Judgment : This second appeal is filed against the decree and judgment dated 17.01.2005 passed by the III Additional Senior Civil Judge, (Fast Tract Court), Visakhapatnam in A.S.No.164 of 2000 whereby and whereunder the learned III Additional Senior Civil Judge reversed the decree and judgment dated 02.12.1996 passed by the Principal District Munsif, Visakhapatnam in O.S.No.1210 of 1992. The plaintiff filed the second appeal. I have heard the learned counsel appearing for the plaintiff and the defendant No.5, who are the contesting parties. For the sake of convenience, I would like to refer the parties herein as ‘the plaintiff and the defendants’. The plaintiff filed O.S.No.1210 of 1992 to declare her as legally wedded wife of late Pilla Ramulu and for the consequential relief authorizing her to receive the death benefits of late Pilla Ramulu, who worked as Sipoy No.2549243 in Indian Army of Madras Regiment from 28.06.1960 to 01.07.1975 and later worked in the Indian Oil Corporation, Visakhapatnam under Ex-servicemen quota. The said Ramulu died on 09.01.1985 in a motor vehicle accident and a dispute arose between the plaintiff and the 5th defendant as to the legal status of the wife of the deceased Ramulu which lead to the filing of O.S.No.1210 of 1992 by the plaintiff and ultimately to the present second appeal. Admittedly, the 5th defendant is the wife of Pilla Ramulu and her marriage was performed with him on 02.08.1962. It was alleged by the plaintiff that some time after marriage, the 5th defendant eloped with somebody and here whereabouts were not known for a period of more than 20 years and as she was unheard of for more than 7 years after deserting her husband, the villagers convened a panchayat on 30.08.1971 and in the said panchayat a resolution was passed dissolving the marriage between Ramulu and the 5th defendant. Subsequently, according to the plaintiff, Ramulu married her on 20.03.1972. She also contends that the parties belong to Kapu community and a custom is prevailing in their community permitting second marriage after obtaining customary divorce. She produced a certificate marked as Ex.A.2 dated 16.12.1987 which is to the effect that in the panchayat convened by the President and members of the Grampanchayat, the marriage between late Ramulu and the 5th defendant was dissolved. She produced a certificate marked as Ex.A.2 dated 16.12.1987 which is to the effect that in the panchayat convened by the President and members of the Grampanchayat, the marriage between late Ramulu and the 5th defendant was dissolved. PW.2, the then Sarpanch of Nadupuru village to which the parties belong gave evidence to the effect that the 5th defendant eloped with somebody in the year 1962 and since then her whereabouts were not known. It is also to the effect that in the year 1971 a resolution was passed authorizing Pilla Ramulu to go for second marriage and accordingly the witness states that he married the plaintiff. Admittedly, PW.2 is not the Sarpanch of the village on the crucial date when the resolution was passed dissolving the marriage. This witness admitted in the cross examination that for a period of four years after elopement by the 5th defendant, no report was lodged either by Ramulu or anybody about the elopement of 5th defendant, and no application was also submitted to the Grampanchayat stating the said fact. Moreover, it is the version of PW.2 and other witnesses examined on behalf of the plaintiff that the record relating to passing of resolution or any copy of the resolution are not available and admittedly 5th defendant was not present at the time of passing of resolution in the year 1971. It is also admitted that her signature was not obtained on the resolution. According to PW.2, the parents of 5th defendant participated in the said panchayat. Curiously PW.2 stated in his evidence that he had no personal knowledge about 5th defendant eloping with someone. The burden is on the plaintiff to prove that there is a custom in their community to go for second marriage after obtaining customary divorce, but absolutely, there is no evidence adduced by her in proof of the said custom prevailing in their community. The learned trial Court took judicial notice of such customary divorce which is impermissible under law. Ex.A.2 is only a certificate said to have been issued two years after the death of Pilla Ramulu and the said document came into existence on 16.12.1987. Ex.A.2 itself cannot be treated as deed of dissolution of marriage, nor any other deed of dissolution of marriage is produced by PW.1 apart from Ex.A.2. Ex.A.2 is only a certificate said to have been issued two years after the death of Pilla Ramulu and the said document came into existence on 16.12.1987. Ex.A.2 itself cannot be treated as deed of dissolution of marriage, nor any other deed of dissolution of marriage is produced by PW.1 apart from Ex.A.2. The learned first appellate Court rightly refused to place any reliance on Ex.A.2 certificate since no record relating to the meeting of Grampanchayat at which the resolution was passed was produced by the plaintiff and admittedly the said resolution, if any, was passed in the absence of 5th defendant who must be a party to such resolution. Even if the oral account of the plaintiff and her witness is believed, such resolution is not valid because 5th defendant who is the wife of Ramulu was not a party to the said resolution. The learned first appellate Court therefore, rightly concluded that Ex.A.2 has no legal sanctity. Therefore, admittedly the marriage if any of the plaintiff with Pilla Ramulu was performed during the subsistence of 5th defendant’s marriage with the said Ramulu. The substantial questions of law raised in the second appeal and formulated by the Court is that whether a person married another lady when his first wife was not heard of for more than seven years, by those who would naturally have heard of her if she has been alive, gives rise to a presumption under Section 108 of the Evidence Act, would such second marriage be invalid? and where the death of the first wife is presumed under Section 108 of the Evidence Act, and if the man marries another woman, would it be in contravention of Section 5 of the Hindu Marriage Act? As per Section 108 of the Evidence Act, the initial burden is on the plaintiff to show that 5th defendant had not been heard of for seven years by those who if she had been alive would naturally have heard of her. When the said burden is discharged by adducing the requisite evidence to the satisfaction of the Court, the burden shifts on to the 5th defendant to prove that she was alive and the fact is within the knowledge of the plaintiff. When the said burden is discharged by adducing the requisite evidence to the satisfaction of the Court, the burden shifts on to the 5th defendant to prove that she was alive and the fact is within the knowledge of the plaintiff. In the instant case, absolutely there is no evidence let in by the plaintiff to prove that the 5th defendant was unheard of for a period of seven years. The learned first appellate Court rightly disbelieved the evidence on the said aspect since it is not satisfied as to the absence of knowledge on the part of either the plaintiff or her witnesses about the whereabouts of the 5th defendant. It seems that the entire evidence collected by the plaintiff was only for the purpose of obtaining the death benefits of late Ramulu and also to obtain compensation in respect of his death in a motor vehicle accident. Since the evidence on the question that the 5th defendant was unheard of by her friends, relatives or neighbours is quite unconvincing and appears to be brought up only for the purpose of the suit, the learned first appellate Court is right in concluding that no such presumption can be drawn in favour of the plaintiff and against the 5th defendant. The fact therefore, remains that the plaintiff married Pilla Ramulu during the subsistence of marriage with the 5th defendant. Section 5(1) of the Hindu Marriage Act 1955 lays down that neither party of the marriage should have a spouse living at the time of marriage. In the instant case, if had there been any marriage between the plaintiff and Pilla Ramulu it is in contravention of Section 5(1) of the Hindu Marriage Act and the said marriage is null and void. When the marriage of the plaintiff with Pilla Ramulu is null and void in the eye of law, she is not entitled for a declaration that she is the legally wedded wife of Pilla Ramulu. The learned trial Court, therefore, erroneously passed a decree declaring that the plaintiff is the legally wedded wife of late Pilla Ramulu and the first appellate Court is perfectly justified in reversing the said finding. For the foregoing reasons, the second appeal fails and the same is dismissed confirming decree and judgment dated 17.01.2005 passed by the III Additional Senior Civil Judge, (Fast Tract Court), Visakhapatnam in A.S.No.164 of 2000. For the foregoing reasons, the second appeal fails and the same is dismissed confirming decree and judgment dated 17.01.2005 passed by the III Additional Senior Civil Judge, (Fast Tract Court), Visakhapatnam in A.S.No.164 of 2000. There shall be no order as to costs.