Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 475 (HP)

Suraj Mani v. Zalam Singh

2015-05-07

RAJIV SHARMA

body2015
Rajiv Sharma, J. 1. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kinnaur at Rampur Bushahr, H.P. dated 19.2.2005, passed in Civil Appeal No.67 of 2004. 2. Key facts, necessary for the adjudication of this regular second appeal are that plaintiff and proforma defendant No. 2, namely Manohar Dass have jointly married with defendant No. 1 Smt. Suraj Mani (hereinafter referred to as the principal defendant), as per tribal customs of district Kinnaur. The plaintiff separated himself from the joint marriage and principal defendant ceased to be his wife. The principal defendant started living with proforma defendant No. 2 Sh. Manohar Dass. The principal defendant has no right whatsoever to claim and declare herself as the wife of the plaintiff. She was not entitled to claim pensionary and other benefits available to the plaintiff from the Indian Army. 3. The suit was contested by the defendants. According to them, the joint marriage of the principal defendant with the plaintiff and defendant No. 2 still subsisted. 4. The replication was filed by the plaintiff. The learned Civil Judge (Sr. Divn.) Distt. Kinnaur at Reckong Peo, framed the issues. The learned Civil Judge (Sr. Divn.) Distt. Kinnaur at Reckong Peo, dismissed the suit on 24.8.2004. The plaintiff, feeling aggrieved, preferred an appeal before the learned District Judge, Kinnaur at Rampur Bushahr. The learned District Judge, Kinnaur at Rampur Bushahr, allowed the same on 19.2.2005. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial question of law on 11.5.2005: “1. Whether the findings recorded by the learned first appellate Court are dehors the pleadings and evidence on record?” 6. Mr. B.S.Attri, Advocate appearing on behalf of the appellants, on the basis of the substantial question of law framed, has argued that the first appellate Court has recorded the findings contrary to the pleadings and evidence on record. On the other hand, Mr. B.C.Verma, Advocate, has supported the judgment and decree rendered by the learned first appellate Court. 7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 8. The plaintiff has appeared as PW-1. He testified that he alongwith defendant No. 2 Sh. Manohar Dass had jointly married the principal defendant, namely Smt. Suraj Mani, in the year 1958-60. 7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 8. The plaintiff has appeared as PW-1. He testified that he alongwith defendant No. 2 Sh. Manohar Dass had jointly married the principal defendant, namely Smt. Suraj Mani, in the year 1958-60. There was custom of polyandry applicable to the parties. He had joined the Indian Army. He was discharged from the Indian Army. He separated himself from the joint marriage in the year 1968. He married Ganga Devi. The principal defendant has ceased to be his wife. The plaintiff had notified the public at large through notice published in the Hindi Daily Newspaper Amar Ujala dated 14.8.2002 that principal defendant was not legally wedded wife of the plaintiff and the marriage has come to an end. 9. PW-2 Basant Kumar, Secretary of the Gram Panchayat has proved Ext. PW-2/A and PW-2/B. Ext. PW-2/A is the copy of Parivar Register. The principal defendant is recorded as wife of defendant No. 2. Principal defendant has given birth to several children. The plaintiff was residing with Smt. Ganga Devi and her two children, as per the document Ext. PW-2/B. 10. PW-3 Uday Singh deposed that the plaintiff has maintained separate mess and place of worship for the last 30 years. He was cultivating the holdings of the plaintiff. 11. PW-4 Badri Singh testified that principal defendant stood jointly married to the plaintiff and defendant No. 2 in the first instance. However, the plaintiff had separated from the joint marriage in the year 1968. The plaintiff had married Smt. Ganga Devi. The principal defendant was the exclusive wife of defendant No. 2 w.e.f. 1968. As per the custom applicable to the parties, the principal defendant was the exclusive wife of defendant No. 2. The principal defendant was no longer the wife of the plaintiff. 12. DW-1 Suraj Mani, principal defendant stated that she was married jointly to the plaintiff and defendant No. 2 in the year 1958-60. She had not separated from the joint marriage. The plaintiff had been putting up with her as her husband. The plaintiff was also providing maintenance to her. The joint marriage could not be terminated except as per divorce. 13. DW-2 Hira Singh is the brother of DW-1. He has corroborated the statement of DW-1. 14. DW-3 Jyoti Ram deposed that Sh. The plaintiff had been putting up with her as her husband. The plaintiff was also providing maintenance to her. The joint marriage could not be terminated except as per divorce. 13. DW-2 Hira Singh is the brother of DW-1. He has corroborated the statement of DW-1. 14. DW-3 Jyoti Ram deposed that Sh. Manohar Dass and Jalam Singh were married with Suraj Mani and out of the wed lock of Smt. Suraj Mani and Sh. Zalam Singh a son Sh. Gopal Singh was born and this marriage is still continuing. There was no custom in District Kinnaur that the joint marriage comes to an end without divorce. 15. DW-4 B Bargad Dass has supported the version of DW-3. 16. It is established from Ext. PW-2/A that principal defendant is recorded as exclusive wife of defendant No. 2. These entries have been proved by PW-2 Basant Kumar. According to Ext. PW-2/B, the plaintiff was residing with his wife Ganga Devi and her two children. It has come on record that plaintiff has separated from joint marriage in the year 1968. He has married Ganga Devi. He has separated his mess and place of worship. 17. DW-2 Hira Singh, brother of DW-1 i.e. principal defendant, in his cross-examination, has admitted that plaintiff had married Smt. Ganga Devi. He also admitted that the plaintiff was maintaining separate mess and place of worship after his marriage with Ganga Devi. There is a specific averment made in paras 1 to 4 of the plaint that plaintiff had separated from the joint marriage in the year 1968 and he has married Smt. Ganga Devi and principal defendant was the exclusive wife of defendant No. 2. The fact that the plaintiff has contracted his marriage with Ganga Devi would amount to dissolution of the earlier marriage and has thus separated out of the joint marriage which was solemnized in 1958-60. He has set up separate establishment. The defendants, in their written statement, have not pleaded joint marriage of two or more brothers with one wife could not be dissolved even if one of the brothers married separately. The defendant No. 2 has not stepped into the witness box. He was the best person to state whether the joint marriage of the plaintiff and himself with principal defendant even after 1968 still subsisted. The defendant No. 2 has not stepped into the witness box. He was the best person to state whether the joint marriage of the plaintiff and himself with principal defendant even after 1968 still subsisted. It was not the case set up by the defendants that the plaintiff has married secretly with Ganga Devi. 18. PW-4 Badri Singh, as noticed above, has stated that as per the tribal custom, after separation of one of the brothers from joint marriage, and his separate marriage, the joint marriage was to be treated to come to an end. He further stated that the joint wife after separation was to be treated as the exclusive wife of the brother with whom she had opted to reside. He was not cross-examined on this issue by the defendants. The plaintiff has conclusively proved that he has no relation with principal defendant after his marriage with Ganga Devi. The learned first appellate Court, has rightly come to the conclusion that the entries made in the Indian Army record with regard to the declaration of the joint marriage with principal defendant was of no consequence since the plaintiff had joined the Army somewhere in the year 1963 and was discharged after 3-4 years. He has separated from his first wife in the year 1968. He stood discharged from the Army before his separation from the principal defendant. The defendants No. 1 & 2 have also not submitted any application for correction of entry in the Parivar Register. The plaintiff had not been maintaining any marital relations with the principal defendant after his marriage with Ganga Devi. The learned first appellate Court has rightly come to the conclusion that the custom stated by PW-4 Badri Singh was reasonably valid and certain. The custom stated by the defendants of subsistence of joint marriage even after separation of one of the brothers from joint marriage and his separate marriage and residence for over 30-40 years could not be treated valid, reasonable, binding and legally enforceable. The learned first appellate Court has correctly appreciated the oral as well as documentary evidence on record. The substantial question of law is answered accordingly. 19. Consequently, the Regular Second Appeal is dismissed. The judgment and decree passed by the learned first appellate Court is upheld.