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2009 DIGILAW 338 (CHH)

SUSHMA CHOURE v. HETENDRA KUMAR BORKAR

2009-11-30

R.L.JHANWAR, T.P.SHARMA

body2009
JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :- 1. By this appeal under Section 19(1) of the Family Courts, Act, 1984 the appellant has challenged the legality and propriety of the judgment and decree dated 27/2/06 passed by Principal Judge, Family Court, Durg in Civil Suit No. 305-Al05 whereby and where under learned Principal Judge Family Court, Durg has declared the marriage between parties null and void Under Section 11 of the Hindu Marriage Act, 1955 (in short 'the Act of 1955'). 2. The judgment and decree is impugned on the ground that without any evidence of first marriage of appellant with one Rakesh Kumar Meshram Court below has declared the marriage null and void and thereby committed an illegality. 3. Facts necessary for disposal of this appeal as per pleading of the parities is, present respondent/plaintiff has pleaded in his plaint that present appellant was having illicit relation with one Rakesh Kumar Meshram resident of Ambagarh Chouki and 2 abortion took place as a result of illicit relation present appellant married with Rakesh Kumar Meshram and was residing with him as a wife. She had earlier also filed one application under Section 9 of the Act of 1955 for restitution of conjugal right against Rakesh Kumar Meshram and during subsistence of her first marriage with Rakesh Kumar Meshram after showing herself unmarried solemnized marriage with the respondent. The subsequent marriage during subsistence of first marriage is void on the ground of subsequent marriage during subsistence of first marriage of present appellant. Respondent has filed the petition for declaration of marriage null and void under Section 11 of the Act of1955. 4. Present appellant/defendant has specifically denied the allegation and pleaded that appellant was having illicit relation with Rakesh Kumar Meshram and both the persons have initiated judicial proceeding and entered into compromise these facts was informed by the appellant and his family members to respondent and his relatives before his marriage with the present appellant. Appellant has not performed marriage with the respondent during subsistence of her first marriage. At the time of her marriage with the respondent the appellant was unmarried. Appellant has not performed marriage with the respondent during subsistence of her first marriage. At the time of her marriage with the respondent the appellant was unmarried. On the basis of averments of the parties issues were framed and after affording an opportunity of hearing to the parties learned Principal Judge Family Court has decreed the suit under Section 11 of the Act of 1955 filed by the respondent and declared the marriage null and void. 5. Learned counsel for the parties are heard. 6. Judgment and decree impugned and record of court below perused. 7. Learned counsel for the appellant Shri Parag Kotecha vehemently argued that respondent has not proved the fact of first marriage of the appellant with one Rakesh Kumar Meshrarn the illicit relation of present appellant with Rakesh Kumar Meshram is not disputed and appellant and her relative has already intimated these facts to respondent and his relatives before solemnization of the marriage between the parties. The marriage between parties was not in violation ofClause1 of Section 5 of the Act of 1955. The judgment and decree impugned is not sustainable under the law. 8. On the other hand, learned counsel for the respondent vehemently opposed the appeal and submits that documents filed on behalf of the parties are sufficient for drawing the inference that present appellant had earlier married with one Rakesh Kumar Meshram and during subsistence of her marriage with Rakesh Kumar Meshrarn she had married with the present respondent same may in violation of Clause-l of Section 5 of the Act of 1955 and the marriage between the parties is null and void. 9. On order to appreciate the contention of the parties, we have examined the evidence available on record. The burden to prove the existence of first marriage of appellant with Rakesh Kumar Meshram at the time of the marriage of the appellant with respondent was on the respondent. Respondent PW-1 Hitendra Kumar Borkar has deposed in his evidence that on 25/6/04 he married with appellant observing Hindu rituals and afterwards on the basis of her change behavior he came to know that appellant was already married and without divorce from her first husband she had married with the respondent. Respondent PW-1 Hitendra Kumar Borkar has deposed in his evidence that on 25/6/04 he married with appellant observing Hindu rituals and afterwards on the basis of her change behavior he came to know that appellant was already married and without divorce from her first husband she had married with the respondent. He also came to know that appellant was pregnant twicely through her first husband Rakesh Kumar Meshram and judicial proceeding were initiated between appellant and Rakesh Kumar Meshram before the Court ofRajnandgaon. PW2 Methalal Meshram has also corroborated the factum of first marriage of appellant with Rakesh Kumar Meshrarn. 10. Present appellant has examined herself and deposed that she had married with the respondent and prior to her marriage with the respondent negotiation of her marriage with Rakesh Kumar Meshram took place and she used to travel with Rakesh Kumar Meshram she was having physical relation with Rakesh Kumar Meshram for about one and half year but she had never married with the Rakesh Kumar Meshram. She has also deposed that with a view to resolve the dispute between her and Rakesh Kumar Meshram they have filed civil suit. She had also filed the copy of the documents of that civil suit as D-1 to D-5. She has also deposed that all facts were well within the knowledge of the respondent before the marriage. The factum of civil suit has been admitted by her witness alleged Rakesh Kumar Meshram but he has deposed that appellant is not his wife and had never married with the appellant. Her witness No.3 Sanjay Baldekar has deposed that before marriage of respondent with appellant the fact relating to previous relation of appellant with Rakesh Kumar Meshram had already intimated to the respondent. 11. Ex. P-1 is a certified copy of the application filed under Section 9 of the Act of 1955 by appellant against alleged Rakesh Kumar Meshram showing herself as a legally wedded wife of the Rakesh Kumar Meshram. Ex. P-1C is a copy of the order sheet dated 6/2/03 of civil suit No. 251 A/01 in which it reveals that Rakesh Kumar Meshram and present appellapt had entered into compromise. Ex. D 1 to D5 are also related with the same civil suit and related to compromise. It appears from the documents Ex. Ex. P-1C is a copy of the order sheet dated 6/2/03 of civil suit No. 251 A/01 in which it reveals that Rakesh Kumar Meshram and present appellapt had entered into compromise. Ex. D 1 to D5 are also related with the same civil suit and related to compromise. It appears from the documents Ex. D-1 to D-4 that they are related to civil suit No. 251-A/01 finally decided on the basis of compromise. On 6/2/03 before the maniage of the appellant with present respondent which was pending before the Civil Judge Clause-2, Rajnandgaon. It further reveals from the Ex. P-1 that the present appellant has filed one application under Section 9 of the Act of 1955 which was pending before the First Additional District Judge, Rajnandgaon in Civil Suit No. 36-A/01. Ex. D-5 reveals that appellant and Rakesh Kumar Meshram also entered into compromise in civil suit pending before the Additional District Judge, Rajnandgaon. Ex. D-5 copy of compromise application reveals that the present appellant was not wife of the Rakesh Kumar Meshram. 12. Both the parties had led oral and documentary evidence. The evidence of appellant and her witnesses are sufficient to prove the fact that she was having physical relation with Rakesh Kumar Meshram before 2003 for about one and half year. She has denied the allegation of her marriage with Rakesh Kumar Meshram and has admitted the initiation and disposal of judicial proceeding between herself and Rakesh Kumar Meshram. Appellant has admitted that she had filed the application under Section 9 of the Act of 1955. The application under Section 9 of the Act of 1955 Ex. P-l reveals that appellant had filed the application against Rakesh Kumar Meshram showing herself the wife of Rakesh Kumar Meshram and the Rakesh Kumar Meshram as husband of the appellant. Ex P-l was filed on 25/1/01. The burden to prove the marriage of the respondent with appellant during subsistency of first marriage of the appellant was on the respondent. To discharge the onus and to prove the fact, the appellant has filed copy of the application filed under Section 9 of the Act of 1955 Ex. P-l by appellant against Rakesh Kumar Meshram showing herself and Rakesh Kumar Meshram as husband and wife the onus to disprove first marriage shifted upon the appellant. To discharge the onus and to prove the fact, the appellant has filed copy of the application filed under Section 9 of the Act of 1955 Ex. P-l by appellant against Rakesh Kumar Meshram showing herself and Rakesh Kumar Meshram as husband and wife the onus to disprove first marriage shifted upon the appellant. Appellant and her witnesses Rakesh Kumar Meshram has specifically deposed that they had never married but they were having illicit relation on the ground of negotiation of their marriage therefore with a view to resolve the controversy the appellant had filed the petition before the Civil Court. Appellant has deposed that Rakesh Kumar Meshram was not her husband. Rakesh Kumar Meshram has also deposed that appellant was not his wife. The case is based on oral and documentary evidence if the appellant had not married with the Rakesh Kumar Meshram then there was no propriety to file an application under Section 9 of the Act of 1955 against the Rakesh Kumar Meshram for restitution of conjugal right before Additional District Judge, the subsequent document reveals that other civil suit was also pending between appellant and Rakesh Kumar Meshram in which they entered into compromise, Ex. P -1. A verified copy of petition filed under Section 9 of the Act of 1955 by the appellant is sufficient for drawing the inference that appellant has married with the Rakesh Kumar Meshram in the year 1998. The evidence of appellant and Rakesh Kumar Meshran1 that they are not husband and wife shows that they are concealing the truth on the ground that after marriage of the appellant with the respondent they have withdrawn themselves from each other. Ex P-1 is a petition for restitution of conjugal right filed on behalf of the appellant against the Rakesh Kumar Meshrarn is sufficient for drawing the presentation of lawful marriage of appellant with Rakesh Kumar Meshram and subsequent documents and evidence are not sufficient for drawing the inference or for shifting the onus that they have never married. Present appellant has neither pleaded nor proved the divorce between her and Rakesh Kumar Meshram or dissolution of marriage between them by any mode permissible in accordance with the law. Present appellant has neither pleaded nor proved the divorce between her and Rakesh Kumar Meshram or dissolution of marriage between them by any mode permissible in accordance with the law. In absence of such pleading and proof the only inference was possible that the appellant was not unmarried at the time of her marriage with respondent and she married with the respondent during subsistence of her first marriage with Rakesh Kumar Meshram in contravention of Clause-l of Section 5 of the Act of 1955 and such marriage was null and void in accordance with Section 11 of the Act of 1955. 13. The Section 5 and Section 11 of the Act of 1955 reads as follows:- 5. Conditions for a Hindu marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely- (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. 11. Void Marriages-Any marriage solemnized 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 anyone of the conditions specified in clauses (i), (iv) and (v) of section 5. Section 11 and 17 (monogamy) do not offend Art. 15(1) of the Constitution. 14. Section 11 and 17 (monogamy) do not offend Art. 15(1) of the Constitution. 14. After appreciating the documentary and oral evidence of the parties learned Principal Judge, Family Court has arrived at a conclusion that during subsistence of her first marriage appellant has remarried with the respondent and Principal Judge, Family Court declared the marriage between the parties null and void under Section 11 of the Act of 1955. 15. After close scrutiny of the evidence of the parties, we do not find any illegality or infirmity in the judgment and decree impugned warranting any interference. Consequently, appeal is devoid of merits and is liable to be dismissed and it is hereby dismissed. 16. No order as to costs. 17. Decree be drawn up accordingly. Appeal Dismissed.