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2007 DIGILAW 1052 (DEL)

O. P. ARORA v. CHANDER KALA ARORA

2007-05-16

S.MURALIDHAR

body2007
JUDGMENT Dr. S. Muralidhar, J.- This appeal is directed against the judgment dated 23.2.1998 passed by the Additional District Judge, Delhi dismissing the appellants petition HMA No. 72 of 1985 seeking a decree of nullity of marriage under Section 11(i) read with Section 5(i) of the Hindu Marriage Act, 1955 (Act). 2. The appellant sought declaration of nullity of his marriage with respondent No.1 on the ground that at the time of the marriage on 14.12.1978 she already stood married to respondent No.2. According to the appellant some time in the second week of May, 1983 he learnt respondent Nos. 1 and 2 had married on 2.8.1971; that they had lived together for one and a half years in Kamal in Haryana and the said marriage had not yet been dissolved. It is the appellants case that consequent upon this discovery, an agreement was executed on 20.5.1983 between him and respondent No.1 whereby they had agreed to live separately and further agreed that each of them was free to marry again. 3. According to the respondent No. 1 all these allegations were false; the parties lived peacefully up to 1983 and they had known each other even prior to the marriage; that the appellant was in love with another girl in the same department, Ms. Madhu Saxena, and that the appellant started torturing the respondent No. 1 her mentally and physically when she objected to the affair. It was further contended by the respondent No.1 that the appellant had already married the said girl even during the subsistence of the marriage with the respondent No.1. 4. The appellants case was that in May 1993 he had learnt from one Shri Atma Prakash. a relative of the respondent No. I, that she had been married to respondent No. 2 and that the said Atma Prakash had handed over an invitation card Ex. P-l of the marriage of respondent No.1 with respondent No.2. The said Atma Prakash was examined as R W-2 on behalf of the respondent. He denied ever informing the appellant that respondent Nos. 1 and 2 had been married or of handing over the invitation card. The other witnesses examined on behalf of the appellant did not come to prove that at the time of the marriage of the appellant with respondent No.1, she had already been married with respondent No.2. 5. He denied ever informing the appellant that respondent Nos. 1 and 2 had been married or of handing over the invitation card. The other witnesses examined on behalf of the appellant did not come to prove that at the time of the marriage of the appellant with respondent No.1, she had already been married with respondent No.2. 5. The Trial Court found that the bank official PW -2 and the witness from the ration card office, PW-3, also did not support the plea of the appellant. The name of the respondent No.1 in both records showed her name to be Miss Chander Kala which supported the plea of her remaining single till the time of her marriage with the appellant. The Trial Court also found that the remaining five witnesses also did not prove the marriage of respondent No. 1 with respondent No.2. 6. In his cross-examination the appellant admitted that he had got married with Ms. Madhu Saxena on 15.7.1983. The other allegation was that the respondent No. 1 had in the year 1971 undergone medical examination for the disease imperforola and that this disease occur only in married women. However, Dr. P.M. Srivasatava, PW-5 admitted in cross examination that this disease could also occur in unmarried women. The Trial Court found justification in the plea by the respondent No.1 that the petition seeking divorce had been filed in 1985, two years after the appellants marriage with Ms. Madhu Saxena, only to somehow legalise that marriage. 7. On going through the evidence on record, this Court is unable to find any error in the judgment of the Trial Court. At one stage during the hearing of this appeal, the Court was informed that the trial Court record had gone missing. Therefore by an Order dated 25.1.2006 this Court directed the parties to file relevant pleadings and documents within three weeks. That has been done. Thereafter the Court kept adjourning the matter only on the request of the appellant and on 14.9.2006, the following order was passed: "The appellant is present in Court. He requests for adjournment and states that his Counsel is out of town on account of death in the family. The order sheet discloses that no Counsel was present on behalf of the appellant on several previous dates of hearings as well as on 7.9.2006. Last Opportunity is granted. He requests for adjournment and states that his Counsel is out of town on account of death in the family. The order sheet discloses that no Counsel was present on behalf of the appellant on several previous dates of hearings as well as on 7.9.2006. Last Opportunity is granted. Having referred to the fact that this is an appeal of the year 1998 no further adjournment will be granted and the matter would be considered on its merits. Learned Counsel for the respondent seeks liberty to file typed set of evidence. Liberty granted. Let the same be placed on record along with an affidavit." 8. Thereafter the matter was adjourned to explore the possibility of a settlement but no settlement could be arrived at. Adjournment was again sought on behalf of the appellant on February 1 and 12,2007. On 19.4.2007 none appeared again for the appellant despite a pass over and thereafter the following order was passed: "When the matter was first listed, it was stated that learned Counsel for the appellant was in difficulty. The same statement had been made on 1.2.2007 and 12.2.2007. Still, in the interests of justice, the matter was passed over. Despite one Passover, neither the learned Counsel for the appellant nor the appellant is present. Mr. Sukhbir Singh who is present on behalf of the appellant, has been informed that the appellant can, if he so wishes, file his written note of arguments within one week. Learned Counsel for the respondent is also permitted to file his written note of arguments within one week. Orders reserved." 9. Pursuant to the above order, the appellant and the respondent have filed their respective written submissions. The appellant has submitted that he would be prejudiced on account of the non availability of the Trial Court record but has nevertheless made certain submissions on merits. This Court does not attach much importance to the non-availability of the record in the instant case since, the Respondent No. 1 has produced photocopies of all the depositions and relevant documents which have not been objected to by the appellant. 10. It is submitted by the appellant that the agreement Ex. P-2 between the parties should suffice to declare the earlier marriage to be a nullity. However, as held by the Trial Court, the said document was not proved in accordance with law. 11. 10. It is submitted by the appellant that the agreement Ex. P-2 between the parties should suffice to declare the earlier marriage to be a nullity. However, as held by the Trial Court, the said document was not proved in accordance with law. 11. Viewed from any angle, this Court is unable to find any ground to interfere with the order of Additional District Judge, dismissing the appellants petition. Accordingly this appeal is dismissed with costs of Rs. 5,000/- which will be paid by the appellant to the respondent within a period of four weeks from today. Appeal dismissed.