HMA | Customary Second Marriage During Subsistence Of First Marriage Void Unless Party Proves Custom Permits It: Chhattisgarh High Court

The Chhattisgarh High Court on Tuesday held that solemnisation of second marriage based on custom during the subsistence of the first marriage, is void as per Sections 5(i) and 11 of the Hindu Marriage Act unless party proves that the custom permits such remarriage.Clarifying the position of law, a Bench of Justice Bibhu Datta Guru held –“The law on this point is clear. Under Sections 5(i) and 11 of the Act, 1955, a marriage contracted during the subsistence of an earlier valid marriage is void ab initio. Even in cases where a subsequent marriage is claimed to have occurred according to a customary practice, the burden is on the party asserting such custom to specifically plead and strictly prove that the custom permits remarriage during the lifetime of the first spouse.”The case revolved around a property dispute having its genesis in 1980's. The appellant is the daughter of Late Sagnuram and Late Nikmi Bai the first wife of Sagnuram. After the death of his first wife Nikmi Bai, Sagnuram purportedly married Gwalin Bai as per 'Chudi' customs prevalent in the community. Gwalin Bai had two daughters namely Hiran Bai and Sukhiya Bai (the private respondents herein) from the previous relationship. She brought her two daughters along with herself to the house of Sagnuram and lived with him as his wife until his death in 1987. In early 1988, Gwalin Bai died leaving behind two daughters. Subsequent to the death of Sagnuram as well as Gwalin Bai, the landed property, i.e. 2.47 hectares of agricultural land of Sagnuram stood recorded in the names of the appellant and the respondents. The appellant objected to such entry contending that as the respondents were born out of the previous relationship of Gwalin Bai, they are not entitled to inherit the property of her father.The respondents, therefore, instituted a civil suit staking claim in the landed property of their step-father. The appellant, being the defendant in the original civil suit, filed her written statement arguing that the respondents (original plaintiffs) were born out of extra-marital relationship of Gwalin Bai. She further controverted the validity of marriage which allegedly took place between her father Sangnuram and Gwalin Bai. It was her further contention that Gwalin Bai deserted her first husband and did not legally or customarily dissolve the said marriage before cohabiting with Sagnuram.The trial Court, after recording the evidence of both sides and upon hearing the final arguments, came to the conclusion that the respondents failed to prove their claim and accordingly, dismissed the suit. Then the respondents impugned the judgment of the trial Court in first appeal before the Additional District Judge, Balod. The first Appellate Court reversed the findings of the trial Court and held the marriage between Sagnuram and Gwalin Bai as valid and thus, entitling the respondents to inherit their shares in the disputed property.Being aggrieved, the appellant filed this second appeal before the High Court. The substantial question which arose for consideration was whether the first Appellate Court was justified in reversing the findings recorded by the trial Court and thereby holding Gwalin Bai as the lawfully wedded wife of Sagnuram.For answering the aforesaid question, the Court adverted to the testimony of first respondent-Hiran Bai before the trial Court. The Court noted that she categorically admitted that at the time of 'Chudi' marriage between Sagnuram and Gwalin Bai, the first husband of the latter was alive. She also expressed lack of knowledge regarding divorce or customary dissolution of her mother's prior marriage. The Court, thus, held that the respondents failed to produce any documentary or oral evidence to establish the fact that the first marriage of Gwalin Bai had been legally or customarily dissolved prior to the alleged marriage with Sagnuram. Justice Guru referred to the statutory stipulations under Sections 5 and 11 of the 1955 Act. Section 5(i) expressly bars marriage of any person who already has a living spouse from a subsisting marriage and Section 11 says that any contravention with Section 5(i) shall render the marriage null and void ab initio.He also placed reliance upon the ruling of the Apex Court in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav & Anr. (1988) which interpreted Sections 5(i) and 11 and observed that a lawful Hindu marriage necessarily requires that neither party should have a spouse living at the time of marriage, and that a marriage solemnised in contravention of this condition is null and void. The Supreme Court further rejected the contention that such a marriage could be recognised on the basis of prior Hindu law or custom, holding that by virtue of the overriding effect of Section 4 of the Act, no aid can be taken of any custom or usage inconsistent with the provisions of the Act.Having regard for the abovementioned position of law, the Court held –“Mere assertion of a “Chudi” marriage or ...

HMA | Customary Second Marriage During Subsistence Of First Marriage Void Unless Party Proves Custom Permits It: Chhattisgarh High Court

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