O'" PSTITIONER Sona Ralsel Sint. Kiran aaofher Mayee Nayak and cl;>.V ^ •^.^•i^' «-. >pAS ORDER Post for?2 -7-2009 Sd/- N.K. Agarwal Judge HIGH COURT OF CHHATTISGARH, SILASPUR WRIT PBTITION (Cl No. 284 OF 2007 SS: Sona Ralsel D/o KaUu Raksel, aged 39 years, Resident of Behiad Anand Talkies, Sweeper Colony, Modaha Para., Raipur Srat KiraD. Mayee Nayak,W/o Shri Vinod Kuinar Nayak, aged about 40 yearrs, resident of House No, 14/705-6, Nayak Advocates Chaaiber, GE Road, Tatya Para, Raipur (CG) Viaod Kumar Nayak, S/o M.L. Nayak, age 44 years, resident of House No. 14/705-6, Nayak Advocates Chainber, GE Road, Tatya Para, Raipur (CG) Shri Uttam Pandey, Advocate for the petitioner. Respondent No. 1 Sm.t. Kirau Mayee Nayak in person. Shri J.R. Venna, Adv. for the respondent No. 2. SB: HON'BLB SHRI JUSTICE N.K. AGARWAL (U-7-2009) The instaat petition is directed agaia.st fhe part of the order dated 19-12-2006 passed by Second Additional Principal Judge, Fairuly Court, Raipur in H.M. No. 16-A/2006 wheieby aud whereunder application under Order 1 Rule 13 read witll Section 151 ofC.P.C. filed by the petitioner herein has been disiaissed by the TriaS Court. 2. Brieffacts offhe case giviag rise to this petition are that the respondents hei^in. joiatly filed petition under Section 11 of the Hiadu Mamage Act (briefly, fhe Act) against fhe petitioner herein for claiiuiae a reUef of declaration to fhe effect fhat the inarriage solenuiized between fhe petitioner and the respondent No. 2 is a nuUity. 3. Tlie petitioner preferred an application (Annexttre P-2) under Order 1 Rule 13 read with Section 151 ofC.P.C. subimtting fhat as far as i^spoiident no. 1 is concemed, she has no right to prefer an application under Section 11 of fhe Act aad, fherefore, fhe /.s-—;.1? appMcation filed by the respondents parties. The respondents hereia filed aiid opposed fhe appUcation on the suffers froia iziis-joinder of a joint reply (Aanexiire P-4) >und stated in fheir reply. 4. Learaed trial Cuurt upon hearuig fhe parties Iield fhat fhe respondent No. 1 Iiereia is not £nimnecessary party aiid disinissed fhe appUcatioa preferred by the petitioner. Hence this petition. 5. Stlri Uttam. Pandey, leamed counsel for the petitioner subnutted that a bare perusal of Sectioii 11 of fhe Act would reveal that a petition uader this section can only be filed by eifher party to the inarriage agaijist eacli other for a relief of declaration that the inarriage solemiiized between fhem being void is invalid, whereas fhe iastaat petition filed by fhe respondent No. 1 would be of the nature fh.at she beiag fhe &st legaUy wedded wife of respondent No. 2, so fhe niamage soleiuiiized between the respondent No. 2 axid the petitioner be declared void by passiag a decree in this regard and, therefore, fhe petition at least filed by the respondent No. 1 is not inaiatainable m. accordance wifh the provisions of Sectioii 11 of the Act and, fh.erefore, fhe petition suffsrs fi-oin inis-joiader of party aad fhe name of respondent No. 1 be deleted froia the cause title of the petition fUed by the respondeats joinfly. In support of his subiaissions, he placed reliaa.ee on fhe decisions ia the case of AJ .reported in 2000(2) MPLJ 112, aaother reported ia AIR 1979 Orissa 51, Xedar Imt. Supra^ reported ia AIR 1963 Pataa 311 aad Amarlal Goru aad another -v- VijaTabai reported iu AIR 1959 MP 400. 6. Sllri J.R. Verma, learaed counsel appeariiig for respondent No. 2 sutsinitted fhat as far as the i^spondeut no.2 is conceraed, the petitiori has been vaUdly filed and, fherefore, even if the Court com.es to a conclusion that the respondent no. 1 is not necessary. party or proper party in fae petition filed uitder Sectiou 11 of the Act, it wiU not afTect fhe petition, which has also been filed by the respondent No. 2. •-T"- -;^ J e^J^:1 7. Per contra, Snit. Kiraiunayee Nayak, respondent No.l appearing in person, subioitted that she beiag fhe first legally wedded wife of respondent No. 2, is entifled to institute action along wifh her husband agaizist fhe petition.er, whose laarriage with i^spondent ao. 2 is on the face of K-cord void aiid deserves to be declai'ed as siicli. Section 11 of the Act has to be read along wifh Section 5(i) of fhe Act whfle iaterpretuig the words 'eifher party thereto' iu. Section 11. Therefore, she beiag necessary/proper party, the order passed b;.- fhe trial Court deserves to be upheld as there is no jurisdictioaal u-rcgularity or fflegality coiainitted by the trial Court. ReKance has beea placed by respondent No. 1 on the judgaients ia the case of Siat. others reported rn AIR 1984 AUahabad 147, Saashidhar Jha -v- Chhabi Chatteriee reported rn 1967 Cr.L.J. 1176, Nam-aae Siaeh Chuni Singh -v- Smt. Sapla Devi rcported iu 1968 Cr.L.J. 1636, Smt. Haiesbbai and others -v- Smt. Shantabai reported in. AIR 1982 Boinbay 231, and Savitabea Soaabliai SfaatiTa -v- State of Gujarat and others reported ia. AIR 2005 SC 1809. 8. I have heard leamed counsel for the parties, perused the record as also the order irapugned. 9. Core question for decision inalring in fhis case is whether fhe first wile has a right to file a petitioa along with her husbaiid agaiust fhe second wife uiider Section 11 offhe Act ? 10. Section 5(i) and Section 11 offhe Hindu Marriage Act, 1955 read thus:- ''Section 5. Conditions fer a Eindti wiarrtage.- A marriage ma.y be solemnized between any two Hindus, if i.he following condfeons arefrllfilled, namely :- (i) r^eiiher party has a spouse Kving ai the time of rnarriage; "Section 11- Vaid smirriesges.- Any marriage solemrdzed after the con-tTnencement of this Acf sftaff be nu!l and void and may, on a petition presented by either party thereio against fhe other party, be so dedared by a decree of nulKty if it contravenes any one of the .conditions speafied in davse (i), (iv) dnd. (v) ofserlion S." 11. A bare readiag of the above provisions would show that section 5 speaks of conditions of valid maniage which may be soleinaized betaveeii aav two Hindus aiid one of the coaditions as enuincrated in Section 5(i) of the Act is fhat neiffaer party shall have a spouse Eviag at the timp offhe inarriage. 12. Sub-section 11 of the Act speaks of void inamages if soleianized ia contravention ofthe conditions specified ia Clause (ij and other clauses of sectiou 5 of fhe Act. A conjouit icading of the above two provisions would reveai that aay inamage soleiunized betiveen two Hiiidus would be void if either paTty has a spouse Uviiig at fbe time of marriage. Mearuiig faereby any m.arriage solemnized by aayone iri t2ie lifetiaie of his or her wife or husbaiid, as tlie case inay be, is void under Section 11 of fhe Act as it would be ia contraveution ofSection 5 (i) offhe Act. So, this would be fhe caiise of action for declarme a m.arriage as void under Section 11 of the Act, but at the same tinie, section 11 speafcs offfae party who inay bi-ing petitiou uilder Section 11 of fhe Act. The language used ra Section 11 is that oa a petition pi^sented by either psrty fhereto agai2.st fhe other parb/". The laaguage used is iiaaic.big^Lious aiid clear aiid it straiglitway gives a right to ffle a petition to a party to inamage against the ofher and aot to any third parly who m.ay be clauniag that she is the first wife. It does not ineaii fhat sucb wife who claims to be first legally wedded •svife has ao isiaedy. She certainly can briag a civil suit for declarmg fhe inarriage between her husbaad aiid fhat second wife under Section 9 ofC.P.C. read wifh Section 34 ofthe Specific Reliefs Act but she has no right to bruig a petition iinder Section 11 of the Hindu Marriage Act. A single bench ofM.P. High Court in fhe case ofAinarlal Ooru (supra) ia para 4 observed fhus:. "4. The respondent as a previously mcuried wife of the. appellant No. 1 Amarlcd ivas entiiled under S. 10 offhaf Act only to a decree for judidal separaiion so far as she was concemed. She could not prefer any application fo hn.ve the ntarriage between the appellants dedared void under S. 11.That section can be invoked by only those persons who are party to a marriage as would clearly appear from the words, "eiiher party thereto" used iherein. The relief of dedaring a niarriage void Jias been intentionally confined to the parties to the marriage and it is not open to any otherperson to make an application under S. 11. It is true that the mamage between ihe appellants ivas conirary to the provisions in S. S ofthe Act andvjas, therefore, invalid; but ihat is not fhe point in the case. The real quesiion is wheiker any ihird party has a right fo file an application under S. 11 io have ihe Tnamage declared nutt and void. The language iised in ihat section admiis ofno doubt that fhe rsght cannot be exercssed by anyone excepi the parties to the marriage which is chaHenged. Uflder these drcumstances, it was not open to the Court to dedare the jnarriage befween the appellanis rw.ll and void.' In Aja'? Cltaadrakar's(supra.5 case, reUauce has been placed upoa the judgiaents reported iu Ra.feshbai fsupra) aad Ra»n Pyari (supra), which have been cited by fhe respondent No. 1 and in para 5, it has been observed fhat:- "S. It has been argued that a declaratory decree could not be granted if the marriage ivas void. This argument is not acceptable. Section 11 of the Hindu Marriage Act, 1955 provides ihai "any marriage in contravenfion of Claizse (i) of Section S sha.S be null and void and may, on a petition presenied by eiiher party thereto, be so declared by a decree of nullity. Thus ihe !aw envisages the judidal declaration of suc/i a inarriage as nulKty though void ab ini1.io. Remedy under Section 11 of this Acf is available to a person who is a / party to the second marriage. First wife cannot avail ihe remedy provided by Section 11 of 'this Ad and tlterefore, she has to file a suit for declaration under Section 3^ of -the Spedfic Relief Act for declaraiion of such mccrriage as void......". The judginents ia Harmohaa Senapati (supra) aad ia Kedar IIath Gapta (supra), also support fhe contention ofthe petitioner. 13. The judgments cited by the respondent No. 1 nowhere say that a lady claiTning to be the firstwife i.e. fhird pariy, has a right to initiate a proceeduig under Section 11 of the Act. On the contraiy, all these case laws also support fh.e view fhat petition under Section 11 of the Act caonot be ffled toy a lady claiiniiig to be first wife again.st second wife. 14. In the light of the aforesaid discussion and fhe view expressed by the High Court ofM.P., Orissa, Patna, Boinbay and Ailahabad, to which I ain in respectlul agreeiaent, fhe clear legal position is that llie first wife cannot prefer an applicant along wifh her husband against second wife luider Sectiou 11 of the Act, although she is entitled to file a civil suit in fhis regard invokm.^ Section 9 ofC.P.C. read wifh Section 34 offhe Speci&c Reliefs Act. Therefore, the application filed by the petitioner uiider Order 1 Rule 13 ought to have been aBowed by the Trial Court. 15. Therefoic, fhe petition is allowed. The n.am.e of respondent No. 1 be deleted froin the cause tifle of the petition filed by ffae respoudents jointly aad the part of the oi-der dated 19-12-2006 is quashed. However, it is inade clear fhat this order wffl not affect fhe petition aad its proceedings aild fh.e trial Court shall proceed to decide the petition in accordance wifh law. 16. No oider as to costs. Sd/- N.K. Agarwal Judge