Gujarat HC: Composite petition for nullity of marriage and in the alternative for dissolution of marriage by a decree of divorce is maintainable

4.5 The petition for nullity of marriage is neither contrary nor

inconsistent and the same can be entertained by the Court. The

learned Family Court has rightly rejected the application on the

ground that not permitting the petitioner husband to  file composite suit will lead to multiplicity of proceedings and hence prayer for divorce can be made alternatively. Therefore, there can not be any bar in joint petition under Sections 12 and 13 of the Hindu Marriage Act claiming relief in alternative.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CIVIL REVISION APPLICATION NO. 351 of 2024

X vs Y

CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

Date : 22/01/2025

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Kerala HC: Court can not draw presumption of legitimacy of a child under Sec. 112 of Evidence Act unless the marriage of his parents is declared valid

It is fundamental and axiomatic that valid marriage must be proved before the presumption under Sec. 112 can be invoked. Proof of valid marriage is sine qua non for invocation of the presumption under Sec. 112. Whatever the period of their cohabitation, however loyal and committed the partners may be to each other and however convincing the evidence of their faithful cohabitation may be, the presumption under Sec. 112 cannot be invoked or drawn unless solemnization of valid marriage is proved. Proof of valid marriage is the bedrock on which the presumption under Sec. 112 is built.

32. Such a presumption cannot obviously have any role or play before the validity of the marriage is established. To establish the validity of such a marriage, the presumption under Sec. 112 cannot obviously be invoked. In a case like the instant one where the validity of the marriage is assailed on the ground that the wife was pregnant through another on the date of marriage, this presumption cannot have any play at all. It would be a classic instance of putting the cart before the horse, if this presumption were to be invoked for ascertaining the validity of the marriage itself. We have, in these circumstances, no hesitation to agree with the learned Counsel for the appellant that the presumption under Sec. 112 cannot be invoked in a case where the very validity of the marriage is in question. Only after the validity of the marriage is considered and decided, the presumption under Sec. 112 can be invoked. To decide whether the marriage is valid or not, the presumption under Sec. 112 cannot obviously be invoked.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal Nos. 75 of 2008 & 31 of 2010

Decided On: 13.04.2012

 Rajesh Francis  Vs.  Preethi Roslin

Hon'ble Judges/Coram:

 Mr. Justice R. Basant &Mr. Justice K. Surendra Mohan

Citation: MANU/KE/0523/2012,2012 SCCONLINE Ker 5356

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Leading Supreme Court Judgment on grant of permanent alimony

 In the present case, on the husband's petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void - meaning non-existent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan's case (supra), the expression used in the opening part of Section 25 enabling the 'Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as 'at the time of passing of any decree,' it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.

19. Learned counsel for the husband has argued that extending the benefit of Section 25 to even marriages which have been found null and void under Section 11 would be against the very object and purpose of the Act to ban and discourage bigamous marriages.

20. It is well known and recognized legal position that customary Hindu Law like Mohammedan Law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu Law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependant. It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship.

21. Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts, and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1774 and 1775 of 2001

Decided On: 13.12.2004

Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga

Hon'ble Judges/Coram:

D.M. Dharmadhikari and H.K. Sema, JJ.

Citation: (2005) 2 Supreme Court Cases 33 : (AIR 2005 SC 422)

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Whether wife can be subjected to virginity test if she pleads non consummation of marriage in divorce petition?

The suit
was filed by the wife seeking annulment of marriage by a decree of nullity under
Section 25 (i) and alternatively for divorce under Section 27 (1) (d) of the Special
Marriage Act, 1954. However, initially the suit was based on cruelty but
subsequently by way of amendment the wife also incorporated the ground of
nullity under Section 25 (i) of the said Act. From the pleading it appears that the
wife claimed that the marriage was void inasmuch as the same was not
consummated. In the above background after the amendment was allowed the
wife filed an application before the Court below praying potency test of the
husband. Such prayer of the wife was allowed by the order impugned. Since the
wife opposite party also pleaded in the suit that the marriage was not
consummated because of the impotency of the husband and that the same was a
void marriage, the husband also filed an application seeking virginity test of the
wife. By the order impugned the husband’s application seeking virginity test has
been rejected by the learned Court below. While rejecting the application the
learned trial Court relied on a passage of a renowned author that “Virginity test is
not a reliable indicator of a female having actually engaged in sexual intercourse
because the tearing of the hymen may have been the result of an involuntarily
sexual act” and held that it does not appear to the Court to be a sound
proposition of law. Therefore, in my view also the contention raised by the
husband that since the wife made an allegation that the marriage was not
consummated she should be subjected to virginity test cannot be accepted,
particularly, when it is undisputed that the marriage took place on 30th
November, 2006. Therefore, I do not find any illegality and/or material
irregularity in the impugned order. I do not also find any jurisdictional error on
the part of the learned trial Court in rejecting petitioner’s application for virginity
test.

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
B E F O R E :
The Hon’ble Justice SAHIDULLAH MUNSHI
C.O. No.3309 of 2018
With
C.O. No. 3310 of 2018

SRI SANDIP KUMAR DASGUPTA  Vs SMT. DIPANWITA DASGUPTA

Judgment on : June 21, 2019.

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When court should not grant decree for Nullity of Marriage?

 Having heard learned counsels for both the sides and upon going
through the record, we find that the lust for sex and subsequently, the greed for
dowry, has given rise to this case. However, the fact remains that the case filed
by the appellant was not maintainable in the eyes of law, for the reasons
discussed hereinafter.
10. Section 11 of the Hindu Marriage Act reads as follows:-
"11. Void marriages.- Any marriage solemnized after the
commencement of this Act shall be null and void and may, on a
petition presented by either party thereto, against the other party,
be so declared by a decree of nullity if it contravenes any one of
the conditions specified in clauses (i),(iv) and (v) of section 5.” -3-
Section 5 (i), (iv) and (v) of the Hindu Marriage Act reads as
follows:-
"5. Conditions for a Hindu marriage.- A marriage may be
solemnized between any two Hindus, if the following conditions
are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) ------------
(iii) ------------
(iv) the parties are not within the degrees of prohibited
relationship, unless the custom or usage governing each of them
permits of a marriage between the two;
 (v) the parties are not sapindas of each other, unless the custom
or usage governing each of them permits of a marriage between
the two;"
11. Thus from a bare reading of these provisions it apparent that
the marriage between the parties could have been declared void by a decree of
nullity of marriage, only in case, the case of the petitioner had fallen within
Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act, i.e., neither of
the party had a spouse living at the time of the marriage, or that the parties were
within the degrees of prohibited relationship, or that the parties were sapindas of
each other.
12. In view of the fact that the case of the appellant did not fall in
either of the above three categories, the marriage between the parties could not
have been declared void by the Court below and the case filed by the appellant
was not at all maintainable. As such, the case has rightly been dismissed by the
Court below.
 IN THE HIGH COURT OF JHARKHAND AT RANCHI
 F.A.No. 72 of 2008
Manbodh Kr. Pradhan. V Kalpana Pradhan

CORAM : HON’BLE MR. JUSTICE H. C. MISHRA
 HON’BLE MR. JUSTICE Dr. S.N. PATHAK
Citation: AIR 2017 Jharkhand 40

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Whether wife is entitled to file proceeding under DV Act after decree for nullity is passed?

In my opinion, an application by an ‘aggrieved person’ or a
Protection Officer is essential for maintaining a proceeding in view
of the provisions of Section 12 of the P.W.D.V. Act. Here petitioner filed the application as ‘aggrieved person’. Question is whether her
right to claim herself as aggrieved person was ceased with effect
from 23.04.2012. ‘Aggrieved person’ has been defined in Section 2
(a) of the P.W.D.V. Act as- “aggrieved person” means any woman
who is, or has been, in a domestic relationship with the respondent
and who alleges to have been subjected to any act of domestic
violence by the respondent. In her application petitioner alleged
that she had been subjected to physical as well as mental torture by
her husband during her living with the O.P. No. 1 in a shared
household as wife of the opposite party no. 1 which attracts the
definition of “domestic violence” as per Section 3 of the Act.
Undisputedly petitioner was wife of the opposite party no. 1 till the
passing of the decree of nullity of marriage on 23.04.2012. In order
to establish herself as aggrieved person any woman must prove first
that she is or has been in a domestic relationship with the
respondent. As per definition in Section 2 (f) “domestic
relationship” means a relationship between two persons who live or
have, at any point of time, lived together in a shared household,
when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are family
members living together as a joint family. According to factual
matrix in this case the petitioner and opposite party no. 1 have
lived together in a shared household till petitioner’s departure from
that house during her pregnancy stage as the petitioner and
opposite party no. 1 were related each other by marriage.
Significantly, it is mentioned that out of their such joint living a
child has born. Therefore, as per definition of “domestic
relationship” it can be said that even after passing the decree of
nullity of marriage the domestic relationship between petitioner and
the opposite party no. 1 for the purpose of P.W.D.V. Act subsists
out of their past joint living as legally wedded couple. In this
connection I like to note that petitioner’s application cannot be
treated as an application under Section 125 of the Cr.P.C. The
P.W.D.V. Act is a special beneficial legislation to protect the rights
of women expanding the limited scope of Section 125, Cr.P.C. Suchwider scope is required to be kept in mind in course of dealing with
any matter under the provisions of the P.W.D.V. Act but certainly
within the ambit of the language used in the statute. Be it noted
that in a judgment in the case of D. Velusamy Vs. D.
Patchaiammal reported in (2010) 10 SCC 469 (cited by learned
counsel for the petitioner) extended scope in the P.W.D.V. Act has
been discussed. Said case, though not similar according to facts to
this case, but it throws light to understand the legal position on the
subject.
In the instant case, petitioner alleged physical and mental
torture upon her by opposite party no. 1 during continuation of
their marital relationship. She also alleged that opposite party no.
1 kept her ‘Stridhana’ property with him and she was not provided
maintenance for herself and her child by the opposite party
although the petitioner is unable to maintain herself and her child.
Since her marital relation with opposite party no. 1 has been
declared a nullity with effect from 23.04.2012, her right to claim
maintenance from opposite party no. 1 may not be proper under
Section 125 of the Cr.P.C. But she cannot be debarred from
seeking reliefs against the opposite party no. 1 ventilating her
grievances against opposite party no. 1 who is engaged in legal
profession as an advocate. In my opinion, the P.W.D.V. Act is the
proper enactment for her redress. In this regard the latin maxim,
“Ubi jus ibi remedium” (wherever there is a right there is a
remedy) may be mentioned.
 IN THE HIGH COURT AT CALCUTTA
 CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present :
THE HON’BLE JUSTICE SANKAR ACHARYYA
 C.R.R. No. 3963 of 2013
 In the matter of :

Priti Dey (Chandra) Vs. Subhasish Dey & Anr.

Citation:2016 ALLMR(CRI)JOURNAL 554

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Whether court can grant decree for annulment of marriage on ground of prenuptial unchastity of wife?

As a general rule prenuptial unchastity of the wife though unknown to the husband at the time of the marriage is not a ground for a decree of nullity.

Nor is express misrepresentation by a woman as to her chastity of itself ground for avoidance of the marriage, though, of course, it may be taken into consideration together with other circumstances indicative of fraud.

Chastity, it is said, is a mere personal quality, and its non-existence at the time pf the marriage does not amount to absence of an essential condition of the marriage relation. Moreover, it is declared, prenuptial unchastity does not necessarily prevent the woman from becoming a faithful wife or from performing her part in the bearing of off spring, and to consider misrepresentation in regard thereto a ground for decreeing nullity of marriage would be inconsistent with reason and sound policy.

Punjab-Haryana High Court

Surjit Kumar Harichand vs Smt. Raj Kumari on 1 December, 1965

Equivalent citations: AIR 1967 P H 172

Bench: S Kapur

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Whether petition for nullity of marriage along with alternative prayer for divorce is maintainable?

Filing of the petition 
within one year from the discovery of the fraud or after the force 
has been ceased to operate is mandatory and, therefore, the petition 
was rightly filed within time under Section 12.   can be entertained 
for   nullity   under   Section   12(1)(c).     There   should   not   be   routine 
practice to file a petition for nullity and However, in the said 
petition, there is an alternative prayer for divorce on the ground of 
cruelty.     In   the   petition,   there   are   averments   in   respect   of   the 
instances  of  cruelty  and, therefore, alternative   relief  of  divorce  is 
prayed   as   the   marriage   was   consummated   between   the   parties. 
Alternative   prayer   of   divorce   in   the   petition   for   nullity   is   neither 
contrary nor inconsistent and can be entertained by the Court.  The 
Judge, Family Court is not found at fault taking view that the Court 
when heard the matter and the evidence of the parties was recorded 
found that the parties were residing separately since March­2007, 
i.e. for more four years so bar under Section 14 will not come in the 
way.   We are in agreement with the pragmatic approach taken by 
the   learned   Judge,   Family   Court   while   entertaining   the   petition 
under Section 13(1)(ia) though it was presented within one year 
from the date of the marriage.   One important point is also to be 
noted that if a party wants to seek an alternative relief for grant of 
decree of divorce in a petition for nullity of marriage filed within 

one year, then it will be cumborsome for the party to file another 
petition for divorce after one year.  This leads to multiplicity of the 
proceedings.     Hence,   the   prayer   for   divorce   can   be   made 
alternatively in the petition for nullity if filed within one year.   If 
nullity prayed, itself makes an exceptional hardship.  In the case of 
Mr.X  (Supra), the petition was filed before the expiry of one year 
from the date of the marriage on the ground of cruelty.  Leave was 
granted by the trial Court.  In paragraph 7, the Division Bench held 
that “the trial Court has rightly granted the leave and it was held 
that   the   appellate   Court   will   not   interfere   with   the   trial   Judge's 
discretion unless he has proceeded on a wrong principle of law, or 
failed to have regard to some material consideration or some gross 
injustice has occurred”.  Needless to mention that after all it is left to 
the   Judge,  Family  Court  to consider   whether  the   parties  have  an 
exceptional hardship and prima­facie the petition put an alternative prayer for 
divorce under Section 13 giving a go­bye to the statutory provision 
under Section 14 of the Hindu Marriage Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FCA 166/14
FAMILY COURT APPEAL No.  166/2014
WITH
CROSS OBJECTION ST. No. 5743/2014

Dr. Rajasi @ Swapna w/o Shashank Dandge V Dr. Shashank s/o Vitthalrao Dandge,

CORAM : B.R. GAVAI AND                        
MRS.MRIDULA BHATKAR, JJ. 

DATE    :       6TH       JANUARY,         2015.

Citation;2015(3) ALLMR316

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Landmark judgment on jurisdiction of High court in civil cases

“17. The expression cause of action has acquired a judicially  
settled meaning. In the restricted sense cause of action means  
the   circumstances   forming   the   infraction   of  the   right or   the  
immediate occasion for the action. In the wider sense it means  
the   necessary   conditions   for   the   maintenance   of   the   suit, 
including not only the infraction of the right, but the infraction  
coupled   with   the   right   itself.   Compendiously   the   expression 
means every fact which it would be necessary for the plaintiff  
to   prove,   if   traversed,   in   order   to   support   his   right   to   the  
judgment   of   the   Court.   Every   fact   which   is   necessary   to   be  
proved, as distinguished from every piece of evidence which is 
necessary to prove each fact, comprises in cause of action. It  
has to be left to be determined in each individual case as to 
where the cause of action arises. The Chief Justice of the High  
court has not been conferred with the legislative competence to  
define cause of action or to declare where it would be deemed 
to have arisen so as to lay down artificial or deeming test for  
determining territorial jurisdiction over an individual case or 
class   of   cases.   The   permanent   bench   at   Jaipur   has   been  
established by the Presidential Order issued under sub­section  
(2) of Section 51 of the Act. The territorial jurisdiction of the  
permanent bench at Jaipur is to be exercised in respect of the  
cases arising in the specified districts. Whether the case arises  
from one of the specified districts or not so as to determine the  
jurisdictional   competence   to   hear   by   reference   to   territory 
bifurcated between the principal seat and the bench seat, shall  
be an issue to be decided in an individual case by the judge or  
judges   hearing   the   matter   if   a   question   may   arise   in   that 
regard. The impugned explanation appended to the Order of  
the Chief Justice dated 23rd December, 1976 runs counter to  
the Presidential Order and in a sense it is an inroad into the  
jurisdiction of the judges hearing a particular  case or cases, 
pre­empting a decision to be given in the facts of individual  
case whether it can be said to have arisen in the territory of a  
particular district. The High Court is right in taking the view  
which it has done.” 



MISC. CIVIL APPLICATION NO.341 OF 2013.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
     MRs Sayali swapnil kuber V Swapnil S/o. Harischandra 
Kuber,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM  :   A.B.CHAUDHARI, J.
DATED    :   SEPTEMBER 19, 2013.
Citation; 2014(5) ALLMR 97

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Whether decree of nullity of marriage or divorce can be passed on the ground of deformities of wife?

 No decree of nullity of marriage or divorce can be passed on the ground of deformities of  wife

Kolkata High Court (Appellete Side)

Smt. Shampa Mukherjee vs Sri Pranab Mukherjee on 3 August, 2009

Author: Bhaskar Bhattacharya

Judgement On:03.08.2009.

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