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Meera Singh vs Arvind Kumar Singh & Ors on 21 December, 2018

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon’ble Justice Shivakant Prasad

C.O. 3783 of 2014
With
R.V.W. 274 of 2016
With
CAN 8004 of 2016

Meera Singh
Vs.
Arvind Kumar Singh Ors.

For the Petitioners : Mr. Probal Mukherjee
Mr. Chayan Gupta
Mr. Ratul Das
Mr. Abhijit Sarkar

For the Respondents : Mr. Gopal Chandra Ghosh
Mr. Debayan Sinha
Ms. Anyasha Das
Ms. Swarupa Ghosh
Heard On : 12.10.2018

CAV On : 12.10.2018

Judgment On : 21.12.2018

SHIVAKANT PRASAD, J.

The review petitioner has sought for review of the order dated 15.12.2015

passed in C.O. No. 3783/2014 by this Court pursuant to an order dated 11.7.2016

passed by Hon’ble Supreme Court in Special Leave to Appeal in CC no. (S)
12290/2016 for consideration of the death certificate of the petitioner’s husband and

the Voter Identity Card referred to in the order under review.

It would be profitable to take note of the order dated 22.9.2014 passed in title

suit no. 59 of 1992 of the learned Civil Judge (Senior Division) First Court at Alipore

whereby the Trial Court allowed an application under Order 1 Rule 10(2) CPC filed by

the petitioner Meera Singh to add her in place of the deceased defendant no. 3 Gokul

Prasad Singh in the cause title of the plaint.

Order reflects that earlier by order dated 10.7.2012 an application dated

29.12.2009 filed by Meera Singh permitting her to be added as a defendant in the

place of deceased defendant no. 3 Gokul Prasad Singh in the cause title of the plaint

was allowed.

On being aggrieved by the said order of the Trial Court, a revisional application

was preferred before a co-ordinate Bench of the Hon’ble Court in CO 2159/2012

wherein the order dated 10.7.2012 passed by the Trial Court was set aside to decide

limited issue as between the petitioner Raj Kumari Singh and Opposite Party no. 5

Meera Singh on evidence. Accordingly, the Trial Court decided the issue by taking

evidence of Meera Singh as P.W.1 and Raj Kumari Singh as O.P.W.1. In evidence said

Meera Singh produced some documents in evidence being passport of Gokul Prasad

Singh Exhibit- 1, ration card of Meera Singh Exhibit- 2, voter id card of Meera Singh

Exhibit- 3, voter Id card of Gokul Prasad Sing Exhibit- 4 whereas Raj Kumari Singh

had produced no document in her evidence.

It is well revealed from the order passed by the Trial Court that Meera Singh

had filed no document of her marriage with Gokul Prasad Singh under Hindu
Marriage Act or Special Marriage Act. Meera Singh as P.W.1 had adduced before the

Trial Court and her voter id card, ration card and passport claiming to be that of her

husband late Gokul Prasad Singh. In her examination, she categorically deposed that

she could not say the full name of G.P. Singh though she claimed that one G.P. Singh

was her husband. She had admitted in cross examination that she belong to village at

Chandikantpur in UP and she had given birth to only one daughter namely, Nilam

who was aged 30/35 years old as on the date of deposition on 20.01.2014 but she

has no birth certificate or voter id card of her said daughter but she claimed to have

married one G.P. Singh in a temple in UP.

According to evidence of defendant no. 3 Smt. Raj Kumari Singh (now deceased)

daughter of late Gokul Prasad Singh her father had left behind her as sole legal heir

and her father had married only her mother Smt. Lalmoni Devi now dead.

It is in her evidence that Smt. Meera Singh was wife of late Joy Bahadur who

used to work as maid servant in her father’s place at the suit premises. But now she

has been claiming herself to have married said Gokul Prasad Singh to grab her

father’s property. Admittedly, Meera Singh is the mother of two daughters by her

husband Joy Bahadur Singh and she has also grand children, some of them have

attained majority.

According to D.W.1 Meera Singh was never a married wife of Late Gokul Prasad

Singh and, therefore, she cannot be added as a party defendant who has no interest

whatsoever in the property left by the father of Raj Kumari Singh since deceased. So

question of determination of real matter in dispute in the suit for partition, the review

petitioner cannot be treated as a necessary party.

During cross examination said Raj Kumari Singh categorically stated that she

always called Meera Singh as Meera. According to Meera P.W.1 came to her house as

a widow but she has denied the suggestion that her father had married Meera. It is

evident from her deposition that her father was 60 years old. All these factual aspects

were not scrutinized by the Trial Court.

In 1987, Meera had come for the first time in the house of her father when Raj

Kumari Singh was residing with her father at the said premises. All these factual

aspects of evidence were not scrutinized in proper perspective by the Trial Court. The

Trial Court held on the oral testimony of Meera Singh that her marriage was

solemnized in a temple at Chandikantpur in Coal Bazar, UP but she cannot tell about

the name of the priest who participated in solemnization of such marriage in temple

by exchange of garlands and vermilion on her forehead in presence of God in the year

1985.

So it is evident that review petitioner came to Calcutta in the house of the

father of the objector Raj Kumari Singh in the year 1987 but it is not in the evidence

that she was putting up with the father of Raj Kumari Singh after the alleged

marriage in the temple in as much as said Raj Kumari Singh now deceased has

deposed that the review petitioner used to work as a domestic help in the house of her

father. There is no cogent evidence corroborating the fact that said Meera was the wife

of late Gokul Prasad Singh. There is no evidence of relatives and co-villager of Meera

Singh to support her case that she was married to said Gokul Prasad Singh. Even no

evidence adduced by relatives and neighbours of the deceased Gokul Prasad Singh to

corroborate the fact that Meera Singh was regarded in the society as the wife of Gokul
Prasad Singh (since deceased). It is not also understood as to why a man aged 60

years will go for marriage with a widow lady having children and grand children from

her husband Joy Bahadur (deceased). It may be noted that even the married

daughters of Meera Singh have come forward to corroborate the fact of marriage of

their mother Meera Singh.

Mr. Prabal Mukherjee for the review petitioner submitted that the passport of

Gakul Prasad Singh clearly stated the name of Meera Singh in the spouse column and

it is improbable to believe that a person would name someone as his spouse, who is

not in fact his spouse and that the passport of Gakul Prasad Singh has not been

challenged and in fact visas were issued to Gakul Prasad Singh on such passport and

hence when such is a case the content thereof has to be given credence to the same

but it may be taken note of the fact that the entry in the column of children in the

passport of said Gokul Prasad Singh is shown to be NIL whereas the objector Raj

Kumari Singh was the only daughter of Gokul Prasad Singh. Therefore, the Passport,

though has a presumptive value is required to be tested on its verification by the

Passport issuing authority. In support of his contention Mr. Mukherjee appearing for

the petitioner relied on a decision of Mashkurul Hasan Vs. Union of India reported in AIR

1967 Allahabad 565 in respect of the observation made in paragraph 8 reproduced thus-

“8. The case of the appellant before me seems to be worse than the case of the
above-mentioned. Aboobacker before the Supreme Court Inasmuch as the
appellant was not a minor when he went to Pakistan. His date of birth is given
as 10th February, 1919, in the application for a visa (Ex. A1) made by the
appellant on 20th August, 1951. There, he also admitted that he had “migrated”
to Pakistan round about 15th February, 1948. This application shows that the
appellant was employed as a clerk in the P. W. D. in Pakistan and that his
services had been terminated on 10th of June, 1963. The appellant also gave his
“permanent” address in that application as 13, Fateh Chand Building. Samal
Ahooja Road, Karachi. The purpose of his visit to India was stated to be to meet
his parents and relations, or, in other words, only a temporary purpose.
There can be no doubt that a plaintiff, after such admissions of fact, cannot be
believed on his sole testimony when he comes forward with the case that he was
domiciled in India at the commencement of the Constitution of India. This had
to be proved by the plaintiff after the admissions made by him. The meagreness
of the plaint and of the plaintiff’s testimony are explicable in the light of the
admissions made by the plaintiff in his visa application which he did not
seriously even try to explain. A passport is also a very strong piece of evidence.
It contains a recognition by the officially authorised agencies of a State given to
the nationality of a citizen of the State issuing the passport after the necessary
declarations made by the holder of the passport. Its effect can only be got rid of
by proving facts which nullify the passport altogether and make it no passport
in the eve of law at all. In view of all this evidence, there is no force whatsoever
in the contention that the courts below had come to legally wrong conclusions
about the citizenship of the appellant.”

It is evident from the observation made in context of a case relating to dispute

of citizenship wherein on the facts of the case and evidence, it was considered that a

passport is also a very strong piece of evidence albeit it may be considered as a fake

entry on verification by the Passport issuing authority but presumption may be taken

note of as presumptive value of a passport is subject to rebuttal but is not a

conclusive proof of marriage on the basis of the entry of name appearing of the

column of spouse, because Meera Singh in her evidence deposed that she does not

know the full name of G.P. Singh.

Mr. Mukherjee further submitted that the Ration Card and Voter Identity Card

of the petitioner both had the name of Gakul Prasad Singh as her husband and in

support of his submission relied on a decision in case of Kirtan Vs. Thakur reported

in AIR 1972 Orissa 1581 to the observation in paragraph 5 and 6 which are

reproduced here under for profitable understanding-

“5. It would, therefore, follow that the electoral roll is a public record made
in performance of duty specially enjoined by the law and an entry made
thereunder would directly come under Section 35 of the Evidence Act. The
electoral roll is a public document as contemplated under Section
74(1)(iii) of the Evidence Act, because it is a document forming the Act of
public officers. To such a public document the presumption under Section
81 of the Evidence Act has application. When a public document is produced
before the court, it shall presume the genuineness of such document.
Therefore, when the electoral roll which is a public document is produced
before the court, the court is required to presume its genuineness. Section
4 of the Evidence Act dealing with “shall presume” provides, “Whenever it is
directed by this Act that the Court shall presume a fact, it shall regard such
fact as proved, unless and until it is disproved;”

Therefore, when the electoral roll is produced before the court by virtue
of Section 81 read with Section 4 of the Evidence Act, the court shall regard
the fact entered in the electoral roll as proved unless and until it is
disproved. In (1970) 38 Cut LT 1211 (Paramananda Sahu v. Babu Sahu) a
Division Bench of this Court dealing with the electoral roll stated, “In
addition to the oral evidence, reliance is sought to be placed by the plaintiff
on the documents marked Exts. 1, J and K. Ext. 1 purports to be a printed
invitation card alleged to have been issued by defendant No. 1 on the
occasion of the marriage of defendant No. 3 describing him as his youngest
son. Ext. K is the voter’s list prepared, in 1958 of the ward in which the
parties reside wherein the father’s name of the plaintiff and defendant No. 3
is mentioned as Babu, i.e., defendant No. 1. No evidence has been adduced to
show that Ext. 1 was actually got printed by defendant No. 1 or on his
instructions defendant No. 3 was described as the youngest son. So also,
there is no evidence to show on whose information the father’s name of
plaintiff in Ext. K was mentioned as Babu. Neither the person who prepared
Ext. K nor the person who printed Ext. 1 has been examined in the suit. In
these circumstances reliance cannot be placed on Exts. 1, J and K as
affording proof of the relationship claimed by the plaintiff with defendant
No. 1.”

Soon after this judgment was pronounced I had occasion to deal with the
question of admissibility of the electoral roll in the case of Nukuni Dibya v.
Harekrishna Sat-pathy in Second Appeal No. 574 of 1966 disposed of on 24-
8-1970 (Orissa) and in the case of Musi Bewa v. Raghunath Das in Second
Appeal No. 636 of 1966 disposed of on 1-9-1970 (Orissa). Following the
aforesaid Division Bench decision in regard to the admissibility of the
electoral roll I also held that the electoral roll was not admissible in
evidence unless there was evidence to show the source of information
leading to the preparation of the electoral roll or the person who prepared
the electoral roll was examined. In the case of Sulei Bewa v. Gurubari Rana,
in AIR 1971 Orissa 299 I also came to the same conclusion.

7. The electoral roll being a public document is admissible in evidence and it
is not necessary to prove the source of information on the basis whereof the
facts stated in the roll were recorded, nor is it necessary that the person who
prepared the electoral roll has to be examined in court to prove the roll. As a
public document it is admissible under the provisions of the Evidence Act. As
was indicated by the Judicial Committee in (1879) 7 Ind App 63 (PC) (Rani
Lekraj Kuar v. Babu Mahpal Singh).

“The entry having stated that relevant fact, the entry itself becomes by force
of the section a relevant fact; that is to say, it may be given in evidence as a
relevant fact, because, being made by a public officer, it contains an entry of
a fact which is relevant.”

We would accordingly answer the question referred to us thus:
The electoral roll prepared under the Representation of the People Act is
admissible in evidence without the author thereof and the person supplying
the information being examined in the case.” It would, therefore, follow that
the view expressed by the Division Bench in (1970) 36 Cut LT 1211 and the
three other cases already referred to by a single Judge in this Court with
reference to the admissibility of the electoral roll was not correct.”
Mr. Mukherjee also relied on case of Linga Vs. Ajodhya reported in AIR 1974

Orissa 107 wherein ratio of decision in case of Kirtan supra has been applied with

the observation made in paragraph 3 and 5 thus-

“3. The concurrent finding of the Courts below that the plaintiff is the married wife of
Satya is assailed on two grounds, namely, that in arriving at the finding that a
marriage between the plaintiff and Satya did take place, the Courts below were
considerablv influenced by Ext. 1 which is an entrv in the Voter’s list describing the
plaintiff as Satya’s wife and secondly even if a ceremony of marriage had taken place
as found by the Courts below, it cannot be valid unless it is proved that the necessary
ceremonies to constitute a valid marriage had been gone through and in the absence
of any such evidence, the Courts below were not justified in holding that the plaintiff
is the married wife of Satya. The electoral roll is a public document and has been
prepared by a public servant in discharge of his official duty. The entrv therein
showing that the plaintiff is the wife of Satya is a relevant fact in this suit. A Full
Bench of this Court in Kirtan Sahu v. Thakur Sahu. (1972) 38 Cut LT 82 (AIR 1972
Orissa 1581 (FB) has held that an electoral roll being a public document is
admissible in evidence and it is not necessary to prove the source of information on
the basis whereof the facts stated in the roll were recorded, nor is it necessary that
the person who prepared the electoral roll has to be examined in Court to prove the
electoral roll. As a public document it is admissible under the provisions of Section
35 of the Evidence Act. No. exception can, therefore, be taken to the admission of
Exhibit 1 in evidence, That apart, there is sufficient evidence on record which had
been accepted by the Courts below to arrive at the conclusion that the plaintiff was
married to Satva.

5. It is well established that where a marriage in fact has been performed, it will be
presumed that necessary ceremonies have also been duly performed and it is
incumbent on him who challenges the legality of the marriage to rebut the
presumption and to establish by evidence that the form of marriage is invalid in some
respect or the other. It is not necessary that the witnesses to the marriage should
prove all the details which taken together constitute a valid marriage under the Hindu
Law. This position of law has been established since a very long time and the Privy
Council in Mouji Lal v. Chandrabati Kumari, (1911) ILR 38 Cal 700 (PC) has held
that where a ceremony of marriage undoubtedly took place, the strong presumption in
favour of the marriage applies to the forms and the ceremonies necessary to
constitute it a valid marriage.”

I have respectfully considered the decision of the aforesaid observation but

in my view in the present case, facts of marriage ceremonies to constitute a valid

marriage have not been proved to the hit by corroborative evidence of relatives and

neighbours of either parties.

In rebuttal, Mr. Gopal Chandra Ghosh learned Counsel appearing for the

objector referred to a decision in case of Veena Rani Vs. Jagdish Mitter Malhan

reported in (1990) DMC 163 and reliance placed on the observation in paragraphs 34

to 45 which are reproduced here under-

“34. There is not an iota of evidence on the record to prove that the appellant
and the respondent ever lived as husband and wife. There is no evidence of
their being husband and wife by reputation also. There is no evidence that the
community or the society in which they were living accepted them as husband
and wife. There is not an iota of evidence with respect to oral declaration by
the parties that they were husband and wife; rather Ex. P-7 an application in
the form produced by the appellant shows that she was not claiming herself to
be the wife of respondent but used to describe herself as daughter of Manohar
Lal. In these circumstances and conspectus of authorities cited by the
appellant to contend that by long Jiving as husband and wife valid marriage
should be presumbed; since no neighbour of either of the parties have been
examined it would not be reasonable to raise the presumption of marriage of
the appellant in view of the conduct of the parties and non-examination of
independent and best evidence.

43. In my view, the necessary corollary which follows the observations made
in the above cited judgments with which I fully agree, is that unless and until
the birth certificate of the person is connected to the persons in dispute by
other reliable evidence, the birth entry itself cannot prove the relationship, in
particular when the name of the child as well as the name of the father of the
respondent was not disclosed in the entry. Additionally the name of the
respondent was wrongly described. Be that as it is, I am of the considered
view that Exhibit P. 5, either in isolation or along with oral evidence adduced,
does not lead to an inference that the appellant was married to the
respondent. I am further of the view that since the statement of the appellant
was challenged in cross examination as a whole, not putting of a suggestion
with respect to the birth entry in particular is of no consequence.

44. The submission made by the counsel to the effect that Voters’ List Exhibit
P. 6 corroborates the version set up by the appellant with respect to the
marriage cannot hold the ground. In Voters’ List Exhibit P. 6 one Veena aged
36 years in the year 1980 is recorded as the voter. Admittedly the appellant
while appearing as her own witness stated her age as 33 years in the year
1986 i.e. after a lapse of six years. Obviously the Voters’ List cannot be
connected with the appellant. Apart from this, in my view, Voters’ List unless
proved to have been prepared on the application of the voter duly signed by
him is an hearsay evidence. The person who prepared the Voters’ List has not
been examined. In the absence of the author of the Voters’ List, it cannot be
treated as a substantive evidence to prove the relationship. The Voters’ List
can at the most be treated as a corroborative piece of evidence. No rules have
been pointed out under the Representation of People Act, 1950, under which
the Voters’ Lists are prepared, wherein it is enjoined on the author to record
the relationship. Even otherwise, under Section 36 of the Representation of
People Act, 1951, the Voters’ List has been made the conclusive evidence only
to the effect that the person referred to in the entry is an elector of the
constituency and his vote number is so and so. The Voters’ List has not been
connected with the appellant. The Voters’ List cannot be relied upon to assume
and to hold that the appellant was related to the respondent as his wife.

45. The counsel for the respondent contended that a Hindu marriage may be
solemnised only in accordance with the customary rites and ceremonies of
either party thereto or by saptpadi and the marriage shall be complete and
binding when the seventh step in taken. She referred to Section 7 of the Act. It
was further contended that without observing the ceremonies/customary rites
of the either party or taking seven steps around the sacred fire marriage will
not be complete. In the absence of that, no status of a wife can be conferred on
the appellant. In order to buttress her submissions she relied on 1976 HLR
380, AIR 1971 SC 1153, AIR 1962 AP 311 and AIR 1982 Punjab and Haryana

83. From a reading of the judgments cited, the principles deducible are :–

(1) It is necessary to plead the form of marriage between the parties;

(2) It is for the party to prove the form of marriage who alleges the marriage ;

(3) If the marriage is alleged to have been performed according to customary
rites all the ceremonies enjoined by the custom to be performed should be
proved to have been gone into ;

(4) Solemnisation of marriage as envisaged by Section 7 means that the same
was duly performed in accordance with law.”

Therefore, I am of the view that Voter Identity Card is not conclusive proof of a

relationship. Mr. Ghosh also relied on a decision in case of Babloo Pasi Vs. State of

Jharkhand reported in (2008) 13 SCC 133 to argue that the documents relied on

by the review petitioner being the Passport, Voter Identity Card and Ration Card to

reflect the marriage relationship are not conclusive proof of relation while adverting

to paragraphs 28 and 29 of the cited judgment as under-

“28. It is trite that to render a document admissible under Section 35, three
conditions have to be satisfied, namely: (i) entry that is relied on must be one in a
public or other official book, register or record; (ii) it must be an entry stating a fact
in issue or a relevant fact, and (iii) it must be made by a public servant in
discharge of his official duties, or in performance of his duty especially enjoined
by law. An entry relating to date of birth made in the school register is relevant
and admissible under Section 35 of the Act but the entry regarding the age of a
person in a school register is of not much evidentiary value to prove the age of the
person in the absence of the material on which the age was recorded. (See: Birad
Mal Singhvi Vs. Anand Purohit9)

29.Therefore, on facts at hand, in the absence of evidence to show on what
material the entry in the Voters List in the name of the accused was made, a mere
production of a copy of the Voters List, though a public document, in terms
of Section 35, was not sufficient to prove the age of the accused. Similarly, though
a reference to the report of the Medical Board, showing the age of the accused as
17-18 years, has been made but there is no indication in the order whether 1988
(Supp) SCC 604 the Board had summoned any of the members of the Medical
Board and recorded their statement. It also appears that the physical appearance
of the accused, has weighed with the Board in coming to the afore-noted
conclusion, which again may not be a decisive factor to determine the age of a
delinquent.

ELECTORAL ROLL AND ELECTION COMMISSION OF IDENTITY CARD :

In both the aforementioned documents the age of the respondent was stated to 24
years as on 1.1.1995. According to the respondent he was born in 1968 and, thus,
on the said date he would have been more than 24 years of age. Why such an
inconsistency crept in has not been explained. The High Court, however, did not
give much importance to the said fact and proceeded on the basis that these
documents go to show that the respondent was major on that day. It is conceded
by Mr. Mullick, learned counsel appearing on behalf of the respondent that the
date of birth of a voter contained in the voter list and the election identity card
issued by the Election Commission of India is not conclusive. They are recorded as
per the statements made by the person concerned. Be that it may, it was for the
High Court and consequently for this Court in appeal to consider the said
materials on records in their proper perspective. We may, however, observe that
the said documents do not conclusively show that the respondent was major on
that day.”

Mr. Ghosh also referred to a case of Surendranath Das Vs. Sachi Devi Ors.

reported in II (1992) DMC 375 to argue that Voter Identity Card and entry therein

does not create any relationship nor it destroy such relationship but are subject to

rebuttal and proof and invites my attention to observation made in paragraphs 16

and 17 of the above referred case thus-

“16. In I.L.R. 1972 Cut. 161, (Kirtan Sahu, after him Uma Sahnani and Others
v. Thakur Sahu and Others). Full Bench of this Court held that voter’s list
having been prepared in due course of official business has evidentiary value.
In that case, it was not considered if incomplete voter’s list would have
evidentiary value. Omission of name of two of the occupants in the same house
as claimed by the plaintiff without any explanation coming forward is a ground
not to accept the voter list on its face value though for the purpose of election the
same is final and binding.

17. Entry in voters’ list does not create any relationship nor does it destroy
existing relationship. It is only a piece of corroborative evidence. Since Ext.
12/A is not complete in all respects I am not inclined to accept the same as a
piece of evidence to come to conclusion that the plaintiff is son of defendant No.
1 in this case specially when there is no material that on instructions of
defendant No. 1 this voter list was prepared.”

Finally Mr. Ghosh relied on a case of Inderchand Jain Vs. Motilal reported in

(2009) 14 SCC 663 to argue that the review is not an appeal in disguise and

adverted to the observation made in paragraphs 7, 8 and 10 thus-

“7. Section 114 of the Code of Civil Procedure (for short “the Code”) provides for a
substantive power of review by a Civil Court and consequently by the appellate courts. The
words “subject as aforesaid” occurring in Section 114 of the Code means subject to such
conditions and limitations as may be prescribed as appearing in Section 113 thereof and for
the said purpose, the procedural conditions contained in Order 47 of the Code must be taken
into consideration. Section 114 of the Code although does not prescribe any limitation on the
power of the court but such limitations have been provided for in Order 47 of the Code; Rule
1 whereof reads as under:

“17. The power of a civil court to review its judgment/decision is traceable in Section 114
CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC,
which reads as under:

“1. Application for review of judgment.–(1) Any person considering himself aggrieved–

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been
preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of
new and important matter or evidence which, after the exercise of due diligence was not
within his knowledge or could not be produced by him at the time when the decree was
passed or order made, or on account of some mistake or error apparent on the face of the
record, or for any other sufficient reason, desires to obtain a review of the decree passed or
order made against him, may apply for a review of judgment to the court which passed the
decree or made the order.”

8. An application for review would lie inter alia when the order suffers from an error
apparent on the face of the record and permitting the same to continue would lead to failure
of justice. In Rajendra Kumar v. Rambai [AIR 2003 SC 2095], this Court held :
“The limitations on exercise of the power of review are well settled. The first and foremost
requirement of entertaining a review petition is that the order, review of which is sought,
suffers from any error apparent on the face of the order and permitting the order to stand will
lead to failure of justice. In the absence of any such error, finality attached to the
judgment/order cannot be disturbed.

10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own
order. A re-hearing of the matter is impermissible in law. It constitutes an exception to the
general rule that once a judgment is signed or pronounced, it should not be altered. It is also
trite that exercise of inherent jurisdiction is not invoked for reviewing any order. “

Mr. Mukherjee further submitted that the Hon’ble Supreme Court in the case

of Badri Prasad Vs. Director of Consolidation Ors. (1978) 3 SCC 527 has held

that a strong presumption of marriage arises in cases where a man and a woman

has been living together for many years. But in my view there is no credible evidence

on record in the instant case to prove that the petitioner has been living with the late

Gakul Prasad Singh for many years as husband and wife. Living with a person is not

a proof of marriage as it has to proof on evidence on proper term the marriage could

not be proved on evidence due to misleading statement of Meera Singh about

solemnization of marriage in a temple in Uttar Pradesh.

So, readily it cannot be said that the objector Raj Kumari Singh had a burden

of proof to disprove the existence of marriage between the petitioner and late Gakul

Prasad Singh because according to her, her father never married Meera Singh.

In the case of Tulsa Others vs. Durghatiya Ors. (2008) 4 SCC 520,

Hon’ble Apex Court held that the act of marriage can be presumed from the common

course of natural events and the conduct of parties as they are borne out by the

facts of a particular case but simply based on the exhibited documents being

Passport, Voter Identity Card and Ration Card it cannot be held that she was the

wife of late Gakul Prasad Singh.

I would like to refer to a decision in case of D. Velusamy vs. D.

Patchaiammal reported in (2010) 10 SCC 469 wherein the Hon’ble Apex Court has

observed about relationship in the nature of marriage with the following observation

reproduced here under-

“33. In our opinion a `relationship in the nature of marriage’ is akin to a common law
marriage. Common law marriages require that although not being formally married :-

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being
unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin
to spouses for a significant period of time”

.

In the context of the discussion above and the observations in the cited

decisions of the Hon’ble Supreme Court, I am of the view that although the judgment

under review should not be recalled because it would amount to sitting in appeal or

in revision of its own judgment and order, nevertheless, by giving an anxious

consideration with the facts and circumstances, the question whether the review

petitioner and late Gokul Prasad Singh the father of the objector had lived together

for a reasonable long period of time in a relationship in the nature of marriage is

essentially to be decided in this case by full fledged hearing on evidence of issue on

the basis of the evidence of the neighbours in the society of the place, they hailed
from since such relationship claimed by the review petitioner with late Gokul Prasad

Singh are essentially required to be proved by evidence because if a man has a ‘keep’

whom he uses mainly for sexual purpose or as a domestic help/ maid servant it

cannot be a relationship in the nature of marriage.

For the reasons stated above, the judgment of the Trial Court cannot be

sustained and restored rather it has to be set aside and accordingly, I remit back the

case to the learned Court below to decide the issue of relationship in the nature of

marriage between the review petitioner and the late Gokul Prasad Singh, the father

of the objector Raj Kumari Singh (now deceased) for decision afresh in accordance

with law in the light of the observation made herein above.

Accordingly, the review petition in R.V.W. 274 of 2016 with CAN 8004 of 2016

arising out of judgment passed in C.O. 3783 of 2014, is decided and disposed of.

Certified website copies of this judgment, if applied for, be urgently made

available to the parties, subject to compliance with all requisite formalities.

(SHIVAKANT PRASAD, J.)

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