Orissa High Court
Laxmi Sahoo And Anr. vs Chaturbhuj Sahoo And Anr. on 26 June, 2002
Equivalent citations: AIR2003ORI8, I(2003)DMC414, AIR 2003 ORISSA 8, (2003) 1 DMC 414, (2003) 2 MARRILJ 194, (2002) 23 OCR 229
Author: B. Panigrahi
Bench: B. Panigrahi, P.K. Misra
JUDGMENT B. Panigrahi, J.
1. The appellants originally filed a suit before the learned Subordinate Judge, Rourkela, in Title Suit No. 63 of 1990 for a declaration that there was a valid marriage between appellant No. 1 and respondent No. 1 in the year 1970 and out of their wedlock a female child was born. After constitution of the Family Court at Rourkela, the said suit was transferred and renumbered as Original Suit No. 49 of 1991. It has been averred in the plaint that both the parties professed Hindu religion and there was lawful marriage solemnised on the day of Rama Navami in the year 1970 according to Hindu rites. It was consumated at Kapilas where both the spouses, namely, appellant No. 1 and respondent No. 1 led their conjugal life for about 8 months, during which period appellant No. 1 became pregnant. During the period of pregnancy, appellant No. 1 went to her parents' house at Patrapali. She delivered a female child there. But, when she came with the female child to the house of respondent No. 1 at Kapilas both the appellants were not permitted to enter into the house of the sister of respondent No. 1. While she was about to go back to her parents' house, the villagers helped appellant No. 1 and permitted her to stay in the house of respondent No. 1 at Kapilas. Since then, the appellants have been residing at Kapilas.
2. Respondent No. 1, after having deserted the appellants, continued to stay at Biramitrapur and did not go even once to see his wife and the female child. The relationship between the parties was not cordial and there was always family quarrel, unhappiness and dissension between them. Since the appellants were deserted by respondent No. 1, appellant No. 1 filed an application under Section 125 of the Code of Criminal Procedure, being Misc. Case No. 21 of 1977, in the Court of the learned Sub-Divisional Judicial Magistrate, Simdega, Bihar, who was inclined to reject the appellant No. 1's prayer. Being aggrieved by the order of the learned Sub-Divisional Judicial Magistrate, Simdega, Bihar, the appellants filed a suit for a declaration that there was a valid marriage between appellant No. 1 and respondent No. 1 and appellant No. 2 was born out of their lawful wedlock. Respondent No. 1 disputed the factum of marriage with appellant No. 1, so also the legitimacy of appellant No. 2 as his daughter. It has been averred that respondent No. 1 never resided with appellant No. 1 at Kapilas nor was appellant No. 2 born through him. It has been further stated in the written statement that since appellant No. 1 mischievously lodged a proceeding under Section 125 of the Code of Criminal Procedure and after keen contest It was dismissed, therefore, they preferred to file the present proceeding with an intention to harass respondent No. 1. The learned Judge, Family Court. Rourkela, after resume of the evidence adduced by both parties, came to hold that there was no valid marriage between appellant No. 1 and respondent No. 1, much less the daughter was born through them.
3. Nine witnesses had been examined on behalf of the appellants and the respondents had examined four witnesses. Several documents had been marked as exhibits on either side. From the pleadings, it is gathered that appellant No. 1 had claimed that the marriage was consummated between the parties on the Rama Navami day in the year 1970. From the evidence of P.W. 3, Srinivas Misra, it has, however, borne out that the wife of respondent No. 1 died some time in the year 1969. Six months following the death of the wife, the marriage with appellant No. 1 was arranged. Therefore, it comes around April, 1970, whereas P.W. 5, Subhasini, had claimed that the marriage between appellant No. 1 and respondent No. 1 was solemnized at Kapilas in Chaitra, 1971. If we take both the statements together, we are not in a position to arrive at a definite conclusion as to in which year such marriage was consummated. Rather, appellant No. 1 in her proceeding under Section 125 of the Code of Criminal Procedure before the learned Sub-divisional Judicial Magistrate, Simdega, Bihar, had claimed that the marriage was performed in the year 1971. If we accept the year of marriage to be 1971, then it turns out that respondent No. 1 had already married then to one Binodini alias Champa on 31-1-1971. Thus, even assuming that there was a marriage between appellant No. 1 and respondent No. 1 during the life time of Binodini alias Champa, then such marriage is ipso facto illegal. Assuming that the marriage had taken place in the month of Chaitra of 1970, the fact remains that the first wife of respondent No. 1 died in the month of Baisakh. Therefore, during the subsistence of the first marriage, the claim of marriage by appellant No. 1 with respondent No. 1 in the month of Chaitra appears to be not valid. The learned Judge, Family Court, has further observed that the marriage was invalid on the ground that the parties did not observe necessary rites and ceremonies. But, however, we do not approve such observation. In case the marriage between the parties is factually established and is not in dispute, and they have been residing as husband and wife for a long time, then there would be presumption of marriage. By mere absence of proof of certain ceremonies, such marriage would not be declared as null and void. Since such analogy cannot be applicable in the present case as appellant No. 1 has significantly failed to prove her marriage with respondent No. 1, the observation regarding absence of ceremonies by the learned Judge, Family Court, appears to be academic.
4. The next question survives for our consideration is whether appellant No. 2 is the legitimate daughter of respondent No. 1. Had the marriage between appellant No. 1 and respondent No. 1 been proved, even though it is declared invalid, the child born through their union could have claimed rights under Section 16 of the Hindu Marriage Act. But, we have decided in the preceding paragraph that the appellant No. 1 has not been able to prove her marriage with respondent No. 1, as she has given prevaricating statements with regard to such marriage. Sometimes she claimed the year of marriage as 1970, whereas on some other occasions she stated it to be 1971. Now, turning to the School Leaving Certificate produced by appellant No. 1, it is found that the date of birth of appellant No. 2 has been described as 17-3-1972. Appellant No. 1 had claimed in the plaint that the marriage was solemnised on the Rama Navami Day in the year 1970 and they lived together for about eight months as husband and wife, whereafter she was deserted by respondent No. 1. If that be so, how can appellant No. 1 give birth to a child on 17-3-1972, and that too how can it be presumed that appellant No.2 was born through respondent No. 1? Therefore, the legitimacy of appellant No. 2 is also shrouded in the mystery. Be that as it may, since we hold that appellant No. 1 is not the legally married wife of respondent No. 1, we do not want to discuss at length about the legitimacy of appellant No. 2.
5. There being no illegality or infirmity in the impugned judgment, we do not find any reason to interfere with the observations and/or findings of the learned Judge, Family Court, Rourkela.
6. In the result, the Civil Appeal is dismissed.
P.K. Misra, J.
7. I agree.