Hindu Marriage Act, 1955, Section 5 (i) – Void marriage - Appeal filed by A (husband) against dissolution of first marriage with R (first wife) – Application was filed for
withdrawal of his appeal by A on 28.11.2011 i.e. prior to the date of the marriage on 06.12.2011 between A and S (second wife) and order of withdrawal of appeal passed by the High Court on
20.12.2011 - Marriage between the Appellant(A) and the Respondent(S) was on 06.12.2011 i.e. before the order of withdrawal was passed by the High Court on 20.12.2011 –
Date of dismissal of the appeal relates back to the date of filing of the application for withdrawal of the appeal i.e. 28.11.2011 – Therefore, the appeal is deemed to have been withdrawn
on 28.11.2011 i.e. the date of the filing of the application for withdrawal was made - On 06.12.2011 which is the date of the marriage between the Appellant and the Respondent, R (first wife)
cannot be considered as a living spouse - Hence, Section 5 (i) is not attracted and the marriage between the Appellant(A) and the Respondent(S) cannot be declared as void -
Civil Procedure Code, 1908, Order XXIII Rule 1 (1). (2018)2 SCe@Journal 1364 / 24th August, 2018
Hindu Marriage Act, 1955 (25 of 1955) S. 5 - Indubitably, there is a
difference between a `convict' and `under-trial prisoner' - A convict suffers his sentence after conviction when his guilt is proved, whereas an under-trial prisoner remains in jail and is
presumed to be innocent till he is found guilty by the Court - Undertrial prisoner, being presumed to be innocent, has a right to marry with someone who is not an under-trial like him/her and/or
a person can marry an under-trial prisoner, if he/she desires - Constitution of India, Article 21. (182) P.L.R.
Hindu Marriage Act, 1955 (25 of 1955) S. 5(i), 11 - Respondent has established that the appellant had chosen to
marry the respondent when her earlier marriages with two other persons were subsisting - As per Section 5(i) of the Hindu Marriage Act, 1955 neither party should have a spouse
living at the time of marriage - A marriage performed in violation of the above provision is a void marriage as per Section 11 of the said Act.(177) P.L.R.
Hindu Marriage Act, 1955 (25 of 1955) S. 5(iii), 12, 11 - Appellant wife could not seek annulment of the marriage on the ground that the respondent was below the age of 21
years at the time of marriage as it is not a ground for void marriages under Section 11 of the Act or a voidable marriage under Section 12 of the Act - The infringement of the provisions of
Section 5(iii) of the Act does not make the marriage voidable in terms of Section 12 of the Act. (173) P.L.R.