Judgment:
Prafulla C. Pant, J.
1. This appeal, preferred under Section 19 of Family Courts Act, 1984, read with Section 28 of Hindu Marriage Act, 1955, is directed against the judgment and order dated 30-9-2008, passed by Judge, Family Court, Udham Singh Nagar, in Matrimonial Case No. 119 of 2006, whereby the petition moved by the petitioner/appellant for decree of restitution of conjugal rights under Section 9 of Hindu Marriage Act, is dismissed.
2. Heard learned Counsel for the parties and perused the lower Court record.
3. Brief facts, giving rise to this appeal are that petitioner instituted matrimonial case No. 119 of 2006, against the respondent, alleging that he got. married to respondent-Smt. Sanju Saxena on 15-3-1995. It is further pleaded that he had two children namely Anchal and Deepu, born out of the wedlock. It is further pleaded that on 6-4-2006, respondent left the company of the petitioner, without any sufficient cause and thereby deserted him. In the circumstances, the petition for restitution of conjugal rights, was moved.
4. Respondent contested the petition and filed her written statement, in which she has denied having married to the petitioner. It has been stated in the written statement that the respondent is wedded wife of one Shambhu Nath Sharma. It is also pleaded in the written statement by the respondent that the petitioner-Sarvesh Mohan Saxena. in fact is her brother-in-law (JIJA). It is further pleaded by the respondent that petitioner/appellant Sarvesh Mohan Saxena, got married to Madhu Saxena, elder sister of the respondent. and he had three children from her namely Pooja, aged 17 years, Pankaj aged 7 years and Timtim, aged 5 years. It is stated in the written statement that the petitioner made illicit relations with the respondent, and children Anchal and Deepu were born through such relation. It is also pleaded that on 7-4-2006, respondent succeeded in getting herself freed from the clutches of the petitioner, and sought protection from Inspector, Police Station Rudrapur, Sub-Divisional Magistrate, Rudrapur and Senior Inspector, Udham Singh Nagar, whereafter she got married on her own volition with Shambhu Nath Sharma, son of Ram Chandra Sharma, resident of 41 BHEL Colony, Rudrapur.
5. On the basis of the pleadings of the parties, the trial Court framed following three issues:
1. Whether the respondent without any sufficient cause withdrawn from the society of the petitioner and failed to perform matrimonial obligations with him?
2. Whether the respondent is legally wedded wife of the petitioner ?
3. To what relief, if any, the petitioner is entitled ?
The trial Court after recording the evidence and hearing the parties, found that the marriage between the parties to this case, is not valid, and as such, the petitioner is not entitled to decree of restitution of conjugal rights against the respondent.
6. We have re-assessed the evidence on record, recorded by the trial Court. P.W. 1 Sarvesh Mohan Saxena (petitioner/appellant) in his first line of cross-examination, admitted that he got married to Madhu Saxena ('elder sister of the respondent) on 5-5-1989. In the next line of cross-examination, he admitted that his marriage with Madhu is still subsisting. He has further admitted that he never obtained any decree of divorce against Madhu. After going through the entire evidence on record, adduced by the parties, it is clear that the petitioner developed illicit relations with respondent and two children were born through this relationship. Even if the petitioner has got married to respondent, while his first wife was living, at the time of such marriage, the marriage between the petitioner-Sarvesh Mohan Saxena and respondent Sanju Saxena, was in violation of condition No. (i) of Section 5 of Hindu Marriage Act, 1955, which requires that at the time of marriage, none of the parties should have a living spouse. That being so, the marriage between the parties to this case is null and void. Section 11 of Hindu Marriage Act, clearly provides that any marriage solemnised after commencement of this Act, in violation of conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act, shall be null and void. Therefore, the petitioner (present appellant) cannot maintain a petition against the present respondent under Section 9 of the Act which provides that when either the husband or the wife, has without any reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the Court, for restitution of conjugal rights. In the present case, since the marriage between the petitioner and Madhu Saxena (elder sister of the respondent) was subsisting, as such, the marriage between the petitioner and respondent, if any, was null and void and neither the petitioner can claim himself to be husband of respondent, nor it is open for him to say that respondent is his legally wedded wife. From the language of Section 9 of the Act, it is clear that only the husband or the wife can maintain the petition under said section.
7. For the reasons, as discussed above, we do not find any reason to interfere with the impugned order, passed by learned Judge, Family Court, Udham Singh Nagar. Accordingly, the appeal is liable to be dismissed. The appeal is dismissed with costs.