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2016 DIGILAW 733 (RAJ)

Badam Bai v. Devi Lal Verma

2016-05-23

J.K.RANKA, M.N.BHANDARI

body2016
JUDGMENT : By this appeal, a challenge is made to the order dated 11th September, 2014 whereby the application under Section 11 of Hindu Marriage Act, 1955 (for short "Act of 1955") submitted by the non-appellant was allowed. 2. Learned counsel for the appellant submits that application under Section 11 of the Act of 1955 was submitted precisely on the ground that marriage between two parties did not take place. A reference of various litigations was given in the application to demonstrate that the appellant herein is trying to enforce the right treating herself to be wife of the non-appellant whereas marriage did not take place. Two issues were framed by the Court. The first issue was in reference to the ground taken in the application under Section 11 of the Act of 1955 and as to whether the non-appellant married to the appellant without divorce to her husband, who is alive, thus marriage to be declared as void. 3. Learned court found that marriage took place between the parties and at the same time, the appellant did not marry each other so as to make allegation about second marriage during life time of husband. Both the grounds were answered in favour of the appellant and against the non-appellant. The application under Section 11 of the Act of 1955 is yet allowed taking it to be a case that non-appellant himself was married to Kamla and without divorce, marriage with present appellant is void and accordingly, the application under Section 11 of the Act of 1955 was allowed. 4. Learned family Court failed to consider that application under Section 11 of the Act of 1955 was not filed on the ground it has been allowed but mainly on the ground that marriage did not take place between the parties, though while supporting the ground, it was also pleaded that non-appellant married with Kamla. It was not, however, a ground. Learned family court had travelled beyond the issue framed for adjudication. In view of the above, impugned order may be set aside. 5. Learned counsel for the non-appellant has supported the order passed by the learned family court. It is submitted that non-appellant had submitted application under Section 11 of the Act of 1955 alleging that marriage did not take place between the parties. To support the arguments, reference of various events was given in the application. 5. Learned counsel for the non-appellant has supported the order passed by the learned family court. It is submitted that non-appellant had submitted application under Section 11 of the Act of 1955 alleging that marriage did not take place between the parties. To support the arguments, reference of various events was given in the application. In fact, the appellant had earlier also initiated litigation by making an application under Section 125 Cr.P.C. and other litigation, which was thereafter settled by the parties. The non-appellant had specifically came out with the case that his wife Kamla is still alive and living with him only. It is further submitted that so far as the appellant is concerned, she had earlier married to other person and without divorce, married with the non-appellant, thus marriage be declared as void. The family Court framed two issues, however, the issue No. 1 makes a reference of all the grounds taken in the application under Section 11 of the Act of 1955. In view of the above, it has come that non-appellant himself was married to Kamla and without divorce, married with the appellant, thus marriage was void. The issue aforesaid was raised in the application and even supported by the material. In the background aforesaid, this Court may not cause interference in the impugned order passed by the Family Court, Kota. 6. We have considered submissions made by learned counsel for the parties and scanned the matter carefully. 7. After the application under Section 11 of the Act of 1955, two issues were framed by the family court for its consideration, which are quoted hereunder for ready reference : ^^1- vk;k vizkfFkZ;k izkFkZuk i= esa of.kZr vk/kks ij rFkk iwoZ esa fookfgrk ifr ds thfor gksrs gq, rykd ugha gksus ls izkFkhZ dh dfFkr fookfgr@fookfgr iRuh ugha gS ftlls fookg 'kwU; ,oa izHkkoghu gS\ 2- vuqrks"k D;k gksxk\** 8. The first issue makes a reference of the ground taken by the non-appellant in his application as well as the allegation of marriage of the appellant with other and without divorce, marriage to the non-appellant. 9. The Court below came to the conclusion that marriage between the parties has taken place. The conclusions were drawn in reference to the documents produced by the parties, which includes, the settlement entered between the two on other litigation initiated by the appellant. 9. The Court below came to the conclusion that marriage between the parties has taken place. The conclusions were drawn in reference to the documents produced by the parties, which includes, the settlement entered between the two on other litigation initiated by the appellant. The non-appellant - Devi Lal Verma had admitted marriage with the appellant Badam Bai, thus as against the documentary evidence, the oral argument was not accepted. The finding of the family court has not been challenged by the non-appellant. The family court even found that in the Ration Card, name of the non-appellant and the appellant exists as husband and wife along with two children out of their wedlock. In the background aforesaid and in absence of challenge to the finding, we cannot accept the argument raised by learned counsel for the non-appellant that no marriage had taken place between the two. 10. The second issue is regarding marriage of the appellant with other and without divorce, marriage with the non-appellant - Devi Lal Verma. 11. The aforesaid fact was also not accepted by the family court after marshalling the evidence. The finding has been recorded that appellant was not married with other but married with the non-appellant - Devi Lal Verma, thus aforesaid ground was also not accepted. The family court, however, accepted the application finding marriage of the non-appellant with Kamla and without divorce, marriage with the appellant - Badam Bai to be void. 12. The issue for our consideration is as to whether the aforesaid ground was taken in the application under Section 11 of the Act of 1955. 13. The perusal of the application reveals that fact regarding marriage with Kamla has been made by the non-appellant and it is also stated that she is living with him and no divorce ever took place. The fact aforesaid exists in the application but it is not a ground taken for the application under Section 11 of the Act of 1955. The perusal of the application reveals that fact regarding marriage with Kamla has been made by the non-appellant and it is also stated that she is living with him and no divorce ever took place. The fact aforesaid exists in the application but it is not a ground taken for the application under Section 11 of the Act of 1955. Para 9 of the application is relevant, thus is reproduced hereunder for ready reference: ^^9- ;g gS fd okn dkj.k izfroknhuh }kjk vius vkidks oknh dh iRuh crkus ds dkj.k mRiUu gqvk gS vkSj vafre okn dkj.k fnukad 24-06-2009 dks mRiUu gqvk gS tc izfroknhuh us oknh dh iRuh crkrs gq, ,d >wBk izdj.k la[;k 1702@2009 cknke ckbZ cuke nsoh yky o vU; vUrxZr 107@116¼3½ tkåQkSå esa ntZ djk;k blfy, okn le; lhek esa gSA** 14. The aforesaid para reveals as to what was the cause to seek declaration of voidness of marriage under Section 11 of the Act of 1955. The cause taken therein is based on the allegation against appellant showing here to be wife of Suraj Mal and before that of Heera Lal and thereby, a direction was sought to declare the marriage to be void. 15. Learned counsel for the non-appellant has taken contradictory arguments to contest the appeal. At the first instance, it is submitted that marriage did not take place between the parties but at the same time, it is stated that marriage took place between the parties but is void as non-appellant is having first married wife Kamla with him and divorce has not taken place prior to marriage with the present appellant. At the first instance, the non-appellant had denied marriage with appellant but at the same time, marriage is sought to be void on account of his marriage with Kamla. 16. We cannot accept the arguments in contradiction and otherwise, the application under Section 11 of the Act of 1955 was not on the ground that the non-appellant Devi Lal Verma was having wife Kamla and during the course of first marriage, entered into second marriage, thus it was void. Mere making submission of fact does not mean it to be a ground for seeking declaration of marriage to be void under Section 11 of the Act of 1955. We find that family court travelled beyond its jurisdiction to allow the application under Section 11 of the Act of 1955. Mere making submission of fact does not mean it to be a ground for seeking declaration of marriage to be void under Section 11 of the Act of 1955. We find that family court travelled beyond its jurisdiction to allow the application under Section 11 of the Act of 1955. The family court failed to consider difference between narration of facts and grounds to pursue the relief. The narration of fact has been taken to be ground under mistaken belief, thus order passed by the family court cannot be accepted. Accordingly, the order dated 11th September, 2014 is set aside. 17. With the aforesaid, this appeal stands allowed. 18. It is, however, made clear that the non-appellant would not be prevented to maintain separate application under the Act of 1955 on the grounds available to him and acceptance of the appeal would not come in his way for the aforesaid.