Calcutta High Court (Appellete Side)
Sri Usha Charan Naskar vs Smt. Niva Rani Naskar on 2 September, 2009
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Prasenjit Mandal
F.A. No. 36 of 1999
Sri Usha Charan Naskar
Versus
Smt. Niva Rani Naskar
For the Appellant-Husband: Mr. Durga Sankar Mallick,
Mr. Supratik Syamal.
For the Respondent-Wife: Mr. Sarajit Sen,
Mr. Tapan Sinha Roy,
Mr. Sambhu Nath Sardar.
Heard on: 30.07.2009 & 06.08.2009.
Judgment on: 2nd September, 2009.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a defendant/husband in a suit for divorce and is directed against the judgment and decree dated 23rd December, 1997, passed by the Additional District Judge, Fifth Court, Alipore, District - South 24-Parganas, in Matrimonial Suit No.36 of 1995 thereby passing a decree for divorce in favour of the plaintiff/wife on the ground of cruelty.
Being dissatisfied, the defendant has come up with the present first appeal.
During the pendency of this appeal, the original defendant/Appellant having died, the second wife of the original defendant filed an application for being substituted in his place for the purpose of disputing the finding of the learned Trial Judge that they are existed relationship of husband and wife between the plaintiff and the original defendant. A Division Bench of this Court substituted the said second wife in place of the original appellant and thus, the present appeal is now being proceeded with by the second wife of the original defendant.
The plaintiff/respondent filed in the Trial Court a suit for divorce against the original defendant on the ground of cruelty and the case made out by the respondent may be summed up thus:
(a) The parties were major citizens of India in 1959 and were married in the said year according to Hindu rites and ceremonies at village Shyampur, P.O. Gazipur, P.S. Kulpi, within the jurisdiction of the Trial Court.
(b) After the marriage, the parties resided together at the village Shyampur in the house of the parents of the wife for about 5/6 years. The father of the plaintiff used to maintain and bore the expenses of the education of the defendant who was without any service at that time. However, subsequently, the defendant came to his native village at Tulsir Chal within the Police Station Kulpi and started living there after constructing a house of his own and joined a local school as a teacher.
(c) In the wedlock, the first child, namely, Jharna was born in 1964, the second child, namely, Sukanta was born in 1966 and the third child, Aparna was born in 1968.
(d) The defendant while serving in the school named Ramkrishnapur High School, which was a co-education school, came in acquaintance with a girl student named Jharna Halder. The defendant also used to privately coach her.
(e) After such acquaintance with the said lady, namely, Jharna Halder, the defendant started misbehaving with the plaintiff and their children and neglected to maintain the son and daughters of the plaintiff. The plaintiff protested against such act and, as a result, the defendant physically assaulted the plaintiff and also the children. Considering the future maintenance and education of the children, the plaintiff remained silent and did not protest against such physical assault or other cruelties inflicted upon her by the respondent.
(f) The defendant became so reckless that in the year 1969 or sometime in the first part of the year 1970, he brought the said lady, Jharna Halder, in the house of the plaintiff and started living with the said lady as husband and wife in front of the plaintiff and the children. The plaintiff protested against such bigamy of the defendant, as a result, he became furious and had beaten the plaintiff mercilessly almost every night in front of the children of the parties at the instigation of the said lady. Thereafter, the defendant had driven out the plaintiff and the children in the year 1971 and threatened them that if the plaintiff tried to come back to stay in the house of the defendant with her children, the defendant would kill the plaintiff and the children.
(g) In the year 1974, the plaintiff came to know that the defendant got a job as a clerk in the Finance Department under the State of West Bengal and since then he was in the government service and at the time of filing the suit, he was an Inspector of Weights & Measures under the State of West Bengal.
(h) Since the year 1971, the defendant did not pay a single farthing for the maintenance of the plaintiff and the children. Hence, the suit for divorce on the ground of cruelty.
The suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plaint and the defence of the defendant may be summed up thus:
(1) There was no marriage between the parties and as such, the prayer made in the petition for divorce was not tenable in the eye of law. In the year 1959, the defendant was a minor and no marriage had taken place on any date and at any place under any customs and rights or any other manner between the parties.
(2) It was false that the parties lived in the house of the father of the plaintiff for about 5/6 years or that the father of the plaintiff used to maintain and bore the expenses of the education of the defendant. It was also false that the defendant joined in a local school as alleged in the plaint.
(3) It was denied that in the wedlock of the parties any child was born.
It was further denied that while serving in the school, the defendant came into the acquaintance with a girl student named Jharna Halder.
(4) The defendant is living with Jharna Halder by marrying her. It was also false that Jharna Halder was living as a mistress of the defendant. As there was no marriage between the parties, the suit was not maintainable.
At the time of hearing of the suit, the plaintiff herself, the mother and brother of the defendant and three other witnesses gave evidence in support of the plaint case while the defendant alone gave evidence in opposing the prayer of the plaintiff.
As pointed out earlier, the learned Trial Judge by the judgment and decree impugned herein decreed the suit with the finding that there was a valid marriage between the parties according to the Hindu rites and customs and that in the said wedlock, three children were born and that subsequent marriage of the defendant with Jharna Halder was not legal, valid and such fact itself is a cruelty inflicted upon the plaintiff and was sufficient to grant a decree for divorce.
Being dissatisfied, the defendant has preferred the present appeal and, as pointed out earlier, during the pendency of this appeal the defendant having died, in his place, Jharna Halder, the alleged second wife of the defendant, has been substituted with the leave of this Court for the purpose of proceeding with the appeal.
After hearing the learned counsel for the parties and after going through the materials on record, we find that the fact that the parties lived together and three children were born in their union was not even disputed by the husband. Although in the written statement, the paternity of the children was denied, in evidence such fact has been admitted but according to the defendant, he simply lived together with the plaintiff without going through the ceremony of any marriage according to the Hindu custom or rites. In other words, according to the defendant, the plaintiff was merely a concubine and as such, the suit for divorce at her instance was not maintainable.
Therefore, the first question that falls for determination in this appeal is whether the learned Trial Court was justified in the facts of the present case in concluding that the marriage between the parties has been established.
In the case of A. Dinohamy v. W.L. Blahamy reported in AIR 1927 PC 185, Their Lordships of the Privy Council laid down the following general proposition of law:
"Where a man and woman are proved to have lived together as man and wife, the law will 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".
Subsequently, in the case of Mohabhat Ali v. Md. Ibrahim Khan reported in AIR 1929 PC 135, the Privy Council once again repeated the same proposition of law that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years. It was further held that such a presumption could be drawn under Section 114 of the Evidence Act.
Long thereafter, the Supreme Court in the case of Badri Prasad v. Dy. Director of Consolidation and Others reported in AIR 1978 SC 1557 has reiterated that where the partners lived together for long spell as husband and wife, there would be presumption in favour of wedlock. The presumption was, however, rebuttable, but a heavy burden lies on the person who seeks to deny the relationship of legal origin to prove that no marriage took place. Law, according to the Supreme Court leans in favour of legitimacy and frowns upon bastardy.
In the recent decision of the Supreme Court, in the case of Tulsa and others v. Durghatiya and Others reported in AIR 2008 SC 1193, the said Court has maintained the same view by relying upon all the above-mentioned decisions.
Therefore, in this case heavy burden lay upon the original defendant to show that there was no marriage at all. Simply by saying that no such marriage had taken place, such heavy burden cannot be discharged. In this case, the mother and the brother of the husband have supported the wife and apart from those person three other witnesses have deposed in support of the plaint case and we find no reason to discard their evidence. There is no cogent material on record to disbelieve the testimony of those persons particularly when two of them are mother and the brother of the husband. In this case, apart from the husband, no other person has come forward to support the husband and we find no reason to believe his testimony that the plaintiff was his concubine when it is established from the materials on record that the father of the plaintiff bore his educational expenditure. It is absurd to suggest that the father of a concubine would bear the educational expenditure of the person so that his daughter may live as a concubine of that person when admittedly at that point of time, the defendant was not married to any other person. It is admitted that the parties lived together from the year 1959 till 1971 and three children were born to them. The defendant, as it appears from record, is an ungrateful son-in-law and at the same time, a treacherous and libidinous husband.
Once we hold that that the defendant was the lawful husband of the plaintiff and it is the admitted fact that the husband married for the second time during the lifetime of the plaintiff, such fact itself amounts to cruelty on the part of the husband towards the wife and thus, the learned Trial Judge rightly passed the decree for divorce.
Mr. Mallick, the learned advocate appearing on behalf of the appellant, in this connection, placed strong reliance upon the decisions of the Supreme Court in the cases of 1) Kanwal Ram and other v. The Himachal Pradesh Administration reported in AIR 1966 SC 614, 2) Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh reported in AIR 1971 SC 1153 and 3) Surjit Kaur, Appellant v. Garja Singh and others reported in AIR 1994 SC 135, in support of his contention that unless the ceremony of "Sampradan" and "Saptapadi" are shown to have been performed, we should turn down the plea of legitimate marriage.
Before dealing with those cases cited by Mr. Mallick, we may refer to a decision of the Supreme Court in the case of Reema Aggarwal v. Anupam and others reported in AIR 2004 SC 1418 where the Apex Court held that when the fact of celebration of marriage is established it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through (See paragraph 9 of the judgement). Therefore, the mere fact that no direct evidence of Saptapadi or Sampradan was available after the lapse of about 40 years after the marriage is of no consequence when the fact that a marriage ceremony was held has been admitted by the mother and the brother of the husband.
In the case of Knawal Ram and others (supra), the appeal before the Supreme Court arose out of a conviction for bigamy and for the abetment of it under Sections 194 and 109 of the Indian Penal Code. The Trial Court acquitted the accused persons but on appeal the Judicial Commissioner of Himachal Pradesh convicted them. Hence the said appeal. While deciding such a criminal appeal, the Supreme Court relied upon the decision of that Court in the case of Bhaurao Shankar Lokhande v. State of Maharashtra reported in AIR 1965 SC 1564) where it was held that for the purpose of proving bigamy the alleged second marriage was not proved unless the essential ceremonies required for its solemnization were proved to have been performed. It was pointed out that the evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed. So that evidence could not justify the conviction. According to the Apex Court the Trial Court took the right view and the learned Judicial Commissioner did not seem to have taken a proper view. In our opinion, the said decision cannot have any application to the facts of the present case for the simple reason that in a criminal proceedings, in order to hold a person guilty of bigamy beyond reasonable doubt, the essentials of the second marriage ceremony were required to be proved and in the absence of such proof, the accused cannot be convicted; whereas in a civil proceeding, where the question is whether the parties are married, such fact can be proved by way of preponderance of probability and in the process, the Court can rely upon various presumptions permissible under law of evidence. We have already pointed out that in this case, the marriage between the parties has been well established and the principles applicable for proving criminal offence are not applicable and thus, we find no reason to apply the principles laid down in the case of Kanawal Ram and others (supra) to the facts of the present case.
For the selfsame reason, the principles laid down in the case of Smt. Priya Bala Ghosh, Appellant v. Suresh Chandra Ghosh (supra), which also arose out of a Criminal Appeal has no application to the facts of the present case. In the said case of Priya Bala, the Supreme Court followed the principles laid down in the case of Kanwal Ram.
In the case of Surjit Kaur, v. Garja Singh and others (supra), the other case relied upon by Mr. Mallick, the suit property belonged to one Gulaba Singh and the plaintiff claimed the property not only as heir of Gulaba but also through a Will executed by Gulaba. Sm. Surjit, the defendant No.1, on the other hand, claimed to be the wife of Gulaba through a marriage in "Karewa" form. There was no dispute that Sm. Surjit was earlier a widow.
The learned Trial Judge disbelieved the case of Will and held that Sm. Surjit was the widow of the Gulaba and thus, dismissed the suit. The appeal filed by the plaintiff ended in dismissal by the first appellate Court. The plaintiff filed a second appeal. The learned Single Judge of the High Court took the view that in the written statement, it had not been pleaded that the marriage of appellant. Surjit Kaur with Gulaba Singh was solemnized in accordance with the customary rights and ceremonies. Nor did she as DW 4 state that the marriage was celebrated with customary ceremonies in due form. According to the High Court having regard to Section 17 of the Hindu Marriage Act, the essential ceremonies set out under the Act had not been conducted and merely because, there was distribution of sugar or gur, that would not constitute a valid marriage. The High Court found that Surjit Kaur was in the habit of changing husbands frequently and therefore, she was not the wife/widow of the deceased Gulaba Singh. According to the High Court, the respondents having proved that they were the nearest heirs of the deceased would be entitled to succeed to the estate of Gulaba Singh. In the result, the second appeal was allowed setting aside the concurrent findings.
While hearing an appeal against the judgment of the High Court at the instance of Sm. Surjit, the Supreme Court held that it was clear from the written statement filed by Sm. Surjit that no custom was pleaded and even the evidence of DW4 did not bring out as to what were the ceremonies performed. According to the Supreme Court, the mere distribution of gur would not constitute the necessary customary ceremony of marriage in Karewa form. The Supreme Court further found that the decision of the Punjab High Court in the case of Charan Singh reported in AIR 1961 Punjab 301 (FB) was applicable only if the widow were to marry the brother of the husband. But, in that case, Gulaba Singh was a stranger and in that context, the Supreme Court held that it was rightly contended by the respondent that mere living as husband and wife did not, at any rate, confer the status of wife and husband by placing reliance upon the decision of that Court in the case of B.S. Lokhande's case (AIR 1965 SC 1564) (supra) where it was laid down that the bare fact that the man and woman living as husband and wife did not at any rate, normally give them the status of husband and wife even though they might hold themselves out before the society as husband and wife and the society treated them as such. The Supreme Court then relied upon the earlier decision of that Court in the case of B.S. Lokhande (supra), dealing with a criminal case of bigamy by quoting the following observations made therein:
"Prima facie, the expression 'whoever......... marries' must mean 'whoever....... marries validly' or 'whoever....... marries and whose marriage is a valid one'. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife."
In our view, the said decision given in the facts of a case where a widow, who had the habit of frequently changing her husband, who alleged customary marriage in Karewa form not with his brother-in-law but with a total stranger of her husband family although not pleaded in her written statement and at the same time, even the ceremony of such marriage could not be proved cannot have any application to the facts of the present case where the mother and the brother of the husband have admitted marriage of the defendant with the plaintiff, where it has been established that they lived for about 12 years and gave birth to three children the paternity of whom was even admitted by the defendant and no person has come forward to support the defendant.
Even in the subsequent case of Reema Aggarwal (supra), the Supreme Court had occasion to deal with the case of Surjit Kaur (supra) and the Apex Court made the following observations:
"At first blush, it would seem that these observations run counter to the long catena of decisions noted above. But on closer examination of the facts of those cases it is clear that this Court did not differ from the views expressed in the earlier cases."
Ultimately, the Supreme Court distinguished the case in the following way:
"In Surjit Singh's case (supra) the stand was that the marriage was in Karewa form. This Court held that under the custom of Karewa marriage, the widow could marry the brother or a relation of the husband. But in that case the man was a stranger. Further even under that form of marriage certain ceremonies were required to be performed which were not proved. Dealing with the contention relating to presumption, reference was made to Lokhande's case (supra). As the parties had set up a particular form of marriage which turned out to be invalid due to absence of proof of having undergone the necessary ceremonies related to such form of marriage, the presumption of long cohabitation could not be invoked."
We, therefore, find that the decisions cited by Mr. Mallick do not support his clients in anyway.
In view of what have been stated above we find no reason to interfere with a most cogent finding of facts recorded by the learned Trial Judge.
The appeal is, thus, devoid of any substance and is dismissed. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Prasenjit Mandal, J.)