: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.82 OF 2005 Shri Mahadev Laxman Wachkawade R/at 131/2-A, Gitanjali Colony, Warje, Malwadi, Pune – 32 .. Appellant (Orig. Petitioner) V/s. Sou. Sindhu Mahadev Wachkawade R/at C/o. Shrimati Ashabai Balkrishna Shendarkar, Malegav Factory, Varakhe Vasti Nagar Dr. Dhale Taluka Baramati, Dist. Pune .. Respondent (Orig. Respondent) ........ Mr. S.A. Rahanan (Tamboli) for the appellant Mr. R.S. Kulkarni for respondent ........ CORAM : D.B. BHOSALE & R.Y.GANOO, JJ. DATE : 1st FEBRUARY, 2010. ORAL JUDGMENT : (PER D.B. BHOSALE, J) 1. This appeal is directed against the judgment and order dated 19.4.2005 rendered by the Family Court, Pune in Petition No. A-434 of 2003, by which the appellant’s petition has been dismissed. The appellant : 2 : and the respondent are husband and wife. The petition was filed by the appellant seeking declaration that their marriage is nullity, since it was performed in contravention of the provisions under Section 5(i) of the Hindu Marriage Act, 1955. 2. The appellant and the respondent got married on 26.12.2002 as per the Hindu rites and rituals and their marriage was registered under the Maharasthra Regulation of Marriage Bureau and Registration of Marriages Act, 1998. There is no dispute that both the spouses had married earlier. In so far as the appellant is concerned, his first wife died on 12.4.1997, whereas the respondent claims that her earlier husband namely Shri Ramdas Surle had divorced her. According to the appellant, the respondent had informed him that she had married Ramdas Surle on 28.4.1986 and by a Deed of Divorce executed on 13.5.1996 (Exh.55), their marriage was dissolved. In view thereof, the appellant claims that he married to the respondent on 26.12.2002. After the marriage, the appellant and the respondent stayed together till 05.05.2003. On this date, according to the respondent, she left the matrimonial home last. Thereafter, the appellant claims that he tried to find out about her earlier marriage and it was revealed that there was no legal document dissolving the marriage of the respondent and Ramdas Surle. He, therefore, : 3 : instituted the Petition on 01.7.2003 for declaration that their mariage is nullity. 3. We have perused the impugned judgment so also the other material placed before the Court and more particularly the documents placed on record by the appellant-husband. We have also perused the record. It shows that the respondent-wife, after the instant petition was filed by the appellant on 01.7.2003, filed Marriage Petition No.77 of 2003 on 25.8.2003 against Ramdas Surle a decree of divorce. In this petition, (No. 77 of 2003), the respondent prayed for divorce in view of the document i.e. Deed of Divorce dated 13.5.1996 executed by her and Ramdas Surle before the Notary. The learned Civil Judge Senior Division, Baramati vide his judgment and order dated 08.09.2003 allowed the petition and dissolved the marriage of respondent and Ramdas Surle solemnized on 28.4.1986 at Malegaon, Taluka Baramati from the date of the Deed of Divorce executed by them on 13.5.1996. In our view, the order of the learned Civil Judge Senior Division, Baramati dissolving the marriage w.e.f. the date on which the document dated 13.5.1996 was executed was wrong, illegal and without jurisdiction. That apart, even in Marriage Petition No.77 of 2003, the respondent had not prayed for dissolution of the marriage w.e.f. 13.5.1996. : 4 : 4. In view thereof, it appears that present appellant had filed an application seeking leave to file an appeal against the judgment and decree passed by learned Civil Judge Senior Division, Baramati dated 08.09.2003 in Marriage Petition No.77 of 2003. The Additional District Judge, Baramati allowed the Miscellaneous Civil Application No.27 of 2005 and granted leave to the appellant to prefer an appeal against the judgment and decree passed in Marriage Petition No.77 of 2003. In view of the leave granted by the Additional District Judge, Baramati, the appellant filed Civil Appeal No.138 of 2005 in the Court of Additional District Judge, Baramati against the judgment and decree passed in Marriage Petition No.77 of 2003. This appeal was filed against the respondent and Ramdas Surle. The Additional District Judge, Baramati allowed the appeal, setting aside the judgment and decree passed in Marriage Petition No.77 of 2003 vide his judgment and order date 19.04.2006. This judgment and order passed by the Additional District Judge in Civil Appeal No.138 of 2005 was not challenged by the respondent-wife and it attained finality. 5. The learned Counsel for the appellant submits that in this backdrop the Court below ought to have considered the appellant’s prayer for : 5 : declaration that their marriage is nullity and he is entitled for a decree under Section 11 R/w. Section 5(i) of the Hindu Marriage Act, 1955. From the facts as disclosed in the foregoing paragraphs, it is clear that when the appellant and the respondent got married, her marriage with Ramesh Surle was subsisting and / or it was not dissolved by a decree of divorce by a competent Court. Even when the instant petition was filed by the appellant seeking declaration that their marriage is nullity, the marriage of the respondent and Ramdas Surle was subsisting. Even the decree of divorce obtained by the respondent dated 08.09.2003, was subsequently set aside in the appeal vide judgment and order dated 19.4.2006. Thus, even today the respondent’s earlier marriage is subsisting. In the circumstances, the marriage of the appellant and the respondent deserves to be declared as nullity as contemplated under Section 11 R/w. Section 5(i) of the Hindu Marriage Act, 1955. Learned Counsel for the respondent could not and did not dispute this position of law so also the facts on the basis of which we are holding that the marriage of the appellant and the respondent is nullity. There is no dispute that Ramdas Surle is living even today and there is no divorce between him and the respondent. In these circumstances, we allow this appeal. 6. In the result, the appeal is allowed. The judgment and order dated : 6 : 19.4.2005 impugned in the present appeal, is set aside. The petition (P.A. No.434 of 2003) instituted by the appellant is allowed. The marriage of the appellant and the respondent solemnized on 26.12.2002 is declared as null and void in terms of the prayer clause (a) of the Petition bearing P.A. No.434 of 2003. However, there shall be no order as to costs. [R.Y.GANOO, J.] [D.B. BHOSALE, J.]