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2005 DIGILAW 2981 (RAJ)

Amita v. Bhanwar Lal

2005-11-14

VINEET KOTHARI

body2005
Judgment Dr. Vineet Kothari, J.-This appeal under Section 28 of the Hindu Marriage Act, 1955 (for short “the Act of 1955” hereinafter) is directed against the Judgment and order dated 27.03.1998 of learned Additional District Judge No. 2, Bikaner while deciding the Misc. Civil Case No. 10/97 (133/95) allowing the application of the husband Bhanwarlal under Section 11 of the Act of 1955 and declaring the marriage of the applicant Bhanwarlal with Amita d/o Poonaram, by caste Harijan void under Section 5(i) read with Section 11 of the Act. 2. The applicant Bhanwarlal filed the said application before the Court below with the allegation that in April, 1987, he contracted a “Nata marriage” according to the prevalent customs of his community with the non-applicant Amita and out of the said wedlock, one son Laxman and one daughter Vijayshri were born to the said couple. At the time of the marriage, the non-applicant as well as her father told the applicant that non-applicant Amita was a widow and the applicant also disclosed to them that from his previous wife, who was not alive, there were five children. According to the said plaint, after sometime, the marriage went on the rocks and on 02.05.1995 during the course of some altercation between the husband and wife, the wife disclosed to the applicant that she did not accept the applicant as her husband as her marriage had taken place with one Sheeshpal s/o Shankerlal Harijan. Therefore, the applicant filed the said application for declaring the marriage between the applicant and non-applicant as void in view of Section 5(i) read with Section 11 of the Act and in the alternative to grant divorce under Section 13 of the Act. 3. The Court below after recording the evidence and hearing the arguments allowed the said application and has declared the said marriage between the applicant-husband Bhanwarlal and non-applicant Amita as void. 4. Mr. 3. The Court below after recording the evidence and hearing the arguments allowed the said application and has declared the said marriage between the applicant-husband Bhanwarlal and non-applicant Amita as void. 4. Mr. Haider Aga, learned Counsel appearing for the appellant non-applicant Smt. Amita has vehemently submitted that the learned trial Court has committed grave error in law in declaring the said marriage as void merely on the allegation of the applicant after about 8 years of the marriage with the non-applicant during some altercation disclosed to him that she was already married to one Sheeshpal and that the learned Court below has relied upon a Judgment of Civil Judge (JD) No. 1, Bikaner rejecting the application for maintenance filed under Section 125, CrPC, by his client, Amita during some period in the past when she was living separately in which that Court noted that in statements recorded during those proceedings before that Court, she admitted to have earlier got married with the said person Shri Sheeshpal. Learned Counsel submitted that merely on the basis of the said Judgment , it could not be taken as an admission on the part of the non-applicant for having contracted the earlier marriage and the burden was on the applicant-husband to prove independently in these civil proceedings that earlier marriage was in accordance with ceremonies according to the Hindu Marriage Act or customs and that the spouse was living at the time of this second marriage. He submitted that proceedings under Section 125, CrPC, are of summary nature and mere production of that Judgment in the present case before the trial Court does not conclusively prove the first marriage of non-applicant Amita with Sheeshpal and, therefore, the marriage between the applicant and the non-applicant could not be declared to be void. 5. He relied upon the decision of the Bombay High Court in the case of Indu vs. Sumanbai Kadu Pawar & Ors., reported in 1997 (II) DMC (Divorce & Matrimonial Cases) 33, wherein the Court held that in summary proceedings under Section 125, CrPC, the Court cannot decide the question about the validity of marriage. 5. He relied upon the decision of the Bombay High Court in the case of Indu vs. Sumanbai Kadu Pawar & Ors., reported in 1997 (II) DMC (Divorce & Matrimonial Cases) 33, wherein the Court held that in summary proceedings under Section 125, CrPC, the Court cannot decide the question about the validity of marriage. He also relied upon the Judgment of this Court in Prem Mittal (Dr.) vs. State of Rajasthan & Ors., reported in 2000 CrLR (Raj.) 372, wherein a case under Section 494, IPC relating to bigamy, the Court held that for establishing the offence of bigamy, performance of essential ceremonies for valid marriage is necessary and it is necessary to prove that the marriage was solemnised as per the rites and tenets of religion of the parties or according to the custom of their caste. To the similar effect is the Judgment of this Court in Smt. Ram Pyari vs. Bisala Ram, reported in 1988 (1) RLW 673. In somewhat similar case in Laxmi Devi vs. Satya Narayan, reported in 1994 (2) HLR 449, the Honble Supreme Court also held that offence of Section 494, IPC was not made out unless the ceremony of Saptapadi was not proved to establish the factum of second marriage during the subsistence of the first marriage. 6. Learned Counsel for the appellant also contended that the order of Court Exhibit A-1 dated 21.04.1997 rejecting the application under Section 125, CrPC, as well as Exhibit A-2 dated 14.08.1997 rejecting the revision petition against the said order in the same proceedings could not be relied upon for arriving at the conclusion of a void marriage because the non-applicant Smt. Amita was not given any opportunity to explain or controvert her so called admission in those proceedings about the earlier marriage with Sheeshpal. 7. Per contra, Mr. R.K. Soni, learned Counsel appearing for the respondent-applicant Bhanwarlal (husband) submitted that the Court below has not committed any error in relying upon the admission made by the non-applicant Amita before the Court of law even during the proceedings under Section 125, CrPC, and in view of the said admission and in view of Section 41 of the Evidence Act, the learned Court below was absolutely justified in declaring the said marriage as void. He relied upon the Judgment of the Honble Supreme Court in Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayak Gosavi & Ors., reported in AIR 1960 SC 100 and submitted that an admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. 8. Having considered the rival submissions thoughtfully and having gone through the impugned order and evidence on record, this Court is of the opinion that the present appeal deserves to be allowed and the learned Court below has committed an error in declaring the marriage of the applicant Bhanwarlal and non-applicant Smt. Amita void under Section 11 of the Act read with Section 5(i) of the Act. The reasons are as under. 9. Firstly, the alleged disclosure of the non-applicant Smt. Amita made after about 8 years of the marriage on 02.04.1995 during some altercation with her husband that she was already married and did not accept the applicant Bhanwarlal as her husband and which disclosure appears to have promoted the applicant to file the said application before the Court below were made like this. The averments in this regard are contained in Para No. 13 of the plaint, which is reproduced hereunder:- Þ;g fd fnukad 02-05-1995 dks izkFkhZ us vizkFkhZuh dks dgk fd og mldh vkKk esa ugha jgrh cPpksa dk Hkj.k iks"k.k ugha djrh izkFkhZ dks ifr ugha ekurh vkSj mlls dgk fd mldk ifr izkFkhZ ugha gSA mldk ifr rks khkiky iq= kadjyky tkfr gjhtu ckMh dqvkW ds ikl udkl xsV ds vUnj ukxkSj es+ jgrk gSA izkFkhZ us bl ckr dk irk djok;k rks mls vR;Ur vkp;Z gqvk fd vizkFkhZuh ,oe mlds firk us >B cksydj fo/kok gksuk crk;k Fkk vizkFkhZuh dk iwoZ ifr ftlls mldk fookg gqvk Fkk og thfor gSAß 10. The averments made in the aforesaid Para 13 of the plaint reproduced hereinabove only disclose that part of these averments were made by the applicant himself as to the non-applicant wife not obeying his orders and was not feeding the children properly and she thus, did not accept him as her husband and thereupon the non-applicant - wife told him that she did not accept him as her husband and her husband was Sheeshpal. Thereafter, the applicant states that he inquired about the existence of the said person Sheeshpal, who was alive at that time and thus, according to the applicant, the cause of action for filing the said application under Section 11 of the Act arose to him. These averments of complainant read with statements of various witnesses only disclose that such averments were made in the heat of moment during altercation. From the statements of applicant Bhanwarlal himself , it appears that such altercation was a matter of routine between these two persons. Thus, this was not sufficient to establish any previous marriage of non-applicant Amita 11. Secondly, as far as the question of relying on the evidence in the form of Judgment s of two Courts on application under Section 125, CrPC, is concerned, learned Counsel for the appellant appears to be justified in submitting that the statement made before those Courts during summary proceedings cannot amount to uncontroverted admissions on the part of non-applicant Amita during the present proceedings under Section 11 of the Act for declaration of marriage as a void marriage. The burden to proof was obviously on the applicant Bhanwarlal to prove that first marriage of non-applicant took place in accordance with the ceremonies as per the customs prevalent and out of such first valid marriage, the first spouse of the non-applicant was still living at the time of second marriage. On the contrary, it has come on record during those proceedings that the alleged earlier marriage of non-applicant Amita with Sheeshpal was a marriage between Sapindas and that would be in violation of Section 5(iv) of the Act, which prohibits a Hindu Marriage within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two. However, these details were not subject matter even during those proceedings under Section 125, CrPC. Be that as it may, true it is that those admissions or averments before the Courts in proceedings under Section 125, CrPC, could not amount to uncontroverted admission on the part of the non-applicant Amita in the present proceedings under Section 11 of the Act and, therefore, burden of proof which lied upon the applicant husband Bhanwarlal in the present case could not be said to have been discharged on the basis of such averments or alleged admissions in those proceedings under Section 125, CrPC. Therefore, the very basis of the impugned order under appeal is wrong and, therefore, the said Judgment cannot be sustained in law. 12. Accordingly, the present appeal is allowed and the impugned Judgment dated 27.03.1998 is quashed and set aside. No order as to costs.