Punjab-Haryana High Court
Mohan Lal Sharma vs Parveen on 20 August, 2009
Equivalent citations: AIR 2010 PUNJAB AND HARYANA 65, 2010 A I H C (NOC) 762 (P&H), (2010) 1 CIVILCOURTC 418, (2009) 2 HINDULR 581, (2010) 2 MARRILJ 202, (2010) 1 MARRILJ 310, (2009) 4 RECCIVR 749, (2010) 1 ICC 212
FAO No.61-M of 1998 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.61-M of 1998
Date of decision: 20.08.2009
Mohan Lal Sharma ..Appellant
Versus
Parveen ...Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present:- Mr.Sarwan Singh, Sr. Advocate,
with Mr.N.S.Rapri,Advocate,
for the appellant.
Mr.D.S.Pheruman, Advocate,
for the respondent.
---
VINOD K. SHARMA,J.
This appeal by the husband is directed against the judgment and decree dated 10.3.1998 passed by the learned Additional District Judge, Amritsar dismissing the petition filed by the appellant seeking a decree of nullity and annulment of marriage under sections 11, 12(i)(c) of the Hindu Marriage Act, 1955 (for short th4 Act).
FAO No.61-M of 1998 2
Facts leading to the filing of the present appeal are that the parties were married as per Hindu rites at Amritsar on 12.3.1991. The parties cohabited as husband and wife but no issue was born from the wed- lock. The respondent/wife left the house of the appellant on 11.8.1991 after the fact of her first marriage was discovered. The respondent was said to have been married to one Naresh Kumar on 23.11.1987 at Amritsar. After the marriage, the respondent/wife lived and cohabited with Naresh Kumar as his wife at Amritsar, New Delhi and Germany.
The respondent/wife had gone to Germany on 1.6.1988 and returned on 13.7.1988. She again visited Naresh Kumar in West Germany on 13.8.1988 and returned to India on 5.9.1988. Marriage between the respondent and Naresh Kumar was said to be still subsisting and the divorce petition filed under section 13 of the Hindu marriage Act was said to be pending in the court of learned Additional District Judge, Delhi. The case set up by the appellant was that the respondent and her family members had fraudulently and dishonestly misrepresented and had not disclosed the fact of previous marriage of the respondent.
It was further claimed, that consent of the appellant was obtained by fraud by concealing material facts of the previous marriage. It was the case of the appellant that if he had known that the respondent was already married to Naresh Kumar, he would have not consented to the marriage with the respondent. It was the case of the appellant that though there was rumor of her marriage, the factum of her previous marriage was confirmed only on 10.8.1991 when he received a copy of divorce petition which was shown to the respondent. She left the matrimonial home. Thus, it FAO No.61-M of 1998 3 was claimed that marriage was liable to be declared as nullity under section 11 of the Act.
On notice respondent appeared and filed reply and contested the petition filed by the appellant on the ground that the petition was not within time; as the petition was instituted after unnecessary and improper delay, and that the appellant had not come to the court with clean hands. The stand taken was that the appellant was previously married with Santushta Sharma on 23.2.1988 at Batala but she filed a divorce petition against the appellant and Smt.Vinod Bala on 3.3.1989, the said petition was accepted on 4.9.1989 holding therein that the appellant, was living in adultery with Smt. Vinod Bala. She was said to be cousin sister of the appellant, it was also alleged that appellant was still living with her.
On merits, it was alleged that the marriage between the parties was solemnized on 4.6.1991 and not on 12.3.1991. It was admitted that the parties lived as husband and wife at Amritsar and no issue was born from the wedlock. It was denied that the respondent had left the house on 11.8.1991. It was further case set up that the appellant was in know of the first marriage of respondent and of litigation with Naresh Kumar even prior to his marriage. It was pleaded that Naresh Kumar was residing in Germany, and without disclosing to the respondent that he was already married with a German lady Meera alias Elga, and was having children from that lady married her on 23.11.1987, that too without taking any divorce from his previous wife. It was the case of the respondent that Naresh Kumar and his family members had assured the respondent that he was a bachelor and doing business in Germany. That he was to take the respondent as wife in FAO No.61-M of 1998 4 Germany. She admitted that her marriage with Naresh Kumar was performed on 23.11.1987 at Shiraj Hotel, Amritsar and that the parents of the respondents visited Germany on 1.6.1988 and returned on 13.7.1988 and second time visited Germany on 14.8.1988 and retuned to India on 5.9.1988. It was asserted that the marriage of respondent with Naresh Kumar was not legal marriage, but a void marriage as Naresh Kumar had living spouse at the time of marriage with the respondent. Respondent also alleged, that she has lodged a report with the police regarding the fraud committed by Naresh Kumar, and his family members. FIR No.10 dated 19.1.1992 under sections 420/406/498-A/34 IPC was registered against Naresh Kumar and others. It was admitted that Naresh Kumar had filed a divorce petition against the respondent in the court of Additional District Judge, Delhi. It was denied that the respondent and his family members fraudulently or dishonestly misrepresented to the appellant. The consent having been obtained by fraud and concealing material facts of previous marriage was denied. It was also pleaded that a document dated 18.5.1991 was executed between respondent and Naresh Kumar where he admitted his first marriage as also the litigation between the parties. The respondent also claimed that she was having certain documents with her in German language, but as language was not known to her she had to find some person knowing German language. Amar Nath was said to be uncle of the respondent and Kailash Rani was said to be wife of Amar Nath, whereas Gopal Krishan was said to be brother of Kailash Rani. Daughter of Gopal Krishan was said to be married with the son of Subhash Chander alias Kala who is said to be residing in Germany and used to come to India with FAO No.61-M of 1998 5 Mohan Lal appellant. Mohan Lal was said to be cousin brother of Subhash Chander. Case set up was that Mohan Lal, Subhash Chander, and Naresh Kumari knew German language, and in that respondent and her parents had shown documents to the appellant. Mohan Lal was said to be residing with Smt.Vinod Bala at Putlighar who was real sister of Subhash Chander alias Kala. The case set up was that Subhash Chander and his wife Naresh Kumari had assured the respondent that they would help respondent and would supply her every kind of detail, which will be known to them from Germany relating to Naresh Kumar.
It was also alleged that the appellant and Smt.Vinod Bala started visiting the house of the respondent and represented to the parents of the respondent that Naresh Kumar was already married with a German lady Meera, and that they tried their best through Subhash Chander to keep the respondent with Naresh Kumar, but he was not prepared to leave Meera. The respondent, was therefore, advised to get divorce from Naresh Kumar. It was also pleaded case that Vinod Bala was projected as real sister married to Surinder Pal of Jammu and that she was to go to her in-laws' house.
Respondent further claimed that she was advised not to prosecute the case filed by Naresh Kumar. Rather she was advised to get divorce from Naresh Kumar by writing a document, as there is a custom in Biradari to have divorce out of court. Divorce deed dated 18.5.1991 was got executed. Thereafter, the appellant married respondent on 4.6.1991. It was claimed that Smt.Vinod Bala and and Subhash Chander hatched a conspiracy with Naresh Kumar for getting divorce and remarriage of the FAO No.61-M of 1998 6 respondent, and that the appellant etc. received Rs.2 lacs (Rupees two lacs only) from Naresh Kumar, so that she could get divorce and get FIR No.10 quashed. The respondent did not pursue her divorce petition. The FIR was also quashed. Allegations of illicit relations between the appellant and Smt.Vinod Bala were also alleged.
Plea that the respondent was harassed for bringing insufficient dowry were also levelled. It was claimed that the respondent had caught the appellant and Vinod Bala red handed while performing sexual intercourse. It was pleaded that the appellant and Smt. Vinod Bala turned the respondent out of house by claiming that it was in the ownership of Smt. Vinod Bala. On 8.9.1991 police was summoned by the respondent. When the appellant was taken to the police station, where he disclosed that divorce petition had been filed by him against the respondent. The appellant compromised to withdraw the divorce petition. In September, 1991 Subhash Chander came from Germany and started living at Putlighar. It was pleaded, that respondent was stated to be having no right to stay in the house. Appellant was said to have slipped away from the house intentionally, and in his absence Subhash Chander and Smt.Vinod Bala gave beating to the respondent and turned her out of house.
With the police help the parties again started living together. Appellant got himself transferred to Jalandhar and compromised to keep her at Jalandhar, after arranging separate residence. He is also said to have agreed to withdraw the petition. It was claimed that with the intervention of police she had again gone to matrimonial home. On 29.2.1992 appellant and the respondent had gone to Putlighar, at that time Vinod Bala and one FAO No.61-M of 1998 7 Surinder gave beating to the respondent and hr parents. They were medically examined and since then the respondent is living at her parental house. She claimed that she was still willing to accompany the appellant. All other allegations were denied.
In the replication averments made in the petition were reiterated whereas averments made in the written statement were denied.
On the pleadings of the parties the following issues were framed by the learned Matrimonial Court.
1. Whether the marriage of the parties is null and void as the respondent has a spouse living at the time of marriage? OPP
2. Whether the consent of the petitioner was obtained by fraud by concealing the material facts concerning the previous alleged marriage of the respondent? OPP
3. Whether there has not been any unnecessary or improper delay in instituting the proceedings? OPR
4. Whether there is no other legal ground as to why relief claimed b the petitioner may not be granted to the petitioner? OPR
5. Relief.
In support of the case appellant appeared as PW 2 and examined Datta Ram as PW 1, and Sham Sunder as PW 3, whereas respondent appeared as her own witness and examined RW 1 Dr.Sukhwinder Singh, RW 2 Barkat Singh, RW3 Smt.Raj, RW 4 ASI Kulbir Singh and RW 5 Constable Satpal.
FAO No.61-M of 1998 8
Issues No.1 and 2 were taken up together.
Learned matrimonial court on the basis of pleadings and evidence on record came to the conclusion that the appellant was married to Santushta Sharma and that she had filed a divorce petition on 3.3.89 against the appellant and one Smt.Vinod Bala, on the allegations of illicit relations and that the appellant was living in adultery. The appellant did not contest the petition and divorce was granted on 4.9.1989. The respondent/wife was married to Naresh Kumar on 23.1.1987. That Naresh Kumar was already married to one Meera alias Elga and had children from her. The respondent/wife divorced Naresh Kumar as per divorce deed dated 18.5.1991 and thereafter married the appellant on 4.6.1991. The learned court also held that there was litigation pending between Naresh Kumar and that one FIR was also got registered which was not pursued because the appellant had promised to marry her. The learned matrimonial court came to the conclusion that the dispute now to be decided was, whether the marriage was performed on 12.3.1991 or on 4.6.1991.
On the basis of evidence led, learned matrimonial court recorded a finding that the marriage was solemnized on 4.6.1991. Learned court also held that from the evidence led it was proved that the appellant knew about the first marriage of the respondent with Naresh Kumar, and that he agreed to marry her, it was for this reason that FIR and the petition against Naresh Kumar were not contested by the respondent. The learned court further held that it was not open to the appellant to challenge the dissolution deed dated 18.5.1991, as it could only be challenged by Naresh Kumar. The learned court also held that it had to be presumed that marriage FAO No.61-M of 1998 9 of the respondent with Naresh Kumar solemnized on 23.11.1987 was void ab initio. The learned court decided issues No.1 and 2 against the appellant whereas issues No.3 and 4 were decided against the respondent.
In view of the findings on issues No.1 and 2, petition was ordered to be dismissed.
Mr.Sarwan Singh, learned senior counsel appearing on behalf of the appellant challenged the judgment and decree primarily on the ground that the learned matrimonial court wrongly placed reliance on Ex.RW2/1 to hold that the marriage of the respondent with Naresh Kumar stood dissolved. Where Naresh Kumar had claimed the dissolution of marriage by mutual consent. The contention of the learned counsel for the appellant was that the marriage by way of mutual consent could only be dissolved under section 13 (B) of the Act, and not merely by executing a document of dissolution of marriage. He further referred to Ex.RW 2/1 to show that the last two lines of Ex.RW 2/1 seems to have been written later to support the stand of the respondent/wife, furthermore the signatures of Naresh Kumar appearing below his name showed that document was not genuine.
Learned counsel for the appellant referred to the statement of RW 2 wherein he claimed that Naresh Kumar was introduced to him by Vijay Kumar Sharma, Advocate who was not examined. He had admitted that normally he makes entries of attested documents in the register. However, entry regarding this document was not made, as the register was not with him when it was got attested. He further could not explain the difference in space of typing on last two lines by stating that it was not FAO No.61-M of 1998 10 prepared in his presence.
Learned senior counsel for the appellant contended that the plea of the respondent that customary divorce was obtained by executing document Ex.RW 2/1 cannot be accepted, for want of any evidence of custom in the community. In support of this contention, learned counsel for the appellant placed reliance on the judgment of this court in the case of Asha Rani Vs. Gulshan Kumar 1995 (2) HLR 23, wherein this Court was pleased to lay down as under:-
"10. A custom must be proved to be ancient, certain and reasonable if it is to be recognized and acted upon by Courts of law. The specific family custom pleaded in a particular case should be proved by the party pleading it. It must be proved that the custom has been acted upon in practice for such a long period and with such invariability, as to show that it has, by common consent, been submitted to as the established governing rule of the particular family. Custom no doubt, can be proved by oral evidence of witnesses acquainted with custom, instances and general pronouncements. Section 29 (2) of the Act does not disturb the position which a customary divorce occupied before the enactment of the Act. In order that he exception operates, it must be found as a fact that there had been such customary divorce or dissolution of a Hindu Marriage. In this case, I have discussed the evidence adduced by the appellant about the alleged customary mode of dissolution of marriage. Appraising that evidence it is rightly FAO No.61-M of 1998 11 held by the trial Court that neither the existence of the custom nor the fact of divorce is established. Since the appellant pleaded a custom of dissolution which is altogether derogatory to general Hindu Law, the burden was o n her to prove the existence and the incidents of the alleged custom which must measure up to the essentials of a valid custom and be ancient, certain and reasonable. Custom cannot be extended by analogy nor one custom deduced from another."
It is well settled law, that in order to succeed on custom the person claiming custom has to plead and prove the custom. Except for the pleading in the petition, there is absolutely no evidence to show prevalent custom, in the community of the parties by which the divorce could be granted with intervention of the respectables.
Mr.D.S.Pheruman, learned counsel appearing on behalf of the respondent could not controvert this contention. He took a stand that document Ex.RW 2/1 be taken as an admission by Naresh Kumar, of subsisting of marriage, when he got married to the respondent, so as to assert that the marriage with Naresh Kumar was null and void.
Learned counsel for the respondent placed reliance on the judgment of Hon'ble Supreme Court in the case of M.M.Malhotra Vs. Union of India and others AIR 2006 SC 80 to contend that the marriage of the respondent being void did not need any declaration from the court. Hon'ble Supreme Court in the case referred to above was pleased to law down as under:-
"11. For appreciating the status of a Hindu woman marrying a FAO No.61-M of 1998 12 Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955 (thereafter referred to as the Marriage Act) have to be examined. Section 11 of the Marriage Act declared such a marriage as null and void in the following terms::
11. "Void marriage-- Any marriage solemnized 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."
Clause (i) of Section 5 lays down, for a lawful marriage, he necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. By reason of the overriding effect of the Marriage Act as mentioned in section 4, no aid can be taken of the earlier Hindu law or any custom or usage as a part of that law inconsistent with any provision of the Act. So far as Section 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnized in violation of Section 5 (i) of the Act. Sub-section (2) of Section 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same FAO No.61-M of 1998 13 continues to be effective The marriages covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose. The provisions of Section 16, which is quoted below, also throw light on this aspect. "
Learned counsel for the respondent also contended that finding of the learned matrimonial court that the appellant was aware of the previous marriage at the time of marriage with the respondent itself is a ground to non-suit the appellant.
Learned counsel for the appellant controverted this contention by placing reliance on the judgment of this court in the case of Vinod Sehgal Vs. Smt.Santosh Kumari and another 1979 All India Hindu Law Reporter 545, wherein this court was pleased to lay down as under:-
"12. The Division Bench in a reference made in this case has held that a petition under section 11 of the Act for obtaining a declaration of nullity of a marriage, which was void ab initio would not fall within the scope of the words 'in any proceedings under this Act' used in section 23.On July 18, 1970, when the appellant and Santosh Kumari married, the latter's previous marriage with Vinod Kumar respondent No.2 was admittedly subsisting. Their marriage will be covered by FAO No.61-M of 1998 14 section 11 read with section 5 (i) of the Act and thus shall be void ab inito. In view of the decision of the Division Bench, section 23 of the Act shall have no application. The marriage of the appellant with Santosh Kumari respondent, therefore, shall continue to be void ab initio irrespective of the fact that he knew about the previous subsisting marriage of Santosh Kumari. In this situation the appellant is entitled to a decree of nullity of his marriage with Santosh Kumari under section 11 of the At and the learned District Judge erred in holding otherwise."
On consideration of matter, I find force in the contentions raised by the learned senior counsel for the appellant.
Learned matrimonial court could not have held the marriage between the parties to be valid, merely by placing reliance on the the document Ex.RW 2/1 as the document could not be said to be a document of dissolution of marriage, as the respondent failed to prove custom. The marriage which was null and void could not be held to be valid, even if the appellant was in know of previous marriage of the respondent.
The contention of the learned counsel for the respondent, that the previous marriage was null and void and therefore, could not be a ground to declare the marriage between the parties as nullity, also cannot be sustained for the reason that in support of Ex.RW 2/1 Naresh Kumar was not examined. As already observed above the statement of RW 2 could not be accepted in view of the fact that the document was not entered in register, and furthermore he was not able to explain the doubts in the document, FAO No.61-M of 1998 15 where two lines looked to be inserted lateron showing the admission of Naresh Kumar, that he was already married and was having children.
It cannot be disputed that a marriage of the parties during the subsistence of earlier marriage is a nullity, and no declaration is required. What has to be seen in the present case is as to whether the respondent was able to prove the fact that Naresh Kumar was married at the time of marriage with respondent.
The only evidence in this regard is the statement of respondent, wherein she has claimed that Naresh Kumar was earlier married. In her statement, she admitted that she had seen the marriage certificate of Naresh Kumar with Meera. No certificate was produced or summoned. The respondent is guilty of withholding the best evidence. It is not only this factor but it may further be noticed that it was admitted case of the respondent that divorce petition was filed by Naresh Kumar, wherein Naresh Kumar pleaded that at the time of marriage with the respondent he was a bachelor. Ex.AW 2/3 was also produced which is again an admitted document wherein it was specifically pleaded that the marriage between the respondent and Naresh Kumar was solemnized on 23.11.1987 at Amritsar and they lived together after the marriage, and that the Naresh Kumar left for Germany in the last week of December 1987.
In the application under section 24 of the Act the plea taken by the respondent was that she was victim at the hand of Naresh Kumar and his family members, and that she was turned out of matrimonial home after inflicting cruelty. Not a word was said either in the written statement or in the application moved under section 24 of the Act that the marriage was FAO No.61-M of 1998 16 nullity or that any fraud was played on the respondent.
Petition filed by Naresh Kumar was dismissed in default on 17.7.1990. The petition was got restored but was again dismissed on 20.1.1992. Therefore, there is a judgment and decree by the competent court holding the marriage between respondent and Naresh Kumar to be valid as the divorce petition was dismissed. It may further be pertinent to notice here that the respondent in her application under section 24 of the Act took a specific stand that Naresh Kumar had no liability and that all his brothers and sisters were well settled. Therefore, the stand of the respondent that Naresh Kumar was earlier married is nothing but an afterthought to raise defence in this petition.
In view of the findings recorded above the judgment of Hon'ble Supreme Court in the case of M.M.Malhotra Vs. Union of India and others (supra) has no application to the facts of the case, as the respondent has miserably failed to prove that Naresh Kumar was earlier married so as to claim that the marriage was a nullity.
Once it is held that there was subsisting marriage of respondent at the time of marriage with the respondent his conduct becomes irrelevant as the marriage between the parties in violation of Section 5 of the Act is void ab initio and nullity. Finding of the learned matrimonial court on issues No.1 and 2 are, therefore, reversed and the issues are decided in favour of the appellant.
The learned counsel for the respondent also placed reliance on the order passed by this court in a criminal proceedings initiated for bigamy holding therein that because of earlier marriage with Naresh Kumar FAO No.61-M of 1998 17 being null and void criminal proceedings were liable to be quashed.
This contention of the learned counsel for the respondent also cannot be accepted. Firstly, for the reason that the said observation by this court were based on the fact, that the petition filed by the husband for declaring marriage null and void stood dismissed, by holding that there was no valid marriage between Naresh Kumar and respondent. Decision of this court was, therefore, based on the findings recorded in the case which was subjudice in this court. Otherwise also, it is well settled that the findings of the criminal court are not binding on the civil court. The court is to decide the case on the basis of evidence and pleadings.
Resultantly, this appeal is allowed, the judgment and decree passed by the learned matrimonial court is set aside. The petition filed by the petitioner under section 11 of the Act is allowed, the marriage between the parties is declared to be dissolved by decree of nullity of marriage. No costs.
(Vinod K.Sharma) 20.08.2009 Judge rp