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2010 DIGILAW 1060 (PNJ)

Manjit Singh Minhas v. Neelam Rani

2010-03-03

RAJESH BINDAL

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JUDGMENT Rajesh Bindal J. - Challenge in the present appeal is to the judgment and decree of the learned court below, whereby the petition filed by the appellant-husband for annulment of marriage with the respondent-wife, was dismissed. 2. Briefly, the facts, as are available from the judgment of the learned court below, are that marriage of the petitioner was solemnized with the respondent on 9.1.1998 at Jalandhar according to Sikh religious rites. The parties lived and cohabited for about a month at Jalandhar, however, no child was born out of the wedlock. As the respondent was a resident of Canada, the mediators at that time had assured that she was unmarried and the marriage was solemnized quite early, considering the fact that she had to leave back. The appellant came to know about the status of the respondent being already married at the time of marriage with him, when about 15 days after the marriage, uncle of the appellant leaving in Canada contacted the father of the appellant to congratulate. At that time, he asked for the particulars of the respondent. After getting the particulars and on enquiry, he found that in fact, the respondent was already married to one Surinder Kumar, who was residing in Canada. When this fact was confronted to the respondent, she stated that she was never married with other person and in fact she was engaged with some person in Canada, but the engagement was broken before the marriage with the appellant. The respondent returned to Canada on 2.2.1998 and assured that she would send the immigration papers for the appellant, but that day never came. 3. The claim set up by the appellant was contested by the respondent by filing written statement through her attorney, stating therein that in fact, marriage between the appellant and the respondent was dissolved by Superior Court of Justice at Brampton (Canada) w.e.f. 1.4.2000, therefore, the present petition is not maintainable, as there is no subsisting marriage between the parties. Though the factum of marriage with the appellant was admitted, but the date was sought to be disputed. It was claimed that the marriage was solemnized on 8.11.1998 and not on 9.1.1998. She refuted the allegation that she had claimed at the initial stage that she was unmarried, rather, she categorically informed the appellant that she was a divorcee. Though the factum of marriage with the appellant was admitted, but the date was sought to be disputed. It was claimed that the marriage was solemnized on 8.11.1998 and not on 9.1.1998. She refuted the allegation that she had claimed at the initial stage that she was unmarried, rather, she categorically informed the appellant that she was a divorcee. The trouble arose as after the marriage, the parents of the appellant demanded more dowry and cash and also tortured her and it was on that account that she had left India and went back to Canada. 4. On the aforesaid pleadings of the parties, the court below framed the following issues: “1. Whether the petitioner was married with the respondent on 9.1.1998, as alleged ?OPA 2. If issue No.1 is not proved, whether the marriage of the parties was solemnised on 8.11.1998, as alleged by respondent ? OPR 3. Whether the marriage in between the parties has already been dissolved by way of decree of divorce by Superior Court of Justice at Brampton, Canada ?OPR 4. Whether before the marriage with the petitioner, the respondent was having living spouse namely Surinder Kumar, with whom her marriage has not been dissolved ?OPA 5. Relief.” 5. As regards dissolution of marriage by the Court at Canada, the learned court below came to the conclusion that the marriage between the parties had been dissolved w.e.f. 1.4.2000 by a decree passed by the Superior Court of Justice at Brampton (Canada) vide certificate (Ex. R1). As regards the dispute raised by the parties regarding the marriage having been solemnized either on 9.1.1998 or 8.11.1998, the learned court below decided the issue against the appellant holding that the appellant had not been able to substantiate the claim that the marriage between the parties took place on 8.11.1998. In view of the case set up by the respondent that in fact she got divorce from her earlier marriage w.e.f. 19.6.1998 and the marriage of the appellant having been solemnized on 8.11.1998, o case for declaring the same as nullity was made out. 6. Learned counsel for the appellant submitted that marriage between the parties is admitted. The only dispute is about the date of marriage. The appellant, in fact, had proved beyond doubt that marriage was solemnized on 9.1.1998, but still the court below recorded a finding against the appellant. The appellant had produced independent witnesses. 6. Learned counsel for the appellant submitted that marriage between the parties is admitted. The only dispute is about the date of marriage. The appellant, in fact, had proved beyond doubt that marriage was solemnized on 9.1.1998, but still the court below recorded a finding against the appellant. The appellant had produced independent witnesses. In fact, in the written statement initially filed, the stand of the respondent was that she was turned out of the matrimonial home on 2.2.1998 after being maltreated. The same itself proves that the marriage was solemnized on 9.1.1998, as in case the marriage had been solemnized on 8.11.1998, there was no question of the respondent being maltreated and turned out of the matrimonial home on 2.2.1998. He further submitted that in fact, in the present case, more weightage should have been given to the evidence led by the appellant for the reason that the respondent had failed either to file written statement to the petition herself or even appear in the court in person. She was represented through an attorney. Number of facts, which were to be confronted to her, could not be. The decree passed by the Court at Canada is not binding on a party living in India, as he had not submitted to the jurisdiction of the Canadian Court. In fact, the situation, as emerges after the passing of the decree of divorce in favour of the respondent by the Canadian Court is that the respondent is free from the bond of marriage with the appellant, as she is residing in Canada, whereas the marriage having not been dissolved as required in law, the appellant is left high and dry. In fact, as per admission of RW1-Balbir Singh in his cross-examination, after getting the decree of divorce passed in Canada, the respondent had got re-married. 7. On the other hand, learned counsel for the respondent submitted that even the decree of the learned court in Canada is binding on both the parties and the marriage between them having been dissolved, there is no need to pass any fresh judgment. He further submitted that the date of alleged torture and turning out of the respondent from the matrimonial home on 2.2.1998 was wrongly mentioned in the written statement originally filed, which was got amended later on and the date was mentioned as 2.12.1998. He further submitted that the date of alleged torture and turning out of the respondent from the matrimonial home on 2.2.1998 was wrongly mentioned in the written statement originally filed, which was got amended later on and the date was mentioned as 2.12.1998. So the reliance of learned counsel for the appellant on the fact that this date mentioned in the written statement is the conclusive proof of the marriage having been solemnized on 9.1.1998 falls flat. 8. Heard learned counsel for the parties and perused the relevant referred record. 9. The undisputed facts on record are that marriage between the parties was solemnized. The dispute is as to on what date. The claim of the appellant is that it was on 9.1.1998, whereas the claim of the respondent is that it was on 8.11.1998. Another fact, which is not in dispute is that the respondent was already married and a decree of divorce granted by the Canadian Court dissolved her marriage with one Surinder Kumar w.e.f. 19.6.1998, meaning thereby if it is established that marriage of the respondent was solemnized with the appellant on 9.1.1998, the appellant is entitled to a decree declaring the marriage a nullity and in case it is not established, then he may not be. Another fact, which is admitted, is that the respondent after going to Canada got the marriage between the parties dissolved by a decree got passed by her dissolving the marriage w.e.f. 1.4.2000. Though the stand of the respondent is that the aforesaid decree is binding between the parties and there is no need for passing any fresh decree declaring the marriage a nullity or dissolving the same, whereas the stand of the appellant is that the decree passed by the Canadian Court is not binding, as the appellant had not submitted to its jurisdiction, but, in my opinion, I need not dilate on that issue, as the lis between the parties in the present case can be decided on the basis of other material on record. 10. It is not in dispute in the present case that the respondent had not appeared in court in person to get her statement recorded and also to face cross-examination. 10. It is not in dispute in the present case that the respondent had not appeared in court in person to get her statement recorded and also to face cross-examination. Though the initial stand taken in the written statement about the maltreatment of the respondent and turning her out of the matrimonial home on 2.2.1998 was sufficient itself to prove that the marriage between the parties was solemnised on 9.1.1998. However, as the written statement was subsequently amended and the date was changed on 2.12.1998. Still the fact remains that there is other material on record from which this court can lead to the conclusion that the marriage was in fact solemnized on 9.1.1998, i.e., in the form of statements of PW2-Manjeet Kaur, who was a Member Panchayat of the village, and also PW5Ajaib Singh. The evidence of PW2-Manjeet Kaur was brushed aside by the court without any valid reason. It was stated by her that Gurmeet Singh, father of the appellant, had submitted an application with the Panchayat on 25.2.1999 stating therein that marriage between the parties was solemnized on 9.1.1998. The statement of PW5-Ajaib Singh was discarded finding flimsy fault therein, such as in the pleadings it was mentioned that the marriage between the parties was solemnized at Jalandhar, whereas in his statement, he stated that it was solemnized at Jalandhar Cantt. PW5-Ajaib Singh is the person, who had attended the marriage of the parties. As against that, the certificate of marriage issued by the Canadian Court was sought to be relied upon, in which the date of marriage was mentioned as 8.11.1998. At this stage, the learned court below failed to appreciate the fact that it was the date given by the respondent herself and she possibly could not have given a different date, considering the fact that she very well know that her earlier marriage with Surinder Kumar was dissolved only w.e.f. 19.6.1998 by a decree passed on 12.8.1998. By giving 9.1.1998 as the date of marriage with the appellant, the respondent would have put herself in trouble. 11. In addition to the above facts, other two important documents, which are on record, are in the form of letters written by the respondent to the appellant, one of which is mark `B’, the contents of which are quite intimate. By giving 9.1.1998 as the date of marriage with the appellant, the respondent would have put herself in trouble. 11. In addition to the above facts, other two important documents, which are on record, are in the form of letters written by the respondent to the appellant, one of which is mark `B’, the contents of which are quite intimate. In case, there was nothing between the parties in January or February, 1998 and there was a subsisting marriage of the respondent with Surinder Kumar, which was dissolved w.e.f. 19.6.1998, there is no question of writing type of letters, the respondent had written to the appellant. The respondent in the present case had not appeared in the court in person to get her statement recorded, which could enable the appellant to confront those letters to her and also what was the occasion for her to have written those letters. In fact, the lapse, if any which can be considered in the evidence led by the parties is for the reason that neither of the parties personally were present in court to pursue the case. Both were represented by their attorneys. 12. Another fact, which is quite relevant in the present proceedings, is the fact that after getting a decree of divorce dissolving the marriage of the respondent with the appellant she got re-married, which fact is admitted by RW1Balbir Singh, brother of the respondent. Meaning thereby that the respondent-wife on her side is happy after getting a decree of divorce against the appellant, whereas he is finding himself in trouble, as according to him, his marriage has not been dissolved in accordance with law and in case he marries again, the same may be in violation of the provisions of the Hindu Marriage Act, 1955. 13. From the totality of the circumstances, mentioned above, and especially the evidence led by the appellant in the form of statement of PW2Manjeet Kaur and PW5-Ajaib Singh and corroborative evidence in the form of two letters written by the respondent to the appellant, in my opinion, the appellant had been able to make out a case for proving that marriage between the parties was solemnized on 9.1.1998 and on account of admitted facts, being on record, that the respondent was already married on that date, the marriage of the respondent solemnized with the appellant deserves to be declared a nullity. Ordered accordingly. 14. Ordered accordingly. 14. For the reasons mentioned above, while reversing the finding recorded by the learned court below on issues No. 1 and 2, the appeal filed by the appellant is allowed and the judgment and decree of the learned court below is set aside. The petition filed by the appellant for declaring the marriage as nullity is accepted and a decree is passed accordingly.