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2022 DIGILAW 733 (HP)

Harish Chand v. Sarita Devi

2022-11-22

SATYEN VAIDYA

body2022
JUDGMENT : Satyen Vaidya, J. Heard. By way of instant Regular Second Appeal, judgment and decree dated 23.11.2019 passed by learned District Judge, Hamirpur, in Civil Appeal No.124 of 2017, affirming the judgment and decree dated 31.08.2017 passed by Learned Senior Civil Judge, Hamirpur, in Civil Suit No. 5 of 2012, is sought to be assailed. 2. Parties hereafter shall be referred by the same status as they held before the learned trial Court. Appellant was the plaintiff and respondent was the defendant before the learned trial Court. 3. Plaintiff filed a suit for declaration that defendant was not his legally wedded wife. Plaintiff alleged that no marriage was solemnized between the plaintiff and defendant as per Hindu Rites and Customs. As per plaintiff, the defendant intended to solemnize marriage with the plaintiff, but no marriage took place between them. They lived together for short time and one daughter was born to them. Plaintiff further alleged that behaviour of the defendant was intolerable and after leaving the company of the plaintiff, she was residing with her parents. Though, the parties had applied for registration of their marriage before the Registrar on 17.03.2006, but even the registration was not done. 4. In defence, the defendant contested the averments made in the plaint. Defendant specifically alleged that she was married to plaintiff and a daughter named Arshia was born to them. It was submitted that the plaintiff and defendant resided together as husband and wife at village Trind, Shimla and Alwar in Rajasthan. Plaintiff wanted a son and he even attempted to kill Arshia. The defendant had once conceived even after the birth of Arshia, but she had to abort the pregnancy at the instance of the plaintiff in August, 2007. The defendant placed reliance on admissions made by plaintiff with respect to his relation with defendant as husband and wife in different legal proceedings. 5. On the basis of pleadings of the parties, following issues were framed by the learned trial Court: - 1. Whether the defendant Sarita Devi is not legally wedded wife of plaintiff Harish Chand, as alleged? OPP 2. Whether the suit of the plaintiff is not maintainable as alleged? OPD 3. Whether the plaintiff has no locus standi to file the present suit as alleged? OPD 4. Whether the plaintiff is estopped by his own act and conduct to file the present suit as alleged? OPD. 5. OPP 2. Whether the suit of the plaintiff is not maintainable as alleged? OPD 3. Whether the plaintiff has no locus standi to file the present suit as alleged? OPD 4. Whether the plaintiff is estopped by his own act and conduct to file the present suit as alleged? OPD. 5. Whether the suit of the plaintiff is time barred as alleged? OPD. 6. Whether the plaintiff has no cause of action as alleged? OPD. 7. Whether the defendant is entitled for special costs under Section 35-A of C.P.C. as prayed? OPD. 8. Relief. 6. Issues No. 2 and 7 were decided in affirmative and all other issues were decided in negative. The suit of the plaintiff was accordingly dismissed. 7. Learned trial Court held that the defendant was legally married wife of plaintiff and they had one daughter. Primarily, reliance was placed on the admissions made by plaintiff from time to time in respect of his relation with defendant as husband and wife. It was held that in his reply ‘Ex.D-1’ filed by the plaintiff to the petition filed by defendant under Section 125 of the Cr.P.C., the plaintiff had admitted factum of solemnization of marriage between him and defendant. Another document Ex.DW1/B was relied upon by learned trial Court, which was an order passed by the Lok Adalat on the basis of compromise effected between the plaintiff and defendant in proceedings under Section 125 of the Cr.P.C. Document, Ex. D-2, was the copy of award passed by Lok Adalat, whereby plaintiff had agreed to pay Rs.4,000/- per month as maintenance to the defendant and their daughter. In another proceedings under Section 7 of the Guardian and Wards Act between the parties, plaintiff in his petition Ex. DW2/A had mentioned the factum of marriage between him and defendant. In yet another proceeding under Protection of Women from Domestic Violence Act, a judgment Ex. DX2 was passed on 19.05.2009, whereby the plaintiff was directed to provide residence to the defendant. In such proceedings, also a reply was filed on behalf of the plaintiff in which the admission to above effect was again made. 8. Aggrieved against the judgment and decree passed by learned trial Court, the plaintiff filed an appeal under Section 96 of the Code of Civil Procedure. In such proceedings, also a reply was filed on behalf of the plaintiff in which the admission to above effect was again made. 8. Aggrieved against the judgment and decree passed by learned trial Court, the plaintiff filed an appeal under Section 96 of the Code of Civil Procedure. The learned lower Appellate Court affirmed the findings returned by the learned trial Court and the appeal was dismissed vide impugned judgment and decree. 9. Thus, both the Courts have dismissed the suit of the plaintiff by arriving at concurrent findings that the marriage was solemnised between the plaintiff and the defendant and they had a daughter out of the wedlock. Both the courts heavily relied upon the admissions made by plaintiff in his pleadings in various legal proceedings between the parties. 10. Learned counsel for the appellant has not been able to dislodge such findings based on admissions of plaintiff. He has not been able to show that the admissions made by plaintiff from time to time regarding his relationship with the defendant as husband and wife were not his voluntary admissions. Even otherwise, it cannot be presumed that plaintiff, who is a high official in a public sector bank would sign the pleadings without going through the same and understanding its meaning and consequence. 11. The findings of fact recorded by learned Courts below cannot be faulted as nothing has been brought before this court to show that such findings were not based on the records of the case. No perversity in such findings could be pointed out on behalf of the plaintiff/appellant. 12. Once there are concurrent findings of facts recorded by both the learned Courts below, this Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure will be loath to interfere unless substantial question of law arises from the controversy. The impugned decree is based simply on the basis of findings of facts. 13. It is more than settled that substantial question of law should have foundation in pleadings, should emerge from substantial findings of facts and should not merely be a proposition of law, but should be a debatable question having bearing on the merits of the case. 14. No question of law much less a substantial question of law has arisen in the instant case. Thus, there is no merit in the appeal and the same is dismissed. 14. No question of law much less a substantial question of law has arisen in the instant case. Thus, there is no merit in the appeal and the same is dismissed. Impugned judgment and decree dated 23.11.2019 passed by learned District Judge, Hamipur, H.P., in Civil Appeal No. 124 of 2017, affirming the judgment and decree dated 31.08.2017 passed by learned Senior Civil Judge, Hamirpur, H.P. in Civil Suit No. 5 of 2017, needs no interference by this Court. Pending application(s), if any, shall also stand disposed of. Records be sent back forthwith.