# Garima Singh v. Pratima Singh & Anr

- **Citation:** (2023) 11 ILRA 773
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-27
- **Case number:** Second Appeal No. 623 of 2022
- **Bench:** Saumitra Dayal Singh, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/garima-singh-v-pratima-singh-anr-49406
- **Pages:** 15

## Headnote

Civil Law - Hindu Marriage Act, 1955 -
Section 11 - Family Courts Act, 1984 -
Section 7 - Right of First Wife to File
Petition for Declaring Second Marriage
Null and Void - Interpretation of "Either
Party Thereto" - Whether First Wife Can
Seek Declaration of Second Marriage as
Void under Section 11.

Held: The first wife is entitled to file a petition
under Section 11 of the Hindu Marriage Act,
1955,
to
declare
her
husband's
second
marriage, solemnized during the subsistence of
the first marriage, as null and void. The
phrase "either party thereto" in Section 11,
when interpreted harmoniously with Section
7 of the Family Courts Act, 1984, and in
light of the social welfare objectives of both
statutes, includes the first wife as an
aggrieved party entitled to seek such relief.
A restrictive interpretation limiting the
remedy to the parties of the second
marriage would defeat the purpose of the
Hindu Marriage Act, which aims to eradicate
polygamy and protect the rights of legally
wedded wives. The Family Courts Act, 1984,
consolidates jurisdiction over matrimonial
disputes, enabling the first wife to seek a
declaration of nullity in a family court. The
principle of beneficial construction supports
a broader interpretation to ensure justice
and uphold the Act's intent. The earlier
precedent in Lakshmi Ammal Vs Ramaswami
Naicker (AIR 1960 Mad 6) and similar
rulings, which restricted the remedy to
parties of the void marriage, are not
applicable post-enactment of the Family
Courts Act, 1984, as they fail to align with
the Act's objectives of promoting social
justice and protecting women's rights.

Appeal dismissed.

Case Law Discussed:

## Text

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11 All. Garima Singh Vs. Pratima Singh & Anr.
773
----------
(2023) 11 ILRA 773
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE VINOD DIWAKAR, J.

Second Appeal No. 623 of 2022

Garima Singh ...Appellant
Versus
Pratima Singh & Anr. ...Respondents

Counsel for the Appellant:
Sri Ram Kishore Pandey

Counsel for the Respondents:
Sri Prem Singh, Sri Ghanshyam Dwivedi

Civil Law - Hindu Marriage Act, 1955 -
Section 11 - Family Courts Act, 1984 -
Section 7 - Right of First Wife to File
Petition for Declaring Second Marriage
Null and Void - Interpretation of "Either
Party Thereto" - Whether First Wife Can
Seek Declaration of Second Marriage as
Void under Section 11.

Held: The first wife is entitled to file a petition
under Section 11 of the Hindu Marriage Act,
1955,
to
declare
her
husband's
second
marriage, solemnized during the subsistence of
the first marriage, as null and void. The
phrase "either party thereto" in Section 11,
when interpreted harmoniously with Section
7 of the Family Courts Act, 1984, and in
light of the social welfare objectives of both
statutes, includes the first wife as an
aggrieved party entitled to seek such relief.
A restrictive interpretation limiting the
remedy to the parties of the second
marriage would defeat the purpose of the
Hindu Marriage Act, which aims to eradicate
polygamy and protect the rights of legally
wedded wives. The Family Courts Act, 1984,
consolidates jurisdiction over matrimonial
disputes, enabling the first wife to seek a
declaration of nullity in a family court. The
principle of beneficial construction supports
a broader interpretation to ensure justice
and uphold the Act's intent. The earlier
precedent in Lakshmi Ammal Vs Ramaswami
Naicker (AIR 1960 Mad 6) and similar
rulings, which restricted the remedy to
parties of the void marriage, are not
applicable post-enactment of the Family
Courts Act, 1984, as they fail to align with
the Act's objectives of promoting social
justice and protecting women's rights.

Appeal dismissed.

Case Law Discussed:

1. Lakshmi Ammal Vs Ramaswami Naicker
(AIR 1960 Mad 6) - Distinguished.

2. Amar Lal Goru Vs Vijayabai (AIR 1959
Madh Pra 400) - Distinguished.

3. Kedar Nath Gupta Vs Sm. Suprava (AIR
1963 Pat 311) - Distinguished.

4. Harmohan Senapati Vs Smt. Kamla
Kumari Senapati (AIR 1979 Ori 51) -
Distinguished.

5. Smt. Sheel Wati Vs Smt. Ram Nandani
(1980 AWC 575) - Distinguished.

6. Birendra Bikram Singh Vs Kamala Devi
(1994 SCC Online All 258) - Distinguished.

7. Smt. Ram Pyari Vs Dharam Das (1983
SCC Online All 294) - Relied on.

8. Balram Yadav Vs Fulmaniya Yadav (2016
SCC Online Chh 207) - Relied on.

9. Badshah Vs Urmila Badshah Godse (2014) 1
SCC 188 - Relied on.

10. A-G Vs HRH Prince Ernest Augustus of
Hanover [1957] AC 436 - Referred.

11. Bourne (Inspector of Taxes) Vs Norwich
Crematorium Ltd. [1967] 2 All ER 576 -
Referred.
774 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Vinod Diwakar, J.)

1. Heard Shri Ram Kishore Pandey,
learned counsel for the defendant/appellant
and Shri Ghanshyam Dwivedi, learned
counsel for the plaintiff/respondent no.1.

2. Before we advert to the question of
law raised in the instant first appeal by Smt.
Garima Singh- the second wife, it would be
convenient to have a bird's eye view of the
facts of the case.

3. Succinctly, the facts of the case are
that on 06.05.2002, Smt. Pratima Singh
married Raghvendra Singh in accordance
with Hindu rites and ceremonies. Owing to
certain matrimonial disputes, Raghvendra
Singh filed a Matrimonial Case No.24 of
2012 titled as Raghvendra Singh Vs. Smt.
Pratima Singh under Section 13 of the
Hindu Marriage Act, 1955, before the court
of
Principal
Judge,
Family
Court,
Chitrakoot, for dissolution of marriage. In
the
aforesaid
matrimonial
case,
Smt
Pratima Singh filed a counter-claim under
section 9 of the Hindu Marriage Act, 1955,
for restitution of conjugal rites. The
Matrimonial Case No.24 was rejected, and
the counter-claim filed by Smt. Pratima
Singh was allowed with the direction to
Raghvendra Singh to bring Smt. Pratima
Singh to his house within one month from
the date of order to perform matrimonial
obligation.

4. Meanwhile, Smt. Pratima Singh
learnt that Raghvendra Singh married Smt.
Garima Singh and two children are born
out of that wedlock, namely, Akshay Singh
and Anaya Pratap Singh. It is also revealed
that Shri Raj Narayan Singh- her father-inlaw - had registered a will deed on
16.2.2018 in favour of Smt. Garima Singh
and her two children and bequeathed all his
movable and immovable properties in their
names and got recorded her name as the
wife of Raghvendra Singh in the family
register.

5. That aggrieved by the same, Smt.
Pratima Singh- the first wife - filed a
Criminal Complaint No.8 of 2019, under
Sections 494, 495, 496 I.P.C., before the
court of competent jurisdiction at Mau,
District Chitrakoot titled as Smt. Pratima
Singh Vs. Raghvendra Singh and another,
and the same is pending trial.

6. The first wife had also challenged
the registered will deed dated 16.2.2018 in
Original Suit No.037 of 2019 titled as
Pratima Singh Vs. Garima Singh before the
learned Civil Judge, Mau. The suit was
dismissed ex-parte vide judgement and
order dated 12.2.2022.

7. The first wife being aggrieved by
the solemnization of a second marriage by
her husband with Smt. Garima Singh,
during her lifetime, filed a Matrimonial
Case No.97 of 2020 before the family
court, under section 11 of the Hindu
Marriage Act, 1955, to declare the second
marriage as null and void being performed
in contravention of section 5 of the Hindu
Marriage Act, 1955.

8. During the pendency of this case,
Shri Raghvendra Singh died on 10.1.2021.
The second wife was also made respondent
in the case, and she took a preliminary
objection that the first wife couldn't file a
case under section 11 of the Hindu
Marriage Act, 1955 against her husband
and second wife. The learned Principal
Judge,
Family
Court
decided
the
preliminary objection in favour of the first
wife and listed the matter for recording of
evidence.
11 All. Garima Singh Vs. Pratima Singh & Anr.
775

9. The learned Principal Judge,
Family Court construed the word "either
party thereto" mentioned in section 11 of
the Hindu Marriage Act, 1955 in the light
of the surrounding text and declared that
the first wife can file a suit of declaration of
the second marriage as illegal and void.

10. Aggrieved by the same, the
second wife preferred the instant first
appeal before this Court with the plea that
the first wife could not file a case under
section 11 of the Hindu Marriage Act, 1955
against the second wife and her husband.

11. To buttress his argument, learned
counsel for the second wife - the appellant
herein, has placed reliance in the case
Lakshmi Ammal Vs. Ramaswami Naicker
and another1; Amar Lal Goru Vs.
Vijayabai, Pusa Singroda2; Kedar Nath
Gupta Vs. Sm. Suprava3; Harmohan
Senapati Vs. Smt. Kamla Kumari Senapati
and another4; Smt. Sheel Wati Vs. Smt.
Ram Nandan5; and Birendra Bikram
Singh and others Vs. Kamala Dev6.

12. Shri Ram Kishor Pandey, learned
counsel for the second wife, has primarily
relied upon the Lakshmi Ammal (supra) ,
in which the learned single judge of the
Madras High Court had dismissed the
appeal filed by Lakshmi Ammal- the first
wife, against the order of the learned
District Judge, as not maintainable under
sections 11 & 17 of the Hindu Marriage
Act, 1955, for declaring the marriage of her
husband
Ramaswami
Naicker
with
Krishnammal- the second wife, as void and
illegal.

13. The facts of Lakshmi Ammal
(supra) case are similar to the facts of the
instant appeal; for the sake of illustration,
relevant facts of that case are extracted
herein as:

"Lakshmi Ammal, the appellant,
was admittedly the legally wedded wife of
Ramaswami Naicker. She had no children.
Ramaswami Naicker married the second
respondent, Krishnammal, as his second
wife after Act XXV of 1955 had come into
operation. Lakshmi Ammal wanted to get
this marriage of her husband with
Krishnammal declared void and illegal
under S. 17 of the Act by filing this
application
under
S.
11.
Both
the
respondents contended that she had no
right to file an application under S. 11, as
she was not "a party to the second
marriage" sought to be declared illegal
and void. Accepting this contention, the
learned District Judge dismissed the
petition with costs."

14. The learned single judge of the
Madras High Court dismissed the appeal
filed by the first wife and acquired a strict
construction to the phrase "either party
thereto" and held that section 11 of the
Hindu Marriage Act, 1955, can only apply
to those two persons who are entered into
the marriage. The Court was of the view
that "either party thereto" would mean two
persons, namely, the actual parties to the
marriage, as any marriage requires only
two parties and no third party. The relevant
part of the judgment dated 29.10.1958 is
extracted herein below:

"The phrase is "either party
thereto". That can only mean two persons,
namely, the actual parties to the second
marriage-Ramaswami
Naicker
and
Krishnammal. Any marriage requires only
two parties and no third party. It will be
contrary to sense and commonsense alike
to
bring
in
a
co-wife,
co-husband,
776 INDIAN LAW REPORTS ALLAHABAD SERIES
concubine, keep etc., on the ground that
they also perform much the same functions
as the husband and wife, the parties to the
void marriage. The fact is that the law does
not take facts to mean the same things.
Thus, a concubine may, for many purposes,
no doubt, serve the purpose of a wife but
will not be a wife-in-law. So too, a co-wife
cannot become "a wife under the second
marriage," for she is already a wife under
the first marriage and cannot be married
again to her husband, at any rate, without
the intervention of a divorce and cessation
of marriage for some time. The void second
marriage was only between Krishnammal
and Ramaswami Naicker, and the phrase
"either party thereto" in S. 11 can only
apply to those two persons, and not to the
appellant Lakshmi Ammal, the first wife, or
to any others."

15. By placing reliance upon the
inference arrived at by the learned single
judge of Madras High Court, the learned
single judges of various High Courts have
taken similar view. It would be apt and fair
to discuss, in brief, the findings of various
High
Courts
on
the
question
of
maintainability of an application under
section 11 of the Hindu Marriage Act,
1955, by the first wife against the second
wife and husband to apply equality
jurisprudence in social context judging.

16. The rationality of the learned
single judge in the Lakshmi Ammal
(supra) case has been adopted by the single
bench of this Court in Amarlal Goru Vs.
Vijayabai, Pusa Singroda, Misc. (First)
Appeal No.98 of 1957, which was decided
on 11.2.1959. The learned single judge has
observed as follows:

"The respondent as a previously
married wife of the appellant No.1 Amarlal
was entitled under section 10 of that Act
only to a decree for judicial separation so
far as she was concerned. She could not
prefer any application to have the marriage
between the appellants declared void under
section 11. That section can be invoked by
only those persons who are party to a
marriage as would clearly appear from the
words "either party thereto" used therein.
The relief of declaring a marriage void has
been intentionally confined to the parties to
the marriage, and it is not open to any
other person to make an application under
section 11. It is true that the marriage
between the appellants was contrary to the
provisions in section 5 of the Act and was,
therefore, invalid, but that is not the point
in the case. The real question is whether
any third party has a right to file an
application under section 11 to declare the
marriage null and void. The language used
in that section admits of no doubt that the
right cannot be exercised by anyone except
the parties to the marriage, which is
challenged. Under these circumstances, it
was not open to the Court to declare the
marriage between the appellants null and
void."

17. The division bench of the Patna
High Court in Kedar Nath Gupta (supra)
case has also relied on the judgment of
Lakshmi
Ammal
(supra)
case
and
observed as follows:

"It was, therefore, conceded at
the bar that, if the marriage of the
appellant with Radharani took place on the
26th April 1957, it would be null and void.
The question, however, is whether the
Court was competent to grant a declaration
under S. 11 on a petition presented by the
first wife of the appellant. According to S.
11, the petition must be presented by
"either party" to the marriage solemnized
11 All. Garima Singh Vs. Pratima Singh & Anr.
777
after the commencement of the Act. It is
plain, therefore, that such a petition can be
entertained only if it is made by either of
the two parties to the marriage. This was
the view expressed by a Single Judge of the
Madhya Pradesh High Court in Amartal
Gour v. Aijayabai, AIR 1959 Madh Pra 400
and a Single Judge of the Madras High
Court in Lakshmi Ammai v. Ramaswami
Naicker, AIR 1960 Mad 6; and we are of
the opinion that this is the correct view.
Hence, in the instant case, only the
appellant or his second wife, who were the
parties to the marriage in question, could
file such a petition; and as the first wife,
Suprava Gupta (the respondent) was not a
party to this marriage, she was not entitled
to present a petition under Section 11."

18. The learned single judge of Orrisa
High Court has also taken a consistent view
in Harmohan Senpati (supra) case and
observed as follows:

"The aforesaid view of mine is
fortified by the decisions of the Allahabad
High Court, Andhra Pradesh High Court,
Madras High Court, Patna High Court and
Madhya Pradesh High Court. In Jokhan
Prasad Shuklav. Lakshmi Devi, ILR (1973)
2 All 853, has been held that a suit filed by
the previous wife for a declaration that the
second marriage of her husband was null
and void is not barred by Section 19 of the
Act. 'Either party thereto' clearly means
either party to the marriage sought to be
declared null and void. A petition by a
person who is not a party to the marriage
sought to be declared null and void will not
lie under S. 11; reliance has been placed
on the case reported in Lakshmi Ammal v.
Ramaswarni Naicker, AIR 1960 Mad 6.

A Division Bench of the Patna
Court in Kedar Nath Gupta v. Sm. Supraya,
AIR 1963 Pat 311, has also held that a
petition for the annulment of second
marriage under Section 11 of the can be
presented only by the husband or his
second wife, who were the parties to the
marriage in question and the first who is
not a party to the second marriage, is not
entitled to present such petition under the
Act. She may seek her remedy, it any, under
the general law. In this case, the decision
reported in Lakshmi Ammal's case (supra)
has also been followed. A decision of the
Madhya Pradesh High Court in Amarlal
Goru v.Vijayabai, AIR 1959 Madh Pra 400,
which is on the very same point, has also
been followed by the Patna High Court."

19. The learned single judge of this
Court in Smt. Sheel Wati (supra) case, by
relying upon earlier judgments, has taken a
consistent view and observed as below:

"I have, therefore, no hesitation
in reiterating the view expressed by me in
the referring order dated 27th September,
1979, for the reasons given therein and the
further reasons given hereinabove, that
marriage though null and void for
contravening
any
of
the
conditions
prescribed, by clauses (i), (iv) and (v) of
Section 5 of the Act, has yet to be regarded
a subsisting fact, and in that sense it cannot
be said to be wholly non est in law, or a
nullity, so long as it is not declared to be
null and void by a decree of Nullity of the
District Court on a petition presented by
either party thereto against the other party
to the marriage. No third person can treat
the marriage to be void or have it adjudged
to be null and void in any other suit or
proceeding unless it has, already been
declared to be so by a decree of Nullity of a
District Court in accordance with the
procedure prescribed by and under the Act;
the only exceptions being the case where
778 INDIAN LAW REPORTS ALLAHABAD SERIES
the aggrieved spouse of the first marriage
on account of whose being living the
second marriage is void, prosecutes the
other spouse for being punished for bigamy
under Section 406 or 495 of the Penal
Code, 1860, read with Section 17 of the
Hindu Marriage Act; or the case where the
aggrieved spouse prosecutes the guilty
spouse for a contravention, of clauses (iv)
and (v) of Section 5 under Section 18(b) of
the Act."

20. The leaned single judge of this
Court again relied upon the findings of
Lakshmi Ammal (supra) case in Birendra
Bikram Singh (supra) case and observed
as follows:

"In the case of Smt. Aina Devi v.
Bachan Singh reported in AIR 1980 All 174
it was held:

"Section 11 specifically enables
either party to the marriage to have it
declared null and void by a decree of
nullity against the other party. Section 11
does not confine the right to present a
petition thereunder to the aggrieved party
alone. On the other hand, it expressly
confers the right to sue on either party to a
marriage which contravenes any of the
conditions of clauses (i), (iv) and (v) of
Section 5".

It was also held; "the petitioner,
having proved by positive evidence that the
first respondent already had a married wife
living in the person of respondent 2 was
entitled to a decree declaring it as null and
void. It could not be said that the petitioner
was taking any advantage of her own
wrong, for the petitioner's allegation that
she was already married thrice before had
been denied by the first respondent, which
meant that even if it were a fact that the
petitioner had three husbands of previous
marriages living when the first respondent
married her, the first respondent was not at
all aggrieved by that fact."

In the case of Lakshmi Ammal v.
Ramaswami Naicker (sic) and another. It
was held;

"The
phase
"either
party
thereto" can only mean two persons
namely, the actual parties to the marriage.
Any marriage requires only two parties,
and no third party. It will be contrary to
sense and commonsense alike to bring in a
co-wife, co-husband, concubine, keep, etc.,
on the ground that they also perform much
the same functions, as the husband and
wife, the parties to the void marriage. A cowife cannot become "a wife, under the
second marriage" for she is already a wife
under first marriage, and cannot be
married again to her husband, at any rate
without the intervention of a divorce and
cessation of marriage for some time. Hence
the first wife cannot apply under Section 11
for declaring the marriage of the second
wife as void under Section 17. The first wife
is however not left remediless. She can file
a suit, under the ordinary law, for a
declaration that the marriage of her
husband with the second wife is illegal and
void, under Act XXV of 1955. The law, in
its wisdom, has given a preferential
treatment to the husband and wife vitally
affected, and that comes under "Proper
classification" cannot be called an "illegal
discrimination offending Art. 14 of the
Constitution, or any other Articles of the
Constitution."

21. Whereas, Shri Ghanshyam
Dwivedi, learned counsel for the first wife,
respondent herein, relying upon Smt. Ram
Pyari Vs. Dharam Das and others7 and
11 All. Garima Singh Vs. Pratima Singh & Anr.
779
Balram Yadav Vs. Fulmaniya Yadav8,
submits that in Smt. Ram Pyari (supra)
case, a co-ordinate bench of this Court
considered the issue that evolved in
Lakshmi Ammal (supra) case, as was
consistently followed, pre-enactment of the
Family Courts Act, 1984. Thereafter, it
took a different view and held that the
second wife can also file a case under
section 11 of the Hindu Marriage Act,
1955, even a third party to the marriage can
also approach to the Court for declaring the
marriage as illegal and void when they are
affected with the marriage until it is barred
by statute. One may at once bring a suit of
one's choice, and not only the first wife but
also anyone who is affected by the
marriage performed in contravention of
sub-section (i), (iv) & (v) of section 5 of
the Hindu Marriage Act, 1955 would be
entitled to bring a civil suit. The relevant
portion of the judgment is extracted herein
below:

"At this place it appears relevant
to refer to the distinction between a void
and voidable marriage. We have noted
above that section 12 of the Hindu
Marriage Act deals with cases where a
marriage is void at the option of either
party thereto. Its object is to lay down that
until avoided, a voidable marriage should
be regarded as good for all purposes. It
also lays down the circumstances under
which a marriage shall be held to be
voidable and annulled by a decree of
nullity. Sections 11 and 17 deal with void
marriages. Under section 17 a person
committing breach of Clauses (i), (iv) and
(v) of Section 5 after the commencement of
the Hindu Marriage Act is liable to be
punished under Sections 494 and 495 of the
Penal Code. It is true that the two sections
deal with and lay down that the marriages
performed in contravention of the clauses
referred to above would be void, but it
would be folly to think that the legislature
has enacted two provisions for the same
purpose. Section 11 declares a marriage to
be void, whereas Section 17 makes a party
contravening Clauses (i), (iv) and (v) of
Section 5 liable to punishment. These two
sections, however, cannot be read as
confining the rights only of the parties to a
void marriage. There is a distinction
between a void and voidable marriage. A
void marriage is regarded as non-existent
or as never having taken place. Both
parties could so treat it to it without the
existence of any decree annulling the said
marriage.

A marriage is void where there is
bigamy, consanguinity or within the
degrees of prohibited relationship. In these
cases, the Court will regard the marriage
as never having taken place and no status
of
matrimony
as
ever
having
been
conferred. Consequently, the parties, never
having been husband and wife, either is
competent to be called against the other.
Consent of the parties performing the
marriage in breach of Clause (i) of Section
5 cannot validate it. Such is not the position
in case of a voidable marriage. A voidable
marriage is regarded as valid and
subsisting unless a competent Court annuls
it until the decree of nullity is obtained
in accordance with Hindu Marriage
Act. The lis remains binding. So long as
there is no decree, they will live and die
as
married
persons
with
all
the
incidents attached to that estate. The
expression 'void means null, ineffectual,
having no force or binding effect. Since
a marriage performed in contravention
of Clauses (i), (iv) and (v) of Section 5
is void, it is incapable of being cured or
ratified.
780 INDIAN LAW REPORTS ALLAHABAD SERIES

Precisely, for the above reason, it
has been recognized by the Courts that a
third party can bring a suit in a Civil Court
for its annulment even after their death. If
this is not held, the third party's rights
would be seriously prejudiced without
having any right to seek redress in a Court
of law. As stated above, the case of a
voidable marriage stands on a different
footing. The right given to annulment of
marriage is confined to the parties.

In Twenty v. Twenty (1946) 1 All
ER 564, it has been held:

"Where the marriage is void ab
initio, any person who has got any interest
in the matter can challenge the marriage by
filing a regular civil suit for the declaration
that the marriage is a nullity. Such a
marriage is no marriage at all and any
spouse can ignore such a marriage".

In R. v. Algar (1953) 2 All ER
1381, a distinction between a void and
voidable marriage has been brought about,
and it has been laid down that a void
marriage has no existence in the eye of the
law. Therefore, our view is that where a
marriage is bigamous, the marriage is
regarded as null and void from the very
beginning. The Law Commission, while
considering the question of amending
Section 11 observed:

"The Hindu Marriage Act is a
piece of matrimonial law, and decrees of
nullity, contemplated by it, are decrees
passed
by
matrimonial
Courts.
Fundamentally, matrimonial Courts have
concern only with the marital rights of the
parties to the marriage (and incidentally
with the rights of the children) but with
nothing else. A petition for a decree of
nullity in respect of a void or a voidable
marriage can be made only by either the
husband or the wife. It would not be
appropriate to provide that a petition for
the purpose can be made by a stranger to
the marriage. A third party (for example, a
person interested in the estate of either the
husband or the wife) can certainly question
the validity of their marriage in a civil suit
and obtain a finding, or he may even bring
a suit for a declaration that the marriage
was void. But such a decree made by a civil
court will not be a decree of nullity, as
contemplated by matrimonial law."

22. Before adjudication of the
question of law, it would be appropriate to
recite the undisputed facts that emerged
between the parties. The brief facts are as
follows:

22.1 On 5.5.2006, Smt. Pratima
Singh solemnized marriage with late
Raghvendra Singh as per Hindu rites and
ceremonies.

22.2 Raghvendra Singh married
Garima Singh during the lifetime of his
first wife, and two son's were born out of
the said wedlock.

22.3
Owing
to
certain
matrimonial differences, Raghvendra
Singh filed a suit for dissolution of
marriage under Section 13 of the Hindu
Marriage Act, 1955, against his first
wife, Smt. Pratima Singh. The Principal
Judge, Family Court, vide judgment and
order dated 24.3.2018 dismissed the
Matrimonial Case No.24 of 2012, and
allowed the petition filed by the first
wife under section 9 of the Hindu
Marriage Act, 1955 for restitution of
conjugal rights with a direction to bring
his wife within one month from the date
of order besides other directions.
11 All. Garima Singh Vs. Pratima Singh & Anr.
781

22.4 Raj Narain Singh- father of
Raghvendra Singh- executed a registered
will deed dated 16.2.2018 in favour of his
grandsons and their mother, Smt. Garima
Singh, and also got registered the name of
Smt. Garima Singh as the wife of
Raghvendra Singh in the family register.

22.5 The first wife challenged the
said will deed dated 16.2.2018 in Original
Suit No.037 of 2019 titled as Pratima Singh
Vs. Garima Singh before the Civil Judge
(Junior Division), Mau, Chitrakoot, which
was dismissed ex-parte vide judgment and
decree dated 12.2.2020.

23. Finding a conflict between the
judgment of the division bench of the Patna
High Court in Kedar Nath Gupta (supra)
case and a co-ordinate bench of this Court
in Smt. Ram Pyari (supra) case, the legal
question has arisen before us, postenactment of the Family Courts Act, 1984.
That legal issue is formulated as follows:

"Whether the first wife is entitled
to file a case under sections 11 & 17 of the
Hindu Marriage Act, 1955, for declaring
her husband's marriage with another
woman, as null and void?

24. Learned counsel for the appellant-
the second wife- heavily relied upon the
series of judgments and ratio culled out in
Lakshmi
Ammal
(supra)
case
and
buttressed his argument by stating that the
phrase "either party thereto" strictly means
two persons who are actual parties to the
second marriage - Raghvendra Singh and
Smt. Garima Singh only. But he fairly
submits that the first wife's legitimate
children would acquire some rights, and
their shares in the property may be affected
by the children born out from the second
wife, which are considered to be legitimate.
The legislature as has extracted the
summary remedy of an application under
section 11 of the Hindu Marriage Act,
1955, to the actual parties to the void
marriage so that a third party may not have
interfered harassingly by taking advantage
of this cheap remedy of an application. He
further submits that the first wife had been
given the remedy to apply for divorce or
judicial separation by taking rescue of
sections 5, 11 & 17 of the Hindu Marriage
Act, (XXV) of 1955, and further could file
a declaratory suit for declaring the second
marriage, as null and void.

25. Per contra, learned counsel for
the first wife, respondent herein, submits
that the Hindu Marriage Act, 1955, is a
social welfare legislation and the rule of
restrictive interpretation would not be made
applicable in the interpretation of the
phrase "either party thereto" for deciding
the first wife's right as accrued under
section 11 of the Hindu Marriage Act, 1955
to declare the second marriage as illegal
and void. He further submits that after the
enactment of the Family Courts Act, 1984,
all the suits and petitions pending before
the civil courts shall be tried and dealt with
in accordance with the provisions of the
Family Courts Act, 1984 and further
invited our attention to section 7 of the
Family Courts Act, 1984. The relevant
portion of section 7 of the Family Courts
Act, 1984, is extracted herein under:

"7. Jurisdiction.- (1) Subject to
the other provisions of this Act, a Family
Court shall-

(a) have and exercise all the
jurisdiction exercisable by any district
court or any subordinate civil court under
any law for the time being in force in
782 INDIAN LAW REPORTS ALLAHABAD SERIES
respect of suits and proceedings of the
nature referred to in the Explanation; and

(b) be deemed for the purposes of
exercising such jurisdiction under such
law, to be a district court, as the case may
be, such subordinate civil court for the
area to which the jurisdiction of the Family
Court extends.

Explanation.-The
suits
and
proceedings referred to in this sub-section
are suits and proceedings of the following
nature, namely:-

(a) a suit or proceeding between
the parties to a marriage for a decree of
nullity of marriage (declaring the marriage
to be null and void or, as the case may be,
annulling the marriage) or restitution of
conjugal rights or judicial separation or
dissolution of marriage;

(b) a suit or proceeding for a
declaration as to the validity of a marriage or
as to the matrimonial status of any person;

(c) a suit or proceeding between the
parties to a marriage with respect to the
property of the parties or of either of them;

(d) a suit or proceeding for an order
or injunction in circumstances arising out of a
marital relationship;

(e) a suit of proceeding for a
declaration as to the legitimacy of any person;

(f) a suit or proceeding for
maintenance;

(g) a suit of proceeding in
relation to the guardianship of the person
or the custody of, or access to, any minor.

(2) Subject to the other provisions
of this Act, a Family Court shall also have
and exercise-

(a) the jurisdiction exercisable by
a Magistrate of the first class under
Chapter
IX
(relating
to
order
for
maintenance of wife, children and parents)
of the Code of Criminal Procedure, 1973 (2
of 1974); and

(b) such other jurisdiction as may
be conferred on it by any other enactment."

26.

Before
adverting
to
the
contentions raised by the learned counsel
for the parties, it is judicious to deal with
the statement of objects and reasons for
enacting the Family Courts Act, 1984. In its
59th report (1974), the Law Commission
stressed that in dealing with disputes
concerning the family, the Court ought to
adopt an approach radically different from
that adopted in ordinary civil proceedings
and make reasonable efforts at settlement
before the commencement of the trial. The
Code of Civil Procedure was amended in
1976 to provide for a special procedure to
be adopted in suits or proceedings relating
to matters concerning the family. However,
not much use has been made by the courts
in adopting this conciliatory procedure. The
courts continue to deal with family disputes
in the same manner as other civil matters,
and the same adversary approach prevails.
Therefore, the need was felt in the public
interest to establish Family Courts for the
speedy settlement of family disputes.

27. The objective of the Act is to
provide for the establishment of family
courts to settle family disputes and matters
related to marriage, divorce, custody,
guardianship,
maintenance
and
other
familial issues in a more efficient and
11 All. Garima Singh Vs. Pratima Singh & Anr.
783
specialized manner and thereby the Family
Courts Act, 1984 came into existence.

28. The key objectives of enacting the
Family Courts Act, 1984 would include;
(i).
Simplification
and
expeditious
resolution; (ii). Family courts are designed
to handle exclusively family- related
matters; (iii). Promotion of conciliation;
(iv). Protection of womens' rights; (v). The
welfare of children; (vi). Accessibility and
affordability; and (vii) Quick and effective
disposal of cases.

29. The Hindu Marriage Act, 1955 is
a social and welfare legislation, and it has
to be interpreted in a manner that advances
the object of the legislation. It intends to
bring about social reforms. It is a settled
principle of the interpretation that this
Court cannot interpret socially beneficial
legislation on the basis as if the words
therein are cast in stone. The Supreme
Court has time and again cautioned the
courts to adopt a purposive approach while
dealing with the interpretation of statutes
related to social welfare pragmatically and
practically. Section 11 of the Hindu
Marriage, Act provides that:

"11.
Void
marriages.-
Any
marriage
solemnized
after
the
commencement of this Act shall be null
and void and may, on a petition presented
by either party thereto (against the other
party), be so declared by a decree of nullity
if it contravenes any one of the conditions
specified in clauses (i), (iv) and (v) of
Section 5."

30. Before coming to the statutory
interpretation of the phrase "either party
thereto" used in section 11 of the Hindu
Marriage Act, 1955, it is instructive to
place reliance on the Hon'ble Supreme
Court in Badshah Vs. Urmila Badshah
Godse 9 the Court has observed as under:

"Of late, in this very direction, it
is emphasized that the Courts have to adopt
different approaches in "social justice
adjudication", which is also known as
"social context adjudication" as a mere
"adversarial approach" may not be very
appropriate. There are a number of social
justice
legislations
giving
special
protection and benefits to vulnerable
groups in society. Prof. Madhava Menon
describes it eloquently:

"It is, therefore, respectfully
submitted that "social context judging" is
essentially the application of equality
jurisprudence as evolved by Parliament
and the Supreme Court in myriad situations
presented before courts where unequal
parties
are
pitted
in
adversarial
proceedings and where courts are called
upon to dispense equal justice. Apart from
the
social-
economic
inequalities
accentuating the disabilities of the poor in
an unequal fight, the adversarial process
operates to the disadvantage of the weaker
party. In such a situation, the judge has to
be sensitive to the inequalities of the parties
involved and positively inclined to the
weaker party if the imbalance were not to
result in the miscarriage of justice. This
result is achieved by what we call social
context
judging
or
social
justice
adjudication."

31. The legislature's intention is to be
gathered from the words they employ. The
Court should give restrictive meaning only
to the words used in the statutes to avoid
absurd results and hardships. However, the
rule of strict construction says that while
interpreting even penal statutes, the judge
784 INDIAN LAW REPORTS ALLAHABAD SERIES
should adopt that meaning which confers
the benefit of the doubt to the accused.

32. The meaning of the statutory term
can be gathered from its associated words.
A word or phrase in an enactment must
always be construed in the light of the
surrounding text. As Lord Simmonds said
in A-G v. HRH Prince Ernest Augustus of
Hanover10, words, and particularly general
words, cannot be read in isolation; their
colour and content are derived from their
context. Or as Stamp J. put it in Bourne
(Inspector
of
Taxes)
v.
Norwich
Crematorium Ltd.11 The relevant part is
extracted as:

"English words derive colour
from those which surround them. Sentences
are not mere collections of words to be
taken
out
of
the
sentence,
defined
separately by reference to the dictionary or
decided cases, and then put back into the
sentence with the meaning you have
assigned to them as separate words."

33. Where a string of words is
followed by a general expression that
applies to the first and the other words and
to the last, that expression is not limited to
the last but applies to all. It is a rule in the
construction of the statute that if particular
words are followed on those which are
more general, the more general word shall
receive a confined construction, as what is
first mentioned must be supposed to have
been chiefly in the contemplation of the
legislature.

34. In English, the word "either",
when used as a determiner, generally
signifies two choices or possibilities.
According to the Cambridge dictionary, the
noun that follows "either" should be a
familiar countable noun. The phrase "either
party thereto" commonly refers to one of
the parties involved in a contract or legal
agreement. By combining all the elements,
"either party thereto" can be understood as
"one of the parties to that contract or legal
agreement." This interpretation clarifies the
specific role of one of the parties in the
context of the mentioned statute or
provision.

35. The Court's primary objective is
to
achieve
the
intended
effect
and
interpretation of the enactment, considering
the aims and objectives of the Act. By
employing these various interpretative
tools, the Court can arrive at a wellreasoned and comprehensive understanding
of the phrase "either party thereto" within
the specific context of the statute.

36. Among its various objectives, the
Family Courts Act, 1984, was primarily
enacted to streamline the culmination of
proceedings initiated under the Hindu
Marriage
Act,
1955
effectively
and
efficiently under one umbrella. If two
statutes are enacted with the purpose of
supporting and collaborating with each
other to achieve a common objective, the
courts should primarily adopt a harmonious
and purposive rule of construction to aid in
interpreting the statutes, including the
words
and
phrases
used
therein.
Recognizing that words possess a dynamic
nature rather than being fixed, the Court
should embrace a dynamic approach that
upholds the validity and intent of the
legislation
or
scheme.
Statutory
interpretation is an exercise wherein the
Court must discern the contextual meaning
conveyed by the words in question.

37. The term "either party thereto"
shall be interpreted in harmony with
"against the other party". The inclusion of
11 All. Garima Singh Vs. Pratima Singh & Anr.
785
the phrase "against the other party" was
intended to provide a clear and purposeful
understanding of the section's scope.