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2022 DIGILAW 468 (CHH)

Bhagdas Deshlahara Satnami S/o Pawan Singh Satnami v. Ahirmati Deshlahara Satnami W/o Bhagdas Deshlahra

2022-10-21

GOUTAM BHADURI, RADHAKISHAN AGRAWAL

body2022
JUDGMENT : Goutam Bhaduri, J. Heard. 1. The present appeal is against the judgment and decree dated 27.03.2019 passed by 1st Addl. Principle Judge, Family Court Durg in Civil Suit No. 16A/2016 whereby a declaratory petition to set aside the order passed by the Family Court under Section 125 of the Cr.P.C on 31.05.2012 was dismissed. 2. The petition and the appeal both are preferred by the husband against Smt. Ahirmati Deshlahara Satnami and Master Kripank. 3. The facts of the case are:- On 31.05.2012, a maintenance order was granted in favour of the respondent. Thereafter, the appellant herein filed an application in the year 2015 with a prayer that the order of maintenance dated 31.05.2012 was obtained by fraud by the respondent. It was further stated that Bhagdas Deshlahara (appellant herein) was married to Indumati, who is the first wife and out of such wedlock, one daughter namely Sarita was born. Subsequently, Indumati deserted Bhagdas and started living separately. Thereafter, another marriage was performed by Bhagdas with (respondent No. 1) Ahirmati but they could not go along. Consequently, an application for maintenance was filed by Ahirmati under Section 125 of Cr.P.C. During such proceedings, husband Bhagdas (appellant herein) came to know that Smt. Ahirmati to whom he married was earlier married to Anesh Kumar according to rituals and out of that relation one son Suraj Kumar was born. Further, it was stated that suppressing the fact that Ahirmati was married to Anesh Kumar and without getting divorce she performed another marriage with appellant Bhagdas, therefore, the marriage would be nullity. It was further stated that after Bhagdas got separated with Ahirmati. Ahirmati was in live-in-relation with one Khilesh Jangde and out of such relationship Master Kripak (respondent No. 2) was born. Because of such consequences and suppressing the fact when Ahirmati filed an application with Mastar Kripak for maintenance, maintenance was granted in favour of Mastar Kripak. It is stated that the order is an outcome of fraud, the same may be set aside. Thereafter, respondent Ahirmati and Master Kripak though appeared and denied the averments. Perusal of the order sheet of learned Family court would show that certain efforts were carried out for settlement but nothing transpired. Appellant Bhagdas examined himself. The records shows that no evidence was adduced on behalf of the respondent Ahirmati. Learned Family court after evaluating the facts and evidence dismissed the petition. Perusal of the order sheet of learned Family court would show that certain efforts were carried out for settlement but nothing transpired. Appellant Bhagdas examined himself. The records shows that no evidence was adduced on behalf of the respondent Ahirmati. Learned Family court after evaluating the facts and evidence dismissed the petition. Hence, this appeal. 4. Learned counsel for the appellant submits that learned trial court has erred in holding that no proof was placed about validity of marriage. He would submit that as per statement of the appellant himself, he was earlier married to Indumati, therefore, in whatever circumstances may be unless and untill a valid decree of divorce is passed, validity of second marriage cannot be supported. He would further submit that in a statement under Section 125, categorical averments were made that appellant was physically incapacitated to produce child. In these circumstances, if the child was said to be born out of such relation the illegitimacy cannot be ruled out, which would have a direct bearing to the grant of maintenance to children. 5. Per contra, learned counsel for the respondent would submit that the appellant has failed to prove the fact about the marriages so alleged and only bald statements was made that he was married to Indumati and one daughter was also born and would submit this could have been proved by sufficient evidence. He further submits that allegations of marriage of Ahirmati with Anish Kumar has also not been established, therefore, which marriage was at first point of time was necessarily required to be adjudicated. He further submits that learned Family court while granting maintenance by order dated 31.05.2012 came to a categorical finding that respondent No. 2 Mastar Kripank being the son is entitled to receive the maintenance. He would further submit that order having reached its finality in a proceeding of the like nature which was filed in the year 2015, the same cannot be annulled and the judgment and decree of the learned Court below is well merited and do not call for any interference. 6. We have heard learned counsel for the parties at length and perused the pleadings and the evidence. 7. Perusal of the records would show that appellant was only examined in this case. 6. We have heard learned counsel for the parties at length and perused the pleadings and the evidence. 7. Perusal of the records would show that appellant was only examined in this case. The averments of appellant and the statement would show that the appellant made a statement that earlier he was married to Indumati and out of the said marriage, Kumari Sarita was born on 19.10.1997. The statements refers to a card which contains such proof. Perusal of the records do not show any such document/ card even was placed on record to prove the earlier marriage of appellant with Indumati and date of birth of daughter Sarita. The appellant though stated that he has filed the card to prove the fact but it has not been placed on record which could have relevance. The appellant being in possession of such important document to show the birth of child on particular date and having not filed it, the best evidence which would otherwise have been available, having withheld the court is required to draw adverse inference for holding back the best evidence. Even otherwise, the factum of appellant's earlier marriage with Indumati could have proved by other documents like ration card or other relevant medical card etc but nothing has been placed on record. 8. The appellant further contented that Ahirmati was also earlier married to Anish Kumar prior to the marriage performed by them and suppressing those facts, the second marriage was performed with the appellant. In support of this allegation, no document is placed on record at least to show that she was married to Anish Kumar earlier. Even efforts were not made to call the witness through intervention of the Court to confront the facts and only bald statements were made. 9. The cross examination of the witness would show that the appellant has admitted the fact that they were living as husband and wife since 15 years in past. 10. In the case of A. Dinohanmy Vs. W.L. Blahamy reported in A.I.R. 1927 PC 185 and Mahabhat Ali Vs. Md. 9. The cross examination of the witness would show that the appellant has admitted the fact that they were living as husband and wife since 15 years in past. 10. In the case of A. Dinohanmy Vs. W.L. Blahamy reported in A.I.R. 1927 PC 185 and Mahabhat Ali Vs. Md. Ibrahim Khan reported in A.I.R. 1929 PC 135, it was held that the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together and further laid down the general proposition that where a man and women are proved to have lived together as man and wife, the law presume, unless the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage. The court held that the law presumes in favour of marriage and against concubinage when a man and women have cohabited continuously for number of years. It was held that such presumption could be drawn under Section 114 of Indian Evidence Act. Where the parties lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption is rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin. In the circumstances of the case the statement otherwise is on record that the appellant and the respondent Ahirmati stayed together for long. In order to annul such presumption evidence/ document should have been on record to show earlier marriage of Ahirmati existed and she was not legally divorced. 11. The challenge in this case was to annul the grant of maintenance to the son i.e. Respondent No. 2. Section 16 of Hindu Marriage Act contains a legal fiction. It is by rule of fictio juris that legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. 11. The challenge in this case was to annul the grant of maintenance to the son i.e. Respondent No. 2. Section 16 of Hindu Marriage Act contains a legal fiction. It is by rule of fictio juris that legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. In the case in hand, at the first instance the appellant has failed to prove the marriage in between the him and the respondent was void, therefore, when the Act of Parliament provides that something shall be deemed to exist or some status shall be deemed to have been acquired, which would not have been so acquired but for the enactment the court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. Applying the aforesaid proportion and law laid down, the legitimacy of Respondent No. 2 cannot be put to question in view of the admission made of long cohabitation in between the appellant and respondent No. 1 wife. 12. Accordingly, we are of the view that the judgment and decree of the learned Family court would not require any interference. 13. In view of the above, the appeal sans merit and is liable to be and is hereby dismissed.