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Himachal Pradesh High Court · body

2017 DIGILAW 583 (HP)

Arun Kapoor v. Anita Kumari

2017-05-24

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the judgment rendered by the learned District Judge, Mandi, H.P., on 22.04.2009 in Hindu Marriage Petition No. 47 of 2005, whereby, the petition aforesaid constituted before him by the petitioner/appellant herein, stood dismissed. 2. The brief facts of the case are that the appellant herein/petitioner has instituted a petition under Section 11 and 12 of the Hindu Marriage Act before the trial Court seeking therein a decree for annulment of his marital ties with the respondent on the allegations that the petitioner got married in the year 1988. Out of the wedlock one child born. On account of death of first wife, the petitioner performed second marriage with the respondent at Shitla Mata Temple at Mandi on 11.12.1998. The respondent prior to the marriage was also married to Sh. Kamlesh resident of Dhundan and the parents of the respondent had affirmed about dissolution of marriage with the respondent by a decree of divorce. Sh. Kamlesh contacted the petitioner after his marriage with the respondent and told that no such divorce had taken place and the respondent was living adultery. On quarry the respondent turned violent and abused the petitioner, his family members and minor children. The respondent has given birth to a male child and started demanding property. The respondent managed assault on the petitioner with Gunda elements and lodged case under Section 498-A of the IPC against the petitioner, his parents and sister. The custom of divorce was not prevalent in the cast or area of the respondent. The marriage of the parties was void ab-initio. So, the petitioner filed this petition for grant of a decree for annulment his marital ties with the respondent. 3. The petition for divorce instituted by the petitioner/appellant herein before the learned District Judge, Mandi stood contested by the respondent herein, by hers instituting a reply thereto, wherein, she controverted all the allegations constituted against her in the apposite petition. She averred that the respondent after engagement remained with Sh. Kamlesh Kumar for some time per customs of the area without any marriage and then they decided not to marry and divorce deed was prepared. The petitioner was apprised about agreement and divorce deed before marriage. The respondent was tortured, humiliated and turned out of the house by the petitioner. She averred that the respondent after engagement remained with Sh. Kamlesh Kumar for some time per customs of the area without any marriage and then they decided not to marry and divorce deed was prepared. The petitioner was apprised about agreement and divorce deed before marriage. The respondent was tortured, humiliated and turned out of the house by the petitioner. The petitioner had also lodged a false case against the son of the sister of the respondent. The petitioner admitted the validity of the marriage during the proceeding under Section 127 of the Cr.P.C. filed before the Judicial Magistrate, Ani. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the respondent at the time of marriage with the petitioner was already married to one Kamlesh Kumar as alleged ? OPP 2. Whether the respondent has obtained divorce from her previous husband, namely, Kamlesh Kumar on the basis of the divorce deed/Talaknama on 2.12.1996 as alleged? OPR 3. Whether the petition is entitled to annulment of marriage as alleged? OPP 4. Relief. 5. On an appraisal of evidence adduced before the learned Additional District Judge, Mandi, the latter dismissed the apposite petition. 6. This Court would be constrained, to scuttle the findings recorded by the learned District Judge upon issues No.1 and 2, in case, the evidence which exists on record makes a display, that at the time of the appellant contracting marriage with the respondent, the latter being previously married to one Kamlesh Kumar also in case, evidence displays that the fact aforesaid was unknown to the appellant herein besides the factum of Ex.PA, at the relevant time of his contracting marriage with the respondent, being also unknown to the former. Moreover, evidence on record, was enjoined to make a vivid display, that Ex.PA, whereunder severance of marital ties of the respondent herein with her previous husband Kamlesh Kumar was brought about, through a customary mode, was not legally tenacious, given the lack of proof of an apposite custom holding prevalence in the relevant area or amongst the executants of Ex. PA, for begetting a valid annulment of marital ties of the respondent herein with one Kamlesh Kumar. PA, for begetting a valid annulment of marital ties of the respondent herein with one Kamlesh Kumar. “Apart from” the tenable reasons assigned by the learned District Judge for his hence dismissing the apposite petition preferred before him by the appellant herein, “the evident existence” on record of the hereinafter referred evidentiary material, gives reinforced vigour to the impugned verdict recorded by the learned District Judge (a) the disclosures occurring in the examination-in-chief, PW-1 qua his after 2-3 months of his contracting marriage with the respondent, his father receiving a telephonic call from one Kamlesh Kumar, the previous husband of the respondent, over telephonic call whereof, the latter disclosed that the respondent herein was his legally wedded wife, standing stained with a vice of falsity, arising from an apt articulation existing in the deposition of RW-2, the father of the previous husband of the respondent, with respect to the latter after severing his marital ties with the respondent herein, his solemnizing marriage and his also rearing two children therefrom. (b) The petitioner/appellant, throughout in his pleadings, as well as, in his deposition echoes that until his preferring the apposite petition, his holding no knowledge qua the making of Ex. PA inter se the respondent with Kamlesh Kumar, yet the aforesaid fact is also belied by his evidently prior to instituting the instant petition, his instituting a petition, for seeking dissolution of his marital ties with the respondent herein, in reply whereof furnished by the respondent herein, she appended Ex. PA. Consequently, with the appellant herein holding knowledge with respect to Ex. PA, at the time of his earlier instituting a petition for severance of his marital ties with the respondent, yet his “not” immediately subsequent to 2002, whereat, he instituted a petition under Section 13 of the Hindu Marriage Act for seeking dissolution of his marital ties with the respondent herein, “ instituting” a petition under Section 11 and 12 of the Hindu Marriage Act, for seeking annulment of his marriage with the respondent, rather his with more than 10 months elapsing since his previous petition aforesaid standing dismissed as withdrawn, preferring the apposite petition, inevitably constrains this Court, to erect a formidable conclusion that the averments constituted in the apposite petition being wholly contrived besides being manipulated. As a corollary an inference also ensuing therefrom that he is estopped to rear the apposite ground for his seeking annulment of his marital ties with the respondent. (c) The father of the previous husband of the respondent herein making disclosures in his examination-in-chief qua the prevalence of a custom in the area where his son and the respondent herein resided as married partners also qua a custom prevailing in the caste whereto both belong, with respect to severance, through customary mode, of marital ties inter se them, deposition whereof remains unshred of its efficacy, by any cogent evidence being adduced by the appellant herein, constrains this Court to conclude that Ex.PA whereunder marital ties inter se the respondent herein and her previous husband Kamlesh Kumar stood severed, in consonance with the relevant custom prevailing in the are where both resided also in respect of the caste to which both belong, hence standing cogently proven. 7. Even though RPW-1 has disclosed, that in the relevant gazeteer, their occurring no display of prevalence of severance of marital ties, by customary mode, yet her deposition when is not anchored upon the relevant documentary material, hence, her oral testification is construable to be holding no worth. Also when in Chapter VI of the “book” pertaining to the Local Culture and Dialects of District Solan, there occur no custom with respect to severance of marital ties, by customary mode, yet thereupon alone, the testimony of the father of the previous husband of the respondent herein cannot loose its vigour, significantly when the respondent upon whom the burden, to discharge the relevant issue with respect to the validity of Ex.PA, was cast, for discharge of burden whereof, she relied upon the deposition of the father of her previous husband. However, with the deposition of RW-2, the father of the previous husband of the respondent, being concerted to be rebutted by the appellant herein, by his leading into the witness box one Madhu Kaushik, whereas, her testimony in support of the averment cast in the apposite petition is, for reasons aforestated, infirm, predominantly also when the appellant herein rather failed to adduce, in rebuttal to the testimony of the father of the previous husband of the respondent herein, the relevant best evidence, comprised in the Wajib-ul-urj pertaining to the relevant area, wherein both the respondent and her previous husband resided and its making or not making a display qua their occurring or not occurring any prohibition therein against the severance of marital ties through customary mode, for hence, firmly resting the findings on the relevant issue. In aftermath, the non adduction of the aforesaid best evidence, constrains this Court, to conclude that the evidence adduced by the appellant herein comprised in the testimony of RPW Madhu Kaushik, for hence rebutting the testimony of the father of the previous husband of the respondent herein, is extremely fragile, for dislodging in respect of the relevant factum probandum, the testimony of RW-2, the father of the previous husband of the respondent. Consequently, this Court is constrained to accept the veracity of the testimony of RW2. 8. The above discussion unfolds the fact that the conclusions as arrived by the learned trial Court are based upon a proper and mature appreciation of the relevant evidence on record. While rendering the findings, the learned trial Court has not excluded germane and apposite material from consideration. 9. For the foregoing reasons, there is no merit in the instant appeal which is accordingly dismissed. The impugned judgment and decree is maintained and affirmed. All pending applications also stand disposed of. Records be sent back forthwith.