# Rajni Rani v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 123
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-12
- **Case number:** Special Appeal No. 56 of 2024
- **Bench:** Ashwani Kumar Mishra, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajni-rani-v-state-of-u-p-ors-51786
- **Pages:** 5

## Headnote

Civil Law - Hindu Marriage Act, 1955 -
Section 13 - Code of Criminal Procedure,
1973 - Section 125 - Family Pension -
Marriage between deceased employee (Bhojraj
Singh) and first wife (Usha Devi) governed by
Hindu Marriage Act, 1955; cannot be dissolved
by compromise in maintenance proceedings
under Sec. 125 Cr.P.C., which is limited to
determining
maintenance
amount.
Consent
cannot confer jurisdiction on Magistrate to annul
marriage; dissolution requires decree of divorce
by competent civil court. Appellant's (second
wife, Rajni Rani) claim to family pension
rejected, as no such decree obtained and first
marriage
subsists.
Claim
of
first
wife's
subsequent
marriage
disputed;
requires
declaration by competent court for nullity.
Distinguished Deoki Panjhiyara (supra) as it
involved void marriage due to bigamy (preexisting marriage), not applicable here where
first marriage was valid. (Paras 9-13)
Special Appeal Dismissed.

List of Cases cited:

## Text

4 All. Rajni Rani Vs. State of U.P. & Ors.
123
application filed by the petitioner under
Order VII Rule 11 C.P.C.

25. Accordingly, the writ petition is
dismissed.

26. No order as to costs.
----------
(2024) 4 ILRA 123
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal No. 56 of 2024

Rajni Rani ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Rakesh Kumar Rathore, Sri Shyam
Narayan Verma, Sri Radha Kant Ojha (Sr.
Advocate)

Counsel for the Respondents:
Sri Siddharth Khare

Civil Law - Hindu Marriage Act, 1955 -
Section 13 - Code of Criminal Procedure,
1973 - Section 125 - Family Pension -
Marriage between deceased employee (Bhojraj
Singh) and first wife (Usha Devi) governed by
Hindu Marriage Act, 1955; cannot be dissolved
by compromise in maintenance proceedings
under Sec. 125 Cr.P.C., which is limited to
determining
maintenance
amount.
Consent
cannot confer jurisdiction on Magistrate to annul
marriage; dissolution requires decree of divorce
by competent civil court. Appellant's (second
wife, Rajni Rani) claim to family pension
rejected, as no such decree obtained and first
marriage
subsists.
Claim
of
first
wife's
subsequent
marriage
disputed;
requires
declaration by competent court for nullity.
Distinguished Deoki Panjhiyara (supra) as it
involved void marriage due to bigamy (preexisting marriage), not applicable here where
first marriage was valid. (Paras 9-13)
Special Appeal Dismissed.

List of Cases cited:

1. Deoki Panjhiyara Vs Shashi Bhushan Narayan
Azad, 2012 Supreme (SC) 899 (Paras 6, 12)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)

1. Heard Sri Radha Kant Ojha,
learned Senior Counsel for the appellant
and Sri Siddharth Khare, learned counsel
appearing on behalf of the opposite party.

2. This appeal arises out of an order
passed by learned Single Judge in Writ-A
No. 11483 of 2023 whereby the writ
petition itself has been dismissed.

3. Facts of the case as have been
noticed by learned Single Judge are that
one Bhojraj Singh was an assistant teacher
in Maharaja Tej Singh, Junior High School
Aurandh,
Vikash
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 petitionerappellant 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
124 INDIAN LAW REPORTS ALLAHABAD SERIES
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
present
petitionerappellant. 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
claim to have obtained succession certificate
and relying upon it claim for family pension
was put-forth by the appellant which has been
rejected by the authorities. The writ petition
filed against such order has also been
dismissed.

4. Learned 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.

5. Aggrieved by the judgment of
learned Single Judge, the appellant who is
admittedly the later wife has filed the present
appeal. On the previous occasion when the
matter was heard, this 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. Order
passed in that regard on 05.02.2024 reads
as under:

"Learned
counsel
for
the
appellant seeks adjournment as he intends
to further examine the law with regard to
the impact of compromise between the
parties
and
to
what
extent
such
compromise would provide an alternative
to
a
decree
of
divorce
otherwise
contemplated under Section 13 of Hindu
Marriage Act, 1955 by which alone a
marriage can otherwise be dissolved.

List again as fresh on 19.2.2024."

6. Sri R.K. Ojha, learned Senior
Counsel appearing on behalf of the
appellate has vehemently urged that in the
facts of the present 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 Cr.P.C. 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. In order to support his
contention, learned Senior Counsel for the
appellant has placed reliance upon a
judgment of Hon'ble Supreme Court in the
case of Deoki Panjhiyara Vs. Shashi
Bhushan Narayan Azad & another,
reported in 2012 0 Supreme (SC) 899.
Reliance is placed upon paragraphs 18 &
19 of the said judgment which are
reproduced hereinafter:

"In the present case, however, the
appellant in her pleadings had clearly,
categorically and consistently denied that
she was married to any person known as
Rohit Kumar Mishra. The legitimacy,
authenticity
and
genuineness
of
the
marriage certificate dated 18.4.2003 has
also been questioned by the appellant.
Though Section 11 of the aforesaid Act
gives an option to either of the parties to a
void marriage to seek a declaration of
4 All. Rajni Rani Vs. State of U.P. & Ors.
125
invalidity/nullity of such marriage, the
exercise
of
such
option
cannot
be
understood
to
be
in
all
situations
voluntarily. Situations may arise when
recourse to a court for a declaration
regarding the nullity of a marriage
claimed by one of the spouses to be a
void marriage, will have to be insisted
upon in departure to the normal rule.
This, in our view, is the correct ratio of
the decision of this Court in Yamunabadi
(supra) and M.M. Malhotra (supra). In
this regard, we may take note of a recent
decision rendered by this Court in A.
Subash Babu Vs. State of Andhra Pradesh
& another [5] while dealing with the
question whether the wife of a second
marriage contracted during the validity
of the first marriage of the husband
would be a ?person aggrieved? under
Section 198(1)(c) of the Code of Criminal
Procedure to maintain a complaint
alleging commission of offences under
Section 494 and 495 IPC by the husband.
The passage extracted below effectively
illuminates the issue:

?Though the law specifically
does not cast obligation on either party to
seek declaration of nullity of marriage
and it may be open to the parties even
without recourse to the Court to treat the
marriage as a nullity, such a course is
neither prudent nor intended and a
declaration in terms of Section 11 of the
Hindu Marriage Act will have to be asked
for, for the purpose of precaution and/or
record. Therefore, until the declaration
contemplated by Section 11 of the Hindu
Marriage Act is made by a competent
Court, the woman with whom second
marriage is solemnized continues to be the
wife within the meaning of Section 494 IPC
and would be entitled to maintain a
complaint against her husband.?

19. In the present case, if
according to the respondent, the marriage
between him and the appellant was void on
account of the previous marriage between
the appellant and Rohit Kumar Mishra the
respondent ought to have obtained the
necessary declaration from the competent
court in view of the highly contentious
questions raised by the appellant on the
aforesaid score. It is only upon a
declaration of nullity or annulment of the
marriage between the parties by a
competent court that any consideration of
the question whether the parties had lived
in a ?relationship in the nature of
marriage? would be justified. In the
absence of any valid decree of nullity or the
necessary declaration the court will have to
proceed on the footing that the relationship
between the parties is one of marriage and
not in the nature of marriage. We would
also
like
to
emphasise
that
any
determination of the validity of the
marriage between the parties could have
been made only by a competent court in an
appropriate proceeding by and between the
parties and in compliance with all other
requirements of law. Mere production of a
marriage certificate issued under Section
13 of the Special Marriage Act, 1954 in
support of the claimed first marriage of the
appellant with Rohit Kumar Mishra was
not sufficient for any of the courts,
including the High Court, to render a
complete and effective decision with regard
to the marital status of the parties and that
too
in
a
collateral
proceeding
for
maintenance. Consequently, we hold that in
the present case until the invalidation of the
marriage between the appellant and the
respondent is made by a competent court it
would only be correct to proceed on the
basis that the appellant continues to be the
wife of the respondent so as to entitle her to
126 INDIAN LAW REPORTS ALLAHABAD SERIES
claim all benefits and protection available
under the DV Act, 2005."

7. Sri Siddharth Khare, learned
counsel for the private opposite party
submits that the plea of second marriage by
the private respondent Usha Devi was not
pleaded in writ and accept to make a vague
allegations in that regard in this appeal no
other material has been placed. Sri
Siddharth Khare support the judgment of
the learned Single Judge for the reasons
contained therein. So far as the judgment of
the Hon'ble Supreme Court in Deoki
Panjhiyara (supra) is concerned, it is
pointed out that the facts of that case are
clearly distinguishable.

8. We have heard learned counsel for
the parties and perused the material
available on record.

9. The short question that arises for
determination in the facts of the present
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.

10. 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.

11. 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
factum 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.

12. In that view of the matter, we are
of the considered 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. Reliance has been placed by the
learned counsel for the appellant upon the
judgment of the Hon'ble Supreme Court in
4 All. Rajesh Kumar Yadav & Anr. Vs. Union of India & Ors.
127
Deoki Panjhiyara (supra). In order to
examine the judgment, it would be apt to
refer to the facts of the case which are
noticed in paragraph 3 of the judgment
which are reproduced:

"While the Writ Petition was
pending, the respondent sought a recall of
the order dated 13.02.2008 on the ground
that he could subsequently come to know
that his marriage with the appellant was
void on the ground that at the time of the
said marriage the appellant was already
married to one Rohit Kumar Mishra. In
support, the respondent ? husband had
placed before the learned trial court the
certificate of marriage dated 18.04.2003
between the appellant and the said Rohit
Kumar Mishra issued by the competent
authority under Section 13 of the Special
Marriage Act, 1954 (hereinafter referred to
as ?the Act of 1954?)."

13. The above paragraph would go to
show 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 Hon'ble Supreme Court
proceeded
to
make
observations
in
paragraphs 18 & 19 of 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 present 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 and is, accordingly,
dismissed.
----------
(2024) 4 ILRA 127
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal No. 59 of 2024
And
Special Appeal No. 54 of 2024

Paramjit Singh ...Appellant
Versus
Union of India & Ors. ...Respondents

Counsel for the Appellants
Sri Alok Kumar Yadav, Sri Vashistha Dubey