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Urmila Devi vs Pradeep Kumar And Another on 25 November, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 439 of 2007
Reserved on: 08.11.2017
Decided on: 25.11.2017
__

.

Urmila Devi

…..Appellant
Versus
Pradeep Kumar and another

……Respondents
__
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

1 Whether approved for reporting? Yes.
For the appellant : Mr. Atul Jhingan, Advocate.

For the respondents : Ms. Anu Tuli, Advocate, for
r respondent No. 1.

Chander Bhusan Barowalia, Judge
The present regular second appeal is

maintained by the appellant, who was defendant No. 2

before the learned Trial Court (hereinafter to be called as

“defendant No. 2”), laying challenge to the judgment and

decree, dated 13.06.2007, passed by learned Additional

District Judge, Fast Track Court, Shimla, H.P., in Civil Appeal

No. 18-S/13 of 2006, whereby the judgment and decree,

dated 12.10.2006, passed by the learned Civil Judge (Jr.

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Division), Court No. 3, Shimla, H.P, in Civil Suit No. 102 of

2002/01, was upheld.

2. Briefly, the facts, which are necessary for

.

determination and adjudication of the present appeal, are

that respondent No. 1, who was the plaintiff before the

learned Trial Court (hereinafter to be called as “the

plaintiff”) instituted a suit for declaration and injunction

against the defendants, Smt. Rekha (defendant No. 1) and

Smt. Urmila (defendant No. 2), wherein it has been alleged

that the marriage between the plaintiff and defendant No.

1 was solemnized on 21.04.1995 in accordance with Hindu

rites at Village Nabhreli-Karyal Ghati, Tehsil and District

Shimla. The factum of such marriage was duly entered in

the marriage register of Gram Panchayat, Chail on

22.05.1995. It has been further averred that defendant No.

2, is falsely proclaiming herself to be the legally wedded

wife of the plaintiff and claiming maintenance, as well as

legal rights in the movable and immovable property of the

plaintiff, for which she filed a false case Under Section 125

Cr.P.C. in the Court of learned Chief Judicial Magistrate,

Hamirpur. As per the plaintiff, he never married to

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defendant No. 2 and even if, her allegation that she

married to him on 24.02.1996, is taken to be true, the

alleged second marriage between him and the defendant

.

No. 2 is void ab initio. Otherwise also, defendant No. 2 is

employed and working as Angarwari worker, under the

Child Development Project Officer, Sujanpurtira, Hamirpur,

H.P., hence not entitled to claim maintenance allowance

from him. Lastly, it has been averred that as the marriage

between the plaintiff and defendant No. 2, if any, is void,

defendant No. 2 is liable to be restrained from proclaiming

to be legally wedded wife and also from claiming any

maintenance and right in the property of the plaintiff.

3. By filing written statement, defendant No. 2

raised preliminary objections qua maintainability, estoppel,

cause of action and jurisdiction. On merits, it has been

averred that defendant No. 1 is not legally wedded wife of

the plaintiff and the certificate of marriage produced by

the plaintiff is illegal. As per defendant No. 2, she preferred

a petition against the plaintiff, under Section 125 Cr.P.C. in

the Court of learned Chief Judicial Magistrate, Hamirpur,

which was allowed and maintenance was awarded in her

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favour. It has been averred that defendant No. 2 was

married to the plaintiff as per Hindu rites and ceremonies on

23/24.02.1996 at her parental house i.e. Village Chalokhar,

.

District Hamirpur, H.P. and after the said marriage,

defendant No. 2 and the plaintiff lived together as husband

and wife in the house of the plaintiff at Village Tanenkar,

District Hamirpur, H.P. However, in the year, 1999, the

plaintiff deceitfully left defendant No. 2 in the house of her

father and subsequently he married to defendant No. 1

illegally. It has been further averred that defendant No. 2 is

the only legally wedded wife of the plaintiff and he cannot

deny her rights that have accrued to her in consequence of

her marriage to the plaintiff. Lastly, she prayed that the suit

of the plaintiff be dismissed.

4. The learned Trial Court on 18.11.2004 framed the

following issues for determination and adjudication:

“1. Whether the plaintiff is entitled for the

decree of declaration to the effect that
defendant No. 1 is legally wedded wife of
the plaintiff and subsequent marriage
between the plaintiff and defendant No. 2
allegedly taken place on 24.02.1996
during the subsistence of earlier marriage
with defendant No. 1 is illegal, void ab
initio as alleged? OPP

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2. Whether the plaintiff is entitled for the
relief of permanent prohibitory, as
alleged? OPP

3. Whether the suit is not maintainable as
alleged? OPD-2

4. Whether the plaintiff is estopped from

.

filing the present suit on account of his

own acts, omission and commission, as
alleged? OPD-2

5. Whether this Court has no jurisdiction to

try and entertain the present suit, as
alleged? OPD-2.

6. Whether the suit has been filed by the
plaintiff in collusion with defendant No. 1,
as alleged? OPD-2.

7. Relief.”

5. After deciding issues No. 1 2 in favour of the

plaintiff, issue No. 3 in redundant and issues No. 4, 5 6

against defendant No. 2, the suit of the plaintiff was

decreed. Subsequently, defendant No. 2 maintained an

appeal before the learned first Appellate Court, which was

dismissed and the findings of the learned Trial Court are

upheld. Hence the present regular second appeal, which

was admitted for hearing on the following substantial

questions of law:

“1. Whether the objection t;aken by the
appellant/defendant under Section 105
CPC was not appreciated by the learned
Courts below and if so, its effect?

2. Whether the objection raised by the
appellant/defendant at the time of
exhibition of document Ext. PW-4/A was not
decided by the trial Court and its effect?

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3. Whether the document Ext. PW-4/A was not
proved as per the Evidence Act and the
Courts below erred in placing reliance
upon the said document while deciding
the case and if so, its effect?”

.

6. Mr. Atul Jhingan, learned counsel for the

appellant has argued that the learned Courts below have

committed grave illegality in not appreciating the

evidence, which has come on record. He has further

argued that the learned Courts below, ignoring the fact

that the plaintiff had solemnized the arrange marriage with

defendant No. 2 and he has no authority to dispute the

marriage once it was solemnized by him, have erroneously

decreed the suit of the plaintiff. On the other hand, Ms. Anu

Tuli, Advocate, for respondent No. 1 has argued that the

judgments and decrees passed by the learned Courts

below are as per law and after appreciating the evidence,

which has come on record to its true perspective, therefore,

the same are required to be upheld.

7. In order to appreciate the rival contentions of

the parties, I have gone through the record carefully.

8. In order to prove its case Sh. Pradeep Kumar

(plaintiff) has stepped into the witness box as PW-1 and

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stated that he is a permanent resident of Hamirpur,

however for the last 35-36 years he is residing at Chail, as he

owns a Dhaba there. As per the plaintiff, he married to Smt.

.

Rekha (defendant No. 1) on 21.04.1995, as per Hindu rites at

Village Nabhreli Karyalghati, Tehsil and District Shimla. The

said marriage was got entered in the record of Gram

Panchayat, Chail. Mark ‘X’ (which was later on exhibited as

Ext. PW-4/A) is the certificate to this effect. He stated that

he never married to defendant No. 2 (Smt. Urmila Devi). As

per the plaintiff, defendant No. 2 instituted a false petition

against him for grant of maintenance before the Court of

learned Chief Judicial Magistrate, Hamirpur and

maintenance to the tune of ` 400/- per month was granted

in her favour. He has further stated that defendant No. 1

(Smt. Rekha Devi) is living with him as his wife and they have

two daughters aged about five and three years and a son

aged about one year. In his cross-examination, he admitted

that petition under Section 125 Cr.P.C. was allowed in

favour of defendant No. 2 and his appeal has been

dismissed by the learned Sessions Judge, Hamirpur. He

admitted himself and his sisters etc. in photographs Exts. R-1

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to R-27. He feigned ignorance about the lady who has

been shown as bride in circle ‘P’ of photographs, Ext. R-1 to

R-5. He has stated that defendant No. 1, to whom he was

.

married, is not there in circle ‘P’. He has further stated that

he knows Sh. Hari Singh, the Secretary of Gram Panchayat,

Chail. He denied that he got the false record prepared with

the help of Sh. Hari Singh. He has further denied that he

married to defendant No. 2 and he used to maltreat her for

bringing insufficient dowry and left defendant No. 1 in the

house of her father.

9. PW-2 and PW-3 (S/Sh. Inder Kumar and Naresh

Kumar) have also supported the case of the plaintiff and

stated that they had attended the marriage of the plaintiff

and defendant No. 1 in the month of April, 1995. They have

further deposed that the plaintiff, defendant No. 1 and their

children are residing together at Chail.

10. PW-4 (Ms. Sunil Chauhan, Secretary, Gram

Panchayat, Chail) has brought the requisitioned record and

testified that the marriage of the plaintiff and defendant

No. 1 was entered in the record of the Panchayat on

22.05.1995. The said entry bears the signatures of the

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spouses and Certificate Ext. PW-4/A is correct as per the

original record. In her cross-examination, she admitted that

Ext. PW-4/A has not been signed by her. She has stated that

.

in register, which she has brought, the column/page is blank

and the numbering in the register has been done later with

a red pen. She feigned ignorance as to by whom the

numbering of register has been done.

11. DW-1 (Smt. Rekha) has also substantiated the

case of the plaintiff and stated that from her marriage with

the plaintiff, three children were begotten out of her

wedlock. She denied that the plaintiff married to defendant

No. 2 as per Hindu rites.

12. Conversely, defendant No. 2 (Smt. Urmila Devi)

in her examination-in-chief, has substantiated the contents

of written statement filed by her, as a whole. In her cross-

examination, she feigned ignorance about the first

marriage of the plaintiff with defendant No. 1 on 21.04.1995

and their three children. She denied that when she

accompanied the plaintiff to Chail, she found that

defendant No. 1 residing there with the plaintiff as his wife

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and due to this reason, she left Chail and went back to her

parental house.

13. DW-2/2, Sh. Gian Chand (father of defendant

.

No. 2) has deposed that marriage of the plaintiff and

defendant No. 2 was solemnized on 23.02.1996 as per Hindu

rites. In photograph, Ext. R-1, he admitted the plaintiff and

defendant No. 2 to be the bride and groom. He denied

that the marriage of the plaintiff and defendant No. 2 is

illegal. However, he has admitted that the said marriage

has not been registered in the Panchayat Register.

14. DW-2/3, Sh. Subhash Chand, has deposed that

he is a Pandit and he got the marriage of defendant No. 2

performed on 23.02.1996 with the plaintiff. In his cross-

examination, he feigned ignorance about the plaintiff’s

earlier marriage with defendant No. 1.

15. Section 7 of the Hindu Marriage Act, 1955

provides as under:-

“7. Ceremonies for a Hindu marriage
(1) A Hindu marriage may be solemnized in
accordance with the customary rites and
ceremonies of either party thereto.
(2) Where such rites and ceremonies include
the saptpadi (that is, the taking of seven
steps by the bridegroom and the bride

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jointly before the sacred fire), the marriage
becomes complete and binding when the
seventh step is taken.

16. In the present case, both the parties are Hindus

.

and they have to perform the marriage of saptpadi. As far

as marriage, as alleged with defendant No. 1, is concerned,

the plaintiff or defendant No. 1 could not prove that their

marriage was solemnized by saptpadi, the only evidence

which the plaintiff has proved on record qua his earlier

marriage, which took place approximately three years

before the marriage with defendant No. 2, is PW-4, Ms. Sunil

Chauhan, Secretary, Gram Panchayat, Chail, who has

produced on record Certificate, Ext. PW-4/A, regarding the

marriage of the plaintiff with defendant No. 1. PW-4 further

stated that certificate was issued by the Secretary on

02.12.2000. The learned Court below while dealing with the

marriage has ignored very vital question involved in the

present case that the marriage does not complete with

registration only. Though, the registration of the marriage is

corroborative evidence, but the marriage has to be proved

by proving saptpadi and in this regard, no evidence has

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been produced either by the plaintiff or by defendant No.

1.

17. Again at the cost of repetition, it is made clear

.

that saptpadi was to be proved by the plaintiff and

defendant No. 1 by either of the following methods:

“(a) By producing a witness, who has attended
the marriage and who could have stated
that the marriage took place around the
sacred fire and the parties has taken seven
steps, or

(b) by producing the photographs or any other
documents, showing the performance of
saptpadi, or

(c) by producing the Priest/Pandit, who was
r Instrumentality in performing saptpadi.

However, none of the aforesaid proof had been placed by

defendant No. 1 to prove saptpadi.

18. On the other hand, defendant No. 2 has proved

on record her marriage, i.e. saptpadi with the plaintiff by

producing, (a) the photographs of the marriage, not only

showing saptpadi, but all the ceremonies of marriage, (b)

the person who has attended the marriage and in whose

presence the saptpadi was performed, (c) the Priest/Pandit,

who performed the saptpadi. On these aspects, the findings

recorded by the learned Courts below, declaring the

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marriage of the plaintiff and defendant No. 2 to be second

marriage, which in fact was their only marriage, as per

Hindu rites, are perverse.

.

19. Now coming to the question whether the

plaintiff, when married defendant No. 2 by performing

saptpadi in the house of defendant No. 2 and in the

presence of many witnesses, performed all the ceremonies,

the photographs of which are on record, can maintain a

suit for declaration by declaring the marriage with

defendant No. 2 to be void, being second marriage? This

question was also required to be considered vis-à-vis the

bona fides of the plaintiff. The plaintiff had not gone to the

Court with clean hands and suppressed many material

facts. He has only averred that he had earlier performed

the marriage with defendant No. 1, but without proving

anything on record to show that marriage was performed

as per Hindu rites, simply the statement of the Panchayat

Secretary that the marriage was registered, is no prove of

marriage. So, substantial question of law No. 1 is answered

holding that the findings recorded by the learned Courts

below are perverse and without appreciation. Similarly,

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substantial question No. 2 is answered holding that the

exhibition of the document, Ext. PW-4/A, in nowhere proves

the marriage of the plaintiff with defendant No. 1, as the

.

marriage was required to be solemnized by performing

saptpadi as required under the Hindu law and the findings

of the learned Courts below in this regard are also perverse.

As far as, substantial question No. 3 is concerned, the same

is answered holding that even Ext. PW-4/A was not proved

by examining the person, who made the entry in the

register and further no presumption is attached that after

the registration of marriage of the plaintiff with defendant

No. 1, the marriage stands automatically proved, as the

fact of saptpadi was not considered by the learned Courts

below and they erred in placing reliance upon the said

document while deciding the case.

20. The plaintiff, who has solemnized the marriage

with defendant No. 2, after performing all the ceremonies,

including saptpadi and defendant No. 2 has proved the

same on record, making admission in cross-examination, the

plaintiff has admitted that the lady in pictures is not

defendant No. 1, though he has not clearly stated that the

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lady in pictures is defendant No. 2, but from the evidence

on record, it is amply clear that the lady alongwith the

plaintiff in pictures is defendant No. 2, with whom the

.

plaintiff admitted the saptpadi alongwith all rituals of Hindu

marriage. The Act of the plaintiff to pray the Court for

nullifying that marriage and coming to the Court and telling

while appearing in the witness box, by making totally false

statement that the lady in the pictures is not defendant No.

2, is itself, makes this case fit to award special costs in favour

of defendant No. 2. The plaintiff has put the life of

defendant No. 2 in a miserable condition for nearly 15-16

years by marrying her and thereafter filed a false case for

nullifying the marriage on the basis of some entry in

Panchayat record, which never proves the marriage of the

plaintiff with defendant No. 1. So, defendant No. 2 is entitled

for special costs alongwith the right to prosecute the

plaintiff for special damages by way of separate suit, if she

so desires.

21. In view of the aforesaid discussion, the present

appeal is allowed and the judgments and decrees, passed

by the learned Courts below are set aside. The suit of the

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plaintiff is ordered to be dismissed with costs and the

plaintiff is held liable to pay costs of ` 5,000/- to

appellant/defendant No. 2.

.

22. With aforesaid observations, the appeal, so also

pending miscellaneous application(s), if any, shall stand(s)

disposed of.

(Chander Bhusan Barowalia)
Judge
25th November, 2017
(raman)

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