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2010 DIGILAW 480 (KAR)

Suma Gouda @ Anitha @ Vasanthi v. M. K. Poovaiah

2010-04-05

MANJULA CHELLUR, RAVI MALIMATH

body2010
Judgment Manjula Chellur, J: This appeal is directed against the judgment and order dated 29.7.2006 in M.C.No.444 of 1986 on the file of the II Additional Principal Judge, Family Court, Bangalore, seeking declaration of the marriage of appellant-wife with the respondent-husband as null and void. 2. The appellant herein Smt. Suma Gouda-wife, was the respondent before the Family Court and the respondent-husband Mr.M.K. Poovaiah filed matrimonial case a petitioner and the same was allowed. Aggrieved by the said judgment and order, the present appeal is filed contending that the impugned order is illegal, unjust and arbitrary, without appreciating the evidence on record and there is no application of principles of evidence in the right perspective by the Family Court. 3. In brief the pleadings of the parties before the Family Court were as under: The husband Mr. Poovaiah approached the Family Court seeking declaration of his marriage with Smt. Suma Gouda dated 14.7.1994 as null and void in view of subsistence of her marriage with one T. Rajanna as on the date of his marriage with her on 14.7.1994. According to the husband Mr. Poovaiah, after the marriage for some time there was cordiality between them and later the wife started misbehaving and she never discharged her duties as a dutiful wife. Further, he received reliable information about the subsistence of the marriage of the appellant Suma Gouda with one T. Rajanna and the same was ascertained from several sources, which ultimately caused him lot of mental agony for having taken the appellant as his wife. The proceedings in HRC.2110/90 on the file of the Small Causes Court, Bangalore, would substantiate his contention as the present appellant Suma Gouda herself admitted that she was the wife of one Mr. T. Rajanna. According to him the appellant wife suppressing all her antecedents got married to him on 14.7.1994. Therefore, in view of contravention of provisions of Section 5 of the Hindu Marriage Act (for short the ‘Act’), he sought for declaration of the marriage as null and void as contemplated under Section 11 of the Act. The respondent-wife, the present appellant strongly contested the said petition as not maintainable both on facts and law. According to her, at every stage the husband made false statements including her address in the cause title. She has given the details how she came into contact with Mr. Poovaiah her husband. The respondent-wife, the present appellant strongly contested the said petition as not maintainable both on facts and law. According to her, at every stage the husband made false statements including her address in the cause title. She has given the details how she came into contact with Mr. Poovaiah her husband. She got acquainted with Mr. Poovaiah in 1989 which ultimately developed into love and further, at the instance of Mr. Poovaiah she got married to him on 14.7.1994 which was registered before the Registrar for Marriages. According to her, whatever defence she has taken in the HRC proceedings filed by her landlord Mr. Venkatesh, was only at the instance of Mr. Poovaiah and she always followed his advice as he was in the office of one Mr. Dhanraj, Advocate at Bangalore. After the marriage, they lived cordially for some time till her financial resources lasted. Later he started harassing her in every possible way. There was no marriage or martial relationship between her and T. Rajanna and it was the created story of Mr. Poovaiah. On obtaining orders in Cr.Misc.160/96 on the file of the JMFC., Madikeri, awarding maintenance in her favour, her husband approached the Court with false allegations in order to avoid his legal obligation to maintain her. With these averments, she sought for dismissal of the petition. Both the parties let in evidence, both oral and documentary. Mr. P. Rajanna was also examined as Court witness. The husband-petitioner examined himself and got marked certain documents which are on record. The appellant wife also got marked several documents in support of her contention. The learned Judge of the Family Court proceeded to hold that during the subsistence of the marriage of the appellant Suma Gouda with one P. Rajanna she got married to Mr. Poovaiah on 14.7.1994, therefore declaration that the marriage between the parties as null and void deserves to be ordered. Aggrieved by the said judgment and order, the appellant wife is before us. She contends that the Family Court has not applied the law applicable to the facts on hand. Therefore, great miscarriage of justice has resulted. The requirement of procedure, provisions of Sections 5 and 11 of the Act as well as provisions of Sections 494 and 495 of IPC were not at all looked into while considering the matter on merits. 4. Therefore, great miscarriage of justice has resulted. The requirement of procedure, provisions of Sections 5 and 11 of the Act as well as provisions of Sections 494 and 495 of IPC were not at all looked into while considering the matter on merits. 4. The learned Counsel for the appellant emphasised on the meaning of the word ‘solemnisation’ of marriage. Unless the Family Court understood what constitutes ‘solemnisation’ of a valid marriage, it could not do justice to the case on hand. Hence the law laid down by various Courts including the Apex Court was totally ignored by the learned Trial Judge. 5. According to the appellant’s Counsel, even the interpretation of the contents of Ex.P.4-the proceedings in the HRC was wrong. The evidence of Mr. Rajanna ought to have been considered as he came out with a categorical statement that he was married to one Smt. Rathnamma way back in the year 1975. The contents of Ex.P-7 FIR in Cr.No.248/94 was not appreciated properly. The vague admissions in the deposition of the wife weighed with the Trial Court which was not proper in view of refutal of the admissions in some other proceedings by the appellant wife and also substantiated such refutal with proper material. The respondent husband herein took undue advantage of the fact that he was a practicing Advocate at the relevant point of time and this was totally ignored by the Family Court. The Family Court also failed to take note of the conduct of the husband again entering into second marriage with one Mamatha as per Hindu rites and customs on 28.10.1999 during the subsistence of marriage of the appellate-wife with the respondent Mr. Poovaiah. 6. As against this, the learned Counsel for the respondent-husband contends that the admission of the appellant wife led to the proof of fact that she was married to one T. Rajanna earlier to the marriage in question and therefore, her marriage with the present respondent-husband is invalid. According to him, the address of the appellant-wife noted in the letter written by Savithri appellant’s cousin sister describing the appellant as wife of T. Rajanna would establish the case of the husband to seek declaration of this nature. Her admission in the HRC is sufficient to allow the petition. According to him, the address of the appellant-wife noted in the letter written by Savithri appellant’s cousin sister describing the appellant as wife of T. Rajanna would establish the case of the husband to seek declaration of this nature. Her admission in the HRC is sufficient to allow the petition. When her own evidence in the HRC proceedings was to the effect that she was married to Rajanna, nothing else need to be proved by the husband-petitioner before the Family Court. With these averments he sought for dismissal of the appeal upholding the judgment and order of the Family Court. 7. The point that would arise for our consideration is: Whether the Judgment and order of the Family Court warrants any interference? 8. We have gone through the Judgment of the Family Court as well as the documentary and oral evidence on record. The controversial issue that arises for our consideration is whether the factum of marriage prior to 14.7.1994 between the appellant Suma Gouda and one Mr. T. Rajanna is established and if so, what happens to the marriage between the parties registered on 14.7.1994? 9. It is well-settled that whenever a party approaches the Court seeking remedy based on the civil right, like relationship either between a man and woman or parentage, the degree of proof is on a higher scale than the matters where adverse inference or presumption could be drawn. The marriage dated 14.7.1994 sought to be a nullity on account of subsistence of alleged previous marriage between the appellant and T. Rajanna, is the relief sought before the Family Court. In support of such relief, he has relied upon certain documents and also evidence of the appellant pertaining to HRC litigation filed against Suma Gouda by one Mr. Venkatesh and also the letter addressed to the appellant as wife of T. Rajanna. The appellant-wife has come out with an explanation regarding her admission before the HRC Court in her deposition. According to her, she was made to give such evidence to overcome HRC proceedings on the advice of the respondent herein. 10. The question is whether a party once admits a fact, could she turn around and give an explanation? Whether such explanation is acceptable or not? There is also one more aspect i.e., whether relationship between the parties can be taken as proof of the marriage between the parties. 10. The question is whether a party once admits a fact, could she turn around and give an explanation? Whether such explanation is acceptable or not? There is also one more aspect i.e., whether relationship between the parties can be taken as proof of the marriage between the parties. Can it be accepted to prove the disputed relationship between the parties. Now, first and foremost the Court has to see whether there is proof of solemnisation of marriage between the appellant-Suma Gouda and one Mr. T. Rajanna. The oral and documentary evidence brought on record has to be taken into consideration to arrive at right conclusion. 11. As stated above, the husband is examined as P.W.1 before the Trial Court and according to him, till he came across some information about the HRC proceedings at Ex.P.5, he was not aware of the previous marriage of his wife Suma Gouda with T. Rajanna and the same came to his knowledge through Advocate’s clerk and the above said exhibit. 12. The evidence of this P.W.1 is under: He after completing law got enrolled as an Advocate in the year 1994 and joined the chambers of one Mr. Dhanaraj, another Advocate. Four months later along with one Mr. M.B. Vishwanath, he set up independent office at Vijayanagar and according to him, he was practicing only on criminal side. He came across the appellant Suma Gouda and became her acquaintance as she was visiting the Courts for affidavits etc. the said acquaintance flourished into love and they got married on 14.7.1994. Prior to the marriage, he was not aware where appellant Suma Gouda was residing except the fact she was coming from Thirthahalli, Shimoga District. He did not inform his senior about his independent work of preparation of affidavits etc., for clients including the appellant Suma Gouda. From the narration of facts by Suma Gouda prior to the wedding he learnt that she owned two house properties at Banashankari apart from her occupation as money lender. He readily accepted the marriage proposal of the appellant Suma Gouda and he did not make any enquiry or attempt to know her background or her family background. He did so as he was convinced that Suma Gouda was a lonely woman who was undergoing hardship in her life. He readily accepted the marriage proposal of the appellant Suma Gouda and he did not make any enquiry or attempt to know her background or her family background. He did so as he was convinced that Suma Gouda was a lonely woman who was undergoing hardship in her life. They lived together upto 1996 and she left him in May 1996 as there were difference of opinion on several family matters. The main cause was her arrogance and irresponsible attitude as a dutiful wife which lead to their separation. Thereafter when he went through the records, he learn that she was married to one Mr. Suresh, after his death she again got married to one Mr. T. Rajanna, a Deputy Secretary at Vidhana Soudha. This was confirmed by another letter dated 19.4.1994 addressed to the appellant wife by her cousin sister by name Savithri. All this came to his knowledge only in the month of January 1996. On questioning the appellant wife, except answering in a callous way she did not come out with proper explanation. He also learnt that two criminal cases were registered in C.C.Nos.4072/1992 and 6691/1993 against the wife. During the happy times of their marriage, they were living at different places including Madikeri, before they shifted to Bangalore. His parents were not agreeable for the marriage initially but later he persuaded them to do so. He was the one who decided the venue, friends or relatives were not informed of the marriage. However, Mr. Dhanaraj, his Senior Counsel was informed about the said marriage. Again he says difference of opinion between them started on the next day of the marriage itself. Once again confirms the fact that only after seeing the letter written to his wife by her cousin sister, he learnt about the appellant’s marriage with one Sri. T. Rajanna. At the time of marriage he had not seen the house at Shantinagar. However, he admits appearing for appellant-wife as an Advocate in a case, but retired from the case after giving no objection in 1996. In the cross-examination, several questions were put suggesting his harassment and ill-treatment as the main cause for the separation but all are denied. Several suggestions were put to him to show that he was visiting the appellant/wife at Shantinagar prior to their marriage and even a complaint came to be lodged against both of them by their landlord Muniyappa. In the cross-examination, several questions were put suggesting his harassment and ill-treatment as the main cause for the separation but all are denied. Several suggestions were put to him to show that he was visiting the appellant/wife at Shantinagar prior to their marriage and even a complaint came to be lodged against both of them by their landlord Muniyappa. He also refers to one Rajappa, Advocate’s clerk regarding the affidavit in HRC proceedings in the year 1995-96. However, he never met Mr. Rajanna personally is his case. He also denies his knowledge about Muniyappa, the landlord of the house at Shantinagar who was working at Vidhana Soudha in the Secretariat under the said Rajanna. When the suggestion was put to him that appellant-wife secured the house at Shantinagar belonging to Muniyappa with the assistance of T. Rajanna and except this acquaintance, there was no relationship of any kind between Rajanna and the appellant-wife but it was denied. Several questions were suggested in the cross-examination to establish that he was not earning and all the household expenses were taken care of by the appellant-wife, but they were denied. According to him, appellant-wife lived with Rajanna at Jeevan Bhimanagar, but he never saw them together at Jeevan Bhimanagar. As a matter of fact, he says he has not seen the house of T. Rajanna at Jeevan. Bhimanagar but his knowledge is only from 3rd parties. 13. When important suggestions so far as alleged marriage of Rajanna with appellant wife Suma Gouda in the year 1992 were put, he says he does not know the details with certainty and he has no records to prove the solemnisation of marriage between Rajanna and appellant-wife. He further confirms and affirms his source of knowledge was only from the letter of Smt. Savithri at Ex.P.2 and the proceedings in the HRC case Ex.P-5. 14. The evidence of Smt. Suma Gouda the appellant herein proceeds as follows: Since 1989 she was friendly with the respondent-Poovaiah, as he was giving legal assistance and after her marriage with him on 14.7.1994 they lived cordially for about 2 years. The accusation of Mr. Poovaiah about her earlier marriage to one Mr. T. Rajanna as an utter falsehood is her contention. On the other hand on the advice of Mr. Poovaiah her husband, she has stated so in the HRC proceedings No.2110/90. The accusation of Mr. Poovaiah about her earlier marriage to one Mr. T. Rajanna as an utter falsehood is her contention. On the other hand on the advice of Mr. Poovaiah her husband, she has stated so in the HRC proceedings No.2110/90. In the said proceedings she has stated that her husband is one Mr. T. Rajanna. She categorically makes a statement that except her marriage with Mr. Poovaiah she was not married to any one else. She came to know Mr. T. Rajanna who was working at the Secretariat, Vidhana Soudha, as she was visiting the said office for some works. Mr. Muniyappa was working as a peon under T. Rajanna. Because of such acquaintance she could get the house of Muniyappa on rent. Therefore, except friendly acquaintance with Mr. T. Rajanna she has nothing to do with Mr. T. Rajanna. 15. On account of developing relationship with her cousin sister who lives at Shimoga, Mr. Poovaiah started ill-treating her. Exs.R-11 and R-13 are relied upon by her. When she was living at Govindarajapura, Bangalore, along with Mr. Poovaiah as wife he appeared for her in Crime No.248/94, conducted the said case and even filed bail application on her behalf. She has studied upto II BA and knows Kannada and English languages. When she was living at Kaderanahalli to do business along with her relative Girija, a company was opened in the name of ‘Girija & Suma’ and the affairs of the company were looked after by said Girija. The house in which they were living belongs to the husband of Girija. Later she shifted to the house of one Venkatesh at Kaderanahalli in the year 1990 and stayed there for 3 to 4 years. She was persuaded to many Mr. Poovaiah on his assurance that he would collect the money advanced by her to different borrowers. He was doing his LLB at that time and she met him in the Magistrate Courts and at that time 3-4 finance recovery cases were pending. Though her people did not agree for the marriage, she married him and she started living with him at Madikeri. Her people were not aware of her whereabouts except through her relative Girija. Girija was also not allowed to attend the marriage as per the instructions of Mr. Poovaiah and only relatives of Poovaiah attended the marriage. Though her people did not agree for the marriage, she married him and she started living with him at Madikeri. Her people were not aware of her whereabouts except through her relative Girija. Girija was also not allowed to attend the marriage as per the instructions of Mr. Poovaiah and only relatives of Poovaiah attended the marriage. For about 2 months they lived at his native place and shifted to Shanthinagar where they lived for 1 or 2 years. Later they started living at Govindarajapura. The house at Shanthinager was taken on rent by her and Poovaiah joined her in the said house. This is what she has stated in the examination-in-chief. During cross-examination she admits being a tenant of one Mr. Muniyappa who also filed criminal case against her and Mr. Poovaiah was also arrayed as accused in the said case. Mr. Venkatesh, her another landlord filed not only HRC proceedings but also a criminal case against her alleging that on 28.10.1990 at about 6.00 A.M. she assaulted Mr. Venkatesh. According to her misbehaviour of Mr. Venkatesh compelled her to assault him and the said case ended in her release applying Probation of Offenders Act. Ex.P1 is the judgment. She was in touch with her cousin sister Savithri who knew about her marriage with Mr. Poovaiah and Ex.P-2 is the letter written to her by said Savithri when HRC case filed by Mr. Venkatesh was pending. 16. The respondent-husband engaged a Counsel on her side to defend her in HRC 2110/1990. In the cross-examination as per the tutoring of Mr. Poovaiah, she stated that her husband was one Mr. Suresh and later she married one T. Rajanna who was living at Jeevan Bhimanagar. After the said case she shifted to the house of one Muniyappa. As a matter of fact she admits her acquaintance with Mr. Rajanna who works at Secretariat, Vidhana Soudha and even accepts that he is her well-wisher. Though she gave a complaint against T. Rajanna that he was troubling her for the payment of money, it was only at the instance of Mr. Poovaiah she lodged such a complaint. She never got married either to Suresh or Rajanna. Therefore, question of informing Mr. Poovaiah did not arise. 17. Apart from her evidence, we have the evidence of T. Rajanna who is examined as a Court witness. Mr. Poovaiah she lodged such a complaint. She never got married either to Suresh or Rajanna. Therefore, question of informing Mr. Poovaiah did not arise. 17. Apart from her evidence, we have the evidence of T. Rajanna who is examined as a Court witness. Mr. Rajanna admits his identity as a person working at Secretariat, Vidhana Soudha. Though he accepts his acquaintance with Suma Gouda, he denies any sort of relationship muchless marital relationship between Suma Gouda and himself. During the cross-examination he admits that Suma Gouda was residing at Shanthinagar, Bangalore and he was residing at Jeevanbhima Nager PWD quarters and he knows Suma Gouda since 1992. Mr. Muniyappa admits being a peon working under Rajanna. He categorically denies marrying Suma Gouda and he further pleads ignorance of Suma Gouda deposing in HRC.2110/1990 claiming to be his wife. He also denies the suggestion that Suma Gouda was living in Muniyappa’s house on his instructions. He pleads ignorance of Muniyappa filing HRC petition and so also criminal case filed against him. As a matter of fact, he went to the extent of explaining that he was not even aware of the proceedings in which he was deposing. On the other hand, according to him he was married to Smt. Rathnamma in the year 1975. A suggestion was made that lie was denying his marriage with Suma Gouda as he was apprehending bigamy case against her. It was suggested that he apprehends danger to his employment if he admits his marriage with Suma Gouda but the same is denied. This is the evidence placed on record by the parties. 18. Both parties have placed before us several documents in support of their contentions. Ex.P2 and Ex.P5 are relied upon by the husband to substantiate his contention that Smt. Suma Gouda is the wife of Mr. Rajanna as described in the said letter. Apparently Smt. Savithri who is said to have written Ex.P2 is not examined. Similarly, Mr. Rachappa-advocate’s clerk who revealed HRC proceedings and the deposition of Suma Gouda, is also not examined in this case. 19. The entire discussion of the case by learned Trial Judge was with reference to her admission in the evidence admitting T. Rajanna as her husband and the marriage was subsisting when she married Mr. Poovaiah in the year 94. Rachappa-advocate’s clerk who revealed HRC proceedings and the deposition of Suma Gouda, is also not examined in this case. 19. The entire discussion of the case by learned Trial Judge was with reference to her admission in the evidence admitting T. Rajanna as her husband and the marriage was subsisting when she married Mr. Poovaiah in the year 94. In order to obtain decree of declaration of the present nature it was incumbent upon the petitioner-husband to approach the Family Court to establish subsistence of valid marriage of Suma Gouda with T. Rajanna as contemplated under Section 5 of the Act. Section 5 of the Act reads as under: “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 incapable of giving a valid consent, has been suffering from mental disorder of such 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 at the age of (eighteen years) at the time of 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;” 20. Section 5(1) refers to solemnisation of marriage which again refers to solemnisation of marriage with accepted ceremonies. Therefore, mere admission of marriage or someone describing someone else as wife will never be equal to the establishment of solemnisation of marriage. 21. We refer to the following cases to analyse what constitutes solemnisation of marriage to result in valid marriage: 1. AIR 1965 SC 1564 – Bhaurao Shankar Lokhande & Another Vs. State of Maharashtra & Another This was a case where the appellant Bhaurao had married the complainant lndubai in the year 1956 and again married Kamalabai in the year 1962 during the lifetime of ludubai. AIR 1965 SC 1564 – Bhaurao Shankar Lokhande & Another Vs. State of Maharashtra & Another This was a case where the appellant Bhaurao had married the complainant lndubai in the year 1956 and again married Kamalabai in the year 1962 during the lifetime of ludubai. A criminal case for offence punishable under Section 494 IPC came to be filed against not only Bhaurao but also his brother and alleged second wife. Except Mr. Bhaurao and the alleged second wife, others were acquitted. The appellant raised a contention that it was incumbent on the prosecution to prove the alleged second marriage of the appellant Bhaurao with Kamlabai in 1962 was duly performed in accordance with the religious rites applicable to the form of marriage gone through. In other words, they deny performance of essential ceremonies for a valid marriage. Therefore, no offence was committed under Section 494 IPC. Hence Their Lordships held that the expression “whoever … marries” under Section 494 means “whoever marries validly”. Their Lordships held that the conviction under Section 494 cannot be sustained. 2. Neelakantappa Vs. Ambamma, ILR 1985 Karnataka 3969. This was a case where the wife initiated proceedings under Section 123 of Cr.P.C. requiring the petitioner wife who claims maintenance to establish the relationship in the first instance, moreso when the opposite party denies the said relationship. In that context His Lordship held that law does not postulate that the standard of proof of marriage in proceedings under Section 125 of the Code would be as high as required in the case of proof of marriage in proceedings under the Indian Divorce Act or in prosecutions under Sections 494 to 498 of the Indian Penal Code. They also held that existence of such relationship contemplated under Section 50 of the Evidence Act applies in considering relationship of marriage in proceedings under Section 125 of the Code. 3. (1988) 1 SCC 530 , Yamunabai Anantrao Adhav Vs. Anantrao Sivram Adhav And Another. This is also a case where a unfortunate woman approached the Court seeking maintenance. The claimant Yamunabai was married to Anantrao in 1974 as per Hindu customs and rites. However, said Anantrao was already married to one Lilabai who was alive and said marriage was subsisting in the year 1974 when he married Yamunabai. Anantrao Sivram Adhav And Another. This is also a case where a unfortunate woman approached the Court seeking maintenance. The claimant Yamunabai was married to Anantrao in 1974 as per Hindu customs and rites. However, said Anantrao was already married to one Lilabai who was alive and said marriage was subsisting in the year 1974 when he married Yamunabai. When she sought for maintenance, her application came to be dismissed and the matter was taken up before the High Court where the case was heard by the Full Bench and decided against Smt. Yamunabai by improved judgment. The matter went to the Supreme Court where their Lordships with reference to the term ‘wife’ used under Section 125 Cr.P.C. proceeded to appreciate the status of Hindu woman marrying the Hindu male with a living spouse after coming into force of the Act. In that context they referred to Sections 5, 11, 12 & 16 of the Act. So far as void marriages under Section 11 – any marriage solemnised after the commencement of 1955 Act will be declared as null and void if a petition is presented by either of the spouse against the other seeking declaration of nullity of marriage if that marriage is in contravention of any of the conditions of provisions specified in some of the clauses of Section 5(i), (iv) & (v). Clause no. (1)(i) of Section 5 says neither party should have a spouse living at the time of marriage. Therefore, a marriage in contravention of sub-clause (i) of Section 5 is null and void. Then their Lordships proceeded to hold that expression wife’ referred to at Section 125 Cr.P.C. should be interpreted to mean only a ‘legally wedded wife’. Their Lordships held that marriage of a woman in accordance with Hindu rites with a man having living spouse is a complete nullity in the eye of law. 4. (1991) 2 SCC 375 – Vimala (K) Versus Veeraswamy (K). This is again another case under Section 125 Cr.P.C. wherein the husband took a plea that the marriage with the petitioner was void due to subsistence of an earlier marriage. Their Lordships held that burden of proof of such earlier marriage is on the husband and while considering the matter on merits they discussed the provisions of Sections 5 & 11 of the Act. Their Lordships held that burden of proof of such earlier marriage is on the husband and while considering the matter on merits they discussed the provisions of Sections 5 & 11 of the Act. It was held in this case that the husband was bound to prove that he married another woman earlier in the customary form and the marriage was subsisting in the year 1983 when he again married the claimant wife Vimala. 5. AIR 1996 Madras 150 – S.C. Shanthi V.P. Venkatesh. This is also a case where Section 11 of the Hindu Marriage Act was discussed. In this case the appellant wife denied the marriage and the respondent claimed valid marriage between the parties. It was held that unless the happening of valid marriage in accordance with the customs or rites is proved, one cannot call the so-called marriage that took place on 10-2-1984 between the parties as a valid one. In other words, failure of respondent to prove that the marriage was in accordance with the Hindu customary rites, marriage was held as invalid. Therefore, it would mean when the husband seeks for declaration under Section 11 claiming the marriage as a void one, he has to prove the marriage of opposite party with some one else was solemnized earlier in accordance with the Hindu customary rites and the said marriage was subsisting as on the date of marriage which was sought to be nullified. 6. AIR 1994 Karnataka 247 – Smt. Nirmala and Others Vs. Smt. Rukminibai and Others. In this case the dispute of the status of the 1st defendant and her children arose only in the year 1978 after the death of Narayanarao i.e., 30 years after the marriage of Narayanarao with defendant No.1. The presumption arising out of long co-habitation is a rebuttal presumption and the onus to prove lies on the party who seeks to rebut the presumption. In such cases formality and customs for valid marriage could also be presumed to have been performed. 7. (2004) 3 SCC 199 – Reema Aggarwal Vs. Anupam And Others. In this case accused were charged for offence punishable under Section 498-A and 304-B, IPC. Section 113-B of the Evidence Act was also referred to. The relevant paras are 9, 11 & 18. They read as under: Para 9. The marriages contracted between Hindus are now statutorily made monogamous. (2004) 3 SCC 199 – Reema Aggarwal Vs. Anupam And Others. In this case accused were charged for offence punishable under Section 498-A and 304-B, IPC. Section 113-B of the Evidence Act was also referred to. The relevant paras are 9, 11 & 18. They read as under: Para 9. The marriages contracted between Hindus are now statutorily made monogamous. A sanctity has been attributed to the first marriage as being that which was contracted from a sense of duty and not merely for personal gratification. When the fact of celebration of marriage is established, it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through. As was said as long back as in 1869 “when once you get to this viz. That there was a marriage in fact, there would be a presumption in favour of there being a marriage in law”, (See Inderum Valungypooly Taver Vs. Ramaswamy Pandia Talaver, Moo IA p. 158.) So also where a man and woman have been proved to have lived together as husband and wife, the law fill presume, until contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage (See Sastry Velaider Vs. Sembecutty following Dc Thoren Vs. Attorney General and Piers Vs. Piers.) Where a marriage is accepted as valid by relations, friends and others for a long time, it cannot be declared as invalid. In Lokhande case it was observed by this Court: (AIR p.1565, para 3) The bare fact that a man and woman live as husband and wife does not at any rate normally give them the status of husband and wife even though they may hold themselves before the society as husband and wife and the society treats them as husband and wife. These observations were cited with approval in Surjit Kaur Vs. Garja Singh. At first blush, it would seem that these observations run counter to the long catena of decisions noted above. But on closer examination of the facts of those cases it is clear that this Court did not differ from the views expressed in the earlier cases. In Lokhande case this Court was dealing with a case of prosecution for bigamy. At first blush, it would seem that these observations run counter to the long catena of decisions noted above. But on closer examination of the facts of those cases it is clear that this Court did not differ from the views expressed in the earlier cases. In Lokhande case this Court was dealing with a case of prosecution for bigamy. The prosecution had contended that second marriage was gandharva form of marriage and no ceremonies were necessary and, therefore, did not allege or prove that any customary ceremonies were performed. In that background, it was held that even in the case of gandharva marriages, ceremonies were required to be performed. To constitute bigamy under Section 494, IPC, the second marriage had to be a valid marriage duly solemnised and as it was not so solemnized it was not a marriage at all in the eye of the law and was therefore invalid. The essential ingredient constituting the offence of bigamy is the “marrying” again during the lifetime of husband or wife in contrast to the ingredients of Section 498-A which, among other things, envisage subjecting the woman concerned to cruelty. The thrust is mainly on “marrying” in Section 494, IPC as against subjecting of the woman to cruelty in Section 498-A. Likewise, the thrust of the offence under Section 304-B is also on “dowry death”. Consequently, the evils sought to be curbed are distinct and separate from the persons committing the offending acts and there could be no impediment in law to liberally construe the words or expressions relating to the persons committing the offence so as to rope in not only those validly married but also anyone who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, cohabit and exercise authority as such husband over another woman. As the prosecution had set up a plea of gandharva marriage and had failed to prove the performance of ceremonies, it was not open to fall back upon the presumption of a valid marriage. It was further held that there was no such presumption if the man was already married. In Surjit Singh case the stand was that the marriage was in Karewa form. It was further held that there was no such presumption if the man was already married. In Surjit Singh case the stand was that the marriage was in Karewa form. This Court held that under the custom of Karewa marriage the widow could marry the brother or a relation of the husband but in that case the man was a stranger. Further, under that form of marriage certain ceremonies were required to be performed which were not proved. Dealing with the contention relating to presumption, reference was made to Lokhande case. As the parties had set up a particular form of marriage which turned out to be invalid due to absence of proof of having undergone the necessary ceremonies related to such form of marriage, the presumption of long cohabitation could not be invoked.’ “Para 11. The question as to who would be covered by the expression “husband” for attracting Section 498-A does present problems. Etymologically, in terms of the definitions of “husband’ and “marriage’ as given in the various law lexicons and dictionaries – the existence of a valid marriage may appear to be a sine qua non for applying a penal provision. In Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav a woman claimed maintenance under Section 125 of the Code of Criminal Procedure, 1973 (in short “CrPC”). This Court applied the provision of the Marriage Act and pointed out that same was a law which held the field after 1955, when it was enacted and Section 5 lays down that for a lawful marriage the necessary condition that neither party should have a spouse living at the time of the marriage is essential and marriage in contravention of this condition therefore is null and void. The concept of marriage to constitute the relationship of “husband” and “wife” may require strict interpretation where claims for civil rights, right to property etc., may follow or flow and a liberal approach and different perception cannot be an anathema when the question of curbing a social evil is concerned.” “Para 18. The concept of “dowry” is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue, further legalistic problems do arise. The concept of “dowry” is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue, further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498-A and 304-B IPC and Section 113-B of the Indian Evidence Act, 1872 (for short “the Evidence Act”) were introduced, cannot be lost sight of. Legislation enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with a certain element of realism too and not merely pedantically or hypertechnically. The obvious objective was to prevent harassment to a woman who enters into a martial relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a martial arrangement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature “dowry” does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498-A. The Legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the Legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the Legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the Legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to “any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction”. It would be appropriate to construe the expression “husband” to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions – Sections 304-B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498-A and 304-B, IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of “husband” to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as “husband” is no ground to exclude them from the purview of Section 304-B or 498-A, IPC, viewed in the context of the very object and aim of the legislations introducing those provisions. 8. (2005) 2 SCC 33 – Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga. This is a case where second marriage was sought to be declared as null and void. Respondent-wife relied upon a document called chhor chithhi from her previous husband and thereafter solemnizing second marriage with the appellant. When such customary divorce obtained from any Court by a document of chhor chithhi was not established and in the light of no decree of divorce being obtained from any Court of law, it was held that the first marriage of the respondent having been absolved by any decree of Court was subsisting when she entered into the second marriage. Hence, her second marriage was liable to be declared as null and void. 22. The catena of decisions ultimately would go to show that appreciation of evidence so far as civil litigation concerning establishment of marriage, especially the factum of marriage it requires strict establishment of such fact of marriage. Hence, her second marriage was liable to be declared as null and void. 22. The catena of decisions ultimately would go to show that appreciation of evidence so far as civil litigation concerning establishment of marriage, especially the factum of marriage it requires strict establishment of such fact of marriage. Similarly, in a case where question of curbing a social evil of causing harassment to woman with demand of dowry or a case of domestic violence, strict proof or establishment of such right need not be a strict one. The relief sought now is for declaration of nullity of marriage between the appellant Suma Gouda and the respondent-husband Mr. M.K. Poovaiah. This marriage is dated 14.7.1994. So far as solemnisation of marriage, there is absolutely no doubt. The dispute is with regard to the marriage of the appellant Suma Gouda with one T. Rajanna. Unless the solemnisation of marriage of appellant Suma Gouda with R. Rajanna is in accordance with the customary rights or in other form known to law is established, the relief sought by the appellant cannot be granted. 23. The evidence on record indicates that the Trial Court mainly placed reliance on a letter at Ex.P-2 said to have been written by the sister of the appellant Suma Gouda to the respondent addressing her as the wife of one T. Rajanna. Whether this itself would amount to establishment of factum of solemnisation of marriage between T. Rajanna and Suma Gouda? In the light of categorical denial not only by appellant. Suma Gouda but also by Mr. T. Rajanna, Section 50 of the Evidence Act comes into play which reads as under: “Opinion on relationship, when relevant.-When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings [under the Indian Divorce Act, or in prosecutions under Sections 494, 497, or 498 of the Indian Penal Code].” 24. The reading of the above provision of law means persons having special means of knowledge can speak about the existence of relationship i.e., what he has been told and what he has learnt from his ancestors. It has to be his own independent opinion though it is based on hearsay. In other words, such opinion regarding relationship should not be repetition of the hearsay opinion of others. Even opinion could be formed from the conduct expressed. Therefore, opinion expressed by conduct as to the existence of relationship between the two persons could be stated by a person who has special means of knowledge on the subject of that relationship. 25. Following citations are relied upon: 1. AIR 1959 SC 914 – Dolgobimnda Paricha Vs. Nirmal Charan Misra & Others “Under Section 50 – Opinion regarding relationship as expressed by conduct again has to be considered as contemplated under Sections 50 and 60 of the Evidence Act. When a Court has to form an opinion as to the relationship of one person to another person, the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The essential requirements of the section are: (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. The “belief” or conviction may manifest itself in conduct or behavior which indicates the existence of the belief or opinion. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. The “belief” or conviction may manifest itself in conduct or behavior which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. 2. AIR 1954 SC 601 – Sitaji And Others Vs. Bijendra Narain Choudhary And Others. A member of the family can speak in the witness-box of what he has been told and what he has learned about his own ancestors, provided what he says is an expression of his own independent opinion (even though it is based on hearsay derived from deceased, not living, persons) and is not merely repetition of the hearsay opinion of others, and provided the opinion is expressed by conduct. His sources of information and the time at which be acquired the knowledge (for example, whether before the dispute or not) would affect its weight but not its admissibility). (Para 10)” 26. Question is whether this Court can consider the address written on Ex.P-2 by one Smt. Savithri describing the appellant Suma Gouda as the wife of T. Rajanna as an opinion as contemplated under Section 50 of the Evidence Act. What was the source of knowledge or means of information of such relationship between the parties ought to have been placed before the Court by the respondent Mr. Poovaiah. It could be done only by examining Smt. Savithri before the Court. So far as information given by Advocate’s clerk Rachappa is also with reference to her evidence before Court in HRC proceedings as per Ex.P-5. Therefore, the information through Rachappa will not attract the provisions of Section 50. 27. Then coming to information regarding relationship when it is relevant, it is explicit that opinion expressed by conduct viz., external facts could be proved by the person giving evidence who holds such opinion or by other persons within whose knowledge such facts evidencing the conduct is available. Such opinion must have the seal of independence while expressing the same. Therefore, Savithri would have been the right person to be called to prove the opinion with reference to the address at Ex.P-2. 28. Such opinion must have the seal of independence while expressing the same. Therefore, Savithri would have been the right person to be called to prove the opinion with reference to the address at Ex.P-2. 28. The word ‘relationship’ under Section 50 takes into its ambit all kinds of relationships including relationship by blood, marriage or adoption. The word ‘opinion’ referred to at Section 50, definitely does not include information arising out of gossip. Therefore, mere general repetition cannot be evidence as contemplated under Section 50. In cases of adultery complainant is required to strictly prove the factum of marriage. Fact of living together as husband and wife and giving birth to their child cannot be considered in a prosecution for matrimonial offence. Therefore, the conduct referred to at Section 50 is nothing more than a conduct and such conduct alone is not substituted for strict proof of a fact. For example, even if the accused in his statement under Section 313 of Cr.P.C. admits that the woman was the legally wedded wife of the complainant, it will not be of any avail to the prosecution if it otherwise fails to prove marriage between the complainant and the woman. 29. It is well-settled that admission of marriage by the accused is not evidence for the purpose of proving the marriage either in the case of adultery or bigamy. Though presumption arises in favour of a marriage where there had been a lengthened co-habitation, especially in cases where the alleged marriage had taken place long long ago, and where it is difficult to get trustworthy account of what actually occurred, continual long co-habitation and acknowledgment of it, through conduct will lead to established marriage and legitimacy of the off-springs of such marriage. In the present case, there is no such recognition or presumption of marriage. In the present case, there is no such recognition or presumption of marriage because of long co-habitation between Suma Gowda and said T. Rajanna. Therefore, such presumption is also not available to the respondent-husband 30. As a matter of tact, proviso to Section 50 applies only to cases coming under the Indian Divorce Act and prosecution under Section 494, 495, 497 or 498 IPC. Such proviso was needed because strict proof of marriage was required in original prosecutions and also matters pertaining to Indian Divorce Act. As a matter of tact, proviso to Section 50 applies only to cases coming under the Indian Divorce Act and prosecution under Section 494, 495, 497 or 498 IPC. Such proviso was needed because strict proof of marriage was required in original prosecutions and also matters pertaining to Indian Divorce Act. Therefore, it is well settled that in cases of prosecution for penal action as stated above and also in cases of divorce or petition for damages by reason of adultery, strict proof of factum of marriage is required. Hence the proof of fact of marriage should not depend on opinion or conduct of evidence in proceedings for divorce, etc. As a matter of fact, the reliefs sought by the respondent-husband in the present case is nothing short of putting an end to the registered marriage dated 14.7.1994 on the ground of existence and subsistence of a previous valid marriage between Suma Gouda-appellant and T. Rajanna. 31. Then coming to other aspects of the case, whether her admission by virtue of Ex.P-5 in HRC.2110/90, would become an admission as contemplated under the Indian Evidence Act. Sections 21 & 31 of the Evidence Act deal with the admission which read as under: “S.21. Proof of admissions against persons making them, and by or on their behalf.-Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:- (1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under Section 32. (2) An admission may be proved or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. “S.31. (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. “S.31. Admissions not conclusive proof, but may estop.- Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained. 32. Court has to see to what extent said admission will be binding so as to estop the person who appears in the case from denying the same. It is well-settled that the admissions though could be reasonable presumption to be true, it can be refuted by the party by way of rebutting the facts admitted. It is well-settled that admissions are not conclusive unless they constitute estoppels. The maker is at liberty to prove they are mistaken or/are untrue. It is also a piece of evidence like any other evidence. 33. Reliance is placed on the following citations: 1. AIR 1956 SC 593 – Nagijbai Ammal & Others Vs. B. Shama Rao & Others. “18. An admission is not conclusive as to the truth of the matter stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. Reliance was placed on the well-known observations of Baron Parke in Slatterie Vs. Pooley, (1840) 6 M and W 664 (669) (C) that “what a party himself admits to be true may reasonably be presumed to be so”, and on the decision in 34 Ind App 27(b), where this statement of the law was adopted. No exception can be taken to this proposition. But before it can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. It has already been pointed out that the tenor of the statements made by Abdul Huq, his legal representatives and the plaintiff was to suggest that the proceedings in O.S.No.100 of 1919-20 were fraudulent and not collusive in character. Those statements would not, in our opinion, be sufficient, without more, to sustain a finding that the proceedings were collusive.” 2. It has already been pointed out that the tenor of the statements made by Abdul Huq, his legal representatives and the plaintiff was to suggest that the proceedings in O.S.No.100 of 1919-20 were fraudulent and not collusive in character. Those statements would not, in our opinion, be sufficient, without more, to sustain a finding that the proceedings were collusive.” 2. AIR 1956 SC 504 – Kishori Lal Vs. Chalti Bai: “14. It was then argued for the appellant that the course of conduct of the respondent and her various acts of admission and the treatment of the appellant as an adopted son by the respondent and other members of the family gave rise to a strong inference that he (the appellant) was adopted as alleged by him and the evidence should have been so appraised as to support that inference, Particular emphasis was placed by Counsel for the appellant on the fact that soon after the death of Lakshminarayan it was given out that the appellant was his adopted son and this assertion was continuously made in may transactions and documents. These documents, the course of conduct of Chaltibai, respondent in treating the appellant as the adopted son of Lakshminarayana and the length of the appellant’s possession of Lakshminarayan’s estate, it was contended, showed that he was the adopted son of Lakshinarayan. It was also submitted that the admissions shifted the onus on to the respondent on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted, the fact admitted must be taken to be established: Chandra Kunwar Vs. Narpat Singh, 34 Ind App 27. The question of onus loses its efficacy because it was never objected to in the Courts below and evidence having been led by the parties, at this stage the Court has to adjudicate on the material before it. And admission are not conclusive, and unless they constitute estoppel, the maker is at liberty to prove that they were mistaken or were untrue. Trinidad Asphalt Company Vs. Coryat, 1896 A C 587. Admissions are mere pieces of evidence and if the truth of the matter is known to both parties the principle stated in Chandra Kunwar’s case (34 lad App 27) (supra) would be inapplicable. Trinidad Asphalt Company Vs. Coryat, 1896 A C 587. Admissions are mere pieces of evidence and if the truth of the matter is known to both parties the principle stated in Chandra Kunwar’s case (34 lad App 27) (supra) would be inapplicable. And in this case there is no admission by the respondent of the appellant’s adoption by her husband in his lifetime. Such admissions cannot help the case of the appellant or support a different appraisal of the evidence of the factum of adoption or establish an adoption which is otherwise disproved. 15. In order to properly appreciate the effect of these admissions it is necessary to consider the circumstances under which these various documents were executed and the acts done or the admissions made. At the death of Lakshminarayan the respondent was 24 or 25 years old surrounded by the family of Badrinarayan whose interest it was to foist an adoption on her. Her own relations do not seem to have taken much interest in her or her affairs. She was thus a widow, lonely and dependent upon her husband’s relations. The Trial Court described her as a pardanashin woman. Although Badrinarayan himself denied that he was managing, the estate of Lakshminarayan. Narsingdas one of the appellant’s witnesses stated that Badrinarayan was doing so and Badrinarayan admitted that he looked after the Court cases though at the request of the respondent it is with this background that the evidence has to be considered and weighed. Any admission made by a widow situated as the respondent would necessarily carry very little weight, AIR 1931 PC 84 (supra). 3. AIR 1960 SC 100 – Narayan Bhagwantrao Gosavi Baljajiwale Vs. Gopal Vinayak Gosavi And Others. “An admission is the best evidence that an opposing party can rely upon and though no conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. 4. AIR 1980 Madras 212 – M. Manoharan Chetti & Others Vs. M/s. C. Coomaraswamy Naidu & Sons, Madras. “10. The law by no means regards admissions as conclusive proof of the matters admitted. This is because to a Court of law admissions are but statements which do no more than suggest an inference as to some fact or facts in issue. (See Sections 31 and 17 of the Indian Evidence Act, 1872). “10. The law by no means regards admissions as conclusive proof of the matters admitted. This is because to a Court of law admissions are but statements which do no more than suggest an inference as to some fact or facts in issue. (See Sections 31 and 17 of the Indian Evidence Act, 1872). It is, therefore, important that the Court should examine any given admission inside out to see if it suggests any clear inference on the fact in issue against the party making it. For a Court to draw an adverse inference against a party on the basis of what he is stated to have admitted, the admission must be unequivocal. It must also be comprehensive. It must go the whole-hog, as it were, on the point at issue. If a party’s admission falls short of the totality of the requisite evidence needed for legal proof of a fact in issue, such an admission would be only a truncated admission. It follows that it such a case, it cannot support a valid judicial determination, unless it be that the Court is in a position to find other evidence before it to make up for the deficiencies in the admission”. By applying the law laid down in the above decisions, we have to see whether the appellant Suma Gouda could go back on her admissions which was in the form of deposition as per Ex.P-5. As per Ex.P-5 she proceeds to say her husband is one Suresh and she does not remember the date of marriage with him, no marriage card is with her. According to her said Suresh died 6 years back and she does not remember the date of death of her husband and at the time when she came to the schedule premises as a tenant, her husband Suresh was not alive. She further says that during the stay in the schedule premises, she again married and the name of her present husband is Rajanna and his house is in Jeevanbhima Nagar. He is working as Deputy Secretary in Vidhana Soudha. This evidence of hers weighed with the Trial Court to conclude that this is an admission by her. At para 11 of the Judgment, the learned Judge refers to 9 judgments. He is working as Deputy Secretary in Vidhana Soudha. This evidence of hers weighed with the Trial Court to conclude that this is an admission by her. At para 11 of the Judgment, the learned Judge refers to 9 judgments. Except one judgment of Yamunabai Anantrao Adhav referred to supra, the law laid down in none of the other cases applies to the facts of the present case. 34. So far as Yamunabai’s case, we have already discussed above with regard to solemnization of marriage. The learned Judge opines that the admission made by the appellant is an admission contemplated under Section 58 of the Evidence Act. According to him, these admissions are binding on the parties and further constitute waiver of proof because by themselves they can be made the foundation of their rights. Section 58 of the Evidence Act reads as under: Facts admitted need not be proved.- No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, as its discretion, require the facts admitted to be proved otherwise than by such admissions.” 35. The learned Judge without referring to the proviso to the said section, proceeded to hold that the admission of her in HRC proceedings would bind her. Again this admission referred to at Section 58 could be by way of pleading either direct or indirect or during the examination or cross-examination of a witness. The distinction between admissions in pleadings and the evidentiary admission could be arrived at by referring to Sections 31 & 58 of the Evidence Act. Admission made by a party in pleadings is conclusive but admission made in the evidence is only a piece of evidence unless it operates as estoppel as stated above. Even otherwise, admission in a pleading is binding only in the proceedings in which it is made and it may be shown to be wrong in subsequent proceedings. Therefore, the learned Judge without considering the scope of Section 58 and other sections of the Evidence Act as stated above, proceeded to hold that admission in the present case is proof of fact. Therefore, the learned Judge without considering the scope of Section 58 and other sections of the Evidence Act as stated above, proceeded to hold that admission in the present case is proof of fact. The very evidence given as stated above would indicate that she was unable to give the details of the marriage with one Mr. Suresh and so also his death and so also the date of marriage with Mr. Rajanna subsequently. The entire evidence of hers would go to show that she was asked to say so at the instance of the respondent-husband. In fact, except this admission, there is nothing else on record which would substantiate the contention of the respondent-husband that there was a solemnisation of marriage between the appellant Suma Gouda and one Mr. T. Rajanna. As a matter of fact, Mr. Rajanna has come before Court categorically deposing his marriage with one Rathnamma somewhere in the year 1975. So for as the details of marriage between the said Rajanna and this appellant, the petitioner-husband before the Family Court was unable to bring on record any details, at least the so-called date of marriage between Rajanna and the appellant. So far as his knowledge of facts, according to him he has never met said Rajanna, he has never seen Suma Gouda living with Rajanna and he has not even seen the house of Rajanna at Jeevanbhima Nagar. On the other hand, the material indicates there is a person by name T. Rajanna, Deputy Secretary at Vidhana Soudha who was known to the present appellant Suma Gouda. It is also the case of the appellant-wife that HRC proceedings was much earlier to her marriage with Mr. Poovaiah on 14.7.1994. She has explained that at the instance, of Mr. Poovaiah who was assisting her in the litigation, she gave the name of her husband as Mr. Rajanna. She is not alleging any fraud or undue influence played on her to give such evidence because it is not her case that Mr. Poovaiah forced her to give such evidence. According to her, it was only an advice of Mr. Poovaiah to get our the proceedings in the HRC matter. 36. In the present case, on account of earlier marriage being in the subsistence between Suma Gouda and T. Rajanna, the marriage between the present parties claimed to be null and void by the husband. According to her, it was only an advice of Mr. Poovaiah to get our the proceedings in the HRC matter. 36. In the present case, on account of earlier marriage being in the subsistence between Suma Gouda and T. Rajanna, the marriage between the present parties claimed to be null and void by the husband. The valid marriage under Section 5 refers to solemnisation of marriage which again refers to solemnisation of marriage with proper ceremonies and in accepted form. Therefore, mere admission of marriage or going through certain ceremonies with the intention of marriage will never make the ceremonies as solemnisation of marriage. 37. On the other hand, respondent has given explanation under what context she had to depose before the Court in HRC proceedings that her husband was one T. Rajanna, Deputy Secretary in the Secretariat. The material on record shows the fact that, within 4 or 5 months after his marriage husband Poovaiah appeared for the appellant-wife in criminal case filed by one Mr. Muniyappa in Crime No. 248/1994 which was converted as criminal case. It is also admitted by the husband that only in the year 1996 he gave no objection to his colleague Vishwanath to appear for the wife when be started living away from his wife. The very contents of the FIR is with reference to the relationship between the said T. Rajanna and the present respondent-wife Suma. The contents definitely do not indicate that, Smt. Suma Gouda was the wife of T. Rajanna. On the other hand, the explanation given by the wife is that on the advice of Mr. Poovaiah an Advocate at that time, she has deposed before the Court that she was married to one T. Rajanna. In all probability, in order to avoid the stigma in the society because of the allegation of Muniyappa that she was kept mistress of T. Rajanna, Deputy Secretary, she must have deposed before the Court claiming to be the wife of T. Rajanna, Deputy Secretary, that too at the instance of the petitioner-husband. 38. In all probability, in order to avoid the stigma in the society because of the allegation of Muniyappa that she was kept mistress of T. Rajanna, Deputy Secretary, she must have deposed before the Court claiming to be the wife of T. Rajanna, Deputy Secretary, that too at the instance of the petitioner-husband. 38. From the records produced by the wife before the Trial Court as ‘R’ series, it is very clear that he knew what was the condition in which Smt. Suma was living prior to her marriage and it is rather difficult to accept his argument that he did not know the background of Smt. Suma Gouda prior to his marriage with her. It is also difficult to believe him that he did not even visit Smt. Suma Gouda at her Shanthinagar house, though it was a love marriage. All along he must have known why such admission came to be made by Smt. Suma Gouda before the Court in HRC proceedings, therefore, he kept quite as he was the prompter to give such evidence before the Court by Smt. Suma Gouda. Except her admission which is rebuttable in nature and infact appropriately rebutted by the appellant-wife, there is no other material whatsoever placed before the Court establishing the fact of marriage between T. Rajanna and Suma Gouda prior to the marriage between the parties in 1994. As a matter of fact, Mr. T. Rajanna is examined as a Court witness by summoning him and he has explained how he came to know Smt. Suma Gouda, she was only his acquaintance and nothing else. He also discloses to whom he is married. Under these circumstances, it is crystal-clear that for the sake of avoiding legal responsibility, the petitioner-husband Mr. Poovaiah has came up with false allegation that his marriage with Smt. Suma Gouda on 14.7.1994 is null and void in view of Suma Gouda having a living spouse Mr. T. Rajanna and the marriage being in subsistence. 39. The last portions of the cross-examination of Mr. Rajanna by the respondent-Poovaiah would indicate that Rajanna was denying the fact of his marriage with Suma Gouda apprehending a bigamy case against him. This suggestion was made to Mr. Rajanna after he disclosed that he was married to Ratnamma in the year 1975. 39. The last portions of the cross-examination of Mr. Rajanna by the respondent-Poovaiah would indicate that Rajanna was denying the fact of his marriage with Suma Gouda apprehending a bigamy case against him. This suggestion was made to Mr. Rajanna after he disclosed that he was married to Ratnamma in the year 1975. The trend of cross-examination of Rajanna would further make it clear that Rajanna was married to Ratnamma and then he has married Suma Gouda, therefore, he was hesitating to admit the said marriage apprehending bigamy case from Ratnamma. If the tenor of cross-examination were to be believed, even the marriage between Rajanna and Suma Gouda was not a valid marriage, if at all it happened, as Rajanna was already married to Ratnamma. In the absence of any valid marriage between Suma Gouda and Rajanna, she can never become the become the legally wedded wife of Mr. Rajanna. Therefore, if that marriage was not in the eye of law, the marriage between Poovaiah and Suma Gouda becomes valid. 40. Even otherwise, in the absence of Mr. Poovaiah establishing the valid marriage between Rajanna and Suma Gouda, he cannot have the declaration to the effect that the marriage dated 14.7.1994 is invalid and illegal. Therefore, the entire evidence on record would only indicate that the husband Poovaiah taking undue advantage of certain facts, which were very much within his knowledge, as he was the creator of those facts has approached the Court seeking for the present declaration. The Trial Court without understanding the provisions of Sections 21, 31, 50 and 58 of the Evidence Act and Sections 5 and 11 of the Hindu Marriage Act in the right perspective has proceeded to grant the declaration sought. In view of the above discussion and reasoning, the appeal is allowed setting aside the judgment and order dated 29.7.2006 in M.C.No.444/86 on the file of the II Additional Principle Judge, Family Court, Bangalore. The petition filed under Section 11 of the Hindu Marriage Act seeking declaration that the marriage of the appellant-Suma Gouda with the respondent Mr. K. Poovaiah as nullity is dismissed with costs throughout.