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2022 DIGILAW 350 (CHH)

Manti Sahu, D/o Shri Ramdayal Sahu v. Mahesh Ganjeer, S/o Dharmu Ram Ganjeer

2022-08-12

ARVIND SINGH CHANDEL

body2022
JUDGMENT : 1. Since both the second appeals arise out of a common judgment, they are heard and disposed of together. 2. The instant appeals arise out of the common judgment dated 11.10.2021 passed by 2nd Additional District Judge, Rajnandgaon, whereby the first civil appeal, i.e., Civil Appeal No.13A of 2020 moved by Mahesh Ganjeer has been allowed and the cross-appeal, i.e., Civil Appeal No.12A of 2020 filed by Smt. Manti Sahu has been dismissed. Civil Appeal No.12A of 2020 and Civil Appeal No.13A of 2020 arise out of the common judgment and decree dated 6.3.2019 passed by the Additional Judge to the Court of 1st Civil Judge Class-II, Rajnandgaon in Civil Suit No.66A of 2013. 3. Facts of the case, in short, are that plaintiff Mahesh Ganjeer filed a civil suit, being Civil Suit No.66A of 2013 before the Trial Court for declaration of agreement dated 21.1.2009 to be null and void. It was pleaded by him that due to family relation between him and the defendant and due to poor economic circumstances of the defendant, he employed the defendant in his clinic as a nurse and also availed her a rented house in Dongargaon. Since the defendant used to commit misbehaviour with the patients as also she was negligent towards her work, she was removed from the work and also asked to vacate the rented house. On this issue, a dispute arose between them. Thereafter, the defendant made a false and fabricated report against him alleging commission of rape with her. To save himself and his reputation, he executed an agreement dated 21.1.2009 and signed it before the Notary. Since the agreement was executed due to undue pressure created by the defendant, it is not binding upon him. It was further pleaded that as he is already married, the agreement dated 21.1.2009 is null and void. 4. Defendant Manti Sahu filed her written statement and also filed her cross-objection before the Trial Court. It was pleaded by her that virtually plaintiff Mahesh Ganjeer performed a marriage with her and, therefore, he executed the agreement dated 21.1.2009 in this regard. At the time of marriage and prior to that also, the plaintiff told her that he was unmarried and he performed marriage with her. Later on, she came to know that the plaintiff was already married. At the time of marriage and prior to that also, the plaintiff told her that he was unmarried and he performed marriage with her. Later on, she came to know that the plaintiff was already married. When a legal notice was sent by her to the plaintiff, he, admitting performance of marriage with her, executed the agreement dated 21.1.2009. In the agreement, the plaintiff also agreed that he will pay her Rs.2,000 per month towards her maintenance. He also agreed that he will arrange a house and household articles for her or else, in lieu thereof, he will pay her Rs.5,000 per month. 5. The plaintiff filed his written statement to the cross-objection of the defendant and denied her all the allegations. 6. The Trial Court framed four issues. After recording of evidence of both the parties and hearing their arguments, vide judgment dated 6.3.2019, the Trial Court dismissed the suit preferred by Mahesh Ganjeer and partly allowed the cross-objection moved by defendant Manti Sahu and granted Rs.2,000 per month as maintenance in her favour. 7. Being aggrieved by the judgment and decree passed by the Trial Court, both the parties preferred their appeals. Vide the common impugned judgment dated 11.10.2021, the First Appellate Court allowed the appeal of plaintiff Mahesh Ganjeer and dismissed the appeal of defendant Manti Sahu. Hence, the instant second appeals before this Court by defendant Manti Sahu. 8. On 3.3.2022, Second Appeal No.326 of 2021 was admitted for hearing on the following substantial question of law: “Whether the learned first appellate Court was justified in reversing the finding recorded by the learned trial Court, who has recorded a finding that the plaintiff has failed to prove that the agreement has been executed in violation of Section 23 of the Contract Act?” On 3.3.2022 itself, Second Appeal No.327 of 2021 was admitted for hearing on the following substantial question of law: “Whether the learned First Appellate Court was justified in setting aside the judgment and decree passed by the trial Court by which the trial Court has granted Rs.2,000/- pm as interim maintenance in favour of the defendant on perverse finding?” 9. Appellant/defendant Smt. Manti Sahu appeared in person before this Court and submitted that the findings of the First Appellate Court are contrary to the facts and the evidence available on record. Appellant/defendant Smt. Manti Sahu appeared in person before this Court and submitted that the findings of the First Appellate Court are contrary to the facts and the evidence available on record. Before the Trial Court, plaintiff Mahesh Ganjeer failed to discharge the burden and, therefore, the Trial Court rightly dismissed the suit and partly allowed her cross-objection. The First Appellate Court also ignored the fact that at the time of performing marriage with her, plaintiff Mahesh Ganjeer had not disclosed about his first marriage. From the evidence adduced by her, it is well established that marriage between her and the plaintiff was performed in Sankardahra Temple at Dongargaon, District Rajnandgaon on 8.5.2008 and they also executed the agreement dated 21.1.2009 admitting their marriage with each other. It was further submitted by her that from perusal of the agreement dated 21.1.2009 it is clear that plaintiff Mahesh Ganjeer had assured her that he will arrange a house and household articles for her. Therefore, the amount of maintenance ordered by the Trial Court should be enhanced and the First Appellate Court has wrongly rejected her cross-appeal. 10. Shri Sudhir Verma, Learned Counsel appearing for Respondent/plaintiff Mahesh Ganjeer submitted that from the evidence available on record both oral and documentary, it is well established that at the time of performing the alleged marriage with defendant Manti Sahu, plaintiff Mahesh Ganjeer was already married and he had one son also from his first wife. Therefore, the alleged second marriage with Manti Sahu is a void marriage as contained in Section 11 of the Hindu Marriage Act. He further submitted that from the evidence adduced by plaintiff Mahesh Ganjeer, it is established that the agreement dated 21.1.2009 was executed due to pressure created by Manti Sahu and it was also executed by Mahesh Ganjeer for protecting himself from the allegations of rape made by Manti Sahu. Therefore, the agreement is void as per the provisions of Section 23 of the Indian Contract Act. 11. I have heard the contentions raised from both the sides and perused the records with due care. 12. It is not in dispute that the agreement (Ex.P1) was executed between both the parties on 21.1.2009. As contained in paragraph 3 of the agreement (Ex.P1), the marriage between the parties was solemnised at Village Sankardahra on 8.5.2008. 11. I have heard the contentions raised from both the sides and perused the records with due care. 12. It is not in dispute that the agreement (Ex.P1) was executed between both the parties on 21.1.2009. As contained in paragraph 3 of the agreement (Ex.P1), the marriage between the parties was solemnised at Village Sankardahra on 8.5.2008. In the private complaint (Ex.P2) moved by Manti Sahu, she herself admitted the fact that after the marriage, Mahesh Ganjeer informed her regarding his first marriage and there being a son from his first wife. This private complaint (Ex.P2) was filed on 1.12.2010. In the written complaint dated 31.5.2009 (Ex.P5) made by Manti Sahu, it is mentioned by her that on 4.5.2009 for the last time Mahesh Ganjeer, on the pretext of performing marriage with her, committed sexual intercourse with her. A notice (Ex.P7) was also sent by Manti Sahu to Mahesh Ganjeer. In paragraph 3 of the said notice, it is mentioned by Manti Sahu that the marriage between her and Mahesh Ganjeer was solemnised with the consent of first wife of Mahesh Ganjeer, namely, Maheshwari Ganjeer. In paragraph 4 of her affidavit submitted under Order 18 Rule 4 of the Code of Civil Procedure also, Manti Sahu admitted the fact that after the marriage, Mahesh Ganjeer informed her that he was already married and he has one son also from his first wife. 13. From perusal of the above stated oral and documentary evidence available on record, it is well established that Mahesh Ganjeer first performed marriage with Maheshwari and without obtaining divorce from Maheshwari the alleged second marriage was performed by him with Manti Sahu on 8.5.2008. As contained in the facts mentioned in the notice (Ex.P7), this marriage was solemnised with the consent of first wife of Mahesh Ganjeer, which shows that at the time of performing of the alleged second marriage with Manti Sahu, it was known to Manti Sahu that Mahesh Ganjeer was already married and his first wife Maheshwari was living with him. Section 11 of the Hindu Marriage Act, 1955 declares a marriage of a Hindu woman with a Hindu man having a living spouse null and void. Section 11 reads as under: “11. Section 11 of the Hindu Marriage Act, 1955 declares a marriage of a Hindu woman with a Hindu man having a living spouse null and void. Section 11 reads as under: “11. Void marriages.—Any marriage solemnised 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. Clause (i) of Section 5 of the Hindu Marriage Act, 1955 lays down that for a lawful marriage neither party should have a spouse living at the time of marriage. A marriage in contravention of this condition is null and void. Dealing with the issue, the Supreme Court in (1988) 1 SCC 530 (Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav) observed thus: “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. The appeal is accordingly dismissed. There will be no order as to costs. During the pendency of the appeal in this Court some money was paid to the appellant in pursuance of an interim order. The respondent shall not be permitted to claim for its refund.” 15. Thus, it is well established that the marriage solemnised between Mahesh Ganjeer and Manti Sahu is a void marriage. 16. In paragraphs 3 and 4 of her affidavit submitted under Order 18 Rule 4 of the Code of Civil Procedure, Manti Sahu deposed that she sent a registered notice (Ex.P6) to Mahesh Ganjeer on 5.1.2009. Thereafter, Mahesh Ganjeer came to her village and admitted before the villagers that he had performed marriage with her. Thereafter, both of them went to District Court Rajnandgaon and there they executed the agreement dated 21.1.2009 in presence of their Advocates. From the contents of the written complaint (Ex.P5), it also appears that in the said written complaint it is mentioned by Manti Sahu that Mahesh Ganjeer kept on committing sexual intercourse with her from May, 2008 to May, 2009 on the pretext of marriage with her. From the contents of the written complaint (Ex.P5), it also appears that in the said written complaint it is mentioned by Manti Sahu that Mahesh Ganjeer kept on committing sexual intercourse with her from May, 2008 to May, 2009 on the pretext of marriage with her. From the above, I find that the First Appellate Court has rightly arrived at the conclusion that though the agreement dated 21.1.2009 was executed with the consent of both the parties, this agreement was executed by Mahesh Ganjeer to protect himself from future consequence of any criminal case which could arise due to the said second marriage with Manti Sahu. Thus, it is also rightly held by the First Appellate Court that the agreement dated 21.1.2009 has been executed in violation of Section 23 of the Indian Contract Act. As discussed above, the agreement dated 21.1.2009 is a void agreement and it has been executed in violation of Section 23 of the Indian Contract Act. Therefore, it is rightly held by the First Appellate Court that Manti Sahu is not entitled to get any maintenance from Mahesh Ganjeer. Accordingly, the substantial questions of law framed in both the second appeals are answered in positive. 17. Consequently, both the present second appeals are dismissed and the impugned judgment dated 11.10.2021 passed by the 2nd Additional District Judge, Rajnandgaon in Civil Appeal No.12A of 2020 and Civil Appeal No.13A of 2020 is affirmed.