IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.742 of 2009 INDU DEVI Versus SURAJMAN SAH ----------- 12. 30.06.2010 We have heard counsel for the appellant and the respondent both on limitation as well as merits. We order condonation of delay. The respondent was first married to one Sunarpati Devi. She remained issueless. During subsistence of his marriage with her the respondent established matrimonial relationship with the appellant to beget a child. A female child was born out of this matrimonial relationship. Acrimony having developed between the parties, the respondent filed an application for judicial separation registered as Matrimonial Case No. 66 of 2002 before the Principal Judge, Family Court, Bettiah, West Champaran. By judgment and decree dated 19.06.2007, the Family Court granted decree of judicial separation. The impugned judgment at paragraph 10 notices as follows “It is a settled principle of law that a second wife of a Hindu, while the first wife is still alive, is not a wife. The second marriage of Surajman Sah cannot be said to be a legal marriage during the life time of first wife 2 Sunarpati”. That reflects a correct appreciation of Section 5(i) of the Hindu Marriage Act, 1955 which prohibits a marriage between the parties when one of them has spouse living at the time of marriage. A marriage contrary to the same is a void marriage. The sine quo non for an application for judicial separation under Section 10 of the Hindu Marriage Act is a lawful marriage as the Hindu Marriage Act does not recognize void marriages. If there was no lawful marriage between the parties and the marriage was ab initio void, the question of judicial separation between the parties simply does not arise. The judgment impugned appears to be suffering from inherent contradiction. In view of our discussion, the question of any judicial separation being directed by the Court in exercise of the powers under the Hindu Marriage Act does not arise. The judgment under appeal is therefore not sustainable in view of the finding that the marriage itself was void. We express no opinion on the nature of the relationship established between the appellant and the respondent and the other remedies that may be available to her thereunder as also to the child born from the 3 relationship between them which, if the occasion arise, shall have to be decided on its on merits in accordance with law by the competent forum. The appeal stands allowed. Shageer (Navin Sinha, J) (Dinesh Kumar Singh, J.)