Ishwar Singh vs Smt. Hukam Kaur on 6 October, 1964
Saurav Vijay Kapote
The case is between appellant Ishwar Singh and Hukam Kaur and was decided on 06th
October, 1964 at the High Court of Judicature of Allahabad by the Honourable Justice H.C.P.TRIPATHI. The court has cited ruling under sections 13 of Hindu Marriage Act, 1955.
The wife Smt. Hukum Kaur had filed an application under section 488 Cr.P.C.
Equivalent citations: AIR 1965 All 464, 1965 CriLJ 449.
Ishwar Singh is the appellant and Hukam Kaur is the opposite party. Opposite party is claiming for maintenance of Rs 15/- stating that she had married Ishwar Singh and he is liable to pay her maintenance and he is neglecting her. The applicant had denied to have married to opposite party. Parties led evidence that he was married to her and he is liable to pay her maintenance. however on revision of the learned session, judge has referred to set aside the order passed by magistrate as admittedly the opposite party’s previous husband Brahma Pal was alive and therefore there could be no legal marriage between the opposite parties and applicant’s entitling the opposite party to receive maintenance wasn’t judicially right at all.
The issue with the case is that according to Hindu Marriage Act,1955 under section 13 unless and until a marriage is dissolved by a decree of divorce and if there is right of appeal against decree and if the time for right of appeal has been expired without been presented or appeal has been presented but has been dismissed then the person can marry again.
Here Ishwar Singh is the opposite party and the issue was that her previous husband Brahma Pal who was alive had severed all his connections with the lady and had allowed her to marry any person she liked because of his ill health. Brahma Pal has not been examined in the case and, therefore, it is difficult to believe that he would have allowed the opposite party to marry another person during his lifetime. Even if the opposite party's allegations are held to be true, it is difficult to hold that it will amount to a divorce within the meaning of Section 13 of the Hindu Marriage Act, 1955 because a divorce which could result in the dissolution of a solemnized marriage has to be obtained by one of the two parties on presentation of a petition from a Competent Court. Thus, in sense if a divorce has not been obtained in this manner, then the previous marriage subsists and, therefore, the second marriage cannot be contracted by a Hindu as long as his spouse is living.
S. 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage.
Section 13 of Hindu Marriage Act, 1955 -“When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”
Section 5 of Hindu marriage act, 1955–“A marriage may be solemnized between any two Hindus, if the conditions are fulfilled that neither party has a spouse living at the time of the marriage”.
The court had stated that under section 13 of Hindu marriage act, 1955, a divorce which could result in the dissolution of a solemnized marriage has to be obtained by one of the two parties on presentation of a petition from a Competent Court. As long as, such a divorce has not been obtained, the previous marriage subsists and, therefore, the second marriage cannot be contracted by a Hindu until his spouse is living.
S. 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage. In the instant case, the previous husband of the opposite party is still alive and, therefore a second marriage with the applicant even if it is held to have taken effect was wholly illegal and cannot give her any right to get maintenance from the applicant.
Henceforth, the reference made by the learned Sessions Judge is accepted and the order of the Magistrate directing the applicant to pay Rs. 15/- per month as maintenance to the opposite party is set aside.