Himachal Pradesh High Court
Seema Kumari vs Pradeep Kumar & Others on 23 November, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 372 of 2008.
Reserved on : 15.11.2017.
.
Decided on : 23rd November, 2017.
Seema Kumari .....Appellant.
Versus
Pradeep Kumar & others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. B.B. Vaid, Advocate.
For the Respondents : Nemo.
Sureshwar Thakur, Judge.
The instant appeal stands directed against the pronouncement recorded by the learned Addl. District Judge, Shimla, on 24.04.2008 in H.M.A. Petition No. 2-S/3 of 2006 whereby, he declared the marriage inter se the appellant herein, with one Pradeep Kumar respondent No.1 herein to be a nullity. Being aggrieved therefrom, the appellant herein 1 Whether reporters of the local papers may be allowed to see the judgment?
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has instituted the instant appeal before this Court, for hers .
hence begetting its reversal.
2. The brief facts of the case are that the appellant (hereinafter called as the respondent) was married to respondent No.1, Pradeep Kumar, (hereinafter called as the petitioner) on 010th October, 2005, according to the Hindu rites and ceremonies at Kathgarh in District Nawanshahar, Punjab. Respondent No.2 is father of respondent No.1, while respondent No.3 was the middle man in the marriage. After the marriage, the parties to the marriage started living at Ghanahati. On 23rd October, Seema Kumari complained of some pain in abdomen. Smt. Jagiro Devi, the grandmother of the petitioner, who is a midwife, examined her and expressed a view such pain was on account of pregnancy. She further advised that Seema Kumari be taken to hospital for medical examination. Seema Kumari was taken to Deen Dayal Upadhya, Hospital, Shimla, where the doctor found her to be carrying 10 weeks pregnancy. The petitioner was stunned at this revelation as he had married to Seema Kumari only 15 ::: Downloaded on - 29/11/2017 23:02:15 :::HCHP ...3...
days back. When she was brought back from the hospital, .
she revealed that she was having illicit relations with one Sabi son of Kashmiri Lal, respondent No.3. A meeting was then held on 26.10.2005. Respondent No.2, his wife and respondent NO.3 visited the house of the petitioner. The incident was narrated to them. Besides the petitioner, his wife, grand mother, many other relatives were present. IN presence of all, Seema Kumari disclosed that she had premarital illicit relations with Sabi and she had conceived through him. Respondent No.2 and his wife stayed back, while other relatives dispersed. They stayed for another two days and during this period tried to pursued the petitioner to keep Seem Kumari, as his wife, to which the petitioner did not agree. Seema Kumari then left the petitioner's house along with her parents on 28.10.2005. The petitioner had not knowledge that Seema Kumari was pregnant by some other persona at the time of marriage. Hence the petition.
3. The petition for divorce instituted by the petitioner herein before the learned Additional District Judge, Shimla, ::: Downloaded on - 29/11/2017 23:02:15 :::HCHP ...4...
stood contested by respondents, by theirs instituting a reply .
thereto, wherein, the marriage inter se the parties admitted.
It ws denied that the petitioner ever complained of any pain in abdomen or that she was examined by grandmother of the petitioner. It was also denied that she was taken to the hospital or that the doctor found that she was pregnant. She also denied that she revealed to the petitioner that she was having sexual relations before marriage with Sabi. She also denied that any Panchayat in the presence of the relatives from both sides was held. She denied that she left the petitioner's house on 26.10.2005. On the other hand, it is pleaded that, Seema Kumari lived in the house of the petitioner till 28.10.2005, on which day she was compelled to leave the house of the petitioner. It was also denied that Seema Kumar was pregnant at the time of marriage.
However, it is pleaded that after the marriage, she became pregnant, but the petitioner and his family members got the pregnancy terminated at Ganahatti.
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4. On the pleadings of the parties, the learned trial .
Court struck the following issues inter-se the parties at contest:-
1. Whether respondent No.1 was pregnant at the time of solemnization of her marriage on 10.10.2005 with petitioner?OPP
2. Whether the petition has not been filed properly in view of the forms verified?
3. Whether the petition has not been filed in accordance with Hindu Marriage Act, as alleged?
OPR.
Relief.
4.5. On an appraisal of evidence adduced before the learned District Judge, the latter allowed the apposite petition.
6. In proof of Seema Kumari, appellant herein, prior to hers solemnizing marriage with one Pradeep Kumar, the petitioner, (i) hers hence carrying a 2 ½ months pregnancy, the petitioner relied upon Ex.PW4/A, exhibit whereof is prepared by one Dr. Beant Singh, who, however, being not alive, at the apposite stage of its tendering(s) into evidence,
(ii) thereupon, for proving it, one Dr. Ramesh Kumar, stepped into the witnesses, given his being well conversant with the ::: Downloaded on - 29/11/2017 23:02:15 :::HCHP ...6...
signatures and handwritings of Dr. Beant Singh. (iii) Abstract .
of OPD register, borne in Ex.PW4/B, has also been in an alike manner proven by PW-4 Dr. Ramesh Kumar. The learned Additional District Judge, Shimla, construed them, to be credible, hence, concluded that the ground reared, in the petition, by the petitioner, of his spouse one Seema Kumari carrying, at the time of hers solemnizing with him, 2 ½ months' pregnancy, being hence proven. Thereupon, obviously, he concluded, of, with the aforesaid trite factum being withheld besides suppressed by one Seema Kumari vis-
a-vis Pradeep Kumar, the petitioner, hence, the marriage solemnised inter se both, being construable to be a nullity.
7. The learned counsel appearing for the appellant has contended with vigour, that placings of reliance upon the aforesaid exhibits being neither proper nor apt, as thereon, do not exist the signatures of one Seema Kumari, hence rendering her to be delinked from the aforesaid exhibits, besides (i) the concomitant conclusion formed by the learned Additional District Judge, Shimla, that hence the petitioner ::: Downloaded on - 29/11/2017 23:02:15 :::HCHP ...7...
proving the espoused ground, of Seema Kumari, at the time of .
hers solemnizing marriage with him, hers carrying 2 ½ months' pregnancy, being also an erroneous inference.
8. A reading of the aforesaid exhibits, does unveil, of, though the name of one Seema Kumari, finding occurrence therein, (i) yet evidently her signature(s), do not exist, upon either of the aforesaid exhibits, (ii) yet the non existence, of the signatures, of one Seema Kumari, upon the aforesaid exhibits, does not, constrain an inference, of, the identity of Seema Kumari remaining unconnected therewith. The reason, for forming the aforesaid conclusion, is nursed, (iii) from the fact of the petitioner's witnesses, testifying, in unison, of, on 25.10.2005, the petitioner, his father Surat Ram and his daughter-in-law, Kamlesh Devi, carrying Seema, to Deen Dayal Upadhya, Hospital Shimla, for hers being medically examined thereat AND of hers standing thereat examined, by one Dr. Beant Singh. The consistently rendered testifications, by PWs qua the aforesaid fact AND as comprised in their respective examinations-in-chief, were, ::: Downloaded on - 29/11/2017 23:02:15 :::HCHP ...8...
concerted to be shred of their efficacy, by the counsel for .
Seema Kumari, by his holding them to a rigorous cross-
examination, yet when in course thereof, each of the petitioner's witnesses remained unscathed, consequently, their testifications qua the aforesaid fact, hence gather credence. Furthermore, the petitioner's witnesses, in their respective examinations-in-chief, consistently deposed, of all the respondents and others visiting Shimla, on, 26.10.2005 AND thereat inter se confabulations, amongst all concerned, occurring at the house of the petitioner, (iv) whereat, elicitations being concerted to be made, from Seema Devi, qua the person from whom she conceived, in sequel, whereto she disclosed the name, of, one Sabi son of Kashmiri. The afore rendered testifications, borne, in the respective examinations-in-chief, of the petitioner's witnesses, were also concerted to be shred of their tenacity, by the counsel, for Seema Kumari, by his holding them to cross-examination, yet in course whereof, no elicitations emanated, for hence undermining the vigour of the afore referred testifications, ::: Downloaded on - 29/11/2017 23:02:15 :::HCHP ...9...
occurring their respective examinations-in-chief, hence, the .
aforesaid testifications acquire credence.
9. Be that as it may, even if assumingly, the aforestated consistent testification(s) rendered qua the afore referred facts, do not carry any credence, nonetheless, the effort of Seema Devi, to delink her identity, from, the one borne in Ex.PW4/A and Ex.PW4/B, is per se illusory, (i) given an admission occurring in her testification, borne, in her cross-examination, of the foetus carried in her womb, being aborted, at Ganahati, whereafter, she has not been able to disclose, with certainty qua whether the abortion occurring in the year 2005 or in the year 2006. The effect of the aforesaid admission occurring in the cross-examination of RW-
1 AND her want, to with specificity make a disclosure, of, the foetus carried in her womb, being, conceived prior to or subsequent to hers solemnising marriage with the petitioner, Pradeep Kumar, renders open an inference of, hers, hence wavering qua the specific time, whereat she conceived. In case, she had in her testification, assigned the precise and ::: Downloaded on - 29/11/2017 23:02:15 :::HCHP ...10...
specific time, whereat she conceived also the time of her .
conception, specifically appertaining only, to the stage when she could be construed to conceive only from her wedlock, with one Pradeep Kumar, thereupon her marriage with Pradeep Kumar was not amenable to dissolution. Whereas, her vague nebulous statement qua the aforesaid factum besides hers not, adducing any medical record, personifying that in sequel, to, hers cohabiting with one Pradeep Kumar, hers hence conceiving, rather constrains a conclusion that hence the aforesaid admission(s), linking her identity with Ex.PW4 and with Ex.PW4/B, dehors her signatures being not appended thereon.
10. The above discussion unfolds that the conclusions as arrived by the learned trial Court are based upon a proper and mature appreciation of the relevant evidence on record.
While rendering the findings, the learned trial Court has not excluded germane and apposite material from consideration.
11. For the foregoing reasons, there is no merit in the instant appeal which is accordingly dismissed. The impugned ::: Downloaded on - 29/11/2017 23:02:15 :::HCHP ...11...
judgment and decree is maintained and affirmed. All pending .
applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) 23 rd November, 2017. Judge.
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