadhav

Citation;2014(2) MHLJ 274 Bom

Court : Mumbai

Judge : R.D. DHANUKA

Decided On : Oct-22-2013

Case Number : Misc. Petition No. 110 of 2011 In Misc. Petition No. 91 of 2009

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Whether muslim wife can claim maintenance from her husband if he performs second marriage?

The relationship between the parties is not in dispute. The defendant-husband having contracted a second marriage some time prior to the filing of the suit for maintenance, is also not disputed. When once the defendant-husband has contracted a second marriage, the first wife is entitled in law to claim for separate residence and maintenance. The question of the wife deserting the husband or the husband deserting the wife pales into insignificance in the light of this development. The fact that the wife could not get maintenance earlier under Section 125 of the Cr. P.O. proceeding also cannot have any bearing in a suit for maintenance filed subsequent to the defendant-husband having contracted a second marriage. This is so, even if the personal law of the defendant permit him to contract more than one marriage.

 The plaintiff-wife could not have been denied maintenance on the ground of not joining her husband. She is in law entitled to seek maintenance for separate living.

Karnataka High Court

Ashabi vs Bashasab Takke And Anr. on 7 January, 2003

Equivalent citations: I (2003) DMC 725, 2003 (2) KarLJ 429

Author: D S Kumar

Bench: A Farooq, D S Kumar

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