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Ashok Kumar Vs. Usha Kumari and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 24 of 1983
Judge
Reported inAIR1984Delhi347; 26(1984)DLT199; 1984(7)DRJ116; 1984RLR663
ActsCode of Civil Procedure (CPC), 1908 - Sections 11
AppellantAshok Kumar
RespondentUsha Kumari and ors.
Advocates: R.P. Kathuria,; P.H. Parekh and; D.K. Bhalla, Advs
Cases Referred and Gopal Lal v. State of Rajasthan Air
Excerpt:
.....affidavits can take place and the marriage must have been solemnised on 1-3-1975 as alleged by the wife. the husband has, thereforee, put as a totally false case. he himself has admitted that the wife lived with him after marriage. it is difficult to believe that a girl will live in her husband's house for such a long time without any marriage having taken place. he has further admitted that she has been holding out she was his wife. if she were not he would not allow her to do so. he cannot be asked to take advantage of his own fraud. in such a case, even after the passing of the hindu marriage act, 1955, the doctrine offactum valvet should be invoked. if the parties are recognised as man and wife, there is a strong presumption in favor of the marriage and the 'legitimacy of its..........of judicial magistrate, panipat under section 125 cr.p.c. for maintenace that she was married to ashok kumar on 1-3-1975 and lived with him for 6 months in kalka ji, delhi. 0) 4-12-1975 ashok kumar and his parents left her at her father's residence in panipat. at that time she was pregnant and later on delivered a baby girl on 11-1-1976 in the civil hospital, panipat. inspire of the information of the birth of the child sent to ashok kumar, nobody turned up to fetch her. (2) while this application stood adjourned to 5-6-1976, ashok kumar filed the present suit in delhi on 1-6-1977 against her, her father shanti lal sehgal and bashir ahmed for declaration and permanent injunction that she and her father be restrained from representing and asserting that she was his wife. he averred that.....
Judgment:

M.L. Jain, J.

(1) Usha Kumari filed an application on 22-4-1976, the court of Judicial Magistrate, Panipat under Section 125 Cr.P.C. for maintenace that she was married to Ashok Kumar on 1-3-1975 and lived with him for 6 months in Kalka Ji, Delhi. 0) 4-12-1975 Ashok Kumar and his parents left her at her father's residence in Panipat. At that time she was pregnant and later on delivered a baby girl on 11-1-1976 in the Civil Hospital, Panipat. inspire of the information of the birth of the child sent to Ashok Kumar, nobody turned up to fetch her.

(2) While this application stood adjourned to 5-6-1976, Ashok Kumar filed the present suit in Delhi on 1-6-1977 against her, her father Shanti Lal Sehgal and Bashir Ahmed for declaration and permanent injunction that she and her father be restrained from representing and asserting that she was his wife. He averred that the defendant claimed that she was married to him in Panipat on 1-3-1975 but the fact is that he never married her and ceremony of engagement alone took place on 1-3-75 at his house in KalkaJi, Delhi. Her grand mother was living in Delhi and she started visiting him and began to tell the neighbours that she was married to him. No marriage was performed but since she insisted upon him to marry her they signed some affidavit. Later on, she disclosed to him on 13th September, 1975 in his house in Delhi that she was previously married to one Bashir Ahmed of Jabalpur and her name was Aisha Begum. She told him that she will get divorce from him. Thereafter Ashok Kumar broke the engagement and re- fused to marry her according to Hindu rites and customs. Thereafter she closed with one Sohan Lal a bus conductor and became pregnant by him. He gave a notice to which her advocate replied on 11-3-1976 that a daughter was born to her on 1-1-1976 at Panipat. He claimed that she was not his law- fully wedded wife.

(3) Usha Kumari filed a written statement on 4-1-1977. She stated that her marriage was performed according to Hindu rites on 1-3-1975. She denied that'she had ever told him that she was married to Bashir Ahmed. She denied the allegation with regard to Sohan Lal.

(4) Ashok Kumar did file a reply to the application under Section 125 Cr.P.C. but himself did not enter the witness box and examined only one wit- ness. The learned Judicial Magistrate, Panipat by his order of 22-10-1980 upheld the marriage and directed the husband to pay maintenance to her and her baby. The Additional Sessions Judge Karnal by his order of 16-7-1981 dismissed the revision petition against the order of the learned magistrate.

(5) In the suit Ashok Kumar examined himself as PW-1 and his friend O.P. Jain PW-2. Usha Kumari DW-1 and her father Sham Lal DW-2 were examined on the other side. The learned Sub-Judge by his judgment of 30-3-1982 dismissed the suit. Amongst others, one of the grounds stated by him was that the judgment of the Judicial Magistrate is res-judicata. The learned Additional District Judge dismissed the appeal on 24-12-1982. He did(r)not hold that the order of the learned Judicial Magistrate will operate as rest judicata. He was, however, of the view that the order of the Magistrate lightened the burden of the wife and increased the burden of the husband.

(6) The husband Ashok Kumar is aggrieved by this judgment and has filed this second appeal. In this second appeal three questions were framed:

(I)Whether the marriage between the parties was solemnised according to Hindu rites;

(II)Whether the finding that the marriage was solemnised is based on no evidence or is perverse.

(III)What is the effect of an order under Section 125 Cr.P.C. in favor of respondent No. I on the present civil suit ?

(7) I have heard the learned counsel and pursued the record. The following discussion Will answer these question.

(8) I will first deal With the question of solemnisation. What happened on 1-3-1975 according to the appellant is that only an engagement ceremony took place and that too in Kalka Ji in Delhi. His father has not entered the witness box. His friend O.P Jain, PW-2 did but he only said that he had attended the engagement ceremony some 5 years ago and had not seen the plaintiff marrying anybody. How could he do so in Delhi When the marriage took place in Panipat Usha Kumari deposed that the plaintiff and his father had come in a marriage party of about 100 and 125 persons and that her marriage was performed according to Sap':padi rites. She came to Delhi and lived with him till 4-10-1975. Her father Shanti Lal (DW)-2 has supported this version. She also wrote from Delhi a letter to her father marked Ex. DW-1/A. This letter was dispatched on 13-3-1975 from Kalka Ji and it bears a post script by Ashok Kumar which indicates that he was writing to the parents of his wife. The husband had produced a photostat copy of a sort of a deed of dissolution of marriage (Ex. PW-110) dated 22-9-1975. This document was not put to her. Her father denied his signatures on it. This deed says that the parties were engaged on 1-3-1975. The marriage was to take place on 13-9-1975 and the marriage mutually took place on the basis of affidavits. During the honeymoon, Usha Kumari whom she wanted already married to one Bashir Ahmed whom she wanted to divorce. Consequently, the marriage was dissolved by this deed because the solemnisation did not take place according to the rites and customs of the Hindus nor was it registered and henceforth there Was to be no relationship, Whatsoever of wife and husband between them.

(9) The defendants produce the notices the husband and his father gave to her and her father which suggest that the marriage did take place. They also produced a wedding card. Both these documents were not exhibited or proved in the suit though these were proved in the Section 125 Cr.P.C. proceedings.

(10) The learned Sub Judge believed the story of the wife. He also commentedth at the plaintiff should have produced Bashir Ahmed and Sohan Lal to prove his case but failed to do so. He also noticed that all along the father of the plaintiff used to come to the court to pursue the case but did not are to enter the witness-box. The plaintiff was also giving his specimen signatures so that his handwriting on the letter. Ex. DW-1/A could be proved but he did not turn up to do so.

(11) The learned Additional District Judge placed reliance upon the letter, photostat copy of the dissolution deed, the order of the magistrate and upheld the contention of the wife and rejected that of the husband.

(12) Mr. Kathuria referred to Bhanrao Shankar Dokhande and another v. The State of Maharashtra and another, : 1965CriLJ544 , Kanwal Ram and others v. The Himachal Pradesh Administration. : 1966CriLJ472 and Gopal Lal v. State of Rajasthan Air 1970 S.C. 723 wherein it was held that in pases of adultery and bigamy marriage must be proved by showing that necessary ceremonies required by law or custom have been actually performed. The case I am dealing with is not one of these categories. Moreover, it appears that the marriage was solemnised in Panipat according to Vedic rites and, thereforee, the cases cited by Mr. Kathuria that there was no valid marriage unless it was solemnised in accordance with the Hindu rites, are of no relevance in this case. It is impossible to hold that the wife and her father would tell such a big lie that Ashok Kumar brought a marriage party and that the marriage was solemnised in Panipat. The mere fact that . '' no pandit or any other independent witness was produced to support, solemnisation cannot weaken the case of the wife. As a matter of fact the marriage has been admitted by the husband. His case is that it was performed not by vows but by affidavits.

(13) No marriage by affidavits can take place and the marriage must have been solemnised on 1-3-1975 as alleged by the wife. The husband has, thereforee, put up a totally false case. He himself has admitted that the wife lived with him after marriage. It is difficult to believe that a girl will live in her husband's house for such a long time without any marriage having taken place. He has further admitted that she has been holding out that she was his wife. If she were not he would not allow her to do so. He cannot be asked to take advantage of his own fraud. In such a case, even after the passing of the Hindu Marriage Act, 1955, the doctrine of factum violet should be invoked. If the parties are recognised as man and wife, there is a strong presumption in favor of the validity of marriage, form and ceremony of the marriage and the legitimacy of its offspring : Maujilal and others v. Mussammat Chandrawati Kumari 38 I.A. 122.- In Rajagopal Pillai and others v. Pakkiam Ammel and another 1968 Mlj 411, it was observed that where a man and woman had lived together as man and wife, the law will presume, until the contrary is proved that they were living together by virtue of a legal marriage and not in concubinage. Such presumption can be rebutted only by showing that the marriage was most highly improbable and not reasonable possible, marriage can be proved by repute and intention to enter into wedlock.

(14) After all rites and ceremonies only serve to provide proof of marriage as registration does. It is otherwise very difficult after some lapse of time to lead a Pandit to the witness box to prove that the marriage had been solemnised. No documentary evidence is even possible to find. Many of the witnesses die in the meanwhile. No evidence except the hard fact of living together survives. In this case the husband has not been able to displace such a presumption based upon his own conduct. I, thereforee, hold that the marriage of the parties was validly solemnised.

(15) Now as to the invalidity of the marriage the charge that the wife stood already married to one Bashir Ahmed is a scandalous charge. The only basis for it is the admission supposed to have been made by the wife which she has vehemently denied. No wife will be foolish enough to make such an admission before' her husband. Equally false and scandalous appears to be the charge that the child was born not in the wedlock but of adultery with Sohan Lal. This allegation also depends upon the admission alleged to have been made by the wife before her husband. Such admission is again in the ordinary course of things not a thing to be made and believed. It is true that the order under Section 125 Cr.P.C. cannot prove the marriage in a civil suit nor does it operate as rest judicata, but it is certainly a piece of evidence in favor of the wife. All the three questions stand answered accordingly.

(16) Considering all the facts and circumstances, I find absolutely no merit in the case of the husband and in this appeal. It is hereby dismissed with costs.


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