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2014 DIGILAW 210 (CHH)

Gariba v. Arjun Sahu

2014-05-13

SANJAY K.AGRAWAL

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JUDGMENT Sanjay K. Agrawal, J. 1. The substantial question of law formulated and to be answered by this Court in defendant's second appeal is as under:-- "Whether the finding relating to legality of marriage of Gariba with Lalatinbai that Gariba was husband of Lalatinbai is perverse? [For sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]. Sans unnecessary details, the facts which are essential to be stated for the purpose of disposal of the present second appeal are as under:-- "1.1 Plaintiffs- Arjun, Bimla and Kamla Bai are son and daughters of late Shri Domar Sahu out of wedlock with Lalatin Bai. Lalatin Bai and Domar Sahu purchased 25.09 Acres of the agricultural land by registered sale deed dated 14/04/1972 (Exhibit D-1) jointly and upon partition between them vide Exhibit D-2 dated 22/08/1986, the said suit land fell into share of Lalatin Bai. 1.2 It is a case of the plaintiffs that Lalatin Bai died in the year, 2007 and being the heirs, they made an application for mutation to the Revenue Authorities, in which, defendant No. 1 - Gariba objected proclaiming himself to be the husband of Lalatin Bai and also stated that he has got his name mutated in the Revenue Records, and claimed decree for declaration of title and recovery of possession. 1.3 The present defendant has filed written statement stating inter alia that Lalatin Bai was the wife of Domar Sahu having three issues, which are plaintiffs in the civil suit and since behavior of the Domar Sahu was not proper, Lalatin Bai separated herself from Domar Sahu and married with Gariba in Churi form, after getting divorce from his legally wedded wife- Sona Bai. Thus, plaintiffs are not entitled for any decree with respect to the suit property. 1.4 The Trial Court, by its judgment and decree dated 19/02/2010 decreed the suit holding inter alia that the defendant No. 1 Gariba is not the husband of Lalatin Bai, and plaintiffs being the son and daughters of late Smt. Lalatin Bai are entitled to succeed to the property and granted decree for declaration of title and recovery of possession. 1.4 The Trial Court, by its judgment and decree dated 19/02/2010 decreed the suit holding inter alia that the defendant No. 1 Gariba is not the husband of Lalatin Bai, and plaintiffs being the son and daughters of late Smt. Lalatin Bai are entitled to succeed to the property and granted decree for declaration of title and recovery of possession. 1.5 On appeal filed by the defendant, the First Appellate Court by its judgment and decree dated 22/11/2010 dismissed the appeal holding that marriage of defendant No. 1 -Gariba with Lalatin Bai was void in view of Section 5(i) of the Hindu Marriage Act, 1955 (hereinafter called as 'the Act, 1955'). as at the time of marriage the husband of Lalatin Bai i.e. Shri Domar Sahu was alive." 2. Questioning the legal acceptability and sustainability of the impugned judgment and decree dated 22/11/2010 passed by District Judge Kabirdham (Kawardha) in Civil Appeal No. 07-A/2010, instant second appeal has been filed by the appellant/defendant under Section 100 of the Code of Civil Procedure, 1908 (hereinafter called as "the CPC"), which has been admitted on substantial question of law formulated and recorded in the opening paragraph of this judgment. 3. Mr. Awadh Tripathi, learned counsel appearing for the appellant/ defendant would submit that concurrent finding recorded by two Courts below-holding that the marriage of defendant No. 1-Gariba with Lalatin Bai was not valid, and rather it is perverse being contrary to the record, and as such, liable to be set-aside. 4. Combating the submissions made on behalf of the appellant/defendant, Mr. Parag Kotecha, learned counsel appearing for the respondents No. 1 to 3/plaintiffs would submit that the Trial Court has rightly held that the marriage of Gariba with Lalatin Bai was void in view of Section 5(i) of the Act, 1955 and the First Appellate Court did not commit any illegality in affirming the same. 5. I have heard and considered the arguments advanced by learned counsel for the parties and have also perused the records of both the Courts below with utmost circumspection. Answer to substantial question of law:-- 6. The question that falls for consideration is whether marriage of defendant No. 1-Gariba with Lalatin Bai was void in light of Section 5(i) of the Act, 1955? 7. It is admitted position on record that Gariba had firstly married with Sona Bai and put of their wedlock, Bohar Singh was born. Answer to substantial question of law:-- 6. The question that falls for consideration is whether marriage of defendant No. 1-Gariba with Lalatin Bai was void in light of Section 5(i) of the Act, 1955? 7. It is admitted position on record that Gariba had firstly married with Sona Bai and put of their wedlock, Bohar Singh was born. Thereafter, he married with Indrotin Bai, and out of this wedlock, two sons, namely-Girdhar and Harihar were born. It is also on record that Gariba is also staying with Ruhelin Bai, and defendant No. 1 claimed Lalatin Bai to be his wife. 8. It is a case of the defendant No. 1-Gariba that he had already separated from his first wife Sona Bai in the year 1965, and thereafter, he married with Indrotin Bai in Churi form, and after divorce of Lalatin Bai with her husband Domar Sahu, he had entered into marriage with Lalatin Bai. 9. The Trial Court on appreciation of oral and documentary evidence on record came to the following conclusion that:-- "(i) Sona Bai was legally wedded wife of defendant No. 1-Gariba and during the life time of Sona Bai, he had entered into marriage with Indrotin Bai, without getting decree of divorce with Sona Bai; (ii) Defendant No. 1-Gariba was also residing with Ruhelin Bai, but she left the place of Gariba; and, (iii) There is also no evidence on record to show that defendant No. 1 has entered into marriage with Lalatin Bai, after her divorce with husband Domar Sahu." 10. Thus, on the basis of aforesaid finding, the Trial Court has categorically reached to the conclusion that Lalatin Bai was not legally wedded wife of defendant No. 1-Gariba, and therefore, defendant No. 1-Gariba is not entitled to succeed the property of Lalatin Bai. The First Appellate Court also reached a categorical finding that at the time of marriage of Gariba with Lalatin Bai in Churl form, husband of Lalatin Bai i.e. Domar Sahu i.e. father of the plaintiffs was alive, and second wife of defendant No. 1-Gariba, namely-Indrotin Bai was also alive. Therefore, in light of Section 5(i) of the Act, 1955, marriage of defendant No. 1- Gariba with Lalatin Bai was null and void. 11. Therefore, in light of Section 5(i) of the Act, 1955, marriage of defendant No. 1- Gariba with Lalatin Bai was null and void. 11. In order to appreciate the status of a Hindu male marrying a Hindu female with a living spouse some of the provisions of the Hindu Marriage Act, 1955 have to be examined. Section 5(i) of the Act, 1955 clearly provides that a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of marriage. Section 5(i) of the Act, 1955 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;" 12. Clause (1) (i) of Section 5 of the Act, 1955 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of marriage. A marriage in contravention of this condition, therefore, is null and void. 13. Section 11 of the Act, 1955 provides for consequences of contravention of Clause 5(i) that any marriage solemnized shall be null and void, if it contravenes any one of the conditions specified in Clause (i), (iv) and (v) of Section 5 of the Act, 1955. Section 11 of the Act, 1955 reads as under: "11. Void marriages.--Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5." 14. In case of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another : (1988)1 SCC 530 , the Supreme Court in paragraph-8 held as under:-- "8. We, therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code." 15. Thereafter, in case of Bakulabai and another v. Gangaram and another : (1988)1 SCC 537 , the Supreme Court has noticed and followed the decision of Yamunabai Anantrao Adhav (supra). 16. Thereafter, in case of Bakulabai and another v. Gangaram and another : (1988)1 SCC 537 , the Supreme Court has noticed and followed the decision of Yamunabai Anantrao Adhav (supra). 16. In case of Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga : (2005) 2 SCC 33 , the Supreme Court has held that the customary divorce of chhor chithhi has to be established in accordance with law and held as under:-- "12......A Hindu marriage can be dissolved only in accordance with the provisions of the Act by obtaining a decree of divorce from the Court. In the absence of any decree of dissolution of marriage from the Court, it has to be held that in law the first marriage of the wife subsisted when she went through the second marriage on 11-7-1981 with the present husband. The appeal preferred by the wife, therefore, against grant of decree of declaration of her second marriage as void, has to be rejected whatever may be the circumstances which existed and the hardships that the wife had to undergo, as alleged, at the hands of her second husband." 17. Very recently, in case of A. Subash Babu v. State of Andhra Pradesh and another : (2011)7 SCC 616 , the Supreme Court in paragraph-24 held as under:-- "24. Though Section 11 of the Hindu Marriage Act provides that any marriage solemnized, if it contravenes the conditions specified in clause (i) of Section 5 of the said Act, shall be null and void, it also provides that such marriage may on a petition presented by either party thereto, be so declared........." 18. After having examined and ascertained the legal position, turning back to the facts of the present case, it is established on record that defendant No. 1-Gariba had a spouse living wife Sona Bai/Indrotin Bai living at the time of marriage with Lalatin Bai and Lalatin Bai also had a spouse (husband) Domar Sahu living at the time of alleged marriage with defendant No. 1-Gariba. Therefore, marriage of Lalatin Bai with defendant No. 1-Gariba was null and void in view of Section 5(i) read with Section 11 of the Act, 1955. Thus, the Trial Court has not committed any illegality in decreeing the suit of the plaintiffs, and the First Appellate Court also not committed any illegality in affirming the same, and I hereby affirm the findings so recorded by both the Courts below. Thus, the Trial Court has not committed any illegality in decreeing the suit of the plaintiffs, and the First Appellate Court also not committed any illegality in affirming the same, and I hereby affirm the findings so recorded by both the Courts below. The substantial question of law is answered against the defendant and in favour of the plaintiffs. 19. For the foregoing reasons, the second appeal filed by the defendant fails and therefore, the same is hereby dismissed. No order as to costs. A decree be drawn-up accordingly.