A.R^. ^'~: HIGH COURT OF CHHATnSSARH: BILASPUft SB: HON'BLE SHRI JU5TICE VIJAY KUMAR SHRiy/tSTAVA FIRST APPEAL N0. 270/2005 Appellant t3efendant Respondent Plaintiff Vs. S»nt.Siobha Parakh, a9ed 31 years, &/o. fetmal Ostwal, r/o. Near Ram Atondir, f&ndagaon, Tah: Kondgaon, Dist. Bastar (CS). Ajoy Kumar Parakh, aged 32 years, s/o. Ohanroj Parakh, r/o. Nandai Road, Satnami Para, Rajnandgaon, Toh. and Dis-t. Rajnondgaon, C.6. PRESENT: Shri Monoj Panmjape, counsel for the appellant. JUD6MENT (bated 27/01/2006) This appeal is directed against the jud9ment and decree dated 19.10.2005 passed by the First Additional Oistrict Judge Rajnandgaon, bist-Rajnandgaon in Civil Suit No.62-A/98 by which the suit for declaration of marria9e dated 12.11.1997 void, filed by •1+ie re^ondent has been allowed ond decreed. 2) Respondent filed a petition under Section 11 of -the Hindu Marriage Act, 1955 ^iencefor-Hi "the Act") for dectaring his marriage with the appellant on 12.11.1997 null and void on the ground •that when the appellant contacted marriage with hin>, her first mirrio.ye. was aibsisting. Set oparl', she was suffering from mental dis-order cind concealed the same while contacting marriage with the i^spondent. Appeltant denied the allegations leveled against her and pleaded that earlier die was married to Hemraj but before contacting marriage with the respondent, her marriage with Hemraj had been dissolved according to their- customs. 3) Both tiie parties adduced their evidence in aipport of ttieir case. Learned trial Court vide impugned judgment and decree, declared the murriage dated 12.11.1997 solemnized between the appellant and the respondent void holding that at the tirne of marriage Ihe appellant has her spouse Hemroj was alive. 4) Leamed counsel for the appellant contended that nlthough they hwe not pteaded that appellonfs marriage with Hemraj was void, but from the evidence on record it was proved that Hernraj had his spouse livmg when he contacted mnrriage with the appelhnt. 5) In civil matter it isincumbent on the party who prays for any retief on any specific fact, to plead the facts and thereafter to prove the same by evidence. Order XVIII of the Code of Civil Procedure clearly provides that the party on whom burden to prove ony issue ties. diall adduce evidence in support- of that issue. 1-tere in the instant case, appelkint has not pleaded that her inarriage with Hemraj was void on the ground that at the time of marriage Hemraj has a spouse living, therefore, neither she was entitled to adduce eyidence on these facts nor such evidence if tendered was admissible. 6) 5et apart.from perusal of record it is evident that no evidence is there to unveil that Hemraj when married to appellant had a spouse living or was le9ally morried with ony o'tiier wornan. Shobha Parakh, in her statement deposed •tha1_when she went to her marital home, she iF: -i:r found a woman quarretling with Hemraj saying that why he further contacted marria9e without appraising the fact that he was already married. This evidence does not lead to establish that t-temraj vws legally married with that woman or with any other woman. 7) Leamed counsel for the appelkint further contended that as per the caste custom, appellant took divorce with 1-lemraj before entering into marrioge wi-th the respondent on 12.11.1997. Admittedly, oippellant was married +o Heinraj and he was alive when the appelhnt contacted marriage wi+h the respondent on 12.11.1997. 8) Section 3(a) ond Section 29(2) of the Act reads as below: "3(a) :- the esyresswns "custom" and "usage" a'gnify any rule Hrfiicfi, having been continwwsly <yid uniformly observed for a hng time, has obtamed the force of law among 1-lindus n any local area, tribe. community, groiy or •twnify : Provided 1hat 1fie rule is cwtan and not unreasonable or opposed to public fiolicy: ancl Prcwided fwttier that in the case of a ruk applicable only to a famity it hae notbeen discontnued by 1he famify:'' "29(2) :- Noihing conlamed in this Act shall be deemed to ceffect <my right recagnized by custom or conferred by any ^jecial enactment to obtain the dissolulwn of a Hindu marricge. whelfier sokmnized before or after Ihe comnencement o-f this Act. " 9) From bare reading of these provisions, it is clear that if any party takes shelter of any right recognized by custom for dissolution of niarriage, it is necessary for him to plead and establidi custom and usage in accordance with the above provisions. Here in the instomt case, no custom or usnge as expressed in the above provision has been pleaded or proved. Therefore, learned Court below, after meticulous oppreciation of evidence, has correctly held that the appellant when en+ered into marriage with respondent on 12.11.1997, at that time, she had a ^>ouse living. Leamed trial Court rightly decbred the nwrriogs between the parties solemnized on 12.11.1997 null cmd void on the ground that the marrioge has been solemnized contravening the condition mentioned in Ctause (i) of Section 5 of the Act. 11) In the result, •Hie judgment and decree possed by -the trial Court does not suffer from any irreguhrity/ infirmity or illegality which requires interference by this Court. Therefore. the appeal is liabte to be dismissed and is accordingly dismissed in limine. padma In the light of above order, IA No.3444/2005 stnnds disposed of. Sd/- V.K.Shrivastava Judge