Patna High Court
Manoj Kumar @ MunnaversusNita Bharti
- Decided
- Disposal
- DISPOSED
Holding
The marriage, though validly solemnised, is dissolved on the ground of frustration/cruelty, and the appeal is allowed.
Summary
The appellant Manoj Kumar and respondent Nita Bharti were married under the Special Marriage Act on 4 October 2007. Nita alleged cruelty, dowry demands, caste abuse and an attempted murder by Manoj, and filed a divorce petition under Section 27 of the Act. The Family Court dismissed the petition, holding the marriage void ab initio for alleged non‑compliance of Section 12, and therefore refused to consider any divorce relief. On appeal, the Patna High Court examined the marriage certificate, held it conclusive evidence of a valid marriage under Section 13, and rejected the lower court’s interpretation of Section 12. Relying on the doctrine of frustration and the facts of prolonged separation, subsequent remarriage and a child, the Court dissolved the marriage on the ground of cruelty and frustration. The appeal was allowed and a decree of dissolution was ordered.
Issues considered
- Whether the marriage solemnised under the Special Marriage Act is void ab initio for alleged non‑compliance of Section 12
- Whether the petition for divorce under Section 27 is maintainable
- Whether the doctrine of frustration can be invoked to dissolve a subsisting marriage
- Whether the marriage certificate is conclusive evidence of a valid marriage
Legislation cited
- Indian Contract Act, 1872 — s. 56
- Special Marriage Act, 1954 — s. 11, 12, 13, 27, 30
Subjects
- Special Marriage Act
- divorce
- void marriage
- Section 12
- Section 13
- Section 27
- cruelty
- doctrine of frustration
- marriage certificate
- remarriage
- child welfare
- dowry
- caste discrimination
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.151 of 2023
In
FIRST APPEAL No.47 of 2018
======================================================
Manoj Kumar @ Munna Son of Yadunandan Prasad Yadav, Resident of
Mohalla - Station Road, Rajendra Nagar, Ward No. 30, P.S. - Begusarai
Town, Distt. - Begusarai.
... ... Appellant
Versus
Nita Bharti Wife of Manoj Kumar, Daughter of Bishundeo Paswan,
resident of Village - Baghi, Ward No. 25, P.S. - Begusarai, Muffasil,
District- Begusarai.
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr.Alok Kumar Sinha, Advocate
Mr.Pramod Man Bansh, Advocate
For the Respondent/s : Mr.Kumar Vikram, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)
Date : 17.03.2026
Heard learned counsel appearing on behalf of the
appellant and learned counsel for the respondent.
2. The present appeal taken on our board, which
preferred against the impugned judgment dated 28.02.2018 as
passed by learned Principal Judge, Family Court, Begusarai in
Divorce Case No. 69 of 2013, whereunder the petition as
brought by the applicant/respondent, Nita Bharti, who is the
wife of O.P./appellant namely, Manoj Kumar @ Munna filed
under section 27 of the Special Marriage Act, 1954, was
dismissed considering that marriage between the parties was
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“void ab initio”, therefore, the question of divorce does not
arise. Being aggrieved with aforesaid judgment, present appeal
was preferred by opposite party/appellant, who is the husband of
the respondent.
3. The factual aspect of the case of
applicant/respondent namely, Nita Bharti suggest that her
marriage was solemnized with OP/appellant namely, Manoj
Kumar @ Munna as per provisions available under Special
Marriage Act before Special Marriage Officer, Teghra,
Begusarai, on 04.10.2007. She joined her matrimonial home
with OP/appellant and lived there for 4-5 days, whereafter she
was assaulted and abused calling her caste name publicly as she
was the member of scheduled caste community by the
OP/appellant and his family members, who had further raised a
demand of Rs. Five Lakhs in cash and one Katha of land at
Begusarai, due to non-fulfillment of which, she was drove from
her matrimonial home.
4. It also transpires that marriage was a love marriage
without any intimation to parents of the parties and
subsequently the applicant/respondent qualified the medical
entrance examination and joined her MBBS course in Mahatma
Gandhi Medical Science College, Vardha in the year 2013.
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During aforesaid period, the OP/appellant visited to her on
several occasions and also tortured her during said visit. On one
of such occasion i.e. on 20.02.2013, the appellant made an
attempt to commit murder of applicant/respondent, Nita Bharti
by strangulating her, upon refusal of demand of Rs. 25,000/-.
The information qua aforesaid occurrence had given to police,
who did not take any action in view of the relationship of
applicant/respondent with OP/appellant. On 25.02.2013, the
applicant/respondent came to her parental place Baghi,
Begusarai, and narrated the entire facts to her parents, who
called a panchayat on 18.03.2013 at their place, wherein the
OP/appellant namely, Manoj Kumar @ Munna with his parents
were present and again raised their demand qua dowry and
humiliated the applicant/respondent on caste line, whereafter a
criminal complaint case No. 530C/2013 was lodged.
OP/appellant namely, Manoj Kumar @ Munna is from different
caste (not a member of scheduled caste community) and he,
therefore, alleged to humiliate the applicant/respondent publicly
in her caste name being the member of scheduled caste
community.
5. Citing all such reasons, the divorce petition was
preferred by applicant/respondent, Nita Bharti for dissolution of
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her marriage with Manoj Kumar @ Munna (OP/appellant) with
a demand of Rs. Five Lakhs as permanent alimony. Considering
the pleading of the parties, the learned Family Court, Begusarai
framed the following issues for just and proper decision of the
case, which are as under:
I. Whether the matrimonial petition as framed is
maintainable?
II. Whether the O.P. (appellant) has after the
solemnization of the marriage treated the petitioner
with cruelty?
III. Whether O.P. (appellant) has deserted the
petitioner for a continuous period of more than two
years immediately preceding the presentation of the
petition?
IV. To what relief if any the parties are entitled?
6. To substantiate the claim, the applicant/respondent
Nita Bharti has examined altogether four witnesses namely,
PW1 Nita Bharti (applicant/respondent), PW2 Vishundeo
Pswan, the father of the applicant/respondent, PW3 Murlidhar
Ram and PW4 Ramudgar Singh. Besides these oral evidence,
the following documentary evidences were exhibited before the
learned Family Court on behalf of appellant/respondent, which
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are as under:
Exhibit ‘1’ – Complaint application of Complaint Cas
No. 534C/2013;
Exhibit ‘2’ – Ordersheet in complaint case No.
534C/2013;
Exhibit - ‘3’ – Plaint of Matrimonial Case No.
81/2013;
Exhibit – ‘4’ – Evidence of respondent Manoj Kumar
@ Munna in Matrimonial Case No. 81/2013;
Exhibit ‘5’ – Certified copy of the Complaint Case No.
645C/2013; and
Exhibit ‘6’ – Order of the Hon’ble High Court, Patna
passed in Criminal Miscellaneous No. 1846/2014.
7. Contrary to the aforesaid OP/appellant Manoj Kumar
@ Munna has examined four witnesses namely, DW-1 Manoj
Kumar (applicant himself); DW-2 Vinod Kumar; DW-3
Dhayant Kumar and DW-4 Sanjeet Kumar.
8. Besides these oral evidence OP/appellant has also
relied upon the following Exhibits:
Exhibit ‘A’ ‘B’, ‘B(1)’ & ‘B(2)’ which are the
information under RTI;
Exhibit ‘C’ to ‘C/12 - Railway Tickets; and
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Exhibit ‘D’ Series - The bank account details.
9. Considering the oral evidences, exhibits and
materials available on record, the learned Family Court,
Begusarai decided Issue No. 1 i.e. maintainability of the petition
preferred by respondent Nita Bharti at the first instance and
arrived on conclusion that as compliance of section 12 of the
Special Marriage Act was not made, therefore, the marriage
between the parties were not solemnized legally and as such the
question of divorce does not arises and, therefore, on the ground
of maintainability the application preferred by the
applicant/respondent was dismissed with certain objectionable
observations in para ‘7’ and ‘8’ of the impugned judgment,
which completely appears unwarranted. The rest of the issues
were not answered by the learned Family Court in view of the
finding of Issue No. 1 as discussed aforesaid.
Argument on behalf of the appellant
10. Learned counsel appearing for the appellant
submitted that the judgment of learned Family Court is
completely perverse on its face for the reason that the Issue No.
1 qua maintainability was decided perversely particularly when
same appears admitted by applicant/respondent herself.
Admitting the marriage only, the petition was preferred by the
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applicant/respondent before learned Family Court regarding
dissolution of her marriage with OP/appellant under section 27
of the Special Marriage Act.
11. It is submitted that the marriage was solemnized in
terms of Special Marriage Act, 1954, whereafter a certificate on
behalf of Marriage Officer was issued under the Act as per its 4 th
Schedule in terms of section 13 of the Act. It is submitted that
only after compliance of section 12, the certificate under section
13 of the Act under 4th Schedule can be issued by Marriage
Officer, which is the conclusive evidence of the fact that
marriage was solemnized.
12. It is pointed out that the compliance of section 11
was duly made and as for the reason that section 12 is nowhere
mention in the schedule, it was presumed by learned Family
Court that same was not complied with and therefore, perversely
it was held that the marriage between the parties was not
solemnized at any point of time, and, therefore, same is “void
ab initio” and as such there is no occasion to press any
application on behalf of applicant/respondent to seek divorce.
13. It is submitted that DW-2 & DW-4 who are the
witnesses of marriage certificate, categorically deposed that
after solemnization of marriage the applicant/respondent went
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along with OP/appellant on motorcycle.
14. Learned counsel for the appellant relied upon the
legal report as available through Tamali Bhattarcharjee Vs.
Samik Baidya reported in 2003 SCC OnLine Cal 558 and
Priyanka Tarapad Bannerji and Another Vs. State of
Maharashtra and Others reported in 2025 SCC OnLine Bom
493.
Argument on behalf of Respondent
15. Learned counsel appearing on behalf of the
applicant/respondent/wife, submitted that respondent came to
know about the present pending proceeding somewhere in the
1st week of November, 2025, whereafter she entered into
appearance through her Vakalatnama dated 07.11.2025.
16. It is submitted that since through impugned
judgment the marriage of respondent with appellant was
declared ‘void’ as same was not said to be performed in terms of
law, she solemnized her marriage with one Saroj Kumar on
18.12.2021 and out of said wedlock, they have now one child of
one year. It is submitted referring to the counter affidavit dated
27.01.2026 that appellant has spent some money for respondent
out of love and care as a friend and has not filed any case for
claiming compensation for the same. It is also pointed out that
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the respondent also spent huge amount of money on the
appellant from her stipend as she received monthly during her
study period. It is submitted that considering the peculiar facts
and circumstances, this application is liable to be dismissed.
17. Learned counsel relied upon the legal report of
Hon’ble Allahabad High Court as available through Nirmal
Dass Bose Vs. Km. Mamta Gulati reported in 1996 SCC
OnLine All 586.
Conclusion
18. Having heard learned counsel appearing for the
parties and upon perusal of the record, it transpires to us that
PW-1 applicant/respondent namely, Nita Bharti, PW-2 her father
(Vishundeo Paswan), PW-3 Murlidhar Ram and PW-4
Ramudgar Singh, categorically admitted before the learned
Family Court through their examination-in-chief on affidavit
that the marriage of applicant/respondent namely, Nita Bharti
was solemnized with OP/appellant namely, Manoj Kumar @
Munna as per Special Marriage Act on 04.10.2007 in the office
of Special Marriage Officer, Teghra, Begusarai (Bihar).
19. PW-1 Nita Bharti, in her cross examination
supported the allegation of cruelty and caste name abuse as she
was the member of scheduled caste community, but in cross
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examination she categorically stated that she solemnized her
marriage with OP/appellant namely, Manoj Kumar @ Munna
out of her own sweet-will before the Marriage Registrar, Teghra,
Begusarai, which was also supported by appellant and his
witnesses during the trial.
20. Therefore, without discussing any further witnesses,
it can be arrived safely on the conclusion that the marriage
between the parties admittedly solemnized before the Special
Marriage Officer, Teghra. The genuineness of marriage
certificate (under Schedule 4th), which was not believed by the
learned Family Court was also not disputed by the
applicant/respondent during the trial.
21. We never came across such a perverse legal
interpretation of law as we are witnessing in the present case.
Learned Family Court completely ignored the provisions of
section 13(2) of the Special Marriage Act, that “the marriage
certificate shall be deemed to be conclusive evidence of the fact
that marriage under this Act has been solemnized ……..”
22. To clarify our aforesaid observation, it would be
apposite to reproduce paragraph 11, 12 & 13 of the Special
Marriage Act, 1954, which are as under:
“11. Declaration by parties and witnesses. – Before the
marriage is solemnized the parties and three witnesses
shall, in the presence of the Marriage Officer, sign a
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declaration in the Form specified in the Third Schedule to
this Act, and the declaration shall be countersigned by the
Marriage Officer.
12. Place and form of solemnization. – (1) The marriage
may be solemnized at the office of the Marriage Officer, or
at such other place within a reasonable distance therefrom
as the parties may desire, and upon such conditions and
the payment of such additional fees as may be prescribed.
(2) The marriage may be solemnized in any form which
the parties may choose to adopt:
Provided that it shall not be complete and binding on the
parties, unless each party says to the other in the presence
of the Marriage Officer and the three witnesses and in any
language understood by the parties, - “1.(A), take thee
(B), to be my lawful wife (or husband).”
13. Certificate of marriage. – (1) When the marriage has
been solemnized, the Marriage Officer shall enter a
certificate thereof in the Form specified in the Fourth
Schedule in a book to be kept by him for that purpose and
to be called the Marriage Certificate Book and such
certificate shall be signed by the parties to the marriage
and the three witnesses.
(2) On a certificate being entered in the Marriage
Certificate Book by the Marriage Officer, the Certificate
shall be deemed to be conclusive evidence of the fact that
a marriage under this Act has been solemnized and that
all formalities respecting the signatures of witnesses have
been complied with.”
23. It would be apposite to reproduce the Fourth
Schedule of the Special Marriage Act, 1954, which reads as
under:
“THE FOURTH SCHEDULE
(See section 13)
CERTIFICATE OF MARRIAGE
I, E.F., hereby certify that on the ………. day
of ………… 20…….., A.B. and C.D.* appeared
before me and that each of them, in my presence
and in the presence of three witnesses who have
signed hereunder, made the declarations required
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by section 11 and that a marriage under this Act
was solemnized between them in my presence.
(Sd.) E.F.,
Marriage Officer for
(Sd.) A.B.,
Bridegroom.
(Sd.) C.D.,
Bride.
(Sd.) G.H.
(Sd.) I.J. Three witnesses
(Sd.) K.L.
Dated the … …...day of ….. ….. 20… …..
*Herein give particulars of the parties.”
24. In this context, it would be apposite to reproduce
relevant part of the impugned judgment which leads to the
conclusion to declare the marriage between the parties as “void
ab initio” which are as under:
“In this connection perusal of section 12 of the Special
Marriage Act is very essential because it deals with
solemnization of marriage. Section 12 of the Act
envisage that marriage may be solemnized at the office
of the Marriage Officer or such place within a
reasonable distance there from in any form suited to the
parties. But marriage shall not be complete and binding
unless such party says before the Marriage Officer and
the three witnesses- (1)(A) take (B) to be my lawful wife
(or her husband).
On bare reading of section 12 of Special Marriage Act
shows that marriage can be completed and binding only
when the parties of the marriage declares that he takes
other party as wife or husband in presence of three
witnesses and the Marriage Officer.
However in the plaint it only mentioned that marriage
solemnized before Special Marriage Magistrate, Teghra.
Presence of any witness has not been mentioned in the
plaint which is important ingredient of the completion of
the marriage under section 12 of the Act.
In this regard it is pertinent to mention that photostat
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copy of marriage certificate issued under Special
Marriage Act by Special Marriage Magistrate ARvind
Kumar Khan shws that in presence of witness Vinod
Kumar, Sanjeet Kumar and Rajesh Kumar, the
respondent Manoj Kumar @ Munna and applicant Neeta
Bharti has made declared declaration as per provision of
section 11 of the Act and solemnized marriage before
him.
Section 11 does not deal with solemnization of the
marriage under Special Marriage Act rather section 11
deals with declaration by parties and witnesses which
says that before the marriage solemnized, the parties and
three witnesses shall in the presence of Marriage Officer
signed on the declaration in the form schedule three and
declaration shall be counter signed by the officer.
Since declaration is to be made and signed and counter
signed by the parties before the Marriage Officer as per
section 11 of the Special Marriage Act.
It is pertinent to note that it is practice and tradition of
the society that after marriage the bride is assimilated in
the caste of bridegroom. But, from the assertions in the
plaint it appears that applicant Neeta Bharti has much
affiliation with her parental caste as Paswan who
happens to be scheduled caste and since allegedly the
applicant had been publicly humiliated by the respondent
Manoj Kumar @ Munna who happens to be Yadav by
caste, and his family members in panchayat also because
of applicant Neeta Bharti being scheduled caste which is
one of the ground of filing of the case and dissolution of
marriage.
As such neither averment in the plaint nor marriage
certificate issued by Marriage Officer, Teghra, the
requirement of marriage of being completed and binding
by proclamation of parties that he takes the other party
as his lawful wife or husband as required under section
12 of the special marriage Act, has been fulfilled.
Since the marriage of the applicant Neeta Bharti and the
respondent Manoj Kumar @ Munna was not in
accordance with section 12 of the Special Marriage Act
hence the marriage certificate itself does not make
marriage bind and complete. In absence of marriage no
question of divorce. In such circumstances issue no. 1 is
answered in negative and decided against the applicant
in favour of the respondent Manoj Kumar @ Munna.”
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25. It is relevant to reproduce the certificate of marriage
between the parties as issued under ‘Schedule 4’ of the Special
Marriage Act, which are as under:
26. From the aforesaid observation the sole reason
assigned to arrive to the conclusion to declare the marriage
“void ab initio” is that: “As such neither averment in the plaint
nor marriage certificate issued by Marriage Officer, Teghra, the
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requirement of marriage of being completed and binding by
proclamation of parties that he takes the other party as his
lawful wife or husband as required under section 12 of the
Special Marriage Act, has been fulfilled.” It was also observed
that “the marriage certificate itself does not make marriage
binding and complete.”
27. Therefore, from the aforesaid observation, it can
safely gathered that due to non-fulfillment of legal requirement
of section 12 of the Special Marriage Act, the marriage between
the parties was declared “void ab initio”. Though, it was
accepted by learned Family Court that the marriage certificate
was issued by the Special Marriage Officer, Teghra, Begusarai
in prescribed format.
28. From the plain reading of section 12 of the Special
Marriage Act, we find that in terms of section 12(1) of the Act,
generally the marriage may be solemnized between the parties
at the office of Marriage Officer, or at such other place within a
reasonable distance therefrom as the parties may desire with
additional fees and cost as prescribed. With plain reading of
section 12(2) of the Act, it also appears that the parties may
solemnize their marriage in any form unless each party says to
the other party in the presence of the Marriage Officer and the
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three witnesses and in any language understood by the parties
that “I (A), take thee (B), to be my lawful wife (or husband).”
29. From the marriage certificate of the parties which
was issued by Special Marriage Officer, Teghra, Begusarai in
terms of Schedule 4 (as per section 13 of the Act), it appears that
the marriage between the parties was solemnized at the Office
of Marriage Registrar in presence of three witnesses namely,
Vinod Kumar (DW-2), Sanjeet Kumar (DW-4) and Rajesh
Kumar, which was solemnized on 4th October, 2007, after
making the required declaration under section 11 of the Act,
and, thereafter, it was only certified that the marriage was
solemnized between the parties “under the Act”. Meaning
thereby that the proviso of sub-section (2) of section 12 of the
Act, as mentioned aforesaid, was also fulfilled, which is the
only criteria, in absence of which, it can be said that the
marriage between the parties was not completed and binding on
the parties.
30. It would be apposite to reproduce para 10 of the
Tamali Bhattarcharjee’s case (supra), which reads as under:
“10. The learned Advocate for the petitioner has much relied on
the evidence of the petitioner as P.W. 1 which goes unchallenged
to establish that the marriage between the parties was not
solemnized. The petitioner in her evidence at page 22 of the
Paper Book has only stated that there was no solemnization in
connection with the marriage. There is no specific allegation on
her part that the minimum declaration which is required under
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the proviso to section 12(2) of the Act has not been made. On
the other hand it is an admitted position that after the marriage
a certificate of marriage had been issued by the appropriate
authority and in that background it is well settled that the
issuance of certificate is a strong indication that all the
formalities prior to issuance of such certificate have been
complied with. Section 13 of the Act deals with the Certificate of
Marriage and it lays down very clearly that when the marriage
has been solemnized, the Marriage Officer shall enter a
certificate thereof specified in the schedule in a book to be kept
by him i.e. to say Marriage Certificate Book and clause (2) of
the said section further lays down that on a certificate being
entered into the Marriage Certificate Book by the Marriage
Officer the certificate shall be deemed to be conclusive evidence
of the fact that a marriage under the Act has been solemnized.
Section 18 of the Act further lays down regarding effect of
registration of marriage and clearly indicates that where a
certificate of marriage has been finally entered into the
Marriage Certificate Book the marriage shall be deemed to be a
marriage solemnized under the Act from the date of entry in
such Book. From all these provisions it is evident that it is not
open to the petitioner to challenge the marriage simply on the
allegation that marriage was not solemnized as per the
provisions of the Act.”
31. It would further be apposite to reproduce para 5 & 6
of Priyanka Tarapad Bannerji’s case (supra), which reads as
under:
5. Once a Marriage Certificate was issued to the parties under
the Special Marriage Act, it is conclusive evidence of the
legality and solemnity of the marriage until it is set aside for
any valid reason by an appropriate authority or by the Court of
law. The law would not permit any person or authority to
discard or not to give effect to such marriage certificate.
6. We may also observe that Section 13 of the Special Marriage
Act, 1954 provides for “Certificate of marriage” which ordains
that when the marriage has been solemnized, the Marriage
Officer shall enter a certificate thereof in the form specified in
the Fourth Schedule in a book, to be kept by him for that
purpose and to be called the Marriage Certificate Book and
such certificate shall be signed by the parties to the marriage
and the three witnesses. Sub-section (2) provides that on a
certificate being entered in the Marriage Certificate Book by the
Marriage Officer, the Certificate shall be “deemed to be
conclusive evidence” of the fact that a marriage under the
Special Marriage Act has been solemnized and that all
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formalities respecting the signatures of witnesses have been
complied. When such is the provision and the sanctity, the law
would accord to a marriage certificate issued by the Registrar,
which continuous to be legal and valid, the petitioner cannot
have any grievance. The marriage certificate dated 23
November 2023 issued to the petitioner and her spouse Mr.
Rahul Verma is legal and valid and fully recognized by the
Indian law. There cannot be any other opinion.
32. Moreover, the suit by the applicant/respondent Nita
Bharti was not brought for declaration of marriage as void rather
same was brought for dissolution of marriage. Interestingly, two
witnesses of marriage, who are Vinod Kumar (DW-1) and
Sanjeet Kumar (DW-2) who are witnesses of marriage
certificate in their clear terms of deposition stated that marriage
of OP/appellant was solemnized with respondent before the
learned trial court but their testimony qua solemnization of
marriage were completely ignored by the learned Family Court.
33. Therefore, interpretation of section 12 of the
Special Marriage Act as made by the learned Family Court
appears completely perverse on its face, where after due
compliance of all the legal requirements, the marriage certificate
was issued after due entry in marriage register in support of
solemnization of marriage by the learned Marriage Registrar,
Teghra, Begusarai (Bihar).
34. Non-taking consideration of testimony of DW-2 &
DW-4 also made the impugned judgment bad in the eyes of law
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and, moreover, the relief which was not sought for was granted
by ignoring the factual aspects raised on oath that admittedly the
marriage of applicant/respondent namely, Nita Bharti was
solemnized with OP/appellant, where prayer was sought for
dissolution of their marriage under section 27 of the Special
Marriage Act.
35. It is pertinent to note that the proviso appended to
section 12 (2) of the Special Marriage Act, 1954 as well as
schedule 4 thereto, were not subsequent insertions or
amendments, but formed an integral part of the enactment itself.
Both provisions were legislatively conceived and drafted
contemporaneously with the parent statute, having been
incorporated at the very inception of the act as enacted on 9 th
October, 1954. The same came into force along with the act
w.e.f. 1st January, 1955, thereby reflecting the clear legislative
intent that the proviso to section 12(2) and schedule 4 must be
read harmoniously as component of the original statutory
scheme and, as such, we find that “marriage certificate” is also
the conclusive evidence of the fact that after due compliance of
proviso of section 12(2) of the Special Marriage Act, marriage
between the parties was solemnized. Proviso of section 12(2) of
the Special Marriage Act cannot be looked into isolation and,
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therefore, the view taken by Division Bench of Kolkata High
Court in Tamali Bhattacharjee case (supra) and by Bombay
High Court in Priyanka Tarapad Bannerji case (supra) are
appearing more legally convincing to us. We find that in view of
aforesaid single Judge view of Nirmal Dass Bose case (supra)
of Allahabad High Court, as referred by respondent, is not a
correct interpretation of section 12(2) of the Special Marriage
Act and same is not convincing to us.
36. In view of aforesaid factual and legal discussion,
we have all reason either to “allow” this appeal or remand it
back to the learned trial court.
37. But, we took a “pause”, considering the post
consequences either of allowing present appeal or to remand it
back for fresh consideration in view of prayer qua dissolution of
marriage under section 27 of the ‘Act’ as issue Nos. 2, 3 & 4 left
unanswered by learned Family Court. In either conditions, the
effects which we probablized are:-
(i) To keep both parties in limbo for next so many
years.
(ii) To disturb the marriage of respondent with one
Saroj Kumar, with whom she solemnized marriage,
after passing of statutory period in view of Section 30
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of the Special Marriage Act, where one male child was
also born.
(iii) Child who is ‘one year’ old will be grown and
groomed seeing legal fight of mother, which certainly
in conflict with his best interest.
38. Therefore “dissolution of marriage” is the only
solution, for complete justice.
39. But, at same time, we are also mindful of the legal
positon that we cannot exercise power under Article 142 of the
Constitution of India for complete justice.
40. At this juncture, our judicial consciousness poses a
question to us: being a constitutional court “are we helpless?”.
This is particularly so, when we are convinced that
respondent/applicant cannot perform her marital obligation with
appellant due to the aforesaid compelling circumstances.
41. Hence, this is an occasion to view the present
episode in a more progressive manner by importing the
“Doctrine of frustration”.
42. As a Constitutional Court it is of paramount
importance to touch upon all the possible scenarios, which can
result in delivery of justice. Solemnization of marriage is a
pious concept which does not only involve a husband and wife
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but society at large. And keeping in view the best interest of the
parties, best possible way to deliver justice should be adopted.
The court highlights that “Justice should not only be done, but
must also be seen to be done”. Going with the essence of above
mentioned phrase, the court will fail in its duty, if it will not
discuss the prospective probabilities which can ensure the just,
reasonable and conscious delivery of justice.
43. The Indian Jurisprudence suggests that “
Procedural law is the handmaid of Justice and not its
mistress”, which enables the court to adopt flexible approach
rather than taking a rigid view of the prescribed law.
44. At the outset, it is not in dispute that the marriage
between the parties was solemnized in accordance with law
under the Special Marriage Act, 1954 and continued for a
certain period, thereby creating a legally valid and subsisting
matrimonial bond. The statutory presumption attached to such
marriage stands fortified by the mandate of Section 13(2) of the
Act, which accords conclusiveness to the certificate of marriage.
45. It must be acknowledged that though marriage is
not a commercial contract, it undeniably embodies a bundle of
reciprocal obligations—cohabitation, fidelity, companionship,
emotional support, and exclusivity. Where these foundational
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obligations stand extinguished not by mere estrangement but by
subsequent conduct that legally and morally negates the marital
bond, the continuance of marriage becomes impossible in
substance. In such circumstances, the Court cannot remain
bound by the mere form of the relationship when its essence has
ceased to exist.
46. A marriage solemnized under the Special Marriage
Act, 1954 stands on a fundamentally different footing from
marriages governed by personal laws. It is a secular and civil
institution, brought into existence not by religious rites or
sacramental ceremonies, but by free consent of parties
expressed before a statutory authority. The Supreme Court in
Supriyo v. Union of India 2023 SCC Online SC 1348 has
recognized that the Act provides a framework for a non-
religious, civil form of marriage, thereby underscoring its
contractual character. The essence of such marriage lies in legal
formalization through procedure and mutual consent, which
aligns it closely with the concept of a civil contract. A marriage
solemnized under the Special Marriage Act, 1954 stands on a
fundamentally distinct footing from marriages governed by
personal laws. The Supreme Court in Supriyo v. Union of
India, particularly in Para 25, has unequivocally held that the
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Act is a ‘secular and a religious law’, enacted as an alternative
to marriages rooted in religion. Further, in Para 475, the Court
explicitly recognized that the legislative intent of the enactment
was to provide a framework for civil marriage. Unlike
sacramental marriages, the formation of a marriage under the
Act is not dependent upon rites or customs, but upon statutory
conditions, declaration, and registration before a Marriage
Officer, thereby emphasizing consent and legal formalization.
Such a structure bears the essential attributes of a civil contract
—offer, acceptance, capacity, and formalization under law.
Thus, while not a contract in the strict commercial sense, a
marriage under the Special Marriage Act possesses a contractual
foundation, being a union created by free consent of parties and
regulated by statute, rather than by religious sanction. Although
marriage is not strictly a commercial contract, in cases governed
by secular statutes such as the Special Marriage Act, the
contractual underpinnings of marriage permit limited doctrinal
borrowing from contract law, particularly where continuation of
marital obligations becomes impossible. The doctrine of
frustration, embodied in Section 56 of the Indian Contract Act,
is founded on the principle that law does not compel
performance of that which has become impossible. When
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applied in the matrimonial context, particularly to civil
marriages under the Special Marriage Act, this principle
manifests in situations where the foundation of marriage—
cohabitation, consortium, mutual obligations—stands
irretrievably destroyed.
47. The doctrine of frustration, as evolved in contract
law, operates where an unforeseen event renders the
performance of obligations impossible or destroys the very
foundation upon which the relationship rests. Transposed into
matrimonial jurisprudence, the doctrine applies where the
substratum of marriage—mutual trust, exclusivity, and
consortium—is irreversibly destroyed, leaving no scope for
restoration. The law, in such a situation, must recognize reality
over fiction.
48. The present case transcends the conventional
doctrine of irretrievable breakdown of marriage. Irretrievable
breakdown of marriage contemplates a situation where the
marriage has failed due to prolonged separation, incompatibility,
or absence of cohabitation. It is not merely a case where the
marriage has failed due to incompatibility or prolonged
separation; rather, it is one where subsequent events—most
notably the lawful remarriage of the respondent-wife and the
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birth of a child—have rendered the performance of marital
obligations wholly impossible. The doctrine of frustration, as
invoked herein, goes a step further—it applies where the very
performance of marital obligations has become impossible due
to supervening circumstances. The impossibility herein operates
at multiple levels—moral, practical, and legal—thereby
justifying the application of a doctrine analogous to frustration
in order to recognize reality over legal fiction.
49. The Law Commission of India has described
irretrievable breakdown as a situation where “no reasonable
probability remains for spouses living together again” .
However, frustration is a more compelling condition—it arises
not merely from lack of possibility of reconciliation, but from
the destruction of the legal and moral framework of marriage
itself. Thus, while irretrievable breakdown addresses the failure
of marriage, frustration addresses the impossibility of its
continuation. In the present facts, the second marriage and
resultant altered circumstances have rendered the first marriage
incapable of subsistence in any meaningful sense. Comparative
matrimonial law strongly supports the approach that where the
essence of marriage is lost, the law must facilitate dissolution
rather than perpetuate a hollow relationship. Similarly,
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jurisdictions such as Australia and Canada have adopted no-fault
divorce regimes, where the central inquiry is whether the
marriage has ceased to function as a social and emotional unit.
The emphasis is not on assigning blame, but on recognizing the
practical reality that continuation of such marriage serves no
purpose. Comparative legal scholarship indicates that countries
such as the United States, Germany, and Australia treat
breakdown of marriage as a primary ground for dissolution,
prioritizing individual welfare and societal stability over rigid
formalism. The underlying rationale across these jurisdictions is
consistent: the law must not compel parties to remain bound in a
relationship that has lost its substance. Where the marital bond
is reduced to a mere legal shell, its continuation is contrary to
justice.
50. The Family Court, instead of adjudicating the
petition for divorce on its own merits within the statutory
framework of Section 27, proceeded to declare the marriage
void ab initio. Such a finding, in the considered opinion of this
Court, travels beyond the pleadings and the evidence available
on record, inasmuch as no sufficient ground was established to
attract the provisions governing void marriages. The course
adopted by the Family Court, therefore, suffers from a
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jurisdictional and legal infirmity, and the proper approach ought
to have been an adjudication confined to the grounds pleaded
under Section 27 of the Act.
51. Be that as it may, subsequent events assume
decisive significance in the present case. It has been brought on
record that pursuant to the decree dated 28.02.2018 passed by
the Family Court, the respondent-wife contracted a second
marriage on 18.12.2021. The said remarriage was solemnized
after a substantial lapse of time, well beyond the statutory
period contemplated under Section 30 of the Special Marriage
Act, which permits remarriage upon expiry of the limitation
period for filing an appeal, in the absence of any subsisting legal
impediment. There is nothing on record to suggest that the
respondent-wife had notice of any pending appellate
proceedings at the time of entering into the second marriage.
The remarriage, therefore, appears to have been entered into in
good faith and in due compliance with law. Out of the said
wedlock, a child has also been born, whose welfare and legal
security cannot be ignored.
52. It would be apposite to produce Sec. 30 of the
Special Marriage Act 1954 which is as follows :
30. Remarriage of divorced persons.―Where a
marriage has been dissolved by a decree of divorce, and
either there is no right of appeal against the decree or if
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there is such a right of appeal, the time for appealing has
expired without an appeal having been presented, or an
appeal has been presented but has been dismissed either
party to the marriage may marry again.
53. In this backdrop, the developments that have taken
place are not merely subsequent in time but are transformative
in nature, striking at the very root of the original matrimonial
relationship. The marital bond between the appellant and the
respondent has, in effect, lost its substratum and survives only in
a formal legal sense. The parties have lived apart for a
considerable duration, and the possibility of restoration of
matrimonial life is wholly illusory.
54. While it is true that the doctrine of frustration, in its
strict contractual sense, is not directly applicable to matrimonial
law, the underlying principle—that a relationship rendered
incapable of performance by supervening circumstances ought
not to be artificially preserved—can be judiciously invoked.
Constitutional courts are empowered to adopt Purposive
Interpretation to advance justice and to put an end to litigation.
The Rule of interpretation suggests that Constitutional Courts
must be at work to fulfill the legislative intent. Marriage, though
not a commercial contract, embodies reciprocal and enforceable
obligations such as cohabitation, fidelity, companionship, and
exclusivity. Where these essential obligations stand
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extinguished, not merely by estrangement but by subsequent
conduct that negates the very foundation of the marriage, the
continuance of such a bond becomes impossible in substance.
55. Further, the conduct of the parties, including
initiation of criminal proceedings, complete erosion of trust, and
cessation of cohabitation, clearly brings the case within the
ambit of Section 27 of the Special Marriage Act, warranting
dissolution of marriage. Any attempt at this stage to unsettle the
subsequent marriage would not only result in manifest injustice
but would also adversely affect the rights, legitimacy, and
welfare of the child born from the second wedlock, as well as
the settled expectations of the parties involved therein.
56. This Court has also considered the question of
remand; however, remand is not to be resorted to as a matter of
course. In the present case, the material facts stand admitted or
are otherwise clearly established on record. No useful purpose
would be served by remanding the matter, as it would merely
prolong litigation and perpetuate uncertainty, without advancing
the cause of justice.
57. In view of the above, this Court is of the
considered opinion that the present case represents a rare but
compelling situation where the doctrine of frustration must be
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invoked in matrimonial law.
58. The marriage, though validly solemnized, has lost
its essential character due to subsequent events that render its
continuation impossible. The legal bond survives only as a shell,
devoid of substance, purpose, or enforceability. To compel
parties to remain in such a relationship would amount to
enforcing a legal fiction at the cost of justice. The law cannot
insist upon the preservation of a bond that has ceased to exist in
every meaningful sense.
59. Therefore, in order to do complete justice, to
uphold the dignity of the parties, to secure the welfare of the
child, and to serve the broader interests of society, this Court
finds it appropriate to dissolve the marriage by applying the
doctrine of frustration, treating the matrimonial bond as having
become incapable of performance.
60. Accordingly, marriage of OP/appellant namely,
Manoj Kumar @ Munna stands dissolved with
respondent/applicant namely, Nita Bharti.
61. Department/Office is directed to prepare decree,
accordingly.
62. Before parting with the judgment, this Court
expunged the following observation as observed by the learned
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Family Court as in our considered opinion, the observation is
completely unwarranted and not related with the issues involved
and same therefore expunged, being based upon personal
experience and opinion of the presiding officer.
“It is pertinent to note that it is practice and
tradition of the society that after marriage the
bride is assimilated in the caste of
bridegroom…. ..”
(Page ‘6’ of the impugned judgment)
“Since after marriage the applicant Neeta
Bharti had been converted into Yadav Caste from
Paswan i.e. scheduled caste to backward but she
has obtained MBBS degree fraudulently as
member of scheduled caste community in
collusion with the respondent Manoj Kumar @
Munna Yadav. Hence, the MBBS degree of the
applicant Nita Bharti is liable to be cancelled and
applicant Nita Bharti and the respondent Manoj
Kumar @ Munna are liable to return money
received as stipend during MBBS course by the
applicant Neeta Bharti…. ….”
(Page ‘8’ of the impugned judgment)
63. Parties to bear their own cost.
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64. Trial court record along with copy of the judgment
be sent to the learned trial court.
(Chandra Shekhar Jha, J.)
Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
65. I have gone through the judgment written by my
esteemed Brother the Hon'ble Justice C.S. Jha. While fully
concurring with the observation and finding as well as the ultimate
conclusion arrived by my esteemed brother, I would like to record
the following few lines to supplement the judgment.
66. The Hon'ble Justice C.S. Jha has recorded the
reasons for dissolution of marriage on the following grounds:-
“57. In view of the above, this
Court is of the considered opinion that the
present case represents a rare but
compelling situation where the doctrine of
frustration must be invoked in matrimonial
law.
58. The marriage, though validly
solemnized, has lost its essential character
due to subsequent events that render its
continuation impossible. The legal bond
survives only as a shell, devoid of substance,
purpose, or enforceability. To compel parties
to remain in such a relationship would
amount to enforcing a legal fiction at the
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cost of justice. The law cannot insist upon
the preservation of a bond that has ceased to
exist in every meaningful sense.
59. Therefore, in order to do
complete justice, to uphold the dignity of the
parties, to secure the welfare of the child,
and to serve the broader interests of society,
this Court finds it appropriate to dissolve the
marriage by applying the doctrine of
frustration, treating the matrimonial bond as
having become incapable of performance.”
67. My esteemed brother, Hon'ble Justice C.S. Jha,
decided to dissolve the marriage between the parties by applying
‘Doctrine of frustration’. It is true that Section 27(1)(d) of the
Special Marriage Act contemplates a ground of treating the
petitioner with cruelty since the solemnization of marriage. It is
needless to say that the term cruelty has not been defined either in
the Special Marriage Act or in the Hindu Marriage Act. In
Paragraph nos. 90, 99 & 100 of the judgment titled Samar Ghosh
v. Jaya Ghosh reported in (2007) 4 SCC 511, the Hon'ble
Supreme Court was pleased to observe as hereunder:-
“90. We have examined and
referred to the cases from the various
countries. We find strong basic similarity in
adjudication of cases relating to mental cruelty
in matrimonial matters. Now, we deem it
appropriate to deal with the 71 st Report of the
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Law Commission of India on “Irretrievable
Breakdown of Marriage.
99. Human mind is extremely
complex and human behaviour is equally
complicated. Similarly human ingenuity has no
bound, therefore, to assimilate the entire
human behaviour in one definition is almost
impossible. What is cruelty in one case may
not amount to cruelty in other case. The
concept of cruelty differs from person to
person depending upon his upbringing, level of
sensitivity, educational, family and cultural
background, financial position, social status,
customs, traditions, religious beliefs, human
values and their value system.
100. Apart from this, the concept
of mental cruelty cannot remain static; it is
bound to change with the passage of time,
impact of modern culture through print and
electronic media and value system, etc. etc.
What may be mental cruelty now may not
remain a mental cruelty after a passage of
time or vice versa. There can never be any
straitjacket formula or fixed parameters for
determining mental cruelty in matrimonial
matters. The prudent and appropriate way to
adjudicate the case would be to evaluate it on
its peculiar facts and circumstances while
taking aforementioned factors in
consideration.”
68. In sub-paragraph (vi) & (vii) of paragraph no. 101,
the Hon'ble Supreme Court refers to "Sustained unjustifiable
conduct and behavior of one spouse actually affecting physical and
Patna High Court MA No.151 of 2023 dt. 17-03-2026
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mental health of the other spouse. The treatment complained of
and the resultant danger or apprehension must be very grave,
substantial and weighty, studied neglected, indifference or total
departure from normal standard of conjugal kindness causing
injury to mental health or deriving sadistic pleasure........" are
instances of cruelty.
69. It is also hold by the Hon'ble Supreme Court that
prolonged separations of ones spouse from the association of
other, denial of maintaining conjugal and marital relationship are
also instances of cruelty though not under the facts and
circumstances of the case amounts to desertion or complete
abandonment of marriage.
70. In Rakesh Raman v. Kavita, reported in (2023) 17
SCC 433, the Hon'ble Supreme Court considered the actual matrix
of the matter and found that the husband and wife were living
separately for last 25 years, no child was born from the wedlock.
The couple initially cohabited as husband and wife barely for 4
years. Repeated attempts of the Court for resolution/settlement
yielded no result. Both the parties made bitter allegations against
each other. Aforesaid act and conduct were considered as cruelty
perpetuated by the respondent to the Appellant. Similar decision
was reiterated by the Hon'ble Supreme Court in a very recent case
of Naomi Chakraborty v. Aparna Chakraborty reported in 2025
Patna High Court MA No.151 of 2023 dt. 17-03-2026
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SCC OnLine SC 2798. The Hon'ble Supreme Court found that
there was long period of separation without any hope for
resolution. It is hold by the Hon'ble Supreme Court in the instant
case that marriage was solemnized in the year 2023 and
matrimonial litigation between the parties commenced within two
years of marriage and had been continuing for the last 22 years.
71. In the instant case, marriage was solemnized under
the Special Marriage Act on 4th October, 2007 subsequently the
Plantiff filed the suit for dissolution of marriage in 2013, till date
the spouses are living separately. There has been no conjugal
relationship during these long period of time. The respective
spouses do not have any empathy, feeling of love, affection and
respect for each other. The marital relation is now a dreary
incident. These facts are indeed instances of reciprocal cruelty by
and between the parties.
72. On similar score, we can also rely on the judgment
in the case of Ruchi Wadhawan v. Amit Wali reported in 2024
SCC OnLine Del 5497. The Delhi High Court followed the
judgment in Samar Ghosh (Supra) and also referred to the
decision of the Division Bench of the High Court in Simran Batra
@ Lata Batra v. Davinder Kumar Kapor reported in 2024 SCC
OnLine Del 5432, wherein the parties were granted divorce taking
into the account the long period of separation while observing that
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"Long continuous separation is a facet of mental cruelty. Severing
ties, in the long run, may do more good than bad to the parties’
psychological health."
73. The High Court of Chhattisgarh in Arpit Kumar
Agrawal v. Sarika Agrawal reported in 2025 SCC OnLine CHH
10817 dissolved the marriage between the parties on the ground of
cruelty on factual score that they are living separately for more
than 10 years.
74. Thus, "Doctrine of frustration" which has been
introduced by my esteemed brother as a ground of divorce is
supplemented by me holding inter alia that continuous
uninterrupted, prolonged separation by and between the parties
had caused deep frustration in the core of their heart, such
frustration caused by the other spouse is a form of cruelty within
the meaning of Section 27 (1) (d) of Special Marriage Act.
75. For the reasons stated above, the instant Appeal
deserves to be disposed of in terms of paragraph nos. 59 to 62 of
this judgment.
76. Order accordingly.
(Bibek Chaudhuri, J)
Rajeev/-
AFR
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