1 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 119 of 2023 Order Reserved on 06.11.2025 Order Delivered on 25.11.2025 1 - Durga Bai W/o Late Anujram Sahu, D/o Shri Hagruram Sahu, Aged About 50 Years R/o Ushlapur, Mohalla Katikhar Talab, Tahsil Takhatpur, District : Bilaspur, Chhattisgarh ... Applicant versus 1 - Devlal Sahu S/o Late Anujram Sahu Aged About 33 Years R/o Village Ushlapur, Post Sakari,tahsil Takhatpur, District Bilaspur Chhattisgarh. 2 - Bharatlal Sahu, S/o Late Anujram Sahu, Aged About 34 Years R/o Village Ushlapur, Post Sakari,tahsil Takhatpur, District Bilaspur Chhattisgarh. 3 - Premlal Sahu, S/o Late Anujram Sahu, Aged About 29 Years R/o Village Ushlapur, Post Sakari,tahsil Takhatpur, District Bilaspur Chhattisgarh. 4 - Smt. Saraswati Sahu W/o Shri Kishore Kumar Sahu Aged About 46 Years R/o Padawpara Kargiroad, Kota, District Bilaspur, Chhattisgarh. VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 ... Respondents (Cause-title taken from the Case Information System) ----------------------------------------------------------------------------------------------- For Petitioner :- Mr. Krishna Tandon, Advocate For Respondents:- Mr. R.S. Patel, Advocate ----------------------------------------------------------------------------------------------- SB- Hon'ble Shri Justice Amitendra Kishore Prasad CAV Order 1. The applicant/defendant has filed the present revision under Section 115 of the CPC questioning the legality and validity of the order dated 05.07.2023 passed in Civil Suit No. 309-A/2018 by the Second Additional Judge, Family Court, Bilaspur, whereby the application filed by the defendants under Order VII Rule 11 of the CPC has been rejected. The Family Court held that the subject matter of the suit requires adjudication on merits and, therefore, the suit cannot be dismissed at the threshold. 2. The brief facts of the case are that the respondents/plaintiffs have filed a civil suit before the Family Court, Bilaspur seeking a declaration that the alleged marriage between his deceased father and the present applicant/defendant is null and void, alleging that after the death of his mother, Smt. Phoolbai Sahu, the applicant took advantage of his father’s loneliness, pressurized him to execute a Will in her favour, got the entire property transferred, entered her name in the service records as wife, and after his father’s death even filed proceedings under Section 125 Cr.P.C.; whereupon, the applicant/defendant appeared and filed an 3 application under Order 7 Rule 11 CPC contending that the suit is not maintainable as under Section 11 of the Hindu Marriage Act a declaration of nullity can be sought only by either party to the marriage, and therefore the son has no locus to challenge the marriage after the death of his father; however, the learned Family Court dismissed the said application holding it to be a tactic to delay the trial, leading to the filing of the present petition. 3. Learned counsel for the applicants/defendants submitted that an application under Order VII Rule 11 of the CPC was moved before the Family Court on the ground that the plaintiffs, who are the son and daughter of late Anuj Ram Sahu, are seeking annulment of the marriage solemnised between late Anuj Ram Sahu and their step-mother, which is not permissible under law. It is contended that under Section 11 of the Hindu Marriage Act, a marriage between two Hindus can be declared void only at the instance of either of the parties to the marriage. Since neither of the parties to the marriage has filed a suit seeking declaration that their marriage is void, the plaintiffs, claiming to be the children of late Anuj Ram Sahu, cannot seek such a relief. Therefore, it is argued that the suit is not maintainable in law and is liable to be dismissed at the threshold. 4. On the other hand, learned counsel for the respondents/plaintiffs submits that the issues raised by the defendants cannot be adjudicated at the stage of an application under Order VII Rule 11 4 of the CPC. It is argued that the question regarding the validity of the marriage between late Anuj Ram Sahu and defendant No. 1, as sought to be challenged, can be decided only in the regular course of trial after recording evidence of the parties. It is further submitted that, in any event, late Anuj Ram Sahu and Durga Bai had contracted marriage, and the children born out of their relationship are entitled to inherit property under the Hindu Succession Act. Since the core issue in dispute relates to the entitlement to the property left behind by late Anuj Ram Sahu, the civil suit is maintainable and cannot be dismissed at the threshold. 5. I have heard learned counsel for the parties and perused the material available on record. 6. From a perusal of the record, it is evident that the suit was filed by the sons and daughter of the late Anuj Ram Sahu against the defendant herein, namely Durga Bai, seeking a declaration that the marriage solemnised between late Anuj Ram Sahu and Durga Bai is null and void. This is the primary relief claimed by the plaintiffs. 7. From the perusal of the plaint, it appears that the plaintiffs are disputing the validity of the marriage between the parties, contending that the defendant is not the legally wedded wife of the late Anuj Ram Sahu. It is further alleged that the defendant is posing as the wife of late Anuj Ram Sahu with the intention of wrongfully acquiring his property. The parties are Hindus and are, 5 therefore, governed by Hindu law. The defendant has executed a will in her favour and is attempting to register the same to claim the property. Accordingly, the plaintiffs contend that the purported marriage between the late Anuj Ram Sahu and the defendant Durga Bai is required to be declared null and void. 8. At this stage, it is relevant to refer to Section 11 of the Hindu Marriage Act, which reads as follows:- “11. Void marriages. Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5. COMMENTS Injunction restraining the other from performing bigamous marriages There is no provision in the Hindu Marriage Act, 1955 under which a wife, apprehending her husband's taking second wife, can apply for and obtain an injunction restraining him from doing so. She cannot do so under section 11 or 17 or any other provision of the Act; Umashanker v. Radhadevi, AIR 1967 Pat 220.” 9. From a bare perusal of the aforesaid section, it is evident that a declaration of a marriage being null and void can only be sought by the parties to the marriage and not by any other person. In the 6 present case, during the lifetime of late Anuj Ram Sahu, no application was filed seeking a declaration that the marriage between the parties was null and void. Similarly, the defendant herself has not moved any application seeking such a declaration. Therefore, the legal representatives of late Anuj Ram Sahu, i.e., his son and daughter, cannot maintain a claim seeking a declaration that the marriage between late Anuj Ram Sahu and the defendant herein is null and void. 10. The Madras High Court in the matter of Lakshmi Ammal vs. Ramaswami Naicker and another reported in AIR 1960 MAD 6 has held as under:- “(5) There is nothing extraordinary or illegal in this. Nor is the principle of equal law and equality before the law, guaranteed under Art. 14 of the Constitution affected. There are several laws conferring rights on tenants, pannaiyals, etc. not conferred on people not answering to those descriptions. There are several offences, like adultery, where only the husband and some others can file a complaint or compound the offence. To say that any man in the street or city or country is equally interested in preventing the commission of adultery and therefore must be given the same right to file a complaint or to compound the offence, like the husband will not be valid. (6) Again it is not only the first wife who acquires some rights under Act XXV of 1955. Even the 7 first wife's legitimate children will acquire some rights, as their shares in the property may be affected by children born to the second wife, if held to be legitimate. It is not Mr. Sundaram Aiyar's contention that those legitimate children of the first wife also can file applications under S. 11. The legislature has restricted the summary remedy of an application under Sec. 11 to be actual parties to the void marriage, so that third parties may not interfere harassingly by taking advantage of this cheap remedy of an application. (9) Mr. Sundaram Aiyar urged that, while he could understand this preference in favour of innocent and duped parties to a second and void marriage, Sec. 11 does not confine the relief of an application to the innocent party, but extends it even to guilty parties, who had full knowledge before marriage, and that innocent parties, like the appellant, should not be given a lesser right than such guilty parties. This argument too cannot stand. Our law has moved very far from the ancient law of revenge and vengeance like the laws of Hammurabi. Laws are in modern times, more concerned with remedying evils in an enlightened way, and have abandoned the savage way of hitting out against malefactors. The law will not nowadays, compel anybody to live in sin or in crime and will allow them, and indeed encourage them, to get out of sin or crime at the earliest possible moment. The parties vitally affected by the void marriage are, of course, the parties thereto, namely, the husband 8 and wife, though the first wife, the legitimate children by her, etc., may also be affected to a lesser extent. The law, in its wisdom, has given a preferential treatment to the husband and wife vitally affected, and that comes under "proper classification" and cannot be called an "illegal discrimination" offending Art. 14 of the Constitution, or any other Articles of the Constitution. (10) In the end, therefore, I confirm the order of the lower court holding that the appellant was not entitled to present on application under S. 11 of Act XXV of 1955 for declaring the second marriage illegal and void but could only file a suit, if so advised. I dismiss this appeal, but, in the circumstances, without costs, as this is the first time the point has come up for decision by this court.” 11. Further, the Allahabad High Court in the matter of Birendra Bikram Singh and others vs. Kamala Devi reported in AIR 1995 All 243 has held as under:- “8. As far as the contention of the appellants that the Courts below have committed an illegality declaring the marriage of defendant No. 1 with defendant No. 2 as null and void on the petition of the plaintiff, who was not a party to the said marriage is concerned, it is totally misconceived because it is a decree, of nullity which may be passed by the Court……………. 9 12. In the case of Smt. Aina Devi v. Bachan Singh reported in AIR 1980 All 174 it was held: “Section 11 specifically enables either party to the marriage to have it declared null and void by a decree of nullity, against the other party. Section 11 does not confine the right to present a petition thereunder to the aggrieved party alone. On the other hand, it expressly confers the right to sue on either party to a marriage which contravenes any of the conditions of clauses (i), (iv) and (v) of Section 5". 13. It was also held; "the petitioner having proved by positive evidence that the first respondent already had a married wife living in the person of respondent 2 was entitled to a decree declaring it as null and void. It could not be said that the petitioner was taking any advantage of her own wrong, for the petitioner's allegation that she was already married thrice before had been denied by the first respondent. which meant that even if it were a fact that the petitioner had three husbands of previous marriages living when the first respondent married her, the first respondent was not at all aggrieved by that fact." 14. In the case of Lakshmi Ammal v. Ramaswami Naicker (sic) and another. It was held; "The phase "either party thereto" can only mean two persons namely, the actual parties to the marriage. Any marriage requires only two 10 parties, and no third party. It will be contrary to sense and commonsense alike to bring in co- wife, co-husband, concubine, keep, etc., on the ground that they also perform much the same functions, as the husband and wife, the parties to the void marriage. A co-wife cannot become "a wife, under the second marriage" for she is already a wife under first marriage, and cannot be married again. to her husband, at any rate without the intervention of a divorce and cessation of marriage for some time. Hence the first wife cannot apply under Section 11 for declaring the marriage of the second wife as void under Section 17. The first wife is however not left remediless. She can file a suit, under the ordinary law, for a declaration that the marriage of her husband with the second wife is illegal and void, under Act XXV of 1955. The law, in its wisdom, has given a preferential treatment to the husband and wife vitally affected, and that comes under "Proper classification cannot be called an "illegal discrimination offending Art. 14 of the Constitution, or any other Articles of the Constitution." 15.In view of the Sections 11 and 17 of the Hindu Marriage Act there is no remedy in case her husband married with another lady. In common law she has right to file a suit for declaration that the marriage of her husband with second wife is illegal and void. 16. Hence, the contention of the learned counsel for the appellants that on a suit filed by the first 11 wife, the marriage of her husband with another lady subsequently would not lie, has no substance. The appeal is, accordingly dismissed. Interim order, if any, stand discharged.” 12. As per the aforesaid dictums laid down by the High Courts, it is clear that only the two parties to a void marriage can file a petition under Section 11 of the Hindu Marriage Act, because the phrase “either party thereto” excludes third parties such as a first wife or her children. This limitation is valid and does not violate Article 14 of the Constitution of India. A first wife, though affected, cannot use Section 11 of the said Act, but she can file a regular civil suit to declare her husband's second marriage illegal and void. The law prefers that those directly involved in the void marriage seek the remedy, but it does not leave the first wife without recourse. 13. In the present case, since the plaintiffs are not parties to the marriage and are merely the sons and daughter of the late Anuj Ram Sahu, they are not entitled to file a suit seeking a declaration that the marriage between late Anuj Ram Sahu and the defendant is null and void. Accordingly, the application filed by the plaintiffs under Order VII Rule 11 of the CPC is liable to be allowed. 14. The trial Court has committed a grave error of law by failing to consider this aspect and by holding that the issue in dispute requires adjudication on merits. Since the primary relief sought in 12 the suit is a declaration that the marriage between late Anuj Ram Sahu and the defendant is null and void, the trial Court ought to have allowed the application filed under Order VII Rule 11 of the CPC, in view of Section 11 of the Hindu Marriage Act. The trial Court, however, did not do so. Accordingly, the revision preferred by the defendant seeking dismissal of the suit is well-founded. The application filed by the defendant under Order VII Rule 11 of the CPC is hereby allowed. 15. It is clarified that Order VII Rule 11 of the CPC is applicable in cases where, from the averments of the plaint itself, it appears that the suit is barred by law, including under Order VII Rule 11(d) of the CPC. In the present case, it is evident that the suit is barred by law. The plaintiffs are not entitled to file a suit seeking a declaration that the marriage between their father and the defendant is null and void. 16. Accordingly, the revision petition is allowed. sd/- (Amitendra Kishore Prasad) Judge Vishakha The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 06.11.2025 25.11.2025 25.11.2025 25.11.2025