Punjab-Haryana High Court
Balwinder Kaur vs Gurmukh Singh on 19 January, 2007
Equivalent citations: AIR2007P&H74, AIR 2007 PUNJAB AND HARYANA 74, 2007 (4) ABR (NOC) 596 (P&H), 2007 (3) AJHAR (NOC) 736 (P&H), 2007 AIHC NOC 349, (2007) 2 CIVILCOURTC 587, (2008) 2 MARRILJ 289, (2007) 2 HINDULR 203, (2007) 2 PUN LR 22, (2007) 3 RECCIVR 433, (2007) 56 ALLINDCAS 466 (P&H), (2007) 4 ICC 431, (2007) 1 CURLJ(CCR) 319, (2007) MATLR 509
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This appeal was filed by Balwinder Kaur against the judgment and decree dated 8-2-2002, passed by Additional District Judge, Ludhiana, whereby marriage of the appellant with Gurmukh Singh respondent was declared as nullity under Section 11 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') having been performed in contravention of Section 5(1) of the Act, as she performed second marriage with the respondent during subsistence of her first marriage with one Jaswinder Singh.
2. During the pendency of appeal, appellant Balwinder Kaur died on 13-11-2002. From this marriage, there is one minor daughter, namely Jasmine Kaur, who was living with her mother. Now she has filed application (CM. 17839-CII of 2006) to pursue the appeal filed by her mother, on the ground that with the subsistence of the impugned decree, her rights are going to be effected, therefore, she may be permitted to continue with the appeal.
3. Though no reply has been filed by the respondent to this application, but on the previous date, counsel for the respondent orally opposed this application on the plea that the proceedings under Section 11 of the Act are personal in nature and they stand abated with the death of one of the spouses and no legal representatives of the deceased spouse can be impleaded for continuing those proceedings. It was argued that even an appeal filed against a decree for dissolution of marriage would abate on the death of one of the parties, therefore, the application should not be allowed and the applicant-daughter should not be permitted to pursue the appeal.
4. On the other hand, counsel for the applicant submitted that the applicant is the daughter born from the marriage in question and she has a legal right to get herself impleaded after the death of her mother to pursue the appeal filed against the decree of nullity of marriage passed by the trial Court, as the dispute involves the question of her legitimacy and it will effect her legal and social rights. He submitted that though the legislation by enacting Section 16 of the Act has conferred a status of legitimate child to her as well as right to inherit the property by inheritance, but the right of a child from the void marriage to inherit the ancestral property has not been recognized. Counsel contended that if the applicant is not permitted to pursue the appeal filed by her mother, then she will not only be deprived of the ancestral property of her parents, but there will be a social stigma on her. Therefore, the applicant be permitted to pursue the appeal.
5. After considering the above submissions, I am of the opinion that after the death of Balwinder Kaur, the appeal filed by her will not abate and her daughter Jasmine Kaur is legally entitled to pursue the appeal. The decree dissolving the marriage determines the status of the parties and is equivalent to a judgment in rem. Similarly, a decree passed under Section 11 of the Act declaring the marriage nuillity will remain intact until and unless it is set aside in appeal, and with the death of one of the spouses, it will not stand automatically vacated. It is true that a right to file petition for divorce is a personal cause of action and such cause of action dies with the person, if one of the spouses expires during pendency of the trial, but after passing of the decree dissolving the marriage, the right to sue survives even after the death of one or more of the parties to the proceedings. A question came up for consideration before the Supreme Court in Smt. Yallawwa v. Smt. Shantavva , whether after passing of a decree of divorce ex parte or bipartite against the other spouse, the right to sue would survive for the spouse against whom such decree has been passed by the Court, and whether such a decree can be got set aside by the surviving spouse either by filing an appeal or by moving an application under Order IX. Rule 13, CPC if it is an ex parte decree. While answering this question, it was held that when a divorce decree is challenged by the aggrieved spouse in the proceedings whether by way of appeal on merit or by way of application under Order IX, Rule 13, CPC for setting aside the ex parte decree, right to sue survives to the aggrieved surviving spouse if the other spouse having obtained such decree dies after the decree and before the appeal is filed against the same by the aggrieved spouse or an application is made under Order IX, Rule 13, CPC by the aggrieved spouse for getting such an ex parte decree of divorce set aside. Similarly, the right to sue would also survive even if the other spouse dies pending such appeal or application under Order IX, Rule 13, CPC. In either case proceedings can be continued against the legal heirs of the deceased spouse who may be interested in supporting the decree of divorce passed against the aggrieved spouse. While coming to the aforesaid conclusion, the Supreme Court took into consideration that after a decree of divorce not only spouses cease to be husband and wife, but it also effects their other proprietary rights. The wife will not be entitled to inherit the property of the husband being Class I heir under Section 8 of the Hindu Succession Act nor after the death of wife, the husband will be entitled to inherit her property under Section 15 of the Hindu Succession Act. Therefore, in that case, when a decree of divorce was challenged by the wife by filing an appeal and during the pendency of appeal, the husband expired, the application filed by the wife to implead the legal representatives of husband was allowed. But in the instant case, position is different. In this case, the wife, who challenged the decree of nullity declaring the marriage as void has died during the pendency of the appeal. The applicant is the only child from the marriage in question and she wants to pursue the appeal. The question for consideration is whether the applicant is entitled to pursue the appeal filed by her mother against the decree declaring the marriage null and void. The answer to the question will depend upon the legal effects of such a decree on the applicant. If the impugned decree stands as it is, the applicant will be an illegitimate child from the void marriage. However, Section 16 of the Act while engrafting a rule, of fiction declares such illegitimate child as legitimate notwithstanding the fact that the marriage was void. Sub-section (3) of Section 16 provides that such illegitimate child will also have a right in the property of his parents under the Hindu Succession Act. like a legitimate child, but such a child from a void marriage cannot inherit the ancestral property of the parents. The Supreme Court in Jinia Keotin v. Kumar Sitaram Manjhi has held as under:
So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in Sub-section (3) by engrating a provision with a non obstinate clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, "any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents". In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would amount to Court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the Courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.
6. In view of the above legal position, in case the decree of nullity remains intact, the legal right of the applicant to inherit the ancestral property of her parents will be effected. Apart from this legal right of inheritance of ancestral property, her social status will also be at stake. In the society, she will be taken as a child from void marriage. Her matrimonial prospects may also be effected. Therefore, the applicant being the effected party from the impugned decree is entitled to pursue the appeal filed by her mother. Hence, this application is allowed.
Decision of Appeal on merits
7. Respondent Gurmukh Singh filed petition under Section 11 of the Act for a decree of nullity of marriage on the ground that on 4-9-1996, at the time of solemnization of his marriage with deceased appellant, she was already married with one Jaswinder Singh, which was still subsisting and this fact was concealed from him, therefore, the marriage between the parties was void and the same is to be declared as nullity. He also sought dissolution of marriage under Section 13 of the Act on the ground of cruelty. In the petition, it was alleged that after the marriage, the parties started residing together as husband and wife and from their co-habitation, one daughter was born. It has been alleged that in the month of November. 1999, the respondent came to know that the deceased appellant was already married with one Jaswinder Singh and without getting the divorce from him, she performed marriage with him. Before the marriage, parents of the deceased appellant represented to the respondent that she was unmarried. Believing this representation, he performed marriage with the deceased appellant. It has been further alleged that after the marriage, the deceased appellant started harassing and maltreating the respondent on various grounds and thus, caused cruelty to him.
8. From the issues, framed by the trial Court, it appears that the parties contested the petition only on the ground of declaring the marriage nullity and they led evidence in this regard. In order to prove that the deceased appellant was married with Jaswinder Singh prior to her marriage with the respondent and the said marriage was subsisting at the time of the marriage of the parties, the respondent proved the marriage certificate (Ex. PH) issued by the Registrar of Marriage at Nawanshahr regarding the marriage between deceased appellant and Jaswinder Singh. He has also proved the statements of Jaswinder Singh and Balwinder Kaur appellant, made before the Registrar of Marriage with regard to their marriage, as Ex. PC and Ex. PD. He also examined P.W. 3 Birbal UDC, Passport Office, Jalandhar, who proved the applications made by the deceased appellant for issuance of passport stating therein herself to be the wife of Jaswinder Singh. The respondent also examined one Maghar Singh as P.W. 4, who has stated that Balwinder Kaur appellant was married with Jaswinder Singh about 91/2 years back and marriage party had come from Banga. On the other hand, appellant Balwinder Kaur examined herself as R.W. 1 and denied the allegation of her marriage with Jaswinder Singh. She also pro duced Harbans Kaur and Paramjit Kaur, the real sister-in-law and sister, respectively, of the respondent as R.W. 2 and R.W. 3. Both of them have stated that they never came to know that the appellant was married with Jaswinder Singh before her marriage with respondent Gurmukh Singh. On the basis of these statements, the trial Court allowed the petition and declared the marriage as null, having been performed in contravention of Section 5(i) of the Act, while taking into consideration of following factors:
(a) That in the petition, the respondent had taken a categorical stand that appellant Balwinder Kaur was earlier married with one Jaswinder Singh and she contacted the second marriage with the respondent by concealing the said fact and without getting the first marriage dissolved. In the reply, the appellant gave vague and evasive reply to those averments.
(b) In cross-examination of the respondent a suggestion was not put that the appellant was not married with any Jaswinder Singh.
(c) A marriage certificate with regard to the registration of marriage between Jaswinder Singh and Balwinder Kaur has been duly proved. Statements of Jaswinder Singh and Balwinder Kaur, copies of which have been proved, show that marriage between Jaswinder Singh and Balwinder Kaur was solemnized on 6-3-1992 and the same was registered on 26-3-1992.
(d) An application for obtaining passport by Balwinder Kaur has been proved on record, in which she claimed herself to be the wife of Jaswinder Singh.
(e) P.W. 4 Maghar Singh of village Balaki also deposed that the marriage of Balwinder Kaur and Jaswinder Singh was performed 91/2 years back. The marriage party had come from Banga. However, this witness staled that he did not attend the said marriage.
9. Counsel for the appellant submitted that only the Certificate of Marriage and an application filed by appellant Balwinder Kaur for obtaining the passport has been proved to establish that before the marriage in question, she performed marriage with Jaswinder Singh and the said marriage was never dissolved and was subsisting at the time of marriage in question. But these documents and evidence are not sufficient to prove that before the marriage in question, Balwinder Kaur was married with Jaswinder Singh in accordance with Hindu Law. There is no direct evidence of the marriage between Balwinder Kaur and Jaswinder Singh, inasmuch as no person came forward to state on oath that he had seen the marriage being solemnized and the ceremonies of marriage were performed at that time. Counsel submitted that for getting declared a marriage void alleged to have been performed in contravention of Section 5(i) of the Act, it has to be first established that the alleged earlier marriage was solemnized with proper ceremonies, as required to be performed for a valid marriage under Section 7 of the Act. While referring to a Division Bench decision of the Calcutta High Court in Joyita Saha v. Rajesh Kumar Pandey 2000 (2) Civil Court Cases 15 : AIR 2000 Cal 109 counsel for the appellant submitted that the Certificate of Marriage issued under Section 16 of the Special Marriage Act. 1954, is not a conclusive proof of marriage solemnized under the Act, which can be said to be solemnized only if ceremony of marriage is strictly performed as per Section 7 of the Act. Further, by making reference to Priya Bala Ghose v. Suresh Chandra Ghosh AIR 1971 SC 1153, he submitted that even an admission of marriage by an accused under Section 494, IPC is no evidence of marriage for the purpose of proving an offence of bigamy or adultery, until and unless witnesses do not prove that the essential ceremonies of the marriage had been performed. By referring a Division Bench judgment of the Calcutta High Court in Mausami Chakraborty v. Subrata Guha Roy 1991 Civil Court Cases 651, counsel submitted that the marriage registration certificate itself is not a proof of valid marriage. Registration is valid only when it is found that there was a valid marriage in accordance with the provisions of the Act. When the factum of marriage is disputed, the essential ceremonies constituting the marriage must be pleaded and proved, and the evidence regarding the performance of marriage according to Hindu rites must be brought on record to show that there was valid marriage. In absence of such proof, the second marriage cannot be declared nullity.
10. Counsel for the appellant submitted that in the instant case, neither the respondent pleaded in his petition that essential ceremonies of marriage were performed at the time of alleged previous marriage between Balwinder Kaur and Jaswinder Singh nor he led any evidence to this effect. None of the witnesses including the respondent himself has stated in their statements that when the alleged marriage between Balwinder Kaur and Jaswinder Singh was solemnized. all the essential ceremonies of a valid marriage were performed. Counsel submitted that P.W. Maghar Singh, who stated that 91/2 years back, the marriage between Balwinder Kaur and Jaswinder Singh was solemnized and marriage party came from Banga, himself stated that he did not attend the marriage. His statement is merely based on hearsay evidence. In view of these facts, counsel for the appellant submitted that the trial Court has committed grave illegality while declaring the marriage between the respondent and the appellant as nullity on the ground that the appellant was already married with Jaswinder Singh and the said marriage was subsisting at the time of the marriage in question.
11. I have carefully gone through the record of the case with the assistance of counsel for the appellant, being aware of the fact that no one is appearing on behalf of the respondent. I have come to the conclusion that the decree of nullity passed by the trial Court is liable to be set aside.
12. The consequences of declaring a marriage as void are serious and far-reaching. Such declaration not only effects parties to the marriage but it also effects the innocent persons, such as children born from the marriage. Therefore, the question of declaring a marriage nullity should not be lightly taken and decided until and unless it is clearly established that a ground provided under Section 11 of the Act for declaring the marriage void exists. Section 11 of the Act provides that a marriage can be declared null and void on a petition presented by either of the parties, if it was performed in contravention of any of the conditions specified in Clauses (i), (iv) and (v) of Section 5. Clause (i) of Section 5 provides that at the time of solemnization of a marriage between two Hindus, neither of the party should have a spouse living at the time of the said marriage. Thus, if a spouse is already married and performs second marriage during the subsistence of the first marriage, the second marriage will be void marriage and either party to the said marriage can get declared the said marriage as void. When in a petition for declaring a marriage nullity, the factum of previous marriage is denied by the respondent, the burden lies on the petitioner to prove that a valid marriage was subsisting between the spouse and the third person at the time of the marriage in question. To establish that there was a previous valid marriage, he is required to plead and prove the essential ceremonies of the said marriage. To prove a valid marriage under the Hindu Law. it has to be established that marriage was performed in accordance with the customary rites and ceremonies, as required under Section 7 of the Act. The customary rites and ceremonies must be shown to have been followed and performed at the time of marriage to prove a marriage to be valid. The evidence regarding the performance of marriage according to Hindu Law must be brought on record to show that there had been a valid marriage. In order to perform a valid marriage under the provisions of the Act, two essential ceremonies had to be performed, namely, (1) Invocation before the seared fire and (2) Saptapadi, and the absence of these two essential ceremonies invalidates the marriage. Such invalidity could not be cured simply by registration of marriage. If there was a valid marriage, registration of that marriage under Section 8 of the Act becomes a proof of the valid marriage under the Act. If there was no valid marriage, the registration also does not come to the rescue of the respondent to claim that there had been a valid marriage because of registration. It is well settled that under the Hindu Law, for a valid marriage, a marriage should be established to be solemnized with proper ceremonies either by Saptapadi or by any other ceremony sanctioned by custom. In Mausami Chakraborty v. Sabrata Guha Roy (supra) it has been held that where the factum of marriage is disputed, essential ceremonies constituting the marriage must be pleaded and proved. The evidence regarding performance of the marriage according to Hindu rites must be brought on record to show that the marriage was valid. The registration certificate of the marriage issued by the authority itself is no proof of valid marriage, until and unless it is proved that the said marriage was validly performed in accordance with the provisions of the Act. The validity of the marriage does not depend on registration or omission to make any entry in the register. The registration certificate itself is not a conclusive proof of a valid marriage. Similarly, in Joyita Saha v. Rajesh Kumar Pandey AIR 2000 Cal 109 (supra), a Division Bench of Calcutta High Court held that a certificate issued under Section 16 of the Special Marriage Act is not conclusive proof of marriage solemnized under the Act. The marriage under the Act can be said to be solemnized only if ceremonies of marriage are performed as per Section 7 of the Act. In Priya Bala Ghosh v. Suresh Chandra Ghosh AIR 1971 SC 1153 (supra), the Supreme Court has held that even an admission of marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery, when the witnesses have not proved that the essential ceremonies had been proved.
13. In the instant case, the matrimonial Court, while declaring the marriage of the parties as nullity, has relied upon marriage certificate, the statements of Balwinder Kaur appellant and Jaswinder Singh, alleged to have been made before the authorities and the application made by Balwinder Kaur for obtaining the passport, in which it was stated that she performed marriage with Jaswinder Singh. In my opinion, these evidences are not sufficient to prove that there was a valid marriage between appellant Balwinder Kaur and Jaswinder Singh as none of the witnesses in this case has stated that actually, the marriage took place between Balwinder Kaur and Jaswinder Singh after performing all the valid ceremonies of the marriage, as required under Section 7 of the Act. The factum of performance of essential ceremonies at the time of previous marriage has not been even pleaded by the respondent. P.W. 4 Maghar Singh has stated that marriage between Balwinder Kaur and Jaswinder Singh was performed 91/2 years ago and the marriage party came from Banga, but in his cross-examination, he has admitted that he did not attend the said marriage. His statement, which has been relied upon by the trial Court, does not prove that at the time of previous marriage, essential ceremonies as required under Sec-lion 7 of the Act were performed. In this case, the trial Court has not taken care of the statements of two important witnesses i.e. R.W. 2 Harbans Kaur and R.W. 3 Paramjit Kaur, who are the real sister-in-law and sister of the respondent. They have not supported the case of the respondent. They have also stated that they never came to know that the appellant had already been married. Statements of these two witnesses, who are from the respondent side, in my opinion, should be given much weightage, but these have been ignored by the trial Court. The witness, who proved the marriage certificate, has not slated anything about performance of the marriage ceremonies at the time of the alleged previous marriage. In view of these facts and circumstances, I am of the opinion that the respondent has failed to prove that prior to the marriage in question, the appellant had performed valid marriage with Jaswinder Singh and the said marriage was subsisting at the time of marriage in question:
14. In view of the above, this appeal is allowed and the impugned judgment and decree dated 8-2-2002, passed by Additional District Judge, Ludhiana, is set aside.