Case Note & Summary
The appellant, Priya Jethani, and the respondent, Hitesh Sawlani, were married on 24 December 2013 in Nagpur according to Sindhi customs. After marriage, discord arose, and the respondent made inquiries about the appellant's antecedents. In the third week of 2015, he learned that the appellant had previously married Sushil Kumar Khubchandani in Nainpur (M.P.) and had conceived a pregnancy from him, which was prematurely terminated. The respondent discovered that no legal divorce had been obtained from the first husband, and these facts were suppressed by the appellant. Feeling deceived, the respondent filed a petition under Section 5(i) read with Section 11 of the Hindu Marriage Act, 1955, seeking a declaration that the marriage was null and void. The Family Court at Nagpur allowed the petition on 29 June 2018, declaring the marriage null and void. The appellant appealed to the Bombay High Court. The High Court framed the issue of whether the marriage was void due to a prior subsisting marriage. The appellant argued that the respondent failed to prove the first marriage and that she had obtained a divorce by mutual consent. The respondent contended that the appellant suppressed the prior marriage and that no divorce was proved. The High Court analyzed the evidence, including the marriage invitation card of the appellant's first marriage, testimony of the respondent and his witnesses, and the appellant's failure to produce any divorce decree or death certificate. The court held that the respondent discharged his burden of proving the prior marriage by preponderance of probabilities, and the appellant failed to prove its dissolution. The court also noted that suppression of the prior marriage amounted to fraud, but since the marriage was void under Section 11, the decree of nullity was correct. The appeal was dismissed, and the Family Court's decree was upheld.
Headnote
A) Hindu Marriage Act - Nullity of Marriage - Section 5(i) read with Section 11 - Prior Subsisting Marriage - The respondent sought declaration that his marriage with the appellant was null and void because the appellant had a prior marriage with Sushil Kumar Khubchandani which was not dissolved at the time of the second marriage. The Family Court granted the decree. On appeal, the High Court upheld the decree, finding that the appellant failed to prove dissolution of the first marriage and that the suppression of the prior marriage amounted to fraud. Held that the marriage was void ab initio. (Paras 4-15) B) Evidence Act - Burden of Proof - Section 103 - The burden to prove that the first marriage was dissolved lies on the appellant who asserts it. The appellant did not produce any decree of divorce or death certificate of the first husband. The respondent's evidence, including the marriage invitation card and testimony of witnesses, established the prior marriage. Held that the respondent discharged his burden. (Paras 10-12) C) Hindu Marriage Act - Fraud - Section 12(1)(a) - Suppression of a prior subsisting marriage amounts to fraud vitiating consent. The appellant concealed her previous marriage and pregnancy, which were material facts. The respondent would not have married her had he known the truth. Held that the marriage is voidable on ground of fraud, but since it is also void under Section 11, the decree of nullity is correct. (Paras 13-15)
Issue of Consideration
Whether the marriage of the appellant with the respondent is null and void under Section 5(i) read with Section 11 of the Hindu Marriage Act, 1955 on the ground that the appellant had a subsisting marriage at the time of the second marriage.
Final Decision
The appeal is dismissed. The judgment and decree dated 29 June 2018 passed by the Family Court, Nagpur in Hindu Marriage Petition No.A872/2015 is upheld. No order as to costs.
Law Points
- Section 5(i) of Hindu Marriage Act
- 1955 prohibits marriage with a living spouse
- Section 11 declares such marriage void
- suppression of material facts amounts to fraud
- burden of proof on petitioner to show prior marriage
- standard of proof is preponderance of probabilities
