The Allahabad High Court while dismissing the petition observed that a legal marriage between two Hindus cannot be dissolved by way of a compromise entered into at the time of proceedings for maintenance under Section 125 of CrPC.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Syed Qamar Hasan Rizvi passed this order while hearing a petition filed by Rajni Rani.
The appeal arises out of an order passed by the Single Judge whereby the petition itself has been dismissed.
The facts of the case as have been noticed by the Single Judge are that one Bhojraj Singh was an assistant teacher in Maharaja Tej Singh, Junior High School Aurandh, Vikas Khand Sultanganj, District Mainpuri. He superannuated on 30.06.2012 and later died on 02.10.2021. The petitioner/appellant came up with a case of payment of family pension on the ground that she has contracted marriage with late Bhojraj Singh and has been residing as such for the last several years.
In order to put-forth its case, the petitioner-appellant contended that though Bhojraj Singh had initially contracted marriage with contesting private respondent Usha Devi but the marriage ultimately did not succeed and the marital parties parted ways. Proceeding under Section 125 Cr.P.C had been initiated by Usha Devi in which a compromise was arrived at, as per which, the parties had separated.
It was therefore urged that once Usha Devi parted ways with the deceased employee no right survived in her as against the deceased employee. The deceased employee contracted marriage with the petitioner-appellant. Various documents have been relied upon in order to prove the factum of marriage.
It also appears that in proceeding before the authorities, the petitioner-appellant also set up a claim of second marriage of Usha Devi which fact is specifically disputed by the private respondent.
The appellant also claimed to have obtained a succession certificate and relying upon its claim for family pension was put-forth by the appellant which has been rejected by the authorities. The petition filed against such order has also been dismissed.
The Single Judge has returned a finding to the effect that the marriage legally contracted between Bhojraj Singh and Usha Devi could not have been dissolved except by a decree of competent court and merely in proceeding under Section 125 Cr.P.C such marriage cannot be annulled. The claim of the appellant based on second marriage has therefore been rejected.
Aggrieved by the judgment of the Single Judge, the appellant who is admittedly the later wife has filed the appeal. On the previous occasion when the matter was heard, the Court had called upon the appellant to demonstrate as to whether a legally contracted marriage could be dissolved except by a decree of divorce passed by the competent forum.
R.K Ojha, Senior Counsel appearing on behalf of the appellate has vehemently urged that in the facts of the case the claim of the appellant is clearly sustainable inasmuch as the previous marriage itself was dissolved by way of a compromise entered into between the parties in proceedings under Section 125 CrPC.
It is further submitted that the contesting opposite party has otherwise solemnized subsequent marriage, and therefore, the claim of family pension by the private respondent would be unsustainable.
Siddharth Khare, counsel for the private opposite party submitted that the plea of second marriage by the private respondent Usha Devi was not pleaded in writ and accepted to make vague allegations in that regard in the appeal no other material has been placed.
Siddharth Khare supported the judgment of the Single Judge for the reasons contained therein. So far as the judgment of the Supreme Court in Deoki Panjhiyara (supra) is concerned, it is pointed out that the facts of that case are clearly distinguishable.
The Court observed that,
The short question that arises for determination in the facts of the case is as to whether the admitted marriage between Bhojraj Singh and Usha Devi could be dissolved by way of a compromise in proceedings under Section 125 Cr.P.C? As a sequel to the above question, the issue that would arise is as to whether the claim of private respondent could be non suited on the ground that she has contracted a second marriage. It is also urged on behalf of the appellant that the question as to whether Usha Devi has contracted a second marriage ought to have been adjudicated by the competent court and the authorities, on their own, could not have returned a finding on that aspect.
So far as the proceedings under Section 125 Cr.P.C are concerned, such proceedings are in respect of payment of maintenance to the deserted wife. The scope of the proceeding under Section 125 Cr.P.C is limited i.e with regard to determination of the amount of maintenance. In such proceeding the marriage between the parties cannot be dissolved by the court inasmuch as the jurisdiction of the court would be limited to determination of the aspect of maintenance. Even with the consent of the parties, the jurisdiction of the concerned court under Section 125 Cr.P.C cannot be expanded so as to concede the power with such court to pass a decree of divorce. Law is well settled that consent of the parties cannot confer jurisdiction if it is otherwise not vested by law.
Admittedly the parties herein are Hindu by religion and the marriage between them would be governed by the provisions of Hindu Marriage Act, 1955. It is undisputed that late Bhojraj Singh and Usha Devi were capable of entering into a marital alliance and that such a marriage was performed between the parties. This fact is undisputed. The question that would arise is as to how and in what manner such a marriage could be dissolved. The marriage between the parties since are governed by the provisions of the Hindu Marriage Act, 1955, the only manner in which such marriage can be dissolved is by passing of an appropriate decree by the competent court in accordance with the provisions of the Act of 1955. It is admitted that no such decree by a competent court was ever passed.
In that view of the matter, the Court is of the view that the marriage between the parties could not have been dissolved merely on the basis of a compromise allegedly entered into between the parties.
The Court further observed that the claim of the appellant of the first marriage being void was based upon the assertion that the other party was already married to one Rohit Kumar Mishra and during subsistence of such previous marriage the second marriage was performed which was void. It was in that context that the Supreme Court proceeded to make observations in the judgment. In paragraph 19 the Court has specifically noticed that the claim of marriage, as had been put-forth, was disputed on the ground that the lady had already contracted a previous marriage, and therefore, the marriage solemnized with the appellant therein was a nullity. The conditions of a valid marriage have been noticed and it is thereafter that the Court has proceeded to observe that once the previous marriage was void a declaration of nullity or annulment of marriage between the parties by a competent court was not required.
“We find that the marriage between Bhojraj Singh and Usha Devi admittedly was the first marriage contracted by either of the parties and there was no allegation of incompetence of either of the persons to contract marriage. The plea of nullity of marriage therefore is not available on facts of the case. The claim that subsequent in point of time Usha Devi has contracted marriage is a fact, which is specifically disputed by the contesting respondents. Unless a declaration in that regard is granted by the competent court, we are not inclined to interfere with the right of first wife to claim family pension etc. merely on the ground that either the marriage stood dissolved on account of a compromise in proceeding under Section 125 Cr.P.C or on the ground that Usha Devi has subsequently contracted marriage with anyone else. For the reasons that have been recorded above, we find that this appeal lacks merit”, the Court also observed while dismissing the petition.