1 sg IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.9488 OF 2010 Sandeep Sharad Balhal ... Petitioner Versus Commissioner of Police, ... Respondents Pune and another. Mr. V.G. Tomaskar for the petitioner. Mr. A.I.I. Patel, Government Pleader for State. CORAM : SMT. ROSHAN DALVI, J. DATED : 29TH AUGUST, 2011. P.C. 1. The petitioner husband has challenged the order of the Family Court No.2-Pune dated 14.12.2010 rejecting his application to dismiss the petition for divorce filed by the respondent wife. 2. The respondent wife was earlier married to one Arun Thakre on 01.06.2002. That marriage is stated to have been dissolved by a customary deed of dissolution executed by said Arun Thakre and the respondent wife on 10.07.2003. 3. The respondent wife married the petitioner on 23.10.2007. A child was born to them on 27.10.2007. The petitioner applied for production of the child u/ss. 97/98 of the Criminal Procedure on 15.09.2009 and got a warrant for production issued. 2 4. The respondent wife sued for divorce from the petitioner on 24.12.2009. She has taken out an application for interim maintenance for her child which is pending in the Family Court. The petitioner sued for restitution of his conjugal rights. His petition was decreed ex-parte on 23.01.2010. 5. Thereafter, he took out an application of production of the divorce decree of his wife for her first marriage on 31.01.2010. The wife produced a copy of the deed of divorce dated 10.07.2003. The petitioner husband claimed to have been shocked upon seeing the deed of divorce. He, therefore, applied to the Family Court for dismissal of the divorce petition on 23.07.2010. His application is that he has come to know" that the private document being a “ divorce deed was executed. He claimed that the divorce was not legal, and therefore, his marriage was nullity as his wife had not obtained divorce of a competent court for dissolution of her first marriage before she married the petitioner. He, therefore, claims that a fraud has been played upon him. His Advocate argued that, in fact, the Court will have no jurisdiction because the marriage was a nullity and the husband was cheated. 6. On this application, the impugned order is passed. The learned Judge has seen the deed of divorce. The learned Judge has considered the parameters of an application of a decree of nullity. The learned Judge has observed that all the three parties belong to the same caste and evidence led by all of them would determine the custom, if any, which was prevalent in that caste for obtaining the 3 divorce decree. The learned Judge has further concluded that evidence will have to be led. The learned Judge has also observed that the petitioner initially filed petition for restitution of his conjugal rights and later made an application that his marriage was a nullity after his wife filed her divorce petition. The learned Judge has, therefore, observed that the petitioner husband is blowing hot and cold, which is not permissible. Consequently, the application is rejected. 7. The result is that the wife’s application for divorce would proceed on merits, evidence would be recorded including the evidence of the customary divorce and the learned Judge would decide on merits of the claim of both the parties to determine whether the marriage between petitioner and the respondent was a nullity and if not whether deed could be dissolved by decree of divorce upon the grounds stated by them thereafter. 8. The fact remains that the parties were married after the first marriage of the wife. Whether or not that marriage was dissolved in accordance with law was for the husband to ascertain before he married the wife. It is contended on his behalf that he is an honest man who believed that his wife was legally divorced. If that is so, the application to produce the decree of divorce made on 31.01.2010 does not fall in place. The copy of the application is not filed in this petition and is not shown to Court. The petitioner has not shown how, after believing that his wife was legally divorced, he sought to get the documents relating to the decree of divorce produced from her. The very application which is made after the wife’s petition for 4 divorce was filed shows lack of bonafides. It prima-facie would appear that the husband knew about the deed of divorce and accepted it as dissolving the first marriage of his wife. Consequently, he sued for restitution of conjugal rights. The wife did not reconcile and instead filed the divorce petition. Only thereafter, the husband claimed that the deed of divorce was invalid and consequently his marriage was a nullity. Even if that is his claim it would have to be decided not on his application simplicitor but upon oral and documentary evidence relating to the custom and the consequent divorce. Further the grounds of divorce would have to be gone into if the marriage is seem not to be null and void. Consequently, the order of the learned Judge is correct and does not require any interference. 9. The petitioner has relied upon several judgments in facts and circumstances different from the present petition. These are where the customary law of the right to divorce under a registered maintenance release deed signed by one of the parties and not proved in evidence, but was considered to be in conformity with the applicable custom [See: Subramani and others v. M. Chandralekha (2005) 9 Supreme Court Cases 407]. Maintenance can not be granted to a women not lawfully married u/s 125 of the Cr.P.C. [See: Savitaben Somabhai Bhatiya v. State of Gujarart and others, AIR 2005 Supreme Court 1809]. No action was maintenable against the husband having a spouse living at the time of marriage though his marriage was null and void, but he could be held guilty under service rules for misconduct [See: M.M. Malhotra v. Union of India and others, (2005) 8 Supreme Court Cases 351]. The requisites of a Hindu Marriage u/s 5 is mandatory [See: 5 Gullipillisowria Raj v. Bandaru Pavani alia Gullipili Pavani, (2009) 1 Supreme Court Cases 714]. A marriage brought to an end by a Panchayat cannot be a ground for granting divorce u/s 13 of the Hindu Marriage Act [See: Mahendra Nath Yadav v. Sheela Devi, (2010) 9 Supreme Court Cases 484]. A bigamous marriage of a wife marrying a Hindu male having a legally wedded wife would not entitle her to maintenance [See: Mangala Bhivaji Lad v. Dhondiba Rambhau Aher, AIR 2010 Bombay 122]. 10. It can be seen that the rulings in all of the above cases can not be disputed. However, they would not apply at the interim stage to the petitioner. Only after the customary divorce is proved to be invalid can the petitioner husband obtain a decree of nullity of marriage upon a petition filed by him after proving that he learnt about the divorce deed only after the petition for divorce was filed by his wife. 11. Under these circumstances, the order of the learned Judge, Court No.2, Family Court, Pune, being an interim order, cannot be faulted. 12. The writ petition is dismissed. (SMT. ROSHAN DALVI, J.)