Himachal Pradesh High Court
Urmila Devi vs Pradeep Kumar And Another on 25 November, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 439 of 2007 Reserved on: 08.11.2017 Decided on: 25.11.2017 ___________________________________________________________ .
Urmila Devi .....Appellant Versus Pradeep Kumar and another ......Respondents _____________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? Yes. For the appellant : Mr. Atul Jhingan, Advocate.
For the respondents : Ms. Anu Tuli, Advocate, for
r respondent No. 1.
Chander Bhusan Barowalia, Judge
The present regular second appeal is
maintained by the appellant, who was defendant No. 2 before the learned Trial Court (hereinafter to be called as "defendant No. 2"), laying challenge to the judgment and decree, dated 13.06.2007, passed by learned Additional District Judge, Fast Track Court, Shimla, H.P., in Civil Appeal No. 18-S/13 of 2006, whereby the judgment and decree, dated 12.10.2006, passed by the learned Civil Judge (Jr. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 25/11/2017 23:30:20 :::HCHP -2-Division), Court No. 3, Shimla, H.P, in Civil Suit No. 102 of 2002/01, was upheld.
2. Briefly, the facts, which are necessary for .
determination and adjudication of the present appeal, are that respondent No. 1, who was the plaintiff before the learned Trial Court (hereinafter to be called as "the plaintiff") instituted a suit for declaration and injunction against the defendants, Smt. Rekha (defendant No. 1) and Smt. Urmila (defendant No. 2), wherein it has been alleged that the marriage between the plaintiff and defendant No. 1 was solemnized on 21.04.1995 in accordance with Hindu rites at Village Nabhreli-Karyal Ghati, Tehsil and District Shimla. The factum of such marriage was duly entered in the marriage register of Gram Panchayat, Chail on 22.05.1995. It has been further averred that defendant No. 2, is falsely proclaiming herself to be the legally wedded wife of the plaintiff and claiming maintenance, as well as legal rights in the movable and immovable property of the plaintiff, for which she filed a false case Under Section 125 Cr.P.C. in the Court of learned Chief Judicial Magistrate, Hamirpur. As per the plaintiff, he never married to ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP -3- defendant No. 2 and even if, her allegation that she married to him on 24.02.1996, is taken to be true, the alleged second marriage between him and the defendant .
No. 2 is void ab initio. Otherwise also, defendant No. 2 is employed and working as Angarwari worker, under the Child Development Project Officer, Sujanpurtira, Hamirpur, H.P., hence not entitled to claim maintenance allowance from him. Lastly, it has been averred that as the marriage between the plaintiff and defendant No. 2, if any, is void, defendant No. 2 is liable to be restrained from proclaiming to be legally wedded wife and also from claiming any maintenance and right in the property of the plaintiff.
3. By filing written statement, defendant No. 2 raised preliminary objections qua maintainability, estoppel, cause of action and jurisdiction. On merits, it has been averred that defendant No. 1 is not legally wedded wife of the plaintiff and the certificate of marriage produced by the plaintiff is illegal. As per defendant No. 2, she preferred a petition against the plaintiff, under Section 125 Cr.P.C. in the Court of learned Chief Judicial Magistrate, Hamirpur, which was allowed and maintenance was awarded in her ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP -4- favour. It has been averred that defendant No. 2 was married to the plaintiff as per Hindu rites and ceremonies on 23/24.02.1996 at her parental house i.e. Village Chalokhar, .
District Hamirpur, H.P. and after the said marriage, defendant No. 2 and the plaintiff lived together as husband and wife in the house of the plaintiff at Village Tanenkar, District Hamirpur, H.P. However, in the year, 1999, the plaintiff deceitfully left defendant No. 2 in the house of her father and subsequently he married to defendant No. 1 illegally. It has been further averred that defendant No. 2 is the only legally wedded wife of the plaintiff and he cannot deny her rights that have accrued to her in consequence of her marriage to the plaintiff. Lastly, she prayed that the suit of the plaintiff be dismissed.
4. The learned Trial Court on 18.11.2004 framed the following issues for determination and adjudication:
"1. Whether the plaintiff is entitled for the decree of declaration to the effect that defendant No. 1 is legally wedded wife of the plaintiff and subsequent marriage between the plaintiff and defendant No. 2 allegedly taken place on 24.02.1996 during the subsistence of earlier marriage with defendant No. 1 is illegal, void ab initio as alleged? OPP ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP -5-
2. Whether the plaintiff is entitled for the relief of permanent prohibitory, as alleged? OPP
3. Whether the suit is not maintainable as alleged? OPD-2
4. Whether the plaintiff is estopped from .
filing the present suit on account of his own acts, omission and commission, as alleged? OPD-2
5. Whether this Court has no jurisdiction to try and entertain the present suit, as alleged? OPD-2.
6. Whether the suit has been filed by the plaintiff in collusion with defendant No. 1, as alleged? OPD-2.
7. Relief."
5. After deciding issues No. 1 & 2 in favour of the plaintiff, issue No. 3 in redundant and issues No. 4, 5 & 6 against defendant No. 2, the suit of the plaintiff was decreed. Subsequently, defendant No. 2 maintained an appeal before the learned first Appellate Court, which was dismissed and the findings of the learned Trial Court are upheld. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law:
"1. Whether the objection t;aken by the appellant/defendant under Section 105 CPC was not appreciated by the learned Courts below and if so, its effect?
2. Whether the objection raised by the appellant/defendant at the time of exhibition of document Ext. PW-4/A was not decided by the trial Court and its effect?::: Downloaded on - 25/11/2017 23:30:20 :::HCHP -6-
3. Whether the document Ext. PW-4/A was not proved as per the Evidence Act and the Courts below erred in placing reliance upon the said document while deciding the case and if so, its effect?"
.
6. Mr. Atul Jhingan, learned counsel for the appellant has argued that the learned Courts below have committed grave illegality in not appreciating the evidence, which has come on record. He has further argued that the learned Courts below, ignoring the fact that the plaintiff had solemnized the arrange marriage with defendant No. 2 and he has no authority to dispute the marriage once it was solemnized by him, have erroneously decreed the suit of the plaintiff. On the other hand, Ms. Anu Tuli, Advocate, for respondent No. 1 has argued that the judgments and decrees passed by the learned Courts below are as per law and after appreciating the evidence, which has come on record to its true perspective, therefore, the same are required to be upheld.
7. In order to appreciate the rival contentions of the parties, I have gone through the record carefully.
8. In order to prove its case Sh. Pradeep Kumar (plaintiff) has stepped into the witness box as PW-1 and ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP -7- stated that he is a permanent resident of Hamirpur, however for the last 35-36 years he is residing at Chail, as he owns a Dhaba there. As per the plaintiff, he married to Smt. .
Rekha (defendant No. 1) on 21.04.1995, as per Hindu rites at Village Nabhreli Karyalghati, Tehsil and District Shimla. The said marriage was got entered in the record of Gram Panchayat, Chail. Mark 'X' (which was later on exhibited as Ext. PW-4/A) is the certificate to this effect. He stated that he never married to defendant No. 2 (Smt. Urmila Devi). As per the plaintiff, defendant No. 2 instituted a false petition against him for grant of maintenance before the Court of learned Chief Judicial Magistrate, Hamirpur and maintenance to the tune of ` 400/- per month was granted in her favour. He has further stated that defendant No. 1 (Smt. Rekha Devi) is living with him as his wife and they have two daughters aged about five and three years and a son aged about one year. In his cross-examination, he admitted that petition under Section 125 Cr.P.C. was allowed in favour of defendant No. 2 and his appeal has been dismissed by the learned Sessions Judge, Hamirpur. He admitted himself and his sisters etc. in photographs Exts. R-1 ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP -8- to R-27. He feigned ignorance about the lady who has been shown as bride in circle 'P' of photographs, Ext. R-1 to R-5. He has stated that defendant No. 1, to whom he was .
married, is not there in circle 'P'. He has further stated that he knows Sh. Hari Singh, the Secretary of Gram Panchayat, Chail. He denied that he got the false record prepared with the help of Sh. Hari Singh. He has further denied that he married to defendant No. 2 and he used to maltreat her for bringing insufficient dowry and left defendant No. 1 in the house of her father.
9. PW-2 and PW-3 (S/Sh. Inder Kumar and Naresh Kumar) have also supported the case of the plaintiff and stated that they had attended the marriage of the plaintiff and defendant No. 1 in the month of April, 1995. They have further deposed that the plaintiff, defendant No. 1 and their children are residing together at Chail.
10. PW-4 (Ms. Sunil Chauhan, Secretary, Gram Panchayat, Chail) has brought the requisitioned record and testified that the marriage of the plaintiff and defendant No. 1 was entered in the record of the Panchayat on 22.05.1995. The said entry bears the signatures of the ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP -9- spouses and Certificate Ext. PW-4/A is correct as per the original record. In her cross-examination, she admitted that Ext. PW-4/A has not been signed by her. She has stated that .
in register, which she has brought, the column/page is blank and the numbering in the register has been done later with a red pen. She feigned ignorance as to by whom the numbering of register has been done.
11. DW-1 (Smt. Rekha) has also substantiated the case of the plaintiff and stated that from her marriage with the plaintiff, three children were begotten out of her wedlock. She denied that the plaintiff married to defendant No. 2 as per Hindu rites.
12. Conversely, defendant No. 2 (Smt. Urmila Devi) in her examination-in-chief, has substantiated the contents of written statement filed by her, as a whole. In her cross-
examination, she feigned ignorance about the first marriage of the plaintiff with defendant No. 1 on 21.04.1995 and their three children. She denied that when she accompanied the plaintiff to Chail, she found that defendant No. 1 residing there with the plaintiff as his wife ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP
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and due to this reason, she left Chail and went back to her parental house.
13. DW-2/2, Sh. Gian Chand (father of defendant .
No. 2) has deposed that marriage of the plaintiff and defendant No. 2 was solemnized on 23.02.1996 as per Hindu rites. In photograph, Ext. R-1, he admitted the plaintiff and defendant No. 2 to be the bride and groom. He denied that the marriage of the plaintiff and defendant No. 2 is illegal. However, he has admitted that the said marriage has not been registered in the Panchayat Register.
14. DW-2/3, Sh. Subhash Chand, has deposed that he is a Pandit and he got the marriage of defendant No. 2 performed on 23.02.1996 with the plaintiff. In his cross-
examination, he feigned ignorance about the plaintiff's earlier marriage with defendant No. 1.
15. Section 7 of the Hindu Marriage Act, 1955 provides as under:-
"7. Ceremonies for a Hindu marriage (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP
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jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
16. In the present case, both the parties are Hindus .
and they have to perform the marriage of saptpadi. As far as marriage, as alleged with defendant No. 1, is concerned, the plaintiff or defendant No. 1 could not prove that their marriage was solemnized by saptpadi, the only evidence which the plaintiff has proved on record qua his earlier marriage, which took place approximately three years before the marriage with defendant No. 2, is PW-4, Ms. Sunil Chauhan, Secretary, Gram Panchayat, Chail, who has produced on record Certificate, Ext. PW-4/A, regarding the marriage of the plaintiff with defendant No. 1. PW-4 further stated that certificate was issued by the Secretary on 02.12.2000. The learned Court below while dealing with the marriage has ignored very vital question involved in the present case that the marriage does not complete with registration only. Though, the registration of the marriage is corroborative evidence, but the marriage has to be proved by proving saptpadi and in this regard, no evidence has ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP
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been produced either by the plaintiff or by defendant No.
1.
17. Again at the cost of repetition, it is made clear .
that saptpadi was to be proved by the plaintiff and defendant No. 1 by either of the following methods:
"(a) By producing a witness, who has attended the marriage and who could have stated that the marriage took place around the sacred fire and the parties has taken seven steps, or
(b) by producing the photographs or any other documents, showing the performance of saptpadi, or
(c) by producing the Priest/Pandit, who was r Instrumentality in performing saptpadi.
However, none of the aforesaid proof had been placed by defendant No. 1 to prove saptpadi.
18. On the other hand, defendant No. 2 has proved on record her marriage, i.e. saptpadi with the plaintiff by producing, (a) the photographs of the marriage, not only showing saptpadi, but all the ceremonies of marriage, (b) the person who has attended the marriage and in whose presence the saptpadi was performed, (c) the Priest/Pandit, who performed the saptpadi. On these aspects, the findings recorded by the learned Courts below, declaring the ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP
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marriage of the plaintiff and defendant No. 2 to be second marriage, which in fact was their only marriage, as per Hindu rites, are perverse.
.
19. Now coming to the question whether the plaintiff, when married defendant No. 2 by performing saptpadi in the house of defendant No. 2 and in the presence of many witnesses, performed all the ceremonies, the photographs of which are on record, can maintain a suit for declaration by declaring the marriage with defendant No. 2 to be void, being second marriage? This question was also required to be considered vis-à-vis the bona fides of the plaintiff. The plaintiff had not gone to the Court with clean hands and suppressed many material facts. He has only averred that he had earlier performed the marriage with defendant No. 1, but without proving anything on record to show that marriage was performed as per Hindu rites, simply the statement of the Panchayat Secretary that the marriage was registered, is no prove of marriage. So, substantial question of law No. 1 is answered holding that the findings recorded by the learned Courts below are perverse and without appreciation. Similarly, ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP
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substantial question No. 2 is answered holding that the exhibition of the document, Ext. PW-4/A, in nowhere proves the marriage of the plaintiff with defendant No. 1, as the .
marriage was required to be solemnized by performing saptpadi as required under the Hindu law and the findings of the learned Courts below in this regard are also perverse.
As far as, substantial question No. 3 is concerned, the same is answered holding that even Ext. PW-4/A was not proved by examining the person, who made the entry in the register and further no presumption is attached that after the registration of marriage of the plaintiff with defendant No. 1, the marriage stands automatically proved, as the fact of saptpadi was not considered by the learned Courts below and they erred in placing reliance upon the said document while deciding the case.
20. The plaintiff, who has solemnized the marriage with defendant No. 2, after performing all the ceremonies, including saptpadi and defendant No. 2 has proved the same on record, making admission in cross-examination, the plaintiff has admitted that the lady in pictures is not defendant No. 1, though he has not clearly stated that the ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP
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lady in pictures is defendant No. 2, but from the evidence on record, it is amply clear that the lady alongwith the plaintiff in pictures is defendant No. 2, with whom the .
plaintiff admitted the saptpadi alongwith all rituals of Hindu marriage. The Act of the plaintiff to pray the Court for nullifying that marriage and coming to the Court and telling while appearing in the witness box, by making totally false statement that the lady in the pictures is not defendant No. 2, is itself, makes this case fit to award special costs in favour of defendant No. 2. The plaintiff has put the life of defendant No. 2 in a miserable condition for nearly 15-16 years by marrying her and thereafter filed a false case for nullifying the marriage on the basis of some entry in Panchayat record, which never proves the marriage of the plaintiff with defendant No. 1. So, defendant No. 2 is entitled for special costs alongwith the right to prosecute the plaintiff for special damages by way of separate suit, if she so desires.
21. In view of the aforesaid discussion, the present appeal is allowed and the judgments and decrees, passed by the learned Courts below are set aside. The suit of the ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP
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plaintiff is ordered to be dismissed with costs and the plaintiff is held liable to pay costs of ` 5,000/- to appellant/defendant No. 2.
.
22. With aforesaid observations, the appeal, so also pending miscellaneous application(s), if any, shall stand(s) disposed of.
(Chander Bhusan Barowalia) Judge 25th November, 2017 (raman) ::: Downloaded on - 25/11/2017 23:30:20 :::HCHP