AIR 1988 SUPREME COURT 644 ::1988 (15) IJR (SC) 482 ::1988 BLT (Rep) 143 ::1988 APLJ(Cri) 47 ::(1988) 1 HinduLR 375 ::(1988) AllCriR 178 ::1988 (1) SCC 530 ::1988 SCC(Cri) 182 ::1988 (1) AllCriLR 439 ::(1988) All WC 350 ::1988 CalCriLR 66 ::(1988) MPLJ 223 ::1988 (1) Ker LT 416 ::1988 (1) Ker LJ 204 ::(1988) 1 SCJ 316 ::1988 (1) Crimes 594 ::(1988) 1 SCWR 121 ::(1988) 1 JT 193 (SC)

Supreme Court Of India

(From : 1983 Cri LJ 259 (Bom))

Hon'ble Judge(s): Ranganath Misra, Lalit Mohan Sharma , JJ

(A) Hindu Marriage Act (25 of 1955) , S.5(i), S.11, S.12, S.14, S.16— Marriage with person having living spouse - Is null and void - Cannot be treated as voidable under S.12. @page-SC645 Cl.(i) of S. 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. The plea that the marriage should not be treated as void because such a marriage was earlier recognised in law and custom cannot be accepted. By reason of the overriding effect of the Act as mentioned in S. 4, no aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. Such a marriage cannot also be said to be voidable by reference to S.12. So far as S.12 is concerned, it is confined to other categories of marriage and is not applicable to one solemnised in violation of S. 5 cl.(i) Sub-sec. (2) of S. 12 puts further restrictions on such a right. The 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. The marriages covered by S. 11 are void ipso jure, that i....