ORDER
N.M. Kasliwal, C.J.
1. This petition shall be registered under Article 227 of the Constitution of India. Shri R. K. Sharma is present on behalf of Smt. Santosh Kumari and both the parties, Smt. Santosh Kumari and Surjit Singh are also present.
2. This petition arises in the following:circumstances:
A news item was published in the Punjab Kesari, Jallandhar, dated October 22, 1988, in which it was mentioned that in an important case, Shri Manoj Kumar Bansal, Judicial Magistrate, District Kangra had permitted one Sh. Surjit Singh of village Niangal (Nurpur) to contract second marriage on the ground of non-fulfilment of his sexual desire from his weak and ailing wife. Learned
Magistrate in his judgment ruled that Smt. Santosh Kumari alias Anita shall continue to be the legally wedded wife of Sh. Surjit Singh and he shall provide her and his daughter all facilities such as clothing, boarding and lodging till their lifetime and shall be liable to marry his daughter.
3. Shri K. C. Sood, District and Sessions Judge, Kangra Division, Dharamsala, by his letter dated November 19, 1988, brought the above news item to the notice of the Registrar of this Court for placing the matter before the Chief Justice to consider if any action under revisional jurisdiction or under the Constitution of India can be taken. On November 26, 1988, the Chief Justice had passed an order that the matter be taken up on the judicial side.
4. The admitted facts of the case are that Smt. Santosh Kumari alias Anita is the legally wedded wife of Sh. Surjit Singh. A daughter was born out of the lawful wedlock of the parties. During the subsistence of this marriage, a Civil Suit No. 23 of 68 was filed on behalf of Smt. Santosh Kumari for giving a declaration that her husband Sh. Surjit Singh may be allowed to marry another woman during the life time of the plaintiff, Learned Sub Judge (I), Dharamsala, passed a decree giving a declaration of the above relief prayed by Smt. Santosh Kumari.
5. Shri R. K. Sharma, appearing for the plaintiff, Smt. Santosh Kumari alias Anita, frankly stated that the order passed by the learned Sub Judge, dated March 18, 1988, cannot be supported in law.
6. A perusal of the order of the learned Sub Judge, dated March 18, 1988, goes to show that the parties were married on April 14, 1986 according to Hindu rites and the plaintiff gave birth to a daughter on February 9, 1987. Learned Sub Judge issued summons to the defendant and the husband admitted the claim of the plaintiff and thereafter passed the order in the following manner.
'Keeping in view the admission of the defendant I accordingly proceed to grant declaration to the effect that due to ill and weak health of the plaintiff and thereby unable to satisfy the sexual desire of the defendant, the defendant is permitted to solemnise second marriage and the plaintiff will be entitled to be called as legally wedded wife of the defendant who will provide the plaintiff and his daughter all amenities like clothings, boarding lodging till death and marriage of the daughter will also be performed by the defendant. Decree sheet be prepared accordingly and file after completion be consigned to record room'.
7. The above order is absolutely wrong and illegal and against the clear provisions of the Hindu Marriage Act, 1955.
8. Section-5 of the Hindu Marriage Act, 1955, lays down the conditions for a Hindu Marriage and it clearly provides that a marriage may be solemnised between any two Hindus, if the conditions mentioned in that Section are fulfilled. The first condition is that neither party should have a spouse living at the time of marriage.
9. Section 494 of the Indian Penal Code makes the act of marrying again during life time of husband or wife as an offence punishable with imprisonment of either description for a term which may extend to seven years and also liable to fine.
10. Parties are admittedly Hindus and they were married on April 14, 1986 according to Hindu rites. There is no allegation that any divorce had taken place between the parties or their marriage had been declared void by any competent court of law before filing the present suit for declaration. In the face of these circumstances, no order or decree should have been passed permitting the defendant Sh. Surjit Singh to solemnise second marriage during the subsistence of marriage with his legally wedded wife Smt. Santosh Kumari. The Sub Judge has clearly ignored the provisions of the Hindu Marriage Act as well as the Indian Penal Code in this regard. The Sub Judge is expected to know such elementary principle of law and it is a gross mistake on his part to have ignored such principle of law and to have given a decree contrary to the provisions of Hindu Marriage Act and perpetuate a criminal offence of bigamy punishable under the Indian Penal Code.
11. In the result, his petition is allowed. The order of the learned Sub Judge, IIIrd Class, (I) Kangra at Dharamsala dated March 18, 1988 is set aside.