1. This is a wife's appeal under Section 28 of the Hindu Marriage Act, 1955.
2. The appellant applied for a declaration that her marriage with the respondent was a nullity as the respondent was already married to one Sanoti, who was living at the time the respondent married the appellant. In the alternative, it was prayed that a decree for divorce be passed against the respondent on the ground that he was living in adultery. These grounds were negatived by the trial Court and the application of the wife was dismissed,
3. Learned Counsel for the appellant has raised before us both the grounds and has argued that either a decree of nullity be passed in favour of the appellant or the marriage be dissolved by a decree of divorce.
4. We shall first take up the point regarding the respondent living in adultery. On this point, the appellant examined Kotia (P. W. 2). He stated that in a Barat the respondent was found committing sexual intercourse with two women, namely, Sahbin and Karsula. The incident gave rise to a Panchayat in which the two women were fined Rs. 51/- each and the respondent was fined Rs. 101/-. He also stated that the respondent was again caught with Sahbin a year after the first incident and there was another Panchayat in which both of them admitted to have committed the offence, as a result of which, Sahbin was fined Rs. 51/- and the respondent was fined Rs. 101/-. In cross-examination, the witness stated that on the first occasion, the respondent was committing sexual intercourse with the two women in the presence of about fifty or sixty persons. The story narrated by this witness is so unnatural that it cannot be believed. Again, the witness further stated that the Panchas in the first Panchayat delivered their decision in writing and the same was still with the Panchas. The written decision of the Panchavat was not produced in this case and therefore, the story that the respondent was fined in the Panchavat cannot be accepted. The evidence of Kotia (P. W. 2) relating to the two incidents does not inspire confidence. Dayaram, the other witness, who was examined in this connection as P. W. 3 and who is husband of Sahbin stated that in the first Panchavat Sahbin, Karsula and the respondent were fined by the Panchas on charges of adultery. On the other occasion, he found his wife in the house of the respondent. Thereafter, he called a Panchayat in which the respondent admitted to have committed adultery with Sahbin, In the cross-examination, this witness admitted that the decision of the first Panchavat was given in writing and that writing was with one Deojya Mahajan. As already stated, this written decision was not produced. As regards the second Panchavat, the witness, in the cross-examination, did not stick to his earlier statement that the defendant had admitted to have committed adultery with Sahbin. It mustbe noticed that the witness only saw his wife in the house of the respondent when the respondent was not in the house. From this circumstance, it cannot be inferred that the respondent had committed adultery with Sahbin. Hari-chand (P. W. 4) is another witness to prove that the respondent was fined twice by the Panchavat on charges of adultery. As regards the first Panchayat this witness stated in his cross-examination that the decision was not delivered in writing. This evidence is quite contrary to the evidence of the earlier witnesses. The last witness that was examined in this connection is Salikram (P. W. 5). This witness also admitted that so far as the first Panchayat was concerned, the decision was given in writing and that writing was in possession of one Deoiva Mahajan. As regards the other Panchayat the witness stated that the decision was oral.
5. We have considered the evidence of all these witnesses and. in our opinion, the case of adultery cannot be substantiated from their evidence. We, therefore, reject the contention of the learned counsel for the appellant that the respondent was living in adultery. In our opinion, not even a single act of adultery has been satisfactorily established and no decree even for judicial separation can be granted.
6. The next point in this appeal is, whether the marriage of the appellant with the respondent was void because the respondent's first wife Sanoti was living at the time when the marriage of the appellant was performed. In this connection, it has to be taken note of that the respondent admitted in the written statement that he was earlier married to Sanoti. His plea, however, was that Sanoti died two years before the date when the respondent married the appellant. The respondent thus admitted not only the fact that he was married to Sanoti but also that Sanoti was alive atleast two years prior to the date of the appellant's marriage. In his evidence, the respondent stated the same thing. On the fact of death of Sanoti, he stated that Sanoti had eone to Sakdi, which was her father's place, and lived there for about two or four months. After that, she went in keeping of a man of village Changera and began to live in that village and died. The respondent further stated that the fact of her death came to his knowledge from his relatives of Sakdi. He did not name the persons from whom he got the information of death of Sanoti. The respondent also stated that for the last eight years he had not heard or seen Sanoti. On the point of death of Sanoti the respondent examined his elder brother Tukaram asD. W. 6. He stated that thirteen years back Sanoti was married to the respondent; two years after the marriage Gouna ceremony was performed; and Sanoti lived with the respondent for two years as his wife; and thereafter she went to her father's place. After that he came to know from some persons of the locality that Sanoti was living in Changera, where she had taken a husband. Then the people of the locality told that Sanoti died. Two years after this information, the appellant was married to the respondent. The witness also stated that the information about the death of Sanoti -was received by him when he had gone to village Sakdi. He did not remember the names of persons who gave the information. From the side of the appellant. Kotia (P. W. 2) was examined on this point. He stated that at the time when the appellant was married to the respondent. Sanoti was alive and was living in her father's place. In cross-examination, he admitted that he had not seen Sanoti for the last ten years and did not know whether she was alive or dead.
7. From the aforesaid evidence, the facts that we can gather are, that Sanoti was alive atleast two years before the appellant was married to the respondent. At that time. Sanoti was living in village Changera as a keep of some person. The evidence of the respondent and his brother Tukaram (D. W. 6) that Sanoti died is merely hearsay. They could not even name the persons from whom the information about the death of Sanoti was received. No witness from Sakdi or Changera was examined to prove the fact of death. The respondent did not even go to Changera to enquire whether Sanoti at the time of his marriage with the appellant, was living or dead. The respondent and his brother's assertion that they had received information that Sanoti was dead appears to be false. The respondent, at the time of the institution of these proceedings, was thirty years of age. It is safe to conclude that Sanoti who was respondent's first wife, must have been nearly of the same age as the respondent Thus, at the time when she left the respondent she was young. There is no evidence that she was ailing or suffering from any disease. Having regard to the normal expectation of life and the facts established in the instant case, it would be proper to draw the inference that Sanoti was alive when the respondent married the appellant,
8. It was argued on behalf of the respondent that presumption under Section 107 of the Evidence Act is notavailable in divorce or nullity proceedings. The section enacts that when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. We will assume that the argument of the learned counsel is correct that in proceedings under the Hindu Marriage Act for declaring the marriage null and void or for obtaining divorce Section 107 is not applicable. But, this assumption does not help the respondent, because, we have not drawn any presumption under Section 107. The conclusion that Sanoti was alive when the respondent married the appellant is not based on any presumption. That conclusion is reached by us because it is the only proper conclusion to be drawn on the established facts.
9. Even in a proceeding for nullity of marriage existence of first wife at the time of performance of the second marriage, which is sought to be annulled, need not be established by direct evidence and that fact may be inferred from other facts proved in the case; See Chard v. Chard. 1955-3 All ER 721. In Rayden's Practice and Law of Divorce (Ninth Edition) reference is made at p. 72 to a decision of Court of Appeal, where on 'balance of probabilities' it was held that the first husband, who then aged forty had disappeared in 1945, was alive in 1950 when the wife remarried and the marriage was void for bigamy; Bennett v. Ben-nett (No. 2) (1961) 105 Sol. Jo. 885 (C.A.). Learned Counsel for the respondent relied upon D. A. Greenwood v. G. H. Greenwood, AIR 1946 Mad 65. In that case the husband, in spite of his best efforts, did not get any information of his first wife for about seven years and then presuming her to be dead remarried. In rejecting a petition by the second wife for nullity on the ground that the first wife was alive at the time of the second marriage, it was held that Section 107 did not apply to the proceedings under the Divorce Act and that the petitioner should have led 'positive proof' that the first wife was alive when the second marriage was performed. As already stated, it is not necessary to decide in the instant case whether Section 107 applies to Divorce or nullity proceedings. As regards the proposition that the existence of the first wife at the time of the second marriage has to be established by 'positive proof' for showing the second marriage invalid, We respectfully differ if by positive proof is meant direct evidence of the wife being alive on the date of the second marriage. The English law on the basil of which Greenwood's case was decided, does not support that conclusion and there is nothing in the Indian Law also to support it However, on facts, Greenwood's case is distinguishable and the inference that the first wife was not alive when the husband married again could be properly drawn in that case, for the first wife had not been heard of for more than seven years before the second marriage of the husband who in spite of his best efforts had not been able to trace her.
10. Learned Counsel for the respondent then argued that as there was evidence that Sanoti was not heard of for the last eight or ten years, presumption of death must arise under Section 108 of the Evidence Act. There is no substance in this argument. Firstly, when Sanoti had gone in keeping of another person who was resident of a different village, the respondent and his brother were not persons who would in the normal course have heard of her. Evidence of such persons that they did not hear of Sanoti does not give rise to any presumption under Section 108. Secondly, there is no presumption regarding date of death under Section 108 It must be seen that these proceedings were instituted in 1969 and according to the respondent's case, his marriage with the appellant took place six years before and he last heard of Sanoti two years before his marriage with the appellant. Thus, at the time of marriage with the appellant. Sanoti was not heard of by the respondent and his brother only for two years. Even if we hold that the evidence of respondent and his brother falls under Section 108, no inference can be drawn that Sanoti was not alive on the date of the respondent's marriage with the appellant.
11. In the result, the appeal is allowed. The judgment and decree passed by the trial Court are set aside. The application of the appellant for declaration that the marriage was null and void is allowed. The marriage of the appellant with the respondent is declared to be null and void. The appellant will get the costs of this appeal as also of the trial Court from the respondent.