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Bombay High CourtIndian Cases

Maria Monica D’Souza vs Martin Santan Dias on 27 November 1991

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Bombay High Court
Maria Monica D’Souza vs Martin Santan Dias on 27 November, 1991
Equivalent citations: II(1994)DMC650
JUDGMENT

I.G. Shah, J.

1. The petitioner is a wife of the Respondent and their marriage was solemnized on 16th January, 1985, at St. Theresa’s Church, Bandra, (West) Bombay according to Roman Catholic religious rites. The Petitioner claims that at the time of the said marriage, who was not aware of that the Respondent was already married to one Liberata. Later on, it was disclosed that he was married to Liberata in 1984 and that said marriage was subsisting when her marriage with the Respondent took place in 1985. She, therefore, claims that her marriage with the Respondent is a nullity in view of the fact that the Respondent’s former wife was living at the time of her marriage with him and that the said first marriage was subsisting on the day of her marriage with the Respondent. The wife has also produced extract of certificate of her marriage with the Respondent and also a certified copy of an Agreement of Marriage between Liberata and the Respondent.

2. The Respondent though is duly served, did not appear before the Court and hence the Petition is proceeded ex parte.

3. The Petitioner has examined herself and has deposed about her marriage in 1985 according to the Christians rites with the Respondent. She has also produced an extracts of certificate of marriage issued by the Parish Priest. Her evidence establishes that she got married to the Respondent as claimed by her in 1985. She has also stated in her deposition that later on she found that the Respondent was already married on the date of her marriage with him to one Liberata and that the said marriage with Liberata had taken place in 1984 and that the said marriage subsisted on the date of her marriage with the Respondent. She has also produced a certified copy of the Agreement of Marriage between Liberata and the Respondent. The said evidence is sufficient to establish that the Respondent was a married person on the date of the marriage of the petitioner with the Respondent and that the said marriage was subsisted on that date. In view of this, the Petitioner has established that the Respondent, who is her husband had a wife living at the time of the marriage between her and the Respondent and that the said marriage with his former wife was in subsistence on the date of her marriage with the Respondent entitling her to a declaration under Section 19(4) of the Indian Divorce Act.

4. In the result, the wife has established that her marriage with the Respondent is a nullity and she is entitled to the said declaration. Hence, the Order :

5. It is declared that the marriage between the Petitioner and the Respondent solemnized on 16th January, 1985 is null and void. The Petitioner is also entitled to the costs of this Petition from the Respondent.

6. A certified copy of the final order be issued expeditiously and out of turn.