DEOKI PANJHIYARA versus SHASHI BHUSHAN NARAYAN AZAD & ANR.

Citation: [2012] 11 S.C.R. 825 · Decided: 12-12-2012 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2012] 11 S.C.R. 825 
DEOKI PANJHIYARA 
v. 
SHASHI BHUSHAN NARAYAN AZAD & ANR. 
(Criminal Appeal Nos. 2032-2033 of 2012) 
DECEMBER 12, 2012 
[P. SATHASIVAM AND RANJAN GOGOi, JJ.] 
Protection of Women from Domestic Violence Act, 2005: 
A 
B 
s. 12 - Proceedings before trial court -Interim maintenance 
granted by trial court - Set aside by High Court on production C 
of marriage certificate showing the first marriage of appellant 
with another man - Held: If according to respondent, the 
marriage between him and the appellant was void on acpount 
of the previous marriage of the appellant, he ought to have 
obtained the necessary declaration from competent court in 
D 
view of the highly contentious questions raised by appellant 
on the said score - In the absence of any valid decree of 
nullity or the necessary declaration, 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, and appellant 
E 
would be entitled to claim maintenance and other benefits 
under the D. V. Act, 2005 - Mere production of a marriage 
certificate issued u/s 13 of the Special Marriage Act in support 
of the claimed first marriage of the appellant was not sufficient 
for High Court, to render a complete and effective decision 
F 
with regard to the marital status of the parties and that too in 
a collateral proceeding for maintenance - Impugned order of 
High Court set aside. 
The respondent-husband filed a writ petition before 
the High Court challenging the order dated 13.2.2008 of G 
the trial court granting interim maintenance to the 
appellant-wife in her petition u/s 12 of the Protection of 
Women from Domestic Violence Act, 2005(DV Act, 2005). 
Meanwhile, the respondent filed an application before the 
825 
H 
826 
SUPREME COURT REPORTS 
[2012] 11 S.C.R. 
A trial court for recall of the order dated 13.2.2008 on the 
ground that subsequently he came to know that the 
appellant was already married to one 'RKM', and placed 
before trail court the first marriage certificate dated 
18.4.2003. The trial court rejected the said application. 
B The respondent filed a revision petition before the High 
Court, which allowed both the writ petition and revision 
of the respondent-husband holding that the marriage 
certificate dated 18.4.2003 issued u/s 13 of the Special 
Marriage Act, 1954, was conclusive proof of the first 
c marriage of the appellant and, as such, she was not 
entitled to maintenance. 
Allowing the appeals, the Court 
HELD: 1.1 Admittedly, both the appellant and the 
D respondent are governed by the provisions of the Hindu 
Marriage Act, 1955, s. 11 whereof makes it clear that a 
marriage solemnised after the commencement of the Act 
"shall be null and void and may, on a petition presented 
by either party thereto against the other party, be so 
E declared by a decree of nullity if it contravenes any one 
of the conditions so specified in clauses (i}, (iv) and (v) 
of s.5." [para 14] [835-E-F] 
1.2 In the instant case, the appellant in her pleadings 
F had clearly, categorically and consistently denied that she 
was married to any person known as 'RKM'. The 
legitimacy, authenticity and genuineness of the marriage 
certificate dated 18.4.2003 has also been questioned by 
the appellant. Though s.11 of the 1955 Act gives an option 
to either of the parties to a void marriage to seek a 
G declaration of 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 
H 
DEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 827 
AZAD & ANR. 
marriage, will have to be insisted upon in departure to the 
A 
normal rule. [para 18] [836-G; 837-A-B] 
A. Subash Babu v. State of Andhra Pradesh & Anr. 2011 
(9) SCR 453 = 2011 (7) SCC 616 - relied on 
Yamunabai v. Anantrao AIR 1988 SC 645; and M.M. 
Malhotra v. Union of India 2005 (3) Suppl. SCR 1026 = 2005 
(8) sec 351 - referred to. 
B 
1.3 If according to the respondent, the marriage 
between him and the appellant was void on account of c 
the previous marriage between the appellant and 'RKM', 
he ought to have obtained the necessary declaration 
from the competent court in view of the highly 
contentious questions raised by the appellant on the said 
score. It is only upon a declaration of nullity or annulment 0 
of

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