Case Note & Summary
The case involves a dispute between two wives of Prakash Naik alias Vaingankar over his estate. Prakash married Deepa Naik on 17/03/1978, but the marriage was short-lived, and Deepa left the conjugal home around 8/04/1979 while pregnant. She gave birth to a son, Kalidas, on 27/05/1979. Prakash then married Swaroopa Naik Vaigankar on 17/07/1983 without divorcing Deepa. He lived with Swaroopa until his death on 13/04/1996. After his death, Swaroopa executed a deed of succession on 24/06/1996 claiming to be the sole heir. Deepa and her son filed Special Civil Suit No.61/1996 seeking a declaration that they were the sole heirs and that the deed of succession was null and void. The trial court decreed the suit in favor of Deepa and her son, holding that Swaroopa's marriage was void due to the subsistence of Prakash's first marriage. Swaroopa appealed, but the High Court dismissed the appeal on 2/12/2008. Swaroopa then filed a review application under Order 47 Rule 1 CPC, arguing that the judgment contained errors apparent on the face of the record. The High Court, per Justice N.A. Britto, dismissed the review, holding that the review jurisdiction is limited to correcting errors apparent on the face of the record and cannot be used to re-argue the merits. The court found no such error, as the second marriage was clearly void under Section 11 of the Hindu Marriage Act, 1955, and Swaroopa was not a legal heir under the Hindu Succession Act, 1956. The review was dismissed with costs.
Headnote
A) Civil Procedure Code, 1908 - Order 47 Rule 1 - Review - Error Apparent on Face of Record - The scope of review is limited to errors apparent on the face of the record and does not permit re-hearing of the matter on merits. The applicant sought review of the judgment dismissing her appeal, but the court found no such error. (Paras 2, 7-8) B) Hindu Marriage Act, 1955 - Section 11 - Void Marriage - Second Marriage During Subsistence of First Marriage - A marriage contracted while a prior marriage is subsisting is void ab initio. The second wife's marriage to Prakash Naik on 17/07/1983 was void as his first marriage to Deepa Naik (17/03/1978) was still subsisting. (Paras 4-5, 9) C) Hindu Succession Act, 1956 - Section 8 - Heirs of a Male Hindu - The second wife, being a void wife, is not a Class I heir under the Schedule to the Act. The first wife and son are the sole legal heirs entitled to the estate. (Paras 5-6, 9)
Issue of Consideration
Whether the review application discloses any error apparent on the face of the record in the judgment dated 2/12/2008 dismissing the appeal.
Final Decision
The review application is dismissed with costs.
Law Points
- Review jurisdiction under Order 47 Rule 1 CPC is limited to errors apparent on the face of the record
- not re-argument of merits. A second marriage during subsistence of first marriage is void under Section 11 Hindu Marriage Act
- 1955. The second wife is not a legal heir under the Hindu Succession Act
- 1956.
