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Smt. Aina Devi Vs. Bachan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 286 of 1976
Judge
Reported inAIR1980All174
ActsHindu Marriage Act, 1955 - Sections 11 and 23(1); Limitation Act, 1963 - Sections 29(3); Evidence Act, 1872 - Sections 35 and 74
AppellantSmt. Aina Devi
RespondentBachan Singh and anr.
Appellant AdvocateShanti Swarup Bhatnagar, Adv.
Respondent AdvocateS.N. Doval, Adv.
DispositionAppeal allowed
Excerpt:
.....learned district judge found that the petitioner had failed to establish that the first respondent bachan singh was married to the second respondent purna devi; on the second issue, that the petitioner had also failed to establish that she had spouse living at the time of her marriage with the first respondent bachan singh, and that at any rate she could not be allowed to take advantage of her own wrong; 10. the best evidence of the fact in issue, whether purna devi was the wife of bachan singh or of his brother yudhvir singh was obviously the evidence of a person who had been present at purna devi's marriage. 11-12. the effect of having produced such a witness on the respondent's case, is, in my opinion fatal, for, as observed above, the extracts from the electoral roll and the pariwar..........11 of the hindu marriage act on the ground that the first respondent was already married and had a wife living in the person of the second respondent, when he married the petitioner-appellant.2. the appellant's case as set out in her petition which is dated 13th may, 1974, was that the first respondent had married the second respondent some 10 years ago and a daughter kamla was born to them prior to samvat 2025, thatis 1968-69, and they were living as husband and wife since long before, it was then pleaded that the petitioner's father having died when she was about 7 or 8 years old, that is, some 15-16 years before the filing of the petition; and the pe-tioner's mother having become a cripple some 10 years ago and being unable to look after her cultivation, she needed a ghar jawai, and.....
Judgment:

Deoki Nandan, J.

1. This is a wife's first appeal from a judgment dated 8th May, 1976 of the Court of the District Judge, Tehri Garhwal, dismissing her petition for declaring her marriage with the first respondent a nullity under Section 11 of the Hindu Marriage Act on the ground that the first respondent was already married and had a wife living in the person of the second respondent, when he married the petitioner-appellant.

2. The appellant's case as set out in her petition which is dated 13th May, 1974, was that the first respondent had married the second respondent some 10 years ago and a daughter Kamla was born to them prior to Samvat 2025, thatis 1968-69, and they were living as husband and wife since long before, it was then pleaded that the petitioner's father having died when she was about 7 or 8 years old, that is, some 15-16 years before the filing of the petition; and the pe-tioner's mother having become a cripple some 10 years ago and being unable to look after her cultivation, she needed a Ghar Jawai, and with that intention the first respondent was taken by the petitioner's mother as a Ghar Jawai, that is, as the petitioner's husband who had to live at the petitioner's place and look after the cultivation and maintain the petitioner. The first respondent was alleged to have been taken as Ghar Jawai by the petitioner's mother in Samvat 2025 that is in the year 1968-69, but the first respondent lived with the petitioner for only about 10 months and that too intermittently as a Ghar Jawai and left her thereafter for good. On these facts, the petitioner's marriage with the first respondent was alleged to be void as the first respondent already had a wife living in the person of the second respondent with whom the first respondent had continued to live after leaving the petitioner, and had even begotten two more children thereafter on the second respondent. By an amendment of the petition it was further claimed that even before the first respondent was kept as a Ghar Jawai by the petitioner's mother, three more Ghar Jawais had been successively kept by the petitioner's mother as the petitioner's husbands and had one alter the other left her. They were, however, all living, and on this ground also it was alleged that the petitioner's marriage with the first respondent was void, for contravening the condition against bigamy.

3. In defence, the two respondents pleaded that Smt. Purna Devi was not the wife of the first respondent, but was the wife of his brother Yudhvir Singh, and the children born of the second respondent were begotten on her by Yudhvir Singh and not by the first respondent. The allegation of the petitioner's earlier marriages with the three named persons in succession, was denied. In the alternative it was pleaded that even if it was assumed for the sake of argument that the second respondent was the wife of the first respondent, although that was denied as incorrect and false, the petitioner was not entitled to any relief for having condoned the first respondent's past conduct by voluntarily co-habiting with him. It was also pleaded that thepetition was liable to be dismissed on account of the inordinate delay in filing it, more than five years after the event.

4. The following were the issues framed by the learned District Judge, who tried the suit:

1. Did the opposite party No. 1 have opposite party No. 2 as his wife at the time of his marriage with the petitioner?

2. Did the petitioner have a spouse living at the time of her marriage with opposite party No. 1?

3. Is the petition unnecessarily delayed? If so its effect?

4. To what relief if any is the petitioner entitled?

5. On the first issue, the learned District Judge found that the petitioner had failed to establish that the first respondent Bachan Singh was married to the second respondent Purna Devi; on the second issue, that the petitioner had also failed to establish that she had spouse living at the time of her marriage with the first respondent Bachan Singh, and that at any rate she could not be allowed to take advantage of her own wrong; on the third issue, that the petition was unnecessarily delayed and by her act of living and co-habiting with the first respondent Bachan Singh, she had condoned his guilt, if any; and on issue No. 4, that the petitioner was not entitled to any relief. In the result the learned District Judge dismissed the petition with costs.

6. The primary ground on which the petition was founded was contravention of the rule against bigamy, prescribed by Clause (i) of Section 5 of the Act. Under Section 11 of the Hindu Marriage Act, 1955, any marriage solemnised after the commencement of the Act, 'shall be null and void and may on the petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravened any of the conditions specified in Clauses (i), (iv) and (v) of Section 5.' The condition for a valid marriage prescribed by Section 5(i), is that 'neither party has a spouse living at the time of the marriage.' Section 11 specifically enables either party to the marriage to have it declared null and void by a decree of nullity, against the other party. Section 11 does not confine the right to present a petition thereunder to the aggrieved party alone. On the other hand, it expressly confers the right to sue oneither party to a marriage which contravenes any, of the conditions of Clause (i), (iv) and (v) of Section 5. In so far as the allegation on which the petition was originally founded, is concerned namely, the allegation that the respondent Bachan Singh had a spouse living in the person of the respondent Smt. Puma Devi at the time of the marriage in question, there could be no question of applying the provisions of Clause (a) of Sub-section (1) of Section 23. The learned District Judge has applied that provision in the context of the allegation subsequently made by amendment of the petition, namely, that the petitioner had been married to three other persons in succession before the marriage in question, and all the three of them were living. Apart from the question whether this allegation was true or untrue, it is difficult to say that the petitioner was the wrong-doer in allowing her mother to take respondent Bachan Singh as a Ghar Jawai, in spite of the fact that three Ghar Jawais taken earlier in succession one after the other were living at the time when Bachan Singh was taken as a Ghar Jawai. The petitioner would, if her allegations are true, appear to be more sinned against than a sinner, a victim of the customs of the society in which she lived. The provisions of the Hindu Marriage Act are uniformly applicable to all Hindus throughout the length and breadth of India, practising as they did a confusing variety of customary law relating to marriage and family relations. The petitioner happens to belong to a village in the district of Uttar Kashi which formed part of Tehri before its merger. The people there were practising their own system of customary laws relating to marriage and family relations. The custom of taking a Ghar Jawai was prevalent in that area. The petitioner's marriage with the first respondent was also contracted in that form and it cannot be said that either party to the marriage could have, according to their notions of morality, felt that the petitioner was committing any wrong in having a fourth husband taken in that form were alive. I am, therefore, unable to agree with the learned District Judge when he held that the petitioner could not be allowed to contend that the marriage in question was a nullity on the ground that she had three husbands living when it was contracted. Nor am I able to agree with the learned District Judge that the petition was liable to be dismissed on the ground of unnecessary delay in instituting it.

The Limitation Act, 1963 does not apply to a suit or proceeding under the law relating to marriage and divorce, vide Section 29(3) thereof. The question which arises under Clause (d) of Sub-section (1) of Section 23 of the Hindu Marriage Act is whether the delay in the presentation of the petition is such as to lead to the inference that the petitioner was guilty of laches or acquiescence is as to disentitle him or her to the relief claimed. The respondents were in no way prejudiced by whatever delay there was in presenting the petition after the first respondent left the petitioner and started living separately. The petitioner's marriage with the first respondent was contracted in Samvat 2025 which is equivalent to the year 1968-69. The first respondent is said to have lived with the petitioner for 10 months after the marriage. That brings us to the Sam-vat 2026, that is the year 1969-70. In her statement on oath which was recorded on 30th October, 1975 the petitioner stated that she had gone to the first respondent's place some four years ago in the month of Paush to ask him to go to her place and arrange for the ploughing of the fields. That might have been some time in December, 1971. The petition was filed on 14th May, 1974. That was less than 3 years since her alleged visit to the first respondent's place. It cannot be said that the period of less than three years which elapsed between the petitioner's last visit to the first respondent's place and the presentation of the petition, was so long or unreasonably long as to disentitle her to the relief on the ground of laches. Indeed the grounds on which a petition for declaring a marriage to be null and void may be filed under Section 11 of the Hindu Marriage Act, are such that no amount of delay could be said to be sufficient to disentitle a petitioner to relief thereunder, in spite of the generality of the provisions of Clause (d) of Section 23(1) of the Act. The policy of the law is that a marriage solemnised in contravention of any of the conditions prescribed by Clauses (i), (iv) and (v) of Section 5 of the Act is null and void. The parties to such a marriage may not institute a petition, and by not instituting the petition they would only be defeating the policy of the law, for no person other than a party to such a marriage has been given a right to have it declared to be null and void. Under the circumstances if one of the parties does file a petition forhaving the marriage declared null and void under Section 11 of the Act, he or she only does something to further the policy of the law, and I do not think that such a petition could properly be dismissed on the ground of Unnecessary or improper delay, for by doing as instead of advancing the policy of the law, the court would be defeating it. I, therefore, disagree with the view of the learned District Judge that the petition was liable to be dismissed on the ground of unreasonable delay.

7-8. On the merits, the allegations in the case are rather unusual. The petitioner alleged that the first respondent was already married to the second respondent when the marriage in question was contracted. In support she examined herself as P. W. 1, and Surendra Singh as P. W. 2, and produced extracts from the electoral roll for the year 1973, and the Pariwar Register of the Nyaya Panchayat of the village concerned, vide. Exts. I and II, which show that the 2nd respondent Purna Devi is the wife of the first respondent Bachan Singh and that Kamal Dei, Bijendra Singh and Bijender Dei were their children. Of course the names and parentage of the children appear only in the extract from the Pariwar register, Ex. II. The respondents' case was that Purna Devi was the wife of Bachan Singh's elder brother Yudhvir Singh, and that the children were also his children. The respondents examined Purna Devi, the second respondent as D. W. 1, Kalam Singh as D. W. 2, Sheo Saran Sharma as D. W. 3, and Bachan Singh, the first respondent, as D. W. 4. They had produced a certificate from the Pradhan of the Gaon Sabha, but that was not proved and was consequently not admitted in evidence, vide, trial court's order dated 22nd April, 1976.

[After narrating the evidence directed by the trial court, the judgments proceeded.]

9. Having perused the entire evidence on the record, I am unable to agree with the findings of the trial court. Purna Devi was shown to be the married wife of Bachan Singh in the extract from the electoral roll and the family register of the village. The extract of the family register of the villages also showed that the father of her three children was Bachan Singh. The trial court was in error in thinking that the entries in the family register had to be proved by evidencealiunde. The family register was a public document. The entries made therein were proved by the certified copy of the extract, vide, Ext. II. The document proved its contents. The entries were presumptive evidence of what they recorded, until disproved by satisfactory evidence to the contrary. The burden was on the respondents to prove that the entries were incorrect. The same applies to the certified copy of the extract from the electoral roll, Ext. I.

10. The best evidence of the fact in issue, whether Purna Devi was the wife of Bachan Singh or of his brother Yudhvir Singh was obviously the evidence of a person who had been present at Purna Devi's marriage. Sheo Saran (D. W. 3) claimed to be such a person, and not only this, he claimed to have officiated at the marriage, but his evidence has been found to be unacceptable by the trial court. (After narrating his evidence his Lordship proceeded :)

It is obvious that the witness was not stating the truth when he stated that he had officiated at the marriage of Yudhvir Singh. It follows that no reliance can be placed on his statement that he officiated at the marriage of Yudhvir Singh with Purna Devi.

11-12. The effect of having produced such a witness on the respondent's case, is, in my opinion fatal, for, as observed above, the extracts from the electoral roll and the Pariwar register were presumptive evidence of the fact that Purna Devi was the wife of Bachan Singh that could be rebutted only by positive evidence of a reliable character.

(After discussion of evidence of other defence witnesses, his Lordship proceeded further:)

13, I, therefore, find it proved by the extract from the electoral roll, Ext. and the extract from the Pariwar register, Ext. II, coupled with the evidence of the petitioner who appeared as P. W. 1 and her witness Surendra Singh, P. W. 2, that the second respondent Purna Devi was the wife of the first respondent Bachan Singh and that they were married before the petitioner's marriage with the first respondent. This leads to the further inference that the first respondent already had a wife living in the person of the second respondent Purna Devi when he married the petitioner, and his marriage with the petitioner was accordingly null and void under Section 11 of the Hindu Marriage Act, for contravention of the condition prescribed by Clause (i) of Section 5 of that Act.

14. In view of my aforesaid finding, it is not necessary for me to go into the other question whether the petitioner had already been married thrice before, and if so whether any or all of her three previous husbands were also living when she was married with the first respondent. It may be added that in having the marriage declared null and void on the ground that the first respondent had a wife living when the petitioner was married to him, it cannot be said that the petitioner is taking any advantage of her own wrong, for the petitioner's allegation that she was already married thrice before, has been denied by the respondent, which means that even if it were a fact that the petitioner had three husbands of previous marriages living when the first respondent married her, the first respondent was not at all aggrieved by that fact. It appears to me that the first respondent was interested more in the petitioners mother's property which came to him as Ghar Jawai on marriage with the petitioner, rather than the petitioner's person.

15. In the result the appeal succeeds and is allowed with costs. The marriage between the petitioner and the first respondent is declared to be null and void and a decree of nullity shall follow, with costs throughout, which shall be payable by the first respondent alone, to the petitioner. The second respondent shall bear her own costs throughout.


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