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2009 DIGILAW 445 (PNJ)

Sunita v. Bijender Singh

2009-03-05

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. The respondent-husband filed a petition under Sections 11 and 12 of the Hindu Marriage Act (hereinafter referred to as "the Act") for annulment of his marriage with the appellant-wife on an averment that the latter married him during the course of her subsisting marriage with one Krishan Kumar of village Dhamar, District Rohtak. 2. The marriage between the parties was solemnised on 14.2.2004. The appellant-wife did not disclose the factum of her subsisting (first) marriage to the respondent husband. That fact, however, came to the notice of respondent-husband after few days of the marriage which (marriage) was not consummated. 3. The appellant-wife denied that she had ever been married to the averred person. It was also denied that the marriage had not been consummated. The trial proceeded on the following issues :- "1. Whether the respondent was married with one Krishan prior to her marriage with petitioner Bijender Singh and the second marriage is thus void ? OPP 2. Whether the petition is not maintainable as alleged ? OPP 3. Relief" 4. The learned Trial Court recorded a finding upholding the plea of the respondent-husband by placing reliance upon the photographs Ex. P1 to Ex. P5 which had been taken by PW-2 Rajbir Singh, Photographer, at the time of alleged first marriage of the appellant-wife with one Krishan Kumar. 5. I have heard Mr. Jagdeep Singh, learned counsel appearing on behalf of the appellant and Mr. Tapan Kumar, learned counsel appearing on behalf of the respondents and have carefully gone through the record. 6. The learned counsel, appearing on behalf of the appellant, argued that the impugned finding deserves outright invalidation inasmuch as the photographer had not ever been able to prove that he had actually been engaged for photographing the alleged event and he had also not produced the negatives of photographs Ex. P1 to Ex. P5. It was also argued that the solitary statement of the photographer could not have been, even otherwise, considered to be conclusive evidence about the factum of first alleged marriage, particularly when he had conceded that there were no photograph of the performance of Phera ceremony" (an obvious reference to the ceremony of Saptapadi) 7. Learned counsel, appearing on behalf of the respondent-husband, argued the contrary by placing implicit reliance upon the line of reasoning adopted by the learned Trial Court. 8. Learned counsel, appearing on behalf of the respondent-husband, argued the contrary by placing implicit reliance upon the line of reasoning adopted by the learned Trial Court. 8. It may be noticed, at the very outset, that the averment made by the respondent-husband in the course of the petition (to the effect that appellant-wife married him during the subsistence of her marriage with one Krishan Kumar) was pointedly denied by the appellant-wife. In his own discretion, the respondent-husband did not opt to file a rejoinder. 9. The reliance placed by the learned Trial Judge on the testimony of photographer was inappropriate. The photographer had c conceded that he had no negatives of the photographs Ex.P1 to Ex.P5 which (photographs) he claimed to have handed over to Krishan (an obvious reference to the alleged first husband of the appellant-wife). He conceded that he had also taken photographs of the phera ceremony ("I had also taken the photos at the time of phera ceremony also."). However, photographs Ex. P1 to Ex. P5 do not pertain to phera ceremony and no other photographs were produced at the trial. It would be relevant to point out here that the statement made by PW-1 Bijender Singh petitioner is to the effect that he obtained photographs Ex. P1 to Ex.P5 from Krishan Kumar aforementioned. If that were so, there is no reason why he could not have obtained the negatives thereof as well from him and further there is also no reason why he could not have obtained the photographs of phera ceremony from him. The respondent-husband had conceded, at the trial, that Krishan Kumar aforementioned is alive. ("The said Krishan is still alive"). He claimed to have been told by a resident of village Radhana about the alleged first marriage of the appellant-wife but he could not indicate the name of the informer. He also had no idea about whether that informer is alive or not. He also had no idea about the caste of the informer. Interestingly enough, the respondent-husband conceded that he had filed a divorce petition earlier as well. He also conceded, as correct, a suggestion that the petition aforementioned was dismissed as withdrawn. However, he could not recollect whether the factum of first marriage of appellant-wife was mentioned in the course thereof or not. 10. Initially, in the course of examination-in-chief, he averred that the marriage was consummated. He also conceded, as correct, a suggestion that the petition aforementioned was dismissed as withdrawn. However, he could not recollect whether the factum of first marriage of appellant-wife was mentioned in the course thereof or not. 10. Initially, in the course of examination-in-chief, he averred that the marriage was consummated. He tried to wriggle out of that averment by averring, in the latter portion of the statement, that the marriage had not been consummated. He also conceded, as correct, a suggestion that he had sexual intercourse with Sunita after his marriage. ("It is correct that I had sexual intercourse with Sunita after my marriage."). The attempt made by him to beat a hasty retreat proves abortive. He could not recollect whether there was an averment in the course of his previous petition about the consummation of the marriage or not. He is the one who filed the previous petition. It is for him to recollect that fact. He could clear the mist in that behalf by producing on file a copy of the petition in that case. In the natural course of things, if the marriage is not consummated, the parties thereto would obviously be in the know of it and if one of them files a petition, he would be expected to make a mention thereof. The evasive attitude adopted by the respondent-husband (qua the averment on point of non-consummation of the marriage) is clear proof of the fact that he was adopting a concealing posture. 11. In view of the statement of the respondent-husband that the alleged first husband of the appellant-wife is alive, there is no reason why he could not be examined at the trial. It is not the plea on behalf of the respondent that the person aforementioned had any reservations about his entering the witness box. Infact, if there was ever an iota of truth in the averment made by the respondent-husband, the alleged first husband of the appellant-wife would have been nursing a grievance against her for having ditched him. In that eventuality, he would have been too happy to enter the witness box to prove that he did, infact, marry the appellant-wife. That would have enabled the respondent-husband to prove that the marriage between the parties is invalid as the alleged first marriage of the appellant-wife was subsisting. 12. Even otherwise, a look at photograph Ex. In that eventuality, he would have been too happy to enter the witness box to prove that he did, infact, marry the appellant-wife. That would have enabled the respondent-husband to prove that the marriage between the parties is invalid as the alleged first marriage of the appellant-wife was subsisting. 12. Even otherwise, a look at photograph Ex. P1 would indicate that it would appear to be a case of super imposition. Insofar as the appellant-wife is concerned, the learned Trial Court had wrongly inferred from her statement that she had conceded - being in photograph Ex. P1 with her (first) alleged husband. All that she had conceded was that she appears in photograph Ex. P1. She nowhere conceded that photograph aforementioned pertains to her alleged first marriage. It was for the respondent-husband to put to her that she appears in photograph Ex. P1 with her alleged first husband. Then only, the appellant-wife would have been enabled to concede or deny that fact. 13. In the totality of the circumstances of the case, I find that the learned Trial Court inappropriately placed reliance upon the testimony of PW-2 Rajbir-photographer and it was equally inappropriate on the part of the learned Trial Court to have drawn an inference that the appellant-wife had conceded appearing in photograph Ex. P1 with her alleged first husband. The appeal shall stand allowed. The impugned judgment and decree dated 12.4.2007 shall stand set aside. The petition filed by the respondent-husband, for annulment of his marriage, shall stand dismissed.