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2015 DIGILAW 263 (CAL)

Krishna Sengupta (Das) v. Ashok Ranjan Sengupta

2015-03-19

NISHITA MHATRE, R.K.BAG

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JUDGMENT:- R.K. Bag, J. 1. This appeal is preferred by the appellant/wife against judgment and decree passed by Learned Additional District Judge, 2nd Court, Barasat, North 24-Parganas on 11.01.2008 in Mat Suit No.57 of 2000, by which Learned Judge of the Trial Court decreed the suit on contest. 2. The fact of the case made out by the respondent husband before the Trial Court is that the appellant Smt. Krishna Sengupta was married to the respondent Ashok Ranjan Sengupta on 10.05.1985. Two daughters were born from the said wedlock. It is alleged that the appellant used to leave the residence of the respondent husband without his consent and stay outside the residence for a few days at a stretch. Ultimately on 19.11.1995 the respondent came to learn that the petitioner used to spend her days with her previous husband Swapan Roy Chowdhury alias Swapan Kumar Roy Chowdhury. The appellant started a criminal case against the respondent on the allegation of committing offence under Section 498A of the Indian Penal Code. She also started proceeding for maintenance against the respondent under Section 125 of the Code of Criminal Procedure before the Court of Learned Magistrate at Barrackpore. On enquiry the respondent came to know that the appellant was married to Swapan Roy Chowdhury on 9th September, 1983. The appellant started one Mat Suit No.757 of 1984 before the Court of Learned Additional District Judge, 5th Court, Alipore for dissolution of marriage between the appellant and her previous husband Swapan Kumar Roy Chowdhury. The respondent also came to learn that the marital tie between the appellant and her former husband Swapan Kumar Roy Chowdhury was intact at the time of marriage of the appellant with the respondent on 10th May, 1985. The Mat Suit which was filed by the appellant for dissolution of her previous marriage was dismissed for non-prosecution. The respondent started one criminal case against the appellant on the allegation of committing offence under Section 495 of the Indian Penal Code, as the appellant suppressed the fact of her previous marriage with Swapan Kumar Roy Chowdhury at the time of second marriage with the respondent. Accordingly the respondent instituted Mat Suit against the appellant praying for nullity of marriage solemnized between the respondent and the appellant on 10th May, 1985. 3. Accordingly the respondent instituted Mat Suit against the appellant praying for nullity of marriage solemnized between the respondent and the appellant on 10th May, 1985. 3. The appellant contested the said Mat Suit by filing written statement wherein she had denied and disputed all the material allegations made against her. The appellant specifically denied that she was married to one Swapan Roy Chowdhury on 9th September, 1983 and the said marital tie was subsisting at the time of her marriage with the respondent on 10th May, 1985. 4. Having considered the evidence adduced by both parties the trial court decreed the suit on contest and the marriage between the appellant and the respondent on 10th May, 1985 was declared as nullity on the ground that the appellant suppressed the fact of her first marriage with Swapan Roy Chowdhury and that the marital tie of the appellant with Swapan Roy Chowdhury was subsisting at the time of her second marriage with the respondent on 10th May, 1985. The said judgment and decree passed by Learned Judge of the trial court is under challenge in this appeal. 5. Learned Counsel appearing on behalf of the appellant submits that the certified copy of certificate of marriage between the appellant and one Swapan Kumar Roy Chowdhury on 19th September, 1983 was not proved before the trial court, and as such the said certificate of marriage marked Exhibit-1 cannot be taken into consideration for deciding the factum of first marriage of the appellant. The further contention of Learned Counsel for the appellant is that the appellant did not file the Mat Suit No.757 of 1984 against Swapan Kumar Roy Chowdhury for declaring the marriage as void under Section 25 of the Special Marriage Act. Learned Counsel also submits that the trial court committed error by relying on the observations made by Learned Magistrate in a proceeding under Section 125 of the Code of Criminal Procedure and by relying on the observations made by Learned Additional Sessions Judge in a criminal motion preferred against the order of refusal of maintenance passed by Learned Magistrate at the instance of the appellant. On the other hand, Learned Counsel appearing on behalf of the respondent submits that the certificate of marriage is a public document and the certified copy of any public document is admissible in evidence and presumed to be correct unless contrary is proved. On the other hand, Learned Counsel appearing on behalf of the respondent submits that the certificate of marriage is a public document and the certified copy of any public document is admissible in evidence and presumed to be correct unless contrary is proved. Learned Counsel for the respondent has pointed out from the evidence on record that the appellant admitted the fact of giving evidence in the maintenance proceeding where she admitted her first marriage with Swapan Kumar Roy Chowdhury on 19.07.1983. Learned Counsel for the respondent also submits that the marriage between the appellant and the respondent is void as the marital tie between the appellant and her previous husband Swapan Kumar Roy Chowdhury was subsisting at the time of her second marriage with the respondent, and as such the declaration of the second marriage as nullity by the trial court is justified under the law. 6. Having heard Learned Counsel representing the respective parties and on consideration of the materials on record, we find that the appellant was married to the respondent on 10th May, 1985 and two daughters were born from the said wedlock. The certified copy of the marriage certificate is admissible in evidence as secondary evidence of public document. On scrutiny of the marriage certificate (Exhibit-1) it appears that the appellant was married to one Swapan Kumar Roy Chowdhury on 19th September, 1983 under the Special Marriage Act, 1954. It is also established from the certified copy of plaint of Mat Suit No.757 of 1984 (Exhibit-2) that the appellant instituted the said matrimonial proceeding against Swapan Kumar Roy Chowdhury for declaring her marriage with Swapan Kumar Roy Chowdhury on 19th May, 1983 as void for suppression of material facts under Section 25 of the Special Marriage Act. The orders passed by Learned Judge in the said Mat Suit No.757 of 1984 (Exhibit-3/2) indicate that the said Mat Suit was pending before the trial court from 14.09.1984 to 07.05.1986. It is therefore crystal clear that the marital tie between the appellant and her previous husband Swapan Kumar Roy Chowdhury was subsisting on the date of her marriage with the respondent on 10.05.1985. It is therefore crystal clear that the marital tie between the appellant and her previous husband Swapan Kumar Roy Chowdhury was subsisting on the date of her marriage with the respondent on 10.05.1985. Without referring to the observations made by Learned Judges in the maintenance proceeding filed at the instance of the appellant and in the criminal motion filed at the instance of the appellant, we can safely hold that the solemnisation of the marriage between the appellant and the respondent on 10.05.1985 is void for contravention of the conditions specified in Section 5(i) of the Hindu Marriage Act, 1955, because the marital tie between the appellant and her previous husband Swapan Kumar Roy Chowdhury was subsisting on the said date and the fact of the previous marriage was not disclosed by the appellant to the respondent at the time of her marriage with the respondent on 10.05.1985. 7. In view of our above findings, we cannot persuade ourselves to interfere in the judgment and decree passed by Learned Judge of the Court below. Accordingly there is no merit in the appeal. The appeal is, thus, dismissed. The judgment and decree passed by Learned Judge of the Court below in Mat Suit No.757 of 1984 is hereby affirmed. Let a copy of this judgment and order be sent down to the Learned Court below along with lower court records for favour of information. Urgent certified photostat copy of the judgment and order, if applied for, be given to the parties as expeditiously as possible after compliance with necessary formalities.