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Sanjib Sarma vs Smti Babita Sarma on 18 February, 2020

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GAHC010014112013

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Rev.P. 493/2013

1:SANJIB SARMA
S/O LT. RANJIT KR. PAUL R/O BELTOLA TRINAYAN NAGAR, HOUSE NO.
111, P.S- BASISTHA, GHY-29, DIST. KAMRUP M, ASSAM.

VERSUS

1:SMTI BABITA SARMA
D/O MANORANJAN SARMA R/O NEAR BHAGADUTTAPUR P.S.,
KAHILIPARA, GHY-19, P.S. BHAGADUTTAPUR DISPUR, DIST. KAMRUP M,
ASSAM.

Advocate for the Petitioner : MRT BORA

Advocate for the Respondent : MR.S RAHMAN

BEFORE
HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN

Date : 18-02-2020

JUDGEMENT AND ORDER (CAV)

Heard Mr. A. Upadhyay, learned counsel for the petitioner and Mrs. K. Deka, learned
counsel for the respondent.

2. The petitioner preferred the present criminal revision petition before this Court
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challenging the legality and validity of the impugned judgment and order dated 11.12.2013
passed by the learned Add. Sessions Judge (FTC) No.3, Kamrup, Guwahati in Criminal Appeal
No. 83 of 2013 arising out of the judgment and order dated 01.04.2013 passed by the

learned Chief Judicial Magistrate, Kamrup, Guwahati in Misc. Case No. 116 M/2013 providing
the protection under Section 18/19/20(2) of the Protection of Women from the Domestic
Violence Act, 2005.

3. The respondent remarried the petitioner in 2007 without disclosing her earlier
marriage with one Pulin Kumar Das, son of Pratap Ch. Das of Kahilipara, Guwahati -1. After
solemnization of marriage, the petitioner came to know that she had a living spouse at a time
of marriage with him. The respondent filed the various case including the aforesaid Misc.
case seeking the monetary and residential relief under the provision of D.V. Act, 2005. The
petitioner appeared and filed his written statement before the Chief Judicial Magistrate,
Kamrup. The petitioner took various pleas in his written statement including the plea that the
respondent had a living spouse at the time of remarriage with the petitioner. The allegation
of concealment of earlier marriage by the respondent was not denied by the respondent by
filing any objection. In order to prove earlier marriage of the respondent with said Pulin
Kumar Das, the documents of divorce proceeding initiated by the respondent in the Family
Court, Kamrup was brought on record of the said case. The respondent admitted, in her
cross examination, having filed the divorce petition against the said Pulin Kumar Das but
stated that it was marriage by agreement, hence, not valid. After recording of evidence of
both parties, learned trial court passed the judgment and order providing the monthly
maintenance of Rs.5,000/- and also a room for her accommodation premises Rs.10,000/- as
compensation vide the judgment and order dated 1.4.2013. The learned trial court passed
the judgment without deciding the validity of earlier marriage and held that even if earlier
marriage is proved the petitioner has got domestic relationship with the respondent. Being
aggrieved by the aforesaid judgment, the petitioner preferred an appeal before the learned
Addl. Sessions Judge vide Criminal Appeal No.83/2013. By the judgment and order dated
11.12.2013, the learned appellate court upheld the judgment and order of the trial court.
Hence, this revision petition.
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4. The challenge made in this petition is that the learned trial court has failed to
understand the legal proposition of law that an already married woman cannot have a
domestic relationship with another person to whom she subsequently married and as such
the subsequent marriage of woman is itself void (ipso jury) and she cannot claim to have any
domestic relationship to claim any relief under the Domestic Violence Act. The findings of the
both the courts below that the earlier marriage was an agreement marriage, is without any
basis and proof whereas the documents filed by the respondent itself belied her case. Hence,
it is prayed that the findings arrived at by the courts below is liable to be quashed and set
aside.

5. The learned counsel for the petitioner/husband has vehemently argued that the
respondent/wife entered into the marriage with the present petitioner by suppressing the
facts of her earlier marriage with one Pulin Kumar Das and remarried the petitioner in the
year 2007 and he was totally unaware about such subsisting marriage of the respondent.
After such revealment of earlier marriage of the respondent, such a marriage with the
petitioner is void ab initio.

6. By referring to the evidence adduced by both the parties as well as the documents as
has been referred above the learned counsel for the petitioner, has pointed out that the
respondent /wife has admitted her earlier marriage with said Pulin Kumar Das and also the
document, that she preferred an application for divorce with said Pulin Kumar Das before the
Family Court, Kamrup and subsequently, same was withdrawn on the ground of settlement.

7. The learned counsel for the respondent/wife has, however, contended that as the
present petitioner and the respondent resided under same roof after such marriage, they are
under the domestic relationship u/s 2(f) of the Protection of Woman of Domestic Violence Act
and it is contended that there was no valid and subsisting marriage at the time she married
the petitioner and earlier marriage was only an agreement marriage. It has now been
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pointed out that the learned trial court has already appreciated the aforesaid aspect after
appreciating the evidence on record and there being no illegality in the order of the trial court
as well as the appellate court, hence, same cannot be interfered with. The definition of
‘domestic relationship’ has been narrated and has contended that relationship between the
parties in this case come within the purview of domestic relationship as they lived together in
shared households.

8. I have considered the rival submission of both the parties and gone through the
pleadings and documents annexed as well as evidence of both the parties rendered before
the trial court. It is a settled law that the revisional court has limited jurisdiction to interfere
with the findings of the court below and unless some illegality or irregularity is made out in
the impugned judgment, revisional court should not interfered into such judgment which is
based on evidence on record.

9. Now, in the instant case, a short question of law falls for consideration before this
Court as to whether the respondent/wife is entitled to any relief under the Domestic Violence
Act in view of her earlier subsisting marriage?

10. On due appreciation of the materials on record, it reflects that both the courts below
gone by the definition of the ‘domestic relationship’ as well as the ‘shared households’ defined
under the Act and has come into the findings that as both the parties lived in a domestic
relationship in a share household either as legally married husband and wife or in a
relationship akin to that of a married couple, the wife is entitled to the relief as sought for. So
far as to the contention raised by the petitioner about legality of the marriage between the
parties, the court has arrived at the findings that in view of the denial of the respondent/wife
that there was no valid marriage between her and Pulin Ch. Das and the order passed by the
learned Family Court does not specifically speak about any such valid marriage, so such an
earlier marriage (which is not a valid one) cannot debar the wife to get appropriate relief
under the Domestic Violence Act.
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11. The learned appellate court laid the following points for determination:

(i) Whether the relationship between the respondent and appellant can be said to be
domestic relationship of 2(f) of the Protection of Women from Domestic Violence Act, 2005 in
the light of the evidence brought before the trial court with regards to the allegation of there
being an already subsisting marriage of the respondent with some other person?

(ii) Whether the allegation of appellant having committed domestic violence against the
appellant could be proved?

12. While answering to the above point, the learned appellate court by relying on a
decision of D. Velusamy vs. D. Patchaiammal , 2010 (10) SCC 469 came to a finding that as
the petitioner has validly solemnized marriage with the respondent and they are in
relationship in the nature of marriage and also by taking note of the denial of the
respondent/wife that there was only an agreement for marriage between her and Pulin Ch.
Das, has held that there was no valid/subsisting marriage between them. The appellate
court further held that there is nothing on record to show that marriage between the
respondent and Pulin Ch. Das was solemnized in a legally valid manner and the order of
allowing the withdrawal of divorce case, cannot be treated as a finding of a court of law as to
the validity of said marriage.

13. Hammering upon such findings of the learned appellate court, learned counsel for the
petitioner has urged before this Court that the learned appellate court has totally failed to
appreciate that aspect in proper perspective of law as well as facts. It has been pointed out
that respondent /wife never disclosed her earlier marriage at the time of filing her petition
before the trial court and it was only on the contention raised by the petitioner in his written
statement, she has admitted such marriage, in her cross-examination, raising the plea that it
was an only agreement marriage. The facts remains that respondent/wife never replied
specifically to the contention raised in the written statement neither she produce such
marriage agreement nor adduced any witness to prove that earlier marriage was solemnized
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by way of agreement and hence, such findings of the appellate court, is perverse as the
learned appellate court has failed to appreciate the Exhibit-1 (the divorce petition) filed before
the learned Family Court. One cannot deny the content of a document filed before the Court
of law by different explanation.

14. In the present case in hand, the petitioner confronted the respondent/wife with the
documents, she filed before the learned Family Court vide Exhibit -1 and Exhibit-2 and Exhibit
– 3 and she admitted about filing of the same. The Exhibit.1 is the divorce petition being F.C.
(C) Case No. 311/2004 filed by the respondent/wife as on 14.10.2004 for dissolution of
marriage with the said Pulin Kr. Das. In the said divorce petition, she has specifically stated
as below:

i) That the marriage between the petitioner and opp. Parties was solemnized as required
institution of Hindu Marriage and Conduct.

ii) That as per Rule of Law, the said marriage was registered due to validity in nature by dated

12th May/2003 (Registered Deed No.)

iii) It is submitted that both the parties since the date of their ritual marriage have been
passing their conjugality with their proper co-habitation in the matrimonial home upto June,
2004.

iv)……

v) ……

vi) It is submitted that opposite party has eyed over the petitioner with cruelty since her
marriage by demanding harpy sum of dowry money out of petitioner’s parents. These
demands have been submitted every month before the petitioner and owning to this the
petitioner has been suffering, victimizes by opposite party which acted physically and harass
mentally till date.

vii)………..

viii)………..
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ix) ………..

…………….

……14. It is, therefore, prayed to pass an order of divorce under Section 13 of the Hindu
Marriage Act with compensation of Rs.6 Lakhs.

She also filed an affidavit in support of the petition. Again on 9.12.2004, she filed a
petition before the Family Court, Kamrup vide petition No. 1853/2004, Exhibit – 2 contending

that as the dispute between the 1 st party and the 2nd party has been mutually settled outside

the court, and hence, 1 st party is not willing to proceed with the case. Hence, prayed to
withdraw the case.

15. On the basis of said petition, learned Family court vide Exihibit.3 passed the order
dated 9.12.2004, which reads as follows:

“Parties are present.

Seen Petition Nop. 1853/04 filed by petitioner Smt. Babita Sharma to
allow her to withdraw the petition stating that she and her husband mutually
settled their dispute and directed to live together. The prayer is allowed.

On reunion of the parties, the case is disposed in final form.”

16. The aforesaid admitted documents by the respondent/wife reveals that they
solemnized their marriage as per Hindu Marriage Laws and also registered their marriage and
thereafter, they cohabitated as husband and wife and also at the time of filing such divorce
petition, she never reveals that it was only an agreement marriage. The learned Family Court
in its final order held that there was reunion between the parties and no divorce was affected
between the duo. Such a finding has already attained its finality and that being so, the
respondent/wife cannot be permitted to raise a different plea that earlier marriage was only
an agreement marriage.

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17. In this context, the decision rendered in M.N. Malhotra vs. Union of India and others
reported in 2005(8) SCC 351, can be referred into wherein it has been held as below:

“10. For appreciating the status of a Hindu woman marrying a Hindu male with a living
spouse some of the provisions of the Hindu Marriage Act. 1955 (hereinafter referred to as the
`Marriage Act’) have to be examined. Section 11 of the Marriage Act declares such a marriage
as null and void in the following terms:

11. Void marriages. – Any marriage solemnized 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″.

Clause (i) of Section 5 lays down, for a lawful marriage, the necessary condition that neither
party should have a spouse living at the time of the marriage. A marriage in contravention of
this condition, therefore, is null and void. By reason of the overriding effect of the Marriage
Act as mentioned in section 4, no aid can be taken of the earlier Hindu law or any custom or
usage as a part of that law inconsistent with any provision of the Act. So far as Section 12 is
concerned, it is confined to other categories of marriages and is not applicable to one
solemnised in violation of Section 5(i) of the Act. Sub-section (2) of Section 12 puts further
restrictions on such a right. The cases covered by this section are not void ab initio, and unless
all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to
avoid it, the same continues to be effective. The marriages covered by Section 11 are void
ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at
all if and when such a question arises.”

18. Further, the respondent herein cannot deny the findings of the competent court as well
as her own pleadings denying her earlier marriage as the same has already attained its
finality. Hon’ble Supreme Court, in a similar situation, in the case of State of State of
Maharashtra vs. Ramdas Shrinivas Nayak and another, ( 1982) 2 SCC 463 (para-4) has
held that statement of fact as to what transpired at the time of hearing, recorded in the
judgment of court, are conclusive of facts so stated and no one can contradict such
statement by affidavit or other evidence. If a party thinks that the happenings in court have
been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still
fresh in the minds of the judges, to call the attention of the very judges who have made the
record to the fact that the statement made with regard to his conduct was a statement that
had been made in error. That is the only way to have the record corrected. If no such step is
taken, the matter must necessarily end there. Of course, a party may resile and an appellate
court may permit him in rare and appropriate cases to resile from a concession on the ground
that the concession was made on a wrong appreciation of the law and had led to gross
injustice; but, he may not call in question the very fact of making the concession as recorded
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in the judgment.

19. The learned counsel for the respondent although made a submission that in fact the
respondent/wife intended to challenge the validity of the marriage in the divorce petition as
the same was not well drafted by the engaged counsel, so the same cannot be utilized by the
petitioner, but such a piece of argument has no substance there being no contrary findings in
this regard apart from the admitted documents (referred above). Moreover, there is nothing
to show that the respondent/wife is an illiterate person and unaware about the content of
those documents.

20. From this crucial aspect that the respondent/wife entered into second marriage with
the present petitioner while subsisting her earlier marriage with that Pulin Kr. Das, her
subsequent marriage with the present petitioner is null and void in terms of Section 11 of the
Hindu Marriage Act and in violation of Section 5(1) of the Hindu Marriage Act. In terms of
the decision in M.N. Malhotra (supra), such a marriage has to be ignored as not existing in
law. This Court in Crl. Rev. Pet. No. 51/2013, disposed of on 06.06.2013, also held that during
subsistence of earlier marriage and there being no order of competent jurisdiction for
dissolution of marriage, the legitimacy of subsequent marriage cannot be assumed and wife
cannot claim to have domestic relationship with the second husband to claim maintenance
and other relief(s) as she can never be legally married wife of the petitioner/husband.

21. The High Court in its revisional jurisdiction can examine the records and /or order of an
inferior Court for the purpose of satisfying itself to the legality/regularity and correctness of
the findings and it can reverse the finding only when it reaches the conclusion that the
finding of the trial Court is perverse. As a broad proposition the Court can invoke the
revisional jurisdiction, where the decision is grossly erroneous and there is no compliance of
provision of law and when the judicial discretion is exercised arbitrarily.

22. Now, in the present case, a vital legal proposition has not been appreciated by the
appellate authority while upholding the order of the trial Court, which has vitiated the entire
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findings and the same has resulted in gross illegality in the decision rendered, necessitating
interference by the revisional Court. The respondent/wife, whose earlier marriage was not
dissolved on the face of her own document, cannot be permitted to handle and twist the law
and the facts at her own whims, by suppressing the genesis of facts.

23. In the given facts and circumstances and in the legal proposition enunciated above,
this Court is of considered opinion that the respondent/wife is not entitled to get any relief
under the D V Act, 2005.

24. For the reasons and discussions made above, the criminal revision petition succeeds
and impugned order of the appellate Court is hereby quashed and set aside.

JUDGE

Comparing Assistant

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