are that appellant was married with respondent on 15.06.2008. An application 12 of the Hindu Marriage Act was filed to declare the marriage null and void on the allegation that on 27.09.2008, father of the wife came to his house and took her along for giving evidence before the Family Court, Jhansi in a divorce petition filed in respect of her earlier marriage and then he came to know that at the time of marriage with him, the respondent was already married with another person, namely, Manish Rupoliya. The proceedings were contested by the respondent-wife by filing written statement denying the allegations. It was stated that she was earlier married with Manish Roopoliya on 26.01.2008 and thereafter in accordance with the prevailing customs of Biradari, they separated from each other on 12.05.2008 and the fact was duly brought to the knowledge of the appellant before the marriage and there was no concealment.
Appellant in his examination-in-chief stated that he had no knowledge of the earlier marriage of the respondent with Manish Roopoliya. However, in the cross-examination, he admitted that motor-cycle given to him in dowry was registered in the name of Manish Roopoliya. Relying upon his oral testimony, the Family Court came to the conclusion that he was very well aware of the fact of the earlier marriage of the respondent-Vandana and there was no concealment.
Family Court has also noted the fact that though he has sought marriage to be declared null and void on the ground that he had no knowledge about the fact that respondent was already married but in his objections to the application under Section 125 Cr. P. C., he had stated that father of the respondent-Vandana told him about the divorce with Manish Roopoliya. Family Court has also noted the fact that in the matrimonial petition, he has stated that at the time of marriage, he did not have knowledge about the earlier marriage and divorce of the respondent but the same is in direct contrast with the allegations made in the reply to the proceedings under Section 125 Cr. P. C. The Family Court has also noted the fact that it was stated in paragraph 3 of the matrimonial petition that he came to know about the earlier marriage of the respondent on 27.09.2008 i. e. about after three months of the marriage when her father came to take her to given statement. However, in case, the fact of the earlier marriage was not disclosed, there was no reason or occasion to have informed the appellant about the pendency of the divorce petition in respect of the earlier marriage and he could very well taken the respondent without informing the said fact.
However, the Family Court lost sight of the fact that since the respondent was already having a spouse at the time of solemnization of marriage with the appellant, it was a void marriage. Section 11 of the Hindu Marriage Act provides that any marriage solemnized after commencement of the Act is null and void and may be so declared by a decree of nullity if it contravenes any one of the conditions specified in clause 1 (i), (iv) and (v) of Section 5. Section 5 (i) of the Act reads as under :
5.(i) neither party has a spouse living at the time of the marriage;
(ii) .........................................
It being an admitted case between the parties that respondent was already married with Manish Roopoliya at the time of solemnization of marriage with appellant, the second marriage was void and was liable to be declared so under Section 11. It is immaterial that the appellant moved an application under Section 12 of the Act which deals with voidable marriages. In case a wrong heading or section is mentioned in the application but the power is vested with the Court and the conditions specified for exercising that power are borne out from the pleadings and evidence, the same can be exercised even though a wrong section has been mentioned in the pleadings by the litigant.
In the present case, the respondent was having a living spouse at the time of solemnization of marriage with the appellant. The fact that it has been stated in the pleadings that there was a separation with the first husband in accordance with the customs and rites though alleged but in the absence of any evidence in this regard even worth the names sake, the same are not liable to be believed.
The appeal accordingly stands allowed. Marriage between the parties is declared to be null and void.
However, in the facts and circumstances, there shall be no order as to costs.