1

TAMILNADU NATIONAL LAW SCHOOL

TIRUCHIRAPALLI

FAMILY LAW - I
WRITTEN SUBMISSION FOR INTERNAL QUOTIENT

VASISHTAN PRABHU
BA0150049

Table of Contents
What is a Valid Marriage?............................................................................................. 2
What are Void Marriages?............................................................................................. 6
PARTIES INVOLVED IN THE CASE.............................................................................. 8
FACTS OF THE CASE................................................................................................ 9
PROCEDURAL HISTORY......................................................................................... 13
ISSUES.................................................................................................................. 14
ARGUMENTS......................................................................................................... 15
APPELLANT....................................................................................................... 15
RESPONDENT..................................................................................................... 17
JUDGEMENT......................................................................................................... 18
CRITICAL ANALYSIS.............................................................................................. 28
CONCLUSION........................................................................................................ 36
WORKS CITED....................................................................................................... 37

What is a Valid Marriage?

A marriage is a sacred institution and in reality, it forms a large foundation to a stable family
and a civilised society. As the Oxford Dictionary would put it, a marriage is The legally or
formally recognized union of a man and a woman (or, in some jurisdictions, two people of
the same sex) as partners in a relationship1. It forms a substantial part of our social structure
and especially in a country like India where there is so much diversity in customs and social
mores, it is necessary to understand as to what would constitute a valid marriage under the
eyes of law and what would not. To that extent we shall see the situation of a valid marriage
before and after the commencement of the Hindu Marriage Act which essentially deals with
the Hindu religion which is true to the instant case that is under study.
1. Before the Hindu Marriage Act, 1955

Hindu law has been in prevalence even before the commencement of the Hindu Marriage Act
in 1955. However, they were never codified and remained broken and spread out among the
different classes and communities in the same religion. However, a broad overlook at the
laws that were existent in the years preceding the Hindu Marriage Act, we can come to a
reasonable conclusion with reference to the concept of marriage. A marriage, according to
Hindu law, is a holy union for the performance of religious duties. It is not a contract. 2 It was
held by the High Court of Bombay that marriage is a sanskara or sacrament. It is the last of
the 10 sacraments enjoined by the Hindu religion for purifying the body from inherited
stains.3 Such was the view of the Hindu laws with respect to the whole generalised concept of
marriage.
However, there were a number of conditions specified, inter alia, that would determine as to
whether a particular marriage is valid or not. For instance, acceptance of the bride was a
necessary and indispensible part of the ceremony and if not followed, the marriage may be

1 Oxford Online Dictionary, Definition of Marriage,

http://www.oxforddictionaries.com/definition/english/marriage (Last Visited Sept. 9, 2015 (10:00 PM
IST))
2 Mulla, Mulla on Hindu Law, 638 (21st Edition, 2013), Lexis Nexis, New Delhi
3 Id.

held invalid on that ground.4 Additionally there were also references to degrees of insanity
that were found to be on either side of the line of validity of a marriage.
A marriage brought by force also could not be declared as a valid marriage and the same is
the case with the concept of impotency and child marriages.
These were however in practice, similar to the common law principles which were never
codified. They were randomly used and in different contexts by the different facets in the
Hindu religion. There was no uniformity in the distribution and application of such a law.
These specifications are nothing but the broad underlying spirit of the Hindu law. That is
where the need for the codification of such Hindu laws to determine what a valid marriage
would be so that, a ground can be set for proper administration of justice.

2. After the Hindu Marriage Act, 1955

A similar line of thought was held in the drafting process of the Hindu Marriage Act. A
marriage is necessarily the basis of social organisation and the foundation of important legal
rights and obligations. The importance of marriage needs no comment. 5 It has been held
accordingly in all religious scriptures including the vedas and smritis related to the Hindu
laws. However, there reached a stage where the codification of such diverse laws was
virtually indispensible. This alone was held to be able to give fair and equitable decisions
with relation to family laws that are governed by the Hindu religion. It was required that the
rules of marriage must be materially altered and turned into a body of law, compact in form
and easily accessible. A uniform and comprehensive system governing all Hindus and
containing a series of coherent propositions was the need of the day.6
Accordingly, the Hindu Marriage Act came into force on 18 th May, 1955. It amends and
codifies the law relating to marriage among Hindus. Also, Section 4 of the said Act held that,
the provisions of the Act would have an overriding effect over any pre-existing notions or
customs. It abrogates all the rules of the law of marriage hitherto applicable to Hindus,
whether by virtue of any text or rule of Hindu law or any custom or usage having the force of
4 Supra note 2 at 638
5 Cf. Supra note 2 at 818
6 Id.

law, in respect of all matters dealt within the Act. So, from thenceforth, the Hindu Marriage
Act would be the only applicable law to the Hindus and not any other pre-existing notion.
Subsequently, the grounds of a valid marriage were laid down by this Act, among others, in
Section 5 of the said Act.
Section 5 reads as,
5. Conditions for a Hindu marriage. A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
2 [(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such
a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity ]
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of
eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two;
To summarise, the necessary conditions for a valid marriage as specified by the Act, would be
that :
a. Both Parties are required to be Hindus.
b. Neither party had a spouse living at the time of marriage which refers to monogamy as a
requisite.
c. At the time of marriage, the consent was given by a person of capable mind and not by one
with a mental disorder of any kind.
d. The parties are not within degrees of prohibited relationship, as specified under Section
3(g) of the said Act

e. The parties are not sapindas of each other, as specified under Section 3(f) of the said Act.

What are Void Marriages?

Now that we have set up what a valid marriage is, it is an inherent necessity to understand
what a void marriage would then be and when a marriage could be declared as void under
this Act. This is necessary because, in case that the situation turns out to be disadvantageous
to the aggrieved part in the case, the said party is provided with the proper matrimonial reliefs
as is deemed required. There cannot be a reasonable conception that all marriages would be
perfect and that they would also not include any forms of wrong doings on both sides. It is for
this particular cause, that there are a number of provisions provided under the Hindu
Marriage Act for matrimonial reliefs. One of them would be the case of Void Marriages ,
which is quite important in its own stance as a matrimonial relief where the marriage can be
held to be void.
The provision with respect to the Void marriage is provided as under Section 11 of the
Hindu Marriage Act, 1955. Section 11 reads as follows,
11. Void marriages.
Any marriage solemnised after the commencement of this Act shall be null and void and may,
on a petition presented by either party thereto 11 [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.

The clauses mentioned as above, like we have seen previously, deal with monogamy,
prohibited relationships and Sapinda relationships. Therefore, this Section, under the scheme
of the said Act provides that, any marriage that is solemnised after the commencement of the
Act shall henceforth be declared null and void. It is to be noted that such a marriage that
contravenes the said provisions would be necessarily void ab initio. The very existence of the
marriage comes under question and the marriage itself ceases to exist and the status quo goes

to the stage before the marriage took place. This is an important point that we have to keep in
mind with regards to the instant case under discussion as this is the primary Section that the
case revolves around. It is also to be noted that the locus standi in the case of void marriages
lies only with either party to the marriage, namely the husband and wife, under the Hindu
Marriage Act.
This is strongly supported even in the law commission report where the need for extending
the locus standi was substantively set aside. Only relief is presented to third party as under
the Specific Relief act and not the Hindu Marriage Act.7
It is to be seen that the void marriages are different from voidable marriages in the fact that
the void marriages are void ab initio, while, a voidable marriage would render a marriage
void only at the instance of the aggrieved party in the case.8
Therefore the primary difference lies in the shift of the status quo in both the cases. Whereas
in Void marriage, the marriage ceases to exist by itself totally, in the case of Voidable
marriages, it is only at the instance of other party, that a presumably valid marriage would be
declared

as

void

by

the

court

of

competent

jurisdiction. 9

These are the basic facts that we need to understand before analysing the facts in the instant
case. There are some aspects of Void marriages like the requirement of a decree of annulment
which has not been dealt with here, because the facts of the instant case deals with such
provisions and also, the aforementioned provisions are key to the critical analysis of the case
and therefore will be dealt with accordingly in the further parts of this study.

7 See 59th Law commission report of 1974, P.57

8 Supra note 2 at 824
9 Supra note 2 at 824

PARTIES INVOLVED IN THE CASE

1. M.M. Malhotra Appellant in the instant case asking for declaring the order issued by
the Respondent as not valid.
2. Union of India Primary Respondent in the instant case as the appellant was an
officer under the Union of India.
3. Mrs. Roopa Malhotra @ Ruby Basu The Complainant in the case and the wife of
the respondent in the instant case.
4. Ms. Anna Suja John The person who is claimed to be the second wife of the
Appellant.

FACTS OF THE CASE

1. The Appellant was appointed to the permanent Commission as a Pilot Officer in the
Logistics Branch of Indian Air Force on 14.4.1973. Prior to his posting at Nagpur from,
17.11.1990 he was posted at Trivandrum since 28.10.1987. During tenure of his service in the
Indian Air Force, the appellant was posted at Leh in Laddakh, Nal in Rajasthan and few other
places.
2. In the year 1973, the appellant was married to Mrs. Roopa Malhotra as per Hindu rites.
Registration for the same was done with the Registrar of Marriage in the year 1974.
3. Things were going amicably till the year of 1992, when Mrs. Roopa Malhotra filed a
complaint with the Chief of Air Staff against the mis-deeds of the appellant and prayed for
maintenance as well as appropriate action against him.
4. It was the claim of her, that during the time in 1990, when the appellant was in
Trivandrum, he had developed illicit relations with one Miss Anna Suja John. When Mrs.
Roopa Malhotra opposed to the said relations, she was beaten brutally and tortured
mercilessly. The reason for such behaviour was reported to be that of the presence of Miss
Anna Suja John.
5. Further, in 1991, it is stated that Miss Anna Susan John came to Nagpur and started staying
with the appellant and Mrs. Roopa Malhotra at their residence at Nagpur. Again, there was
vehement objection by the complainant for which she was again tortured very badly by the
appellant.
6. Unable to bear the torture, she sought an interview with the then Air Marshal I.G. Krishna
and narrated her plight to him. However, before she could make an official complaint, the
brother of the appellant came for mediation and asked her not to file a complaint as it would
spoil the career of the appellant. In return, the brother of the appellant gave his assurance that

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Miss Anna Susan John would no longer live with the appellant and in furtherance of that, the
complainant refrained from filing a case initially.
7. However, the situation never improved despite the assurance given by the appellants
brother. The appellant continued to live with Miss Anna Suja John and the complainant grew
more aggravated. Further, the complainant noticed that when she had gone to the appellants
house in Kanpur, Miss Anna Suja John along with her child was present and residing there
with full knowledge of the appellant and the appellants brother. So, she now realised that she
had been cheated by the brother and the appellant.
8. Also, the appellant in that scenario reportedly had abused the complainant and also used
filthy language in front of Miss Anna Suja John towards the complainant.

9. It is noted that the appellant and Miss Anna Suja John were living like husband and wife
during their time at Kanpur and in the presence of the complainant; they were cohabiting and
leaving the appellant alone in a separate room. It was here that the appellant told the
complainant that he was married to Miss Anna Suja John.
10. The same behaviour of the appellant reportedly continued in Nagpur as well. The
complainant was unwilling to give up on the marriage and she tried her best to keep their
marriage intact. However, the appellants behaviour worsened.
11. The appellant stopped providing basic amenities to the complainant and also lived away
from the complainant in a place away from the allotted residence for an air force officer. This
physical and mental torture continued to increase alarmingly and the life of the complainant
reportedly became hell and therefore she filed a complaint to the Chief of Air Staff about the
aforementioned scenarios.
12. Accordingly, in furtherance of the complaint so submitted by the complainant, a Court of
Enquiry was initiated against the appellant by the concerned authority. Detailed statement of
the complainant and also the participation of the appellant were included in the enquiry
process. The said enquiry was completed by 22.05.1993.
13. Based on the enquiry, it was the opinion of the Chief of Air Staff that the trial of the
officer by the Court Martial is inexpedient but the retention of the services of the Officer is
undesirable. Thereafter, a show-cause notice was issued to the appellant as to why he should
not be dismissed or removed from service under Section 19 of the Air Force Act, 1950 read

11

with Rule 16 of the Air Force Rules, 1969. The charges levelled in the show-cause notice,
were as follows:
(i) Illicit relations of appellant with Miss Anna Suja John and ill- treatment meted out and
criminal force used by the appellant to complainant Mrs. Roopa Malhotra as per complaint
dated 21.3.1992;
(ii) The appellant had contracted "plural marriage" with Miss Anna Suja John, which is
contrary to para 578 of the Regulations for the Air Force (Revised Edition), 1964, and birth of
a child out of the said illegal wedlock;
(iii) though appellant was posted at Nagpur with effect from 12.11.1990 and was allotted an
official accommodation at House No.95/2, instead of staying with the family in the said
accommodation, he had taken on rent of rupees two thousand one hundred per month a house
`Ram Raksha' at N-5 Lakshmi Nagar, Nagpur and was staying with said Miss Anna Suja John
as husband and wife;
(iv) when appellant's legally wedded wife Mrs. Roopa Malhotra objected to his behaviour,
appellant used criminal force on her by slapping, kicking and beating her on numerous
occasions. The appellant had also demanded mutual divorce and on refusal by her to agree to
the same, appellant physically and mentally tortured her, deprived her of basic amenities and
refused to give her sufficient subsistence allowance for her survival and the behaviour and
conduct of the appellant was most unbecoming of an Air Force Officer.

14. The Appellant submitted his reply and specified that in view of clause 578(g) of the
Regulations of Air Force ( Revised edition ), 1964 he was not required to immediately reply
to the show-cause and requested further time to reply. Accordingly the time was extended to
21.11.1992. The abeyance of the show-cause notice was claimed because there was already a
suit existing in a court of law with respect to the matter of plural marriage in this case.
15. It was specified by the appellant that, in 1.10.1992, the complainant in Regular Civil Suit
no.887/1992 filed by the appellant, had stated that she was already married to one D.J.Basu
when the marriage between her and the appellant had taken place. Though the decree to the
said appeal was granted only in 1993, the statement of the complainant was taken as defence
by the appellant and he therefore was of the stand that, he would now not be liable to submit
a reply as provided under Rule 16(4) of the Air Force Rules of 1969.

12

16. Now, in the absence of the appellant, the enquiry went forward and finally, the order was
passed for his compulsory retirement based on the reasons of polygamy and also the conduct
of the appellant in the instant case. The confusion was regarding whether without a decree of
the court, the appellant could be married to somebody else, in the subsistence of the first
marriage. Thereby the aforementioned order was passed.
17. The order was challenged by the appellant in the Bombay High Court, Nagpur Bench. It
was the opinion of the High Court that the suit filed by the appellant that revealed the first
marriage of the complainant was ambiguous to the extent that the details of the suit and the
purpose for such a suit was found to be unclear. It was the defence of the appellant that the
plural marriage never came into being because the first marriage itself, being declared void,
there was no marriage in the eyes of law. The High Court rejected this claim and held the
appellant guilty of act which is prejudicial to the good order and discipline in the Air Force.
Therefore it was held that the order did not have any form of infirmity in itself.
18. The Appeal was therefore rejected. Hence, the current appeal in the Supreme Court of
India.

Thus Lays, the facts of the instant case.

13

PROCEDURAL HISTORY
1. Court of Enquiry Order of Compulsory Retirement Passed subsequently
2. High Court Challenge of the said Order presented and the appeal is rejected
3. Supreme Court Current Appeal in front of the Supreme Court

14

ISSUES
1. Is the marriage of the appellant to Miss Anna Suja John a case of plural marriage?
2. Is the marriage of the appellant to Miss Anna Suja John, before the decree of
annulment being issued, valid?
3. Does the Order issued by the Central Government hold true on the basis of the facts of
the instant case?

Since our area of study is restricted only to that of the Hindu Marriage Act, the analysis and
the issues dealt with will only be those that are in relation to that of the Hindu Marriage Act.
Other issues will merely be mentioned and not dealt with in detail.

15

ARGUMENTS
APPELLANT:

The arguments raised by the appellant in the instant case primarily deals with the issue that
exists in connection with the application of the provisions of the Hindu Marriage Act and
then subsequently with the order that was issued by the Central Government. These
arguments are cut short and mentioned through just one particular paragraph in the textual
part of the Judgment itself.
Such arguments so raised by the Appellant are:

The appellant in the current appeal has provided a further strengthened stance to his
claim that the decree passed by the competent court holding that the marriage of Ruby
Basu @ Roopa Malhotra with Mr. D.J. Basu was in the existence during the marriage
of him with the complainant thereby would mean that the marriage that the appellant
had with the complainant never existed in the eyes of law and therefore this was a
void marriage. This Void claim was made by the appellant implicitly as under Section
10 of the Hindu Marriage Act read with Section 5(i) of the same Act which would
specify that, if a person marries someone in the subsistence of their first marriage then
that second marriage would have to be held as void. This was the brief claim of the
appellant, that since there was no marriage in the eyes of law, he had not committed
an act of polygamy.
Since, this claim was put forward by the appellant, he further went on to make the
claim that, since one of the major grounds for the compulsory retirement order was
the case of polygamy, then the order itself would have to cease to exist because of the
nullity of the polygamy argument. He therefore requested the court to strike down the
said order on the basis that the grounds specified as under it were done erroneously.

16

The appellant also makes the argument that, the denial of a court martial in the instant
case means that fair opportunity was not granted to him to represent his case. Even in
the process of enquiry, when the appellant took a defensive stance, the enquiry still
went forward without the recording of his statements at a relevant point of time. The
appellant had objected to the manner of the proceedings as conducted by the given
authorities. On this basis, the appellant claims that fair opportunity in the trial was
denied to him and arbitrary procedures were followed and therefore argued that the
High Court therefore was not justified in concluding that the order of compulsory
retirement still holds good.

The argument of the appellant is two-fold. The first faction aims at deconstructing the order
passed by the central government by way of attacking the base of the whole order. This was
how the polygamy part of the arguments put forward. Moving forward, as another faction the
argument aims at discrediting the procedure followed by the competent authority in the
instant case. It is the stance of the appellant that proper procedure was not followed and
therefore it necessitated the need for setting aside the order passed by the competent authority
in the given case.

17

RESPONDENT:
The respondent in the given case is the Union of India that is representing the Air force as body that is
included within itself. The respondents arguments are limited to a very small part of the judgment. It
is obvious that the responsibility is on the appellant to prove why such an order is not holding well,
additionally it is also the responsibility of the respondent to support their stance as to why they
support the said order as passed and as to why it must hold true in the instant case. In furtherance of
the aforementioned requirements, the respondent made the following argument(s)

It is the sole claim of the respondent that the judgment issued by the High Court
would hold true with respect to the said Order, because of the ground facts that led to
the passing of such an order. It is claimed by the respondent that, the acts of the
appellant like that of brutal mistreatment of the complainant and the use of filthy
language against the complainant would amount to a violation of the provisions of the
regulations provided as under the Air Force Act where an officer may be removed
from his position if he has committed an act that was unbecoming of the position that
he holds. It is therefore the considered opinion of the respondent that, given the facts
of the case that substantiates the violent conduct of the appellant, the passing of the
said order is justified in as much as it removes an officer who was clearly committing
acts that were unbecoming of a member of a disciplined force. This was the sole
stance taken by the respondent in the case. It was considered to be sufficient enough
to support both the order and the decision of the High Court in the instant case.

It is, however, interesting to note that, the respondent does not acknowledge the fact that
there was an error in the process that led to the passing of the order primarily due to the fact
of the non-existence of a plural marriage and also the procedure so followed. It is only the
court by itself that took up the procedural defence and not the defendant itself. In relation to
the plural marriage, there can be a reasonable inference that the respondent was trying to take
a stance that a decree was obtained only in 1993 and therefore the stance of the appellant
would be rejected because of the fact the decree of nullity was passed only in a later stage.
But that is still only a possibility. The respondent therefore saw it fit that only one argument

18

was enough to further their stance in the instant case that, to them, primarily dealt with the
order being passed by the competent authority coming within the ambit of the Union of India.
These were the arguments advanced by the respondent in the instant case.

JUDGEMENT
The Honourable Court, in this Case, has for the most part taken upon itself the role of
defending the points as raised by the defendant. Even though there may have been some
snags in the way in which the Union had acted, the court found it to be trivial and not so
significant as to take away the arguments basis in itself. This particular Judgement is usually
considered to be one of the landmark judgments that were given out with matters relating to
the case of Hindu Marriages and the concept of Void marriages as under the Section 11 of the
Hindu Marriage Act.
The main course of the judgment can be effectively divided into three segments. Of the three
segments as presented by the court, we will only be dealing with the first segment in detail
and depth as it is the most relevant part of the judgment to the concept of Family Law and the
Hindu Marriage Law in itself. The remaining two segments would be touched upon and only
the opinion of the court that may be found to be intertwined with the realm of Hindu
Marriage Law would be dealt with. This is primarily because the remaining two segments to
a large extent only talk about the executive order and the questions thereof regarding such an
order as passed which is completely irrelevant to the course of the study in the instant case.
So we shall now deal with the judgment itself.

19

1. The issue with relation to the concept of plural marriage in the eyes of the Hindu
Marriage Act.

This is the first and probably the most important issue that the court tackles as the way in
which the aforementioned issue would be tackled will have an obvious bearing on the
decision as a whole in the instant case. The primary issue in the instant case, as established by
the petitioner, is that the concept of plural marriage doesnt exist in the case of the marriage
between him and Miss Anna Suja John. This particular argument is based on the contention
that the earlier marriage between him and the complainant was not valid in the eyes of law
and therefore it would indicate that his marriage now would be considered to be only a fresh
marriage and not a case of plural marriage as claimed. The crux of the issue was as to
whether the void marriage was void ab intio or if it required the order by a court in order for
the marriage to be declared as null, void and non-existent.
To this extent, the court went on to give much significance to talk about this particular issue
as it had formed the basis of the order and the decision itself. The decision to this issue was
three fold.
a) The Case of Section 11 of the Hindu Marriage Act,1955
The court starts of examining the status of a Hindu woman marrying a Hindu male
with a living spouse. To that extent the court goes on to quote section 11 of the Hindu
Marriage Act of 1955 which says,
Void marriages. Any marriage solemnised after the commencement of this Act shall
be null and void and may, on a petition presented by either party thereto 11 [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.

In continuance of that Section, the Section 5(i) that is relevant to the instant case goes
that,

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Conditions for a Hindu marriage.

A marriage may be solemnized between any two Hindus, if the following conditions
are fulfilled, namely:
(i) Neither party has a spouse living at the time of the marriage;
Under the cognizance of the above two intertwined sections, it is the opinion that if
either party has a spouse living at the time of marriage, then the marriage would be
considered to be void as under the provisions of the Hindu Marriage Act.
The court quotes the same, in as much as saying that
Clause (i) of Section 5 lays down, for a lawful marriage, the necessary condition that
neither party should have a spouse living at the time of the marriage. A marriage in
contravention of this condition, therefore, is null and void. 10 Therefore it is implied
and understood clearly on the stance that such a marriage would be void. To that
extent, the case of the complainant being in a subsistence of a marriage during her
marriage with the plaintiff (correct it) has been established quite clearly by the court
and the facts itself. Such a fact was agreed by the court by way of its statement,
the fact remains that there is a decision rendered by a competent jurisdiction to
the effect that the marriage of Ruby Basu @ Roopa Malhotra was subsisting at the
time when the appellant undisputedly married her. Nobody has questioned correctness
of the said decision.11
However, the question remains as to whether the order by a court is required for the
marriage to be declared as void under Section 11 of the Hindu Marriage Act. To that
extent, the case deals with the point in so much as referring to two other sections of
the Hindu Marriage Act, the first of which we will endeavour to discuss in this part.
The case is that of Section 12 of the Hindu Marriage Act which speaks about voidable
marriages.
The court establishes that, the issue of a voidable marriage is significantly different
when compared to that of a void marriage as it has restrictions upon the rights
presented to a party in the marriage. Though the voidablity section does not include
Section 5(i), it is being used in order to refer to the requisites of an order being passed
under this section. It is the opinion of the court that, the
10 M.M. Malhotra vs Union Of India And Ors, 2005 (8) SCC 351 ( Supreme Court 2005)
11 Id.

21

cases covered by this section are not void ab initio and unless all the conditions
mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it,
the same continues to be effective. 12
However, contrary to this point, marriages under Section 11, as held by the court are
marriages that are void ipso jure, that is, void from the very inception and have to be
ignored as not exiting in law at all if and when such a question arises. 13 Therefore
what can be culled out from these points is that, void marriages are void ab initio
whereas in case of voidable marriages, the marriage remains effective until the time
arises when the marriage contravenes the provisions as presented. Keeping that as a
valid base, it is the opinion of the court that, such a marriage does not require any
kind of formal declaration by the court and that the marriage goes back to such a
position where there was no marriage at all and to that extent, in the instant case, there
was no requirement for the appellant to get an order stating that hiss earlier marriage
was void and therefore this would add to the point that, the subsequent marriage of the
appellant would not be a case of plural marriage at all.
It is therefore the opinion of the court as under this justification that the void marriage
does not require an order to be necessarily passed by the court to that extent.

b) The Alternative Section argument

In addition to the previous argument, and to an extent to support the stance of the
previous argument, the court specifies an alternative section in the Hindu Marriage
Act that also deals with the case of void marriages and requirement of an order,
indirectly. Though the primary objective of the section is different, the words as
picked up by the court lay emphasis on the stance taken up by the court itself. The
aforementioned section is Section 16 of the Hindu Marriage Act which relates to the

12 Supra note 10
13 Supra note 10

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legitimacy of children of void and voidable marriages. The section inter alia, states
that the children borne out of a void marriage would be considered as legitimate,
In (1) whether or not a decree of nullity is granted in respect of that marriage under
this Act and whether or not the marriage is held to be void otherwise than on a
petition under this Act. 14
While in the case of children borne out of voidable marriage, the primary case
revolves around the date of passing of the decree by the court. This would mean that,
in the case of Void marriages, there is no need for the order or decree to be passed by
the court, in order to declare the marriage as void. To that extent, the court takes up
the objective of the legislature and says that legislature has considered it advisable to
uphold the legitimacy of the paternity of a child born out of a void marriage; it has not
extended a similar protection in respect of the mother of the child. The marriage of the
appellant must, therefore, be treated as null and void from its very inception. 15
This would therefore go on to prove the point of the court yet again that, there is no
requirement for the order to be passed for the declaration of the marriage as void and
that the marriage in the instant case that had to be nullified would have been null and
void from its very inception which in turn would go on to justify the stance of the
appellant that his marriage is not the case of a plural marriage.
To support its stance even further the court specifies that case of Smt. Yamunabai
Anantrao Adhav v/s Anantrao Shivram Adhav and Anr. On which we can deliberate
more in the critical analysis of the judgment itself.
c) Morality intertwined with Section 11.
Even though the court had held that, the case of the appellant was not a case of the
plural marriage in the current situation, the court did not however dismiss the order of
the union on that basis, because of the fact that, even though the appellant was
protected by the Section 11 of the Hindu Marriage Act, his protection effectively ends
there. The main case that the court is concerned with here is the conduct of the
appellant in the instant case.

14 Section 16, Hindu Marriage Act of 1955 ( Act 25 of 1955 )

15 Supra note 10

23

Firstly, even if it is held that the appellant was not liable to be held for plural marriage
and given that his stand is vindicated then that would now mean that, the appellant
was living with the complainant in the same house while being married to Ms. Anna
Suja John. This would then show the moral conduct of the appellant in the instant
case. The appellant would be seen to be as someone who had kept someone in his
house in the subsistence of his marriage with Ms. Anna Suja John. This was
something that was pointed out by the learned counsel for the respondents and that
which was considered by the court to be moral misconduct. As a result the court
refrained

from

granting

relief

for

the

appellant.

Secondly, it was quite clear from the facts of the case that the appellant had treated the
complainant with cruelty and torture and also deprived her of basic amenities in the
extreme case. This was considered by the court to be an act that showcased the
appellants acts of moral turpitude. To that extent, such acts were held by the court to
be covered under the broad scope of Section 45 of the Air Force Act that talks about
Unbecoming conduct by an officer. This would then mean that, the court holds the
appellant liable for his actions and therefore his mere acquittal from the scheme of
plural marriage does not invalidate the order of compulsory retirement as given by the
Air Force itself. Also, the court makes a reference to Section 46 of the Air Force Act
that talks about some forms of disgraceful conduct which includes within itself in
clause a that, (a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural
kind which would therefore go on to prove that, the acts of the appellant as held by
the court could also be classified as disgraceful conduct and therefore would not grant
relief to the appellant on this ground.

Therefore from the three-fold analysis, the opinion of the court is quite clear regarding certain
issues. It is the opinion of the court that, in the instant case, there is an obvious issue of void
marriage and that the appellant would not be liable for plural marriage as there was no
requirement whatsoever for the appellant to get a decree passed to prove that the previous
marriage was void. A void marriage under Section 11 would mean that the marriage is void
ab initio and therefore, there was no need for the decree to be passed to make such a marriage

24

to be declared as void. This was the main opinion of the court as presented by it, in the instant
case.

2. Procedural Aspects

This particular part of the judgment is totally irrelevant to the context of analysis in the
instant case. However, it would be a flaw to leave out such sections of the judgment merely
for the purpose of it being out of the scope of the subject under study. To delve deep into the
intricacies of this however, would be doing an act of injustice to the broader scope of that

25

subject. To that extent, we are going to aim at understanding just the stance of the court to
this regard in as simple as terms that would be deemed as possible.
The Court holds that, the contention of the parties with regards to the procedural defects does
not hold true in the instant case as it by itself is fundamentally flawed and does not have a
proper standpoint to it. To justify their stance, the court takes up the aid of certain provisions
of the Air Force Act where it specifies that departmental proceedings can be chosen over
court martial when the matter is deemed fit. Along with that, the court uses the precedent set
by the same forum in a case that dealt with a similar provision but under the Army Act.
Holding both the cases together, the court consequently held that, similar to the Army Act
sections that were held valid, this particular section that the Air Force had employed to use its
due proceedings also holds valid. Therefore as conclusion the Court held that the appellants
stand that the departmental proceeding was invalid was something that had to be rejected.
So the case of the flaw in proceedings as set up against the respondents by the appellants was
set aside by the court due to the fact that it was fundamentally flawed.

3. So was the punishment accorded upheld by the Court?

Yes. Again, this section of the judgment merely touches upon the aspects of the Hindu
Marriage Act which we shall be discussing. Other than those said aspects, the other parts of
the judgment would focus on the moral turpitude in the acts of the appellant and as to why it

26

would amount to gross indecency and moral misconduct which we would see just for the sake
of the judgment being the one under study.
So, to the first aspect it deals with, the court acknowledges the fact that there remains a
question as to whether the order passed by the respondent would hold well given the fact that
the concept of plural marriage has been significantly struck down. To that extent, it could be
implied and derived that the court once again reiterates its stance regarding its position on the
void marriages and holds that, the first marriage being void ipso jure, the subsequent
marriage of the appellant would not be a case of plural marriage but would only have the
status as a fresh marriage would have to that regard.
Moving on, it is the opinion of the court that it can intervene and strike down an order only
when the quantum of punishment is found to be shockingly disproportionate to the situation.
Given that, the fact that it is the courts opinion that the appellant had committed acts that
were severely unbecoming of officers of his stance, and to that extent, the different provisions
of the Air Force Act and two case laws were provided, and therefore it was established that
the term misconduct may involve moral turpitude and it was something that opposed the
very scheme of the work and order that the appellant would go on to be a part of. Also the
court took into its consideration the earlier immoral activities of the appellant to hold that it
was no longer desirable for the appellant to hold the position that was accorded to him.
Accordingly, it was decreed by the court that, all factors weighed in, the authorities were right
in passing the order of compulsory retirement and therefore it was not shockingly
disproportionate so as to warrant interference by the court.
Therefore, it was the conclusion of the court that, holding that the charge of plural marriage
has not yet been established, yet taking into account the other allegations we do not think it a
fit case where any interference is called for. 16

When looking at the issues that are framed, at the beginning of this work, we can see that
they have been categorically dealt with and addressed by the Court in the instant Case.
Therefore, with regards to the issues so raised:

Issue 1: No. It is the opinion of the Honourable court that the subsequent marriage of the
16 Supra note 10

27

appellant with Ms. Anna Suja John is not a case of plural marriage as it was proven beyond
doubt that his first marriage was void which would therefore mean that it was void ipso jure
thereby making the subsequent marriage a valid marriage.
Issue 2: Yes. It was the opinion of the Honourable court that there is no need for a decree to
be passed and to be so obtained by the appellant in order for him to be eligible for subsequent
marriage. A void marriage under the Section 11 of the Hindu Marriage Act would be void
from its inception and therefore it would not be necessary for the court to give such a decree
to invalidate the marriage.
Issue 3: Yes. Based on the provisions and the case referred to by the Union in the instant case,
it was the opinion of the court that the basis of the order was more than just the case of plural
marriage and that on grounds of the actions of the appellant that were unbecoming of his
position, it was therefore held that the order of compulsory retirement would be considered to
be valid in the eyes of law.

These are therefore the broad sections as dealt with by the court. The crux of the judgment
was that, the marriage would have to be considered to be valid and there was no need for an
order to be passed to that regard.

CRITICAL ANALYSIS
This case holds quite some importance in the context of the void marriages as under the
provisions of the Hindu Marriage Act of 1955. It dealt with a key issue with regards to the

28

void marriages and tried to deal with whether the decree was required for void marriage. To
that extent, it would be proper to endeavour to analyse the judgment strictly within the scope
of it under the Hindu Marriage Act. So, we shall now analyze the judgment purely upon the
provisions it has as under the Hindu Marriage Act and find out as to whether the analysis
would produce something fruitful out of doing it.
Similar to a number of Judgements given, this one, when analysed, has its highs and lows. So
here is an attempt to critically analyse this Judgement in the instant Case and bring out the
highlights found in the same. In furtherance of that, I would divide my analysis into a number
of branches based on which my analysis is going to be done.

1. Statutory basis and its correctness to that regard.

Section 11 of the Hindu Marriage Act goes that,

29

11. Void marriages.

Any marriage solemnised after the commencement of this Act shall be null and void and may,
on a petition presented by either party thereto 11 [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.
A bare reading of the section would not necessarily throw light on whether there was a
requisite for the order to be passed by court to declare a marriage to be void under the Section
11 of the Hindu Marriage Act. However, based on judicial interpretation and intervention, it
has been continually held by the courts that there was no requirement of a court order in order
to determine whether a marriage is void as under the broad provisions set up by Section 11. It
is now imperative to analyse whether the different studies and texts on Section 11 of the
Hindu Marriage Act support the same claim and whether the court in the instant case has
taken a standing that can be seen as statutorily correct.
Within the context of void marriages as under the Halsburys Laws of India which is
considered to be an authoritative text, it has been stated that , Where a marriage is void for
contravention of any of the conditions, it is void ab initio and void even in the absence of any
reference. It is a marriage that will be regarded as not taken place and may be so treated by
both the parties to it without any necessity of any decree annulling it. 17, which would further
vindicate the fact that there was no requirement of any kind of decree to be passed. Also,
included in the same text, A void marriage is void ab initio and a decree of nullity is not
necessary to bring it to an end18

Again looking at the contents of another authoritative text that would be the Indian Law of
Marriage and Divorce , it has been discussed regarding the concept of void marriages that,
Where a marriage is void the courts regard the marriage as never having taken place and no

17 Halsbury, Halsburys Laws of India, Volume 26 P.194 , Lexis Nexis, New Delhi
18 Id. at 197

30

status of matrimony as ever having been conferred.19 This was something that was reiterated
in the case of R v/s Algar.20
Again, when seen it was continually reiterated that the void marriage is non-existent in the
eye of law. A declaration to that effect would therefore not be mandatory. Such was the
position held by the text with regards to the realm of void marriages as provided and seen
under the Hindu Marriage Act of 1955.
However, when we look at the text provided by the book of Maynes Treatise on Hindu Law
and Usage, the provisions of the Section 11 has been further analysed with a deeper context.
It has been specified in the text, inter alia, that Though section 11 of the Hindu Marriage
Act, 1955 gives an option to either of the parties to a void marriage to seek a declaration of
invalidity and/or 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 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 ruleAs such until the invalidation of the
marriage between the parties is made by a competent court 21 It could therefore be implied
from the text that, in certain cases like in cases of dispute it would be mandatory to approach
the court and get a decree of nullity even in the case of void marriages covered under the
ambit of Section 11 of the Hindu Marriage Act. However, such discretion would only be in
select cases and whether it must be necessitated to all cases would be discussed in another
part of the analysis. This stance of the text however would put forward something that was
not specified in the instant case as well in other texts.
To that extent, when we compare the statutory provisions for the Section 11 of the Hindu
Marriage Act and the relevant case laws that produce binding judgments on it, it is therefore
proper to conclude that for a void marriage, there is no necessity of a decree to be passed in
order for the person to hold it as void. The void marriage under Section 11 would be a
marriage void ipso jure and therefore, consequently, a further marriage of the appellant in the
instant case would not be a case of plural marriage as it would then have no proper basis.
19 Kumud Desai, Indian Law of Marriage and Divorce, 147 ( 9th Edition,2014), Lexis Nexis, New
Delhi
20 R v/s Algar , 1953 2 all ER 1381 at 1383
21 Mayne, Maynes Treatise on Hindu Law and usage, 248 (17th Edition, 2014) Bharat Law House,
New Delhi

31

Therefore, the courts view in the instant case would also be seen as holding true as it
specifies very clearly, that the appellant has not committed an act of plural marriage as it is a
given that, his earlier marriage was a void marriage. To this extent, on a purely statutory
basis, the judgment holds good and proper in the instant case.

32

2. Originality of the Judgment.

This would be a key area of analysis because; this particular case has been regarded as one of
the significant cases in the concept of void marriages as under the Section 11 of the Hindu
Marriage Act. The fact that it was a significant case and an equally significant ruling it is to
be seen and analysed with respect to the amount of originality in the judgment. By originality
we only mean to see whether the judgment was the first of its kind or whether it was a
derivative judgment to that regard. So, lets analyse this aspect of the judgment.

The prominent area of discussion in the instant case is regarding whether there was a need for
decree to be passed. To that extent, the court goes on to point out various sections of the
Hindu Marriage Act and also speak upon it for about two pages of the judgment. However, in
the end of such a discussion, the court provides a case law, Smt. Yamunabai Anantrao Adhav
v/s Anantrao Shivram Adhav and Anr.,22 which when analysed gives us the broad view as to
whether

the

ruling

was

derived.

The Case specified by the court is a judgment passed by the same court, the Supreme Court,
by a two-judge bench in the year 1988. This judgment deals with this particular topic as to
whether the decree was required in case of a void marriage at all. To that extent, it was the
opinion of the court in that case that, The marriages covered by s. 11 are void-ipso- jure, that
is, void from the very inception, and have to be ignored as not existing in law at all if and
when such a question arises. Although the section permits a formal declaration to be made on
the presentation of a petition, it is not essential toobtain in advance such a formal declaration
from a court in a proceeding specifically commenced for the purpose. 23 Therefore, the court
in the instant case has derived its judgment mainly from the case of Smt. Yamunabai.

However, the problem here is that, the very fact that the honourable court in the instant case
derived the spirit from the earlier judgment is completely alright but the court has proceeded
further and lifted the entire segment, verbatim from the previous judgment, without laying
emphasis on its own stance or by using its own words.
22 Smt. Yamunabai Anantrao Adhav v/s Anantrao Shivram Adhav and Anr , 1988 AIR 644
23 Id.

33

(Emphasis to be laid on Para 3 of that judgment). Everything included in the instant case
with regards to the case of Void marriage has been lifted line by line from the precedent
judgment. Such a way of ruling is bad and shows the lack of effort of the court to that extent.
Why a lack of effort, we would see subsequently. Therefore, the quotient of originality is
severely reduced because of the process of shop-lifting the points and also restricts the
significance of the judgment only to the part where the court held that a plural marriage
would not be existent if a party to a void marriage essentially remarries.
So, now we move on to why we say that there has been a lack of effort. The precedent
judgment by a two-judge bench was ruled in 1988. As is evident from the facts of the case,
the fact that there was no decree passed, lead to a lot of chaos and confusion and the
complainant stood to lose a lot out of the case. This was all because of the fact that the times
have changed since the precedent case, and the world has turned into a more and more
complicated place to live in. Like the facts of the instant case where the complainant ended
up suffering because no decree was required, throws light on the necessity of making it
mandatory for the decree to be asked for and obtained even in the case of void marriages. The
court could have proceeded such that it could have made such a process as necessary and
made the justice deliverance better. However, the lack of effort of the court towards effecting
a change, led to a lazy and lethargic judgment where the points have been taken completely
from the precedent judgment. This would act as a deterrent to the concept of void marriages
itself and it results in injustice being done to specific parties in the case.
Considering all these points on analysis, it could be reasonably held that, based on the
originality of the judgment, the significance of the instant case is only to the extent of plural
marriage being struck down as a whole and the other parts attached to it have been lifted
verbatim from the precedent without paying heed to the needs of the hour. Lack of effort can
be said to be quite evident.

34

3. What more could the court have done in the instant case what did the court fail to do in
the instant case?

Given that the court did a considerably good job in the way in which it dealt with the instant
case, there were some things that could have been set right by the court in the instant case
which was grossly missed out on. As the highest court in the country it must have added a
little bit more to the instant case and based on the facts of the case, the court should have
been able to make some additional provisions within its judgment. We shall see a two-fold
approach towards the possible additions that would have enhanced the judgment further.

Firstly, the issue as to whether there was a need for a decree to be passed for the case of void
marriages under the ambit of section 11 of the Hindu Marriage Act. The court held in
accordance with a precedent case that there was no requirement for a decree to be passed. But
there is something that the court is blatantly missing out on. In the instant case, the
complainant was married to the appellant. But their marriage was void under Section 5 of the
Act. However, before the decree was passed, since there was confusion, the husband
continually lived with her and Ms.Anna Suja John at the same time. Even though their
marriage was void, due to the ambiguity of whether a decree was needed or not, and the
husband feeling that there was no need for decree kept the complainant in the same house and
lived with her even while he was co-habiting with Ms. Anna Suja John. In this case, clearly,
the complainant has suffered and has been subject to psychological damage purely because of
the fact that, the decree was not required and husband still kept her at home. Such would be
the ambiguity and confusion in a lot of cases that would relate to void marriages. If there was
a prerequisite set that, even if a marriage is to be void, a decree of annulment is required, then
it would make the case all the more easier and nobody will be the loser or be damaged in the
case. This is where the court missed out. It missed out on the deliverance of the greater justice
and equitable justice as well. Had it laid down a precedent that the decree of annulment is
required, it would have made the case all the more easier and there was no need for anybody
to suffer. Given that the court in the instant case may have been trying to save the workload
of the court, the justice would always take preference over something as trivial as the
workload. So, the court clearly missed out on setting a justified precedent.

35

Secondly, with regards to the order of the respondents in the instant case, their order was
based to a large extent on the concept of plural marriage by the appellant. This order however
was upheld by the court in the instant case despite the fact that the plural marriage was set
aside. Even though the court was justified in its stance because of the conduct of the
appellant, it could have still issued directions to the respondents to be careful about accusing
an officer of a crime without proper analysis. In the instant case, it was quite clear that there
was no plural marriage, but the respondents failed to acknowledge the facts and blamed the
appellant for the crime. A simple line or two from the court would have made the judgment
all the more satisfactory. However, the setting aside of the case of the appellant was done
amicably well by the court in the instant case.

These are a few things that the court could have done better in the instant case. Though they
did lack a bit, the court set up some valid points and some points of significance too. To
summarise, the courts decision was significant with respect to the Hindu Marriage Act
because:

I. It lay down that there was no decree required for the marriage to be held void under
Section `11 of the Hindu Marriage Act. The marriages covered under it are void ipso jure.
II. It lay down that, the subsequent marriage of a person who was a part of a void marriage
would not be counted as plural marriage. Also, the subsequent marriage without decree for
void marriage being obtained would also not be regarded as a case of plural marriage.

36

CONCLUSION
The case of M.M.Malhotra v/s Union of India is significant because of the precedent it laid
down. It laid down that there was no need for decree in case of void marriages and also that
subsequent marriage would not be necessarily plural marriage. Along with this, the
significance of the judgment is that, it made sure that, using the provisions of the Act and the
loopholes in the law; somebody cannot escape the law itself. Like in the instant case, by
claiming relief from plural marriage, the appellant tried to escape liability. However, the court
intervened and stamped its authority by saying, despite not being a plural marriage the
conduct of the appellant of living with the complainant in spite of the void nature and also the
treatment meted out by him towards the complainant would therefore make the order of
compulsory retirement valid. This shows the power of the judicial intervention in the instant
case. However, on analysis, the case, like any other case for that matter, had its obvious short
comings and flaws, and things that could have made it considerably better. Despite all that,
the case still holds good as a strong and valid precedent and will be seen as one of the
landmark cases for the concept of void marriages as under Section 11 of the Hindu Marriage
Act.

37

WORKS CITED
1. Kumud Desai, Indian Law of Marriage and Divorce, 9th Edition 2014, Lexis Nexis,
Delhi
2. Mulla, Mulla on Hindu Law, 21st Edition, 2013, Lexis Nexis, New Delhi
3. Mayne, Maynes Treatise on Hindu Law and usage, 17th Edition, 2014 Bharat Law
4.
5.
6.
7.
8.
9.

House, New Delhi

Halsbury, Halsburys Laws of India, Volume 26, Lexis Nexis, New Delhi
Oxford Online Dictionary
The Hindu Marriage Act, 1955 ( Act 25 of 1955 )
M.M. Malhotra vs Union Of India And Ors, 2005 (8) SCC 351 (Supreme Court 2005)
Smt. Yamunabai Anantrao Adhav A vs Ranantrao Shivram Adhav , 1988 AIR 644
59th Law Commission Report of 1974
http://lawcommissionofindia.nic.in/51-100/Report59.pdf