Dear Hiten,
Very sad to hear your case and your approach:
Before concluding and throwing some light on this case I have the following concerns:
As you have stated a very breif discripttion of your case and it is not known that you have filled sec-11 HMA or not?
1. How much Interim you have been allowed by court?
2. How come you reach to know that her previous marriage is still intact and she had cheated you?
3. Does she still getting any maintenance from her previous husband?
4. Why your lawyer withdrawn the petition on very first day of hearing in high court?
Now, some guidelines in your case:
Void Marriage / Nullity Of Marriage
The term “void” can in general parlance be understood to be a synonym of the word “illegal”. Hence anything which is void would have one consequence for sure – that it would be illegal. A void marriage therefore means an illegal marriage. Now the question is when would a marriage be called illegal?
A and B, both major, enter into a matrimonial relationship with each other and with their own consent but without the consent of their parents. Is this marriage illegal? No, this marriage is not illegal merely because the parents of A and B have refused their consent. But what would be the position if both A and B are already married to say C and D or either A or B is married to someone else? In such a case, the marriage between A and B would be illegal as it would not be fulfilling the conditions for a valid Hindu marriage as prescribed under clause 1 of section 5 of the Hindu Marriage Act, 1955 [hereinafter referred to as ‘the Act’]. Section 5 of the Act says:
It is to be noted that section 5 just lays down the requirements of a valid Hindu marriage but it does not lay down the effect if any of the conditions laid therein are not followed. This effect provided for in section 11 and 12 of the Act. Out of these two sections it is section 11 that deals with nullity of marriage. It provides as under:
The effect of the above two sections, i.e. section 5 and section 11 when read together is that all marriages which fall within either clauses i, iv or v of section 5 are void. Under law, these marriages would have no recognition except as is provided under any law. It has been held by various High Courts that conditions mentioned is section 11 rendering a Hindu marriage null and void are exhaustive. It is only on these grounds that that a Court can grant a decree of nullity.[1985 1 26 Guj Law Rep 47; AIR 1965 Him Pra 15; ILR 1970 Cut 1215]
GROUNDS:
Following are the grounds which shall render a marriage void:
1. Bigamy:
The first condition for valid Hindu marriage is that none of the parties to the marriage shall have a spouse living it the time of their marriage. If either of them has a spouse alive from an earlier marriage, their subsequent marriage is no marriage in the eyes of law. It is void ab initio and non est, i.e. non existent.
2. Persons falling within degrees of prohibited relationships:
Section 3(g) of the Hindu Marriage Act, 1955 defines ‘degrees of prohibited relationships’. It provides as follows:
Lineal ascendants are to be seen from both sides, i.e. from the father’s side as well as from the mother’s side. So both the father and mother are lineal ascendants. Similarly father’s father is a lineal ascendant whereas mother’s mother is also a lineal ascendant. But a paternal grandmother is not a lineal ascendant but the wife of a lineal ascendant and hence would fall under clause ii. Similarly a maternal grand-father would fall under clause ii being the husband of a lineal ascendant. Clause ii would also cover daughter-in-law and son-in-law being the wife and husband respectively of one’s lineal descendants i.e. son and daughter respectively. A paternal Aunt (Chachi) and a maternal Aunt (Maami) would fall under clause iii and two siblings along with other relations described in clause iv also fall in degrees of prohibited relationships.
3. Sapinda relations:
Section 3(f) defines ‘Sapinda relationship’ as under:
Sapinda relations can be illustrated as under:
Suppose A is a boy. Now if he is considered as one generation, relatives falling in four more generations upwards from him from the side of his father shall be his Sapinda relations. Therefore, A’s father, A’s grand-father, A’s great grand-father and the father of A’s great grand-father shall all be A’s Sapinda relations. But on the mother’s side, this chain is to extend to only three generations which include A. Therefore, A’s mother and A’s maternal grand-mother only shall be A’s Sapinda relations from the mother’ side, A himself being one generation.
By virtue of clause ii of sec 3(f), not only those who fall within the limits of sapinda relationship shall be sapinda to a person but also where two persons have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them, both of them shall also be sapinda to each other. For instance A and B are brothers born out of C who is their father. D is A’s son and E is B’s son. Here D’s sapinda relations by degrees are A and C. Similarly E is Sapinda to B and C by degrees of relationship. Here D is not Sapinda to B by degrees because B does not fall in any of the four generations upward to D. But despite this, B shall still be Sapinda to D because both of them have a common lineal ascendant in C who is within the limits of Sapinda relationship to both B and D. Similarly A and E shall be sapinda to each other as they also have in C a common lineal ascendant who is within the limits of Sapinda relationship to both A and E.
Formal annulment of marriage whether necessary:
Another question that arises in marriages falling under any of the above conditions is whether it is essential to get such a marriage annulled through a decree from a competent Court of law or is there no requirement for such a decree as the marriage is illegal and will not become legal if no Court pronounces upon its illegality? Different Courts seem to have answered this question differently. Reference in this regard may be made to the following judgements:
Void marriage - No declaration under sec 11 is necessary though same can be asked for, for the purpose of precaution or record.
AIR 1967 Pat 277; 1967 Cri LJ 1176
(1991) 72 Cut LT 619; (1991) 2 DMC 424 Orissa
Marriage which is void ab initio does not effect or alter the status of party and neither party is under any obligation to seek declaration of nullity.
1981 Rev Dec 324 (All)
Where a woman was married to a person having his spouse living, marriage is void under section 5 of the Act, 1955. Woman cannot be treated as spouse and included in family unit. The mere fact that parties have not approached the Court for declaration as contemplated under S. 11 does not alter the position.
(1978) 1 APLJ (HC) 360
Going by the above judgements, it is not necessary for a party whose marriage is void under sec. 5 of the Act to apply formally to a Court of law for decree of nullity of marriage. Here however the following judgement need also be studied:
A marriage though null and void for contravening any of conditions prescribed by sec. 5 has yet to be regarded as a subsisting fact and that in that sense it could not be said to be non est in law or a nullity as long as it is not declared to be null and void by a decree of nullity on a petition presented by either party against the other party to marriage.
1981 All Cri R 294 : 1981 Cri LJ (NOC) 191
The ratio set in this judgement seems to be in conflict with the earlier judgements. The Court in this judgement has very expressly recognized the need for a formal declaration by a competent Court pronouncing a marriage in contravention of relevant provisions of sec 5 to be null and void.
With all due respect to Courts which have delivered the above judgements, it is submitted that it is always better to get a marriage formally declared null and void by a Court of competent jurisdiction so that the fact of solemnisation of marriage (though void ab initio) is countermanded by the subsequent act of getting that marriage annulled.
MAINTENANCE:
Another significant question that now arises is whether the wife whose marriage is void under section 11 of the Act can claim maintenance from her husband of that void marriage. The Supreme Court has held that where a marriage is void, wife cannot claim maintenance under sec. 488 CrPC [sec 125 under the Act of 1973] (AIR 1988 Supreme Court 644). However it is a generally accepted rule that even in such cases, the wife is entitled to maintenance under sec. 18 of the Hindu Adoptions and Maintenance Act [(1985) 2 Hindu LR 425 : (1985) 2 DMC 251 (MP)] and also under section 24 of the Hindu Marriage Act 1955 [(1990) 2 Div Mat Cas 594 : (1991) 1 Hindu LR 56 (MP)].
MY TAKE IN YOUR CASE ACCORDING TO INSUFFICIENT FACTS GIVEN BY YOU:
1. See interim maintenance is always a discretion of court as it is not arrived after the final verdict of court on your void marriage.
2. 498A is not maintainable if your marriage is void ab initio.
2. PAWDVA 2005 is maintainable on you even on the ground of liv-in relationship.
3. The interim is justified by trial court or session court on very ground of liv-in relationship.You will have a good ground if interim judgement would be mentioned by liv-in relationship.
This mean that court has pre-asummed this marriage as void.So you have to fight your case to annul this marriage and protect your self from final alimony. As no final alimony is given in void or voidable marriage when it is proved.(for judgements you can visit to my thread "List of all judgements where maintenance denied to wives"
4. As per your breief I can suggest you this much only that Fight your DVA case on merit along with your null and void marriage.
5. Once you win the case their are many remedies you can get from her for all your harassment and monetary loss.
Thanks & regards,
(ESIS)
