Judgment 1 FAC45-2023.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. FAMILY COURT APPEAL NO. 45 OF 202 3 Priyanshu Prabhakarrao Mahajan (Meshram) (Atter marriage : Sau. Priyanshu Nikhil Shende) Aged about 29 years, Occupation: Household, C/o. Smt. Priti Prabhakarrao Mahajan (Meshram), Shrikrushna Nagar, Charmorshi Road, Gadchiroli, Tah. And District: Gadchiroli. …. APPELLANT. // VERSUS // Nikhil S/o. Bisaram Shende, Aged about 33 years, Occupation : Service, R/o. Veer Sawarkar Ward, Near Pande Mahal, Bhandara, Tah. And District : Bhandara. …. RESPONDENT . ___________________________________________________________________ Ms Shilpa Giratkar, Advocate for Appellant. Shri Vasant D. Muley, A.P.P. for Respondent. ___________________________________________________________________ CORAM : ANIL S. KILOR AND PRAVIN S. PATIL, JJ. DATE OF RESERVING THE JUDGMENT : 04/04/2025 DATE OF PRONOUNCING THE JUDGMENT: 07/05/2025 JUDGMENT : (Per : Anil S. Kilor, J.) 1. Heard. 2025:BHC-NAG:4669-DB Judgment 2 FAC45-2023.odt 2. ADMIT. Heard finally by consent of the learned counsel for the parties. 3. By way of this appeal filed under Section 19 of the Family Court Act, 1984 a question to the correctness and validity of the judgment and decree dated 18/01/2023 passed by Family Court, Bhandara in Petition No.A-89 of 2020 allowing the petition filed by the respondent and thereby declaring the marriage of the appellant and the respondent as illegal on the ground that during the subsistence of the earlier marriage of the appellant, the appellant performed second marriage with the respondent. Brief facts giving rise to the present appeal, are as under : 4. The respondent approached the Family Court, Bhandara by filing Petition No.A-89 of 2020 under Section 11 read with Section 5, 11, and 12(1) (c) of the Hindu Marriage Act, 1955 seeking decree of nullity of marriage. It is the case of the respondent that his marriage with the appellant was solemnized on 20/01/2020 at Bhandara. It is further stated in the petition that the respondent (petitioner in the petition) is educated up to B. E. (Power Engineering) and M.B.A. and working an Assistant Engineer at Maharashtra State Power Generation Company, Chandrapur, as well as the appellant herein is educated up to B.E. (Computer), as such they both are qualified. Judgment 3 FAC45-2023.odt 5. That, the appellant is already married lady & the name of her husband is Jitendra s/o Tikaram Kathane and their marriage took place on 11/07/2018 at Ramprasad Maharaj Jaiswal Maratha Dharmshala, Markandadev Tahsil: Chamorshi, District: Gadchiroli & their marriage is in substance. 6. It is further stated in the petition that by suppressing the above first marriage by the appellant, her mother & brother as well as by making false representation the appellant performed the second marriage with the respondent on 20/01/2020 at "Sambhaji Celebration" Bhandara & was residing in the joint family of the respondent. However, the appellant as well as her mother & brother never disclosed about the first marriage. 7. It is stated in the petition that from the letter sent by an unknown person on 29/05/2020 the respondent and his father came to know that, there was a love affair of the appellant with above named person Jitendra Kathane, and they have performed the marriage on 11/07/2018 at "Ramprasad Maharaj Jaiswal Maratha Dharmshala" Markandadev Tah:- Chamorshi, District: Gadchiroli & by suppressing the said marriage & by making false representation the appellant has performed the second marriage with the respondent. Judgment 4 FAC45-2023.odt 8. That, thereafter the petitioner tried to make enquiry from the respondent about above her first marriage but, she straight-way denied about it hence, on dated 05/06/2020 the father of the petitioner had went to Markandadev Distt:- Gadchiroli & applied to the president & secretary of the above "Ramprasad Maharaj Jaiswal Maratha Dharmshala" Markandadev, Tahsil: Chamorshi, District: Gadchiroli to supply the certificate & other relevant documents related to above marriage dated 11/07/2018 between the respondent & Jitendra Kathane. 9. It is submitted that on 05/06/2020 the President of the above Dharmshala issued the copy of affidavit of the appellant and Jitendra Kathane, documents related to their information which is affixed with their photographs, certificate about registration of their marriage, as well as copy of marriage register, in which an entry of their first marriage is taken by the Secretary of above Dhramshala. The all the above documents are related to the marriage dated 11/07/2018 between the appellant & Jitendra Kathane. 10. It is further stated that by suppressing the above first marriage with above Jitendra Kathane & by making false representation, the appellant performed the second marriage with him, as such said marriage is null & void. 11. The appellant filed her written statement and denied the fact of Judgment 5 FAC45-2023.odt subsistence of her marriage. She further specifically denied the performance of marriage with one Jitendra Kathane. In Special Pleadings the appellant has stated that she and Jitendra Kathane were well known to each other as they were residing adjacent to each other and younger sister of Jitendra was close friend of the appellant. In this regard they were having good connivance and attraction. 12. She further stated that in the year 2018 appellant and Jitendra had decided to perform marriage, but at the same time they wanted the marriage to be performed only after consent of their families. When Jitendra had told his family members that he wants to perform marriage with appellant, his family members had flatly refused. Hence, Jitendra had created a plan, with intention to divert his family members for his marriage with appellant. He had convinced the appellant that if he and appellant were able to show that they have married with each other, their family members will have no choice, but to perform their marriage on social platform. 13. Only with intention to convince the family members of Jitendra, the appellant and Jitendra had obtained the certificate of marriage from Markanddev Dharmashala. Neither any rituals have performed by the appellant and Jitendra on 11/07/2018 or at any time, nor indeed a marriage is solemnised between them as per Hindu religion. Only a paper is created, with Judgment 6 FAC45-2023.odt intention to convince family members of Jitendra, so that they could consent for arranged marriage with the appellant. In this regard Jitendra had also sworn affidavit on 11/09/2020, when appellant has told him that the alleged marriage certificate is being misunderstood by the respondent. 14. The respondent in support of his case examined himself, his father, priest who performed the ceremonies, Secretary of Ramprasad Jaiswal Dharmshala Markandadev where the first marriage of the applicant alleged to have performed. 15. Whereas, the appellant herself entered into the witness box. 16. The learned Family Court, after considering the oral as well as documentary evidence available on record passed the impugned judgment and order dated 18/01/2023 declaring the marriage of the appellant and the respondent solemnized on 20/01/2020 as illegal in view of the existence of the first marriage of the appellant performed by her with one Jitendra Kathane on 11/07/2018. The same is under challenge in the present appeal. 17. We have heard the learned counsel for the respective parties. 18. The learned counsel for the appellant argues that the alleged Judgment 7 FAC45-2023.odt marriage of the appellant with one Jitendra Kathane was not performed in accordance with Section 7 of the Hindu Marriage Act. She, therefore, submits that in absence of valid marriage the certificate issued by Ramprasad Maharaj Jaiswal Maratha Dharmashala, Markandadev, a registered Trust will not make the marriage valid one. She, therefore, submits that in absence of the valid marriage it cannot be said that the appellant performed the second marriage when his marriage is in existence. 19. It is argued that in absence of Jitendra Kathane as party to the petition, issuing declaration by the Family Court that the marriage of the appellant with Jitendra Kathane is in existence, is contrary to law and since Jitendra Kathane was the necessary party to the petition, in absence of him as party to the petition, the petition itself is not tenable. To substantiate her arguments, she placed reliance on the judgment of the Hon’ble Supreme Court of India in the case of Doly Rani ..vs.. Manish Kumar, reported in (2025) 2 SCC 587 and in the case of S. Nagalimgam ..vs.. Sivagami, reported in (2001) 7 SCC 487. 20. On the other hand, the learned counsel for the respondent strongly opposed the appeal and he submits that the evidence of the Priest as well as Secretary of the Trust is sufficient to show that on the date of marriage with Jitendra Kathane the appellant went to the temple of the trust and she Judgment 8 FAC45-2023.odt performed the marriage with one Jitendra Kathane. He submits that the certificate filed on record Exh.45 is sufficient to establish the fact of first marriage of the appellant. He, therefore, submits that the Family Court has rightly relied upon the same and declared that because her first marriage is in existence, performance of the second marriage with the respondent is illegal. In support of his submission he has placed reliance on the judgment of this Court in the case of Chandrabhagabai Ganpati Karwar ..vs.. Sambhaji Narhari Karwar, reported in AIR 2007 Bom. 201. 21. He further argues that proof of Saptapadi performance is not essential requirement of every Hindu marriage to be valid. He, therefore, submits that in the present matter only because the Priest has admitted that no Saptapadi was performed the first marriage of the appellant cannot said to be invalid. For this purpose, he has placed reliance on the judgment of the Karnataka High Court in the case of Neelavva Somanath Tarapur ..vs.. Divisional Controller, K.S.R.T.C., reported in AIR 2002 KAR 347. 22. In light of the rival contentions, we have perused the record and the impugned judgment and the order. 23. At this juncture, it is necessary to state here that the appellant has filed an application under Order 41 Rule 27 of the Code of Civil Procedure for Judgment 9 FAC45-2023.odt permission to adduce evidence in view of the documents namely conversation took place between father of the respondent and the brother of the appellant on 08/11/2019, i.e. before marriage of the appellant and the respondent. It is stated that the relevance of the said transcript of the conversation between both of them is that before the marriage father of the respondent had knowledge about the alleged first marriage of the appellant. 24. Since the validity of the first marriage of the appellant with one Jitendra Kathane is a principal ground involved in the present appeal as the learned Family Court held the marriage of the appellant with the respondent invalid by holding the alleged first marriage of the appellant as valid marriage, it would be appropriate to refer to the judgment of the Hon’ble Supreme Court of India in the case of Doly Rani (supra), wherein the Supreme Court had an occasion to examine the validity of the marriage under Section 7 of the Hindu Marriage Act. The Hon’ble Supreme Court of India has held thus : “15. Section 7 of the Act reads as under: 7. Ceremonies for a Hindu marriage.—(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.” 16. Section 7 of the Act speaks about ceremonies of a Hindu marriage. Sub-section (1) uses the word “solemnised”. The word “solemnised” means to perform the marriage with Judgment 10 FAC45-2023.odt ceremonies in proper form. Unless and until the marriage is performed with appropriate ceremonies and in due form, it cannot be said to be “solemnised”. Further, sub-section (2) of Section 7 states that where such rites and ceremonies include the saptapadi, i.e., the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. Therefore, requisite ceremonies for the solemnisation of the Hindu marriage must be in accordance with the applicable customs or usage and where saptapadi has been adopted, the marriage becomes complete and binding when the seventh step is taken. 17. Where a Hindu marriage is not performed in accordance with the applicable rites or ceremonies such as saptapadi when included, the marriage will not be construed as a Hindu marriage. In other words, for a valid marriage under the Act, the requisite ceremonies have to be performed and there must be proof of performance of the said ceremony when an issue/controversy arise. Unless the parties have undergone such ceremony, there would be no Hindu marriage according to Section 7 of the Act and a mere issuance of a certificate by an entity in the absence of the requisite ceremonies having been performed, would neither confirm any marital status to the parties nor establish a marriage under Hindu law. 18. to 23. ... 24. We further observe that a Hindu marriage is a sacrament and has a sacred character. In the context of saptapadi in a Hindu marriage, according to Rig Veda, after completing the seventh step (saptapadi) the bridegroom says to his bride, “With seven steps we have become friends (sakha). May I attain to friendship with thee; may I not be separated from thy friendship”. A wife is considered to be half of oneself (ardhangini) but to be accepted with an identity of her own and to be a co-equal partner in the marriage. There is nothing like a “better-half” in a marriage but the spouses are equal halves in a marriage. In Hindu Law, as already noted, marriage is a sacrament or a samskara. It is the foundation for a new family. 25. With the passage of centuries and the enactment of the Act, monogamy is the only legally approved form of relationship between a husband and a wife. The Act has categorically discarded polyandry and polygamy and all other such types of Judgment 11 FAC45-2023.odt relationships. The intent of the Parliament is also that there should be only one form of marriage having varied rites and customs and rituals. Thus, when the Act came into force on 18.05.1955, it has amended and codified the law relating to marriage among Hindus. The Act encompasses not only Hindus as such but Lingayats, Brahmos, Aryasamajists, Buddhists, Jains and Sikhs also who can enter into a valid Hindu marriage coming within the expansive connotation of the word Hindu.” 25. In the teeth of the above referred observations, let us move to the evidence in the present matter abut the validity of the marriage. In the present matter, a Priest, who allegedly performed the marriage of the appellant with Jitendra Kathane was examined as PW3. The relevant portion of his evidence is reproduced herein below in vernacular : ^^gs Eg.k.ks [kjs vkgs dh] mijksDr xzaFkke/;s yXukckcr ifgyk o lokZr egRokpk fo/kh gk dU;knku vkgs gs eyk ekfgrh vkgs- gs Eg.k.ks [kjs vkgs dh] dU;knku gs o/kqps oMhy] oMhy ulrhy rj frP;k ?kjkrhy oMhy/kkjh eaMGh fdaok eksBk Hkkm frps dU;knku djrks- gs Eg.k.ks [kjs vkgs dh] dU;knku fo/kh >kY;kf’kok; yXu iq.kZ >kys vls ekUkY;k tkr ukgh- gs Eg.k.ks [kjs vkgs dh] R;kuarj lqrizos”Bu gk fo/kh gksrks- gs Eg.k.ks [kjs vkgs dh] mijksDr nksUgh fo/kh R;k fno’kh >kysys uOgrs- eaxGlq= cka/krsosGh eh ^^loZ eaxy ekaxY;s] f’kos lokZFkZlk/khds] ‘kj.;s =;acds xkSjh] ukjk;.kh ueksLrqrs** ea=kspkj dsyk gksrk- gs Eg.k.ks [kjss vkgs dh] e.kheaxGlq= cka/krkauk ^^ekaxY; rarw uk.;su ee rthou gs ros daBs can~nkeh ‘kwHkos ‘kr tho ‘kjn% ‘kr%** gk ea= Eg.k.ks xjtsps vlY;kckcr mijksDr pkjgh xaFkzke/;s ueqn dsysys vkgs- gs Eg.k.ks [kjs vkgs dh] R;kuarjpk fo/kh lok”.k fgus o/kqP;k ik;kr tksMos ?kky;kckcr vkgs- gs Eg.k.ks [kjs vkgs dh] R;kosGh R;kaps lkscr dks.khgh lok”.k ulY;keqGs tksMos ?kky.;kpk fo/kh >kyk ukgh- gs Eg.k.ks [kjs vkgs dh] R;kuarj yktkgkse ¼o/kqP;k Hkkokus /kkukP;k ykg;k goukr ?kky.ks½ gk fo/kh dj.;kr ;srks- gs Eg.k.ks [kjs vkgs dh] R;kosGh gk fo/kh ns[khy >kyk ukgh- gs Eg.k.ks [kjs vkgs dh] dFkhr oj&o/kqps Qsjs ?ks.;kph fo/kh R;kosGh >kyh uOgrh- gs Eg.k.ks [kjs vkgs dh] R;kuarj lIrinhph fo/kh ns[khy >kyh uOgrh- gs Eg.k.ks [kjs vkgs dh] mijksDr fo/kh uarj eGoV Hkj.ks ¼ekax Hkj.ks½ gk vlrks- gs Eg.k.ks [kjs vkgs dh] mijksDr laiq.kZ fo/kh ikj iMY;kf’kok; yXu gs fo/khor ikj iMya vls Eg.krk ;s.kkj ukgh-** Judgment 12 FAC45-2023.odt 26. From the above referred oral evidence of the Priest, it is evident that he, in clear terms, admits that the most important ceremony regarding marriage is Kanyadaan. He further admits that the marriage is not considered to be complete until Kanyadaan is done. He further admits that Saptapadi was not held. He further admits that the marriage of the appellant and Jitendra Kathane cannot be said to have been solemnized since the above referred ceremonies were not performed. 27. The learned Family Court ignored the said evidence of the Priest and gave much importance to the certificate issued by the Trust certifying that the appellant performed the marriage with one Jitendra Kathane. Further the learned Family Court has misinterpreted Section 7 of the Hindu Marriage Act. Moreover, the findings recorded by the Family Court are contrary to the law laid down by the Hon’ble Supreme Court of India in the case of Doly Rani (supra). 28. Moreover, while dealing with the arguments about not making Jitendra Kathane as party to the petition, it has been held that no relief is sought against him. However, at the same time, the Family Court has declared the marriage of the appellant with Jitendra Kathane is in existence. While declaring the marriage of the appellant with Jitendra Kathane in existence or while holding that the appellant performed first marriage with Jitendra Judgment 13 FAC45-2023.odt Kathane, the learned Family Court failed to consider that such declaration may create many difficulties for Jitendra Kathane, namely (i) if he has got married, his marriage would also come under cloud, and would raise a question on its validity; (ii) the appellant can claim maintenance from him; and (iii) the appellant may claim right in his property etc. 29. Having held so, we are of the considered view that this is a fit case to remand the matter back to the Family Court to reconsider the evidence in light of the law laid down by the Hon’ble Supreme Court of India in the case of Doly Rani (supra) and further to decide whether Jitendra Kathane is a necessary party or not? And also, whether the appellant be permitted to lead additional evidence under Order 41 Rule 27 of the C.P.C. as sought before this Court, if such application is filed on remand. 30. Accordingly, we pass the following order : i) The Family Court Appeal is partly allowed. ii) The judgment and decree dated 18/01/2023 passed by Family Court, Bhandara in Petition No.A-89/2020 is hereby quashed and set aside. iii) The matter is remanded back to the Family Court, Bhandara to decide it afresh, in light of the above referred observations, after hearing both the parties, within a period of six months from today. Judgment 14 FAC45-2023.odt iv) The application under order 41 Rule 27 of the Code of Civil Procedure is disposed of with liberty to move the same before the Family Court, which shall be decided by the Family Court, in accordance with law, after hearing both the parties. The Family Court Appeal is disposed of accordingly. The pending Civil Applications, if any, shall stand disposed of. (PRAVIN S. PATIL, J) (ANIL S. KILOR, J) RRaut..