1. Surjit Kaur appellant married Sardul Singh on February 13, 1955. On April 16, 1959, the appellant filed a petition for judicial separation against Sardul Singh alleging that the latter had turned her out of his house in March, 1955, and did not care to look after her thereafter. She further alleged that Sardul Singh had left for Indonesia and had deserted her for morn than two years. Sardul Singh having been sufficiently served did not put in appearance. Ex parte proceedings were ordered to be taken against him. The Senior Subordinate Judge, Ferozepur, vide order dated March 8, 1960, granted the appellant a decree !or judicial separation against Sardul Singh. The appellant did not obtain a decree for divorce at any stage against Sardul Singh.
2. On May 24, 1970, the appellant married Jhuihar Singh respondent. They got their marriage registered at Ferozepur on June 3, 1970. The appellant have birth to a son from the respondent on October 27, 1971. Differences arose between the parties and they started living separately. The respondent filed a petition for restitution of conjugal rights against the appellant. It was, however, got dismissed as withdrawn in the Court of Senior Subordinate Judge, Faridkot. On February 13, 1975, the respondent filed a petition under Section 11 of the Hindu Marriage Act (hereinafter the Act) for a declaration that their marriage was a nullity inasmuch as the appellant was already married on May 24, 1970, when her previous husband (Sardul Singh) was alive. The parties compromised during the pendency of that petition. It was agreed that. they will move a point petition for divorce. The petition under Section 11 of the Act was got dismissed as withdrawn. The parties did not move a joint petition for divorce. On November 11, 1976, the respondent filed another petition under Section 11 of the Act for a declaration that their marriage was void inasmuch as the previous marriage of the appellant with Sardul Singh subsisted on that date.
3. The appellant admitted in her written statement that she was married with Sardul Singh in 1955, and further she had obtained a decree for judicial separation against him on March 8, 1960. She averred that Sardul Singh had left India about 19/20 years ago and he had not been heard of since then by her or by those who would have naturally heard of him if he had been alive. In view of the presumption raised under Section 108 of the Indian Evidence Act, the question of a subsisting marriage between her and Sardul Singh on May 24, 1970, did not arise. She also averred that according to the custom prevalent, she could effect a valid second marriage even during the lifetime of her previous husband as the latter had deserted her since long.
4. The following issues were framed:
1. Whether the marriage between the respondent (now appellant) and Sardul Singh did not subsist at the time of her marriage with the petitioner (now respondent)?
2. Whether the present petition is not competent as per objections taken in paragraph 8 of the written statement?
5. The trial Court found issue No. 1 against the appellant and issue No. 2 in favour of the respondent and consequently vide order dated February 16, 1978, 8ranted a decree to the respondent declaring the marriage between the parties a nullity. It is against this order that the present appeal is directed.
6. This appeal was heard by Surinder Singh, J., who accepted it vide order dated October 24, 1978, by reversing the finding of the trial Court under issue No. 2. No finding was given under issue No. 1. The order of the trial Court was set aside and the petition of the respondent under Section 11 of the Act was dismissed. The respondent filed Letters Patent Appeal No. 638 of 1978, which was accepted on December 11, 1979. The order of the learned single Judge dated October 24, 1978, was set aside. The appeal has again come up before me for decision op merits.
7. The learned counsel for the appellant has not pressed the point regarding the alleged custom under which the appellant could remarry during the lifetime of her previous husband because he had deserted her for long. The only point that survives for decision is whether Sardul Singh was alive of dead on May 24, 1970.
8. Section 5(i) of the Act reads:--
'5. Conditions for a Hindu Marriage--
A marriage may be solemnised between any two Hindus. if the following conditions are fulfilled, namely:-- (i) neither party has a spouse living at the time of the marriage'
9. Section 11 of the AM reads:--
11. Void Marriage-- Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.'
10. It is evident and is also not disputed that if Sardul Singh was alive on May 24, 1970, the marriage of the appellant with the respondent on that data shall be null and void. Sur9it Kaur appellant in her own statement during trial stated that she was married with Sardul Singh in 1955. After about 14 months of the marriage Sardul Singh left for Indonesia She has not heard from him since then: R. W. Kartar Singh is the father of the appellant. He said that Sardul Singh left for Indonesia in 1955 about 14 months after his marriage with the appellant. He has not been heard of since then A. W. Sucha Singh in his statement recorded on February 13, 1978, stated that Sardul Singh lef6 for Indonesia about 15 or 16 years ago. He has not heard from him. Sardul Singh is the son of his sister-in-law. A. W. Gurbachan Singh in his statement recorded en the same date said that Sardul Singh is living in Indonesia for the last 15 years and he has not heard from him during this period.
11. The learned counsel for the appellant has argued that the respondent has filed the petition under Section 11 of the Act alleging that Sardul Singh, previous husband of the appellant, was alive on May 24, 1970. It is for the respondent to prove that Sardul Singh was alive on May 24, 1970. The respondent has failed to prove this fact. The appellant has led evidence that he has not been heard of for the last 7 years by those who would have naturally heard of him had he been alive. It should, therefore, be presumed under Section 108 of the Indian Evidence Act that Sardul Singh is dead. The trial Court has erred in recording a contrary finding in favour of the respondent.
12. The argument of the learned counsel for the respondent is that it is admitted by the appellant that Sardul Singh was alive in 1960 when she obtained a decree for judicial separation against him. No 'evidence has been led about his actual death. Under Section 107 of the Indian Evidence Act, Sardul Singh shall be presumed to be alive within 30 years of 1960. The evidence led by the appellant is hardly sufficient to raise a presumption under Section 108 of the Indian Evidence Act about the death of Sardul Singh. This apart, such a presumption even if raised shall be restricted to Sardul Singh being dead on November 11, 1976, when the respondent filed the petition under Section 11 of the Act and it will not relate back to May 24, 1970. Reliance has been placed on Lal Chand v. Ramrup Gir, AIR 1926 PC 9, Mukunda Behara v. Subarna Bewa, AIR 1962 Orissa 3 and Huseinny J. Bhagat v Life Insurance Corporation of India, Madras. AIR 1965 Mad 440.
13. The appellant obtained a decree for judicial separation against Sardul Singh in 1960. Sardul Singh was, therefore. admittedly, alive in 1960. No evidence has been led regarding his actual death Section 107 of the Indian Evidence Act reads:--
'107. Burden of proving death of person known to have been alive within thirty years. 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.'
14. In view of the fact that Sardul Singh was alive in 1960 it shall be presumed that he was not dead on May 24, 1970. The appellant has alleged that Sardul Singh was dead on that date. The onus to prove this tact, therefore, shall be on the appellant.
15. The appellant and her father have stated that Sardul Singh was not heard of since he went over to Indonesia. A. Ws. Sucha Singh and Gurbachan Singh have said that Sardul Singh left for Indonesia in 1962-63 and they have not heard from him thereafter. In my opinion, this evidence is surely not sufficient to raise a presumption about the death of Sardul Singh under Section 108 of the Indian Evidence Act Sardul Singh had admittedly deserted the appellant. It is not natural that he, would have corresponded with her or her father if he had been alive. Sardul Singh is the son of sister-in-law of A. W. Sucha Singh The relationship between them is rather remote. It is. therefore, again not natural that' Sardul Singh would have written to A. W. 8ucha Singh if the former was alive, A. W. Gurbachan Singh is not related to Sardul Singh and he has stated that Sardul Singh is living in Indonesia. This apart, the presumption under Section 10 of the Indian Evidence Act about the death of Sardul Singh, even if raised would he restricted to the date of the filing of the petition by the respondent, that is November 11, 1976, and shall not relate back to May 24, 1970. A similar point was examined by their Lordship of the Privy Council in Lal Chand v. Ramrup Gir, AIR 1926 PC 9, and it was held:--
'There is only one presumption, and that is that. when these suits were instituted in 1916 Bhawan Gir was no longer alive. There is no presumption at all as to when he died. That, like any other fact, is a matter of proof.'
16. In Mukunda Behera v. Subarna Bewa, AIR 1962 Orissa 3, reliance was placed on Lal Chand v. Ramrup Gir AIR 1926 PC 9, and it was held that if a person has not been heard of for seven gears, there is a presumption of law that he is dead but at what time within that period he died is not a matter of Presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment o! which that fact is essential. In Huseinny J. Bhagat's case (AIR 1965 Mad 440) (supra), it was again held that the only presumption under Section 108 of the Indian Evidence Act that can be raised is that the young man was dead at the time when the question arose (date of plaint).
17. The learned counsel for the appellant has cited D. A. Greenwood v. G. H. Greenwood, AIR 1946 Mad 65 in support of his contention that Section 107 of the Indian Evidence Act is not applicable to matrimonial cases. The contention is fallacious. In D. A. Greenwood v. G. H. Greenwood, AIR 1946 Madras 65, it was held that Section 107. Indian Evidence Act does not apply to a petition for declaration of nullity under the Divorce Act by reason of the provisions of Sections 7 and 19(4), Indian Divorce Act. Section 7 of that Act states that the Courts shall in all suits and proceedings thereunder act and Rive relief on principles and rules which, in their opinion are nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. The present case now under consideration is under the Hindu Marriage Act and not under the Divorce Act. The provisions contained in Indian Evidence Act are applicable to the proceedings under the Hindu Marriage Act. It cannot, therefore, be held that Section 107 of the Indian Evidence Act is not applicable to matrimonial cases under the Hindu Marriage Act. Another authority relied upon is Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134, wherein it was held:--
'As Ramruch had not been heard of for more than seven years after he disappeared from the village, he must be presumed to be dead and the plaintiffs-respondents would in the circumstances be entitled to the property of which he was the last male-holder.'
18. This authority is in consonance with Lal Chand v. Mahant Ramrup Gir, AIR 1926 PC 9, and in no way gives a different interpretation of Section 108 of the Indian Evidence Act. In Shankarappa v. Shivarudrappa AIR 1963 Mys 115. it was held that Lal Chand v. Ramrup Gir; AIR 1926 PC 9, did not lay down that the presumption under Section 108 of the Indian. Evidence AM is restricted that the person concerned is dead on the date of the suit. With great respect. for the learned Judges, the view expressed is not correct.
19. Another point urged by the learned counsel for the appellant is that irrespective of the presumption under Section 107 of the Indian Evidence Act in favour of the respondent that Sardul Singh shall be presumed to be alive during the 30 years after 1960 when the appellant obtained a decree for judicial separation against him, the respondent shall have to prove that he was alive on, May 24, 1970, after the appellant has succeeded in raising a presumption under Section 108 of the Indian Evidence Act that he was dead on November 11, 1976. This contention is again fallacious. Assuming that it is for the respondent to prove that Sardul Singh was alive on May 24, 1970, the onus stands discharged in view of the favourable presumption in his favour under Section 107 of the Indian Evidence Act. Now the appellant asserts that Sardul Singh was dead on May 24, 1970. The onus to prove this fact will be on her. Even if a presumption is raised in her favour under Section 108 of the Indian Evidence AM that Sardul Singh was dead on November 11, 1976. it will be erroneous to hold that in this situation it will be for the respondent to prove that Sardul Singh was alive on May 24, 1970. The onus to prove that Sardul Singh was dead on May 24, 1970, shall continue to be on the appellant irrespective of the-presumption that may be raised in her favour under Section 108 of the Indian Evidence Act that he was dead on November 11, 1976.
20. The learned counsel for the appellant has then contended that the decree. of declaration of nullity of marriage prayed for by the respondent should be refused to him under Section 23(1)(d) of the Act because of inordinate delay in 6lina the petition by him on November 11. l976, when the marriage had taken place on May 24, 1970. This contention is also without merit. The appellant had given out at the time of her marriage with the respondent that she was a divorcee. The respondent having learnt that she was a divorcee and her previous husband Sardul Singh was alive on May 24, 1970, filed the present petition. The respondent has thus not caused unnecessary or improper delay in institutions the proceeding. This apart, the marriage between the parties being null and void, it shall not stand validated on account of alleged delay in filing the petition. The decree prayed for, therefore, cannot be refused on this ground.
21. In view of discussion above, it is proved that Sardul Singh, previous husband of the appellant was alive on May 24, 1970, when she remarried the respondent. The marriage between the parties is, therefore, null and void. A similar finding of the trial Court under issue No. 1 is affirmed.
22. In the result, the appeal fails and is dismissed with no order as to costs.
23. Appeal dismissed.