Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 25 of 2008 Madhu Bala and another. …………Appellants. Versus Smt. Pushpa Devi and others. …….Respondents. Present: Mr. Siddharath Singh, Advocate for the appellants. Mr. Jitendra Chaudhary, Advocate for respondents. Coram: Hon’ble B.C. Kandpal, J Hon’ble Nirmal Yadav, J. (Per Nirmal Yadav, J) Present appeal has been filed by Smt. Madhu Bala and her son Lalit Mohan against the judgment and decree dated 17. 03.2008 passed by Principal Judge, Family Court, Dehradun vide which suit filed by Smt. Puspha Devi, who is also wife of Ganesh Chandra, has been decreed. The facts, in brief, are that marriage between Madhu Bala and Ganesh Chandra was performed on 19.11.1976. However, Ganesh Chandra sought a decree of divorce for dissolution of his marriage vide petition no. 324 of 1981. The petition was decreed ex parte on 23.03.1982. Thereafter, Ganesh Chandra married with Puspha Devi, respondent no. 1. The marriage was performed in Pushpa Devi’s village in a simple ceremony, as per Hindu rites and custom, and it was registered before the Registrar, Marriage, Dehradun on 02.07.1982. It is stated that the relation between Ganesh Chandra and Pushpa Devi was 2 normal and comfortable for some time but after sometime Madhu Bala also started living with Ganesh Chandra in the matrimonial home. Thus, behaviour of Ganesh Chandra totally changed towards Pushpa Devi. He treated her with cruelty and neglected her. He tried to throw her away from the matrimonial home but on the intervention of her father, she was allowed to live therein. Ganesh Chandra, thereafter, filed suit bearing no. 11 of 1987 titled as Ganesh Chandra Vs. Pushpa Devi in the court of District Judge, Dehradun for the annulment of marriage between him and Pushpa Devi on the ground that his marriage with Madhu Bala was subsisting, at the time when his marriage was solemnized with Pushpa Devi. According to Puspha Devi, she was never informed about the contents of the suit however, a copy of the same was received by her, which she handed over to her father- in-law. She had full confidence in her father-in-law. She always considered that her father-in-law is her well- wisher as he got Mr. D.P. Bijalwan, Advocate engaged to pursue the matter in the court. The said Advocate got her signature on the vakalatnama. She was informed by her Advocate that Ganesh Chandra had filed a suit on the ground that he was already married with Madhu Bala and his marriage with Madhu Bala was still subsisted when he got married to Pushpa Devi, therefore, his marriage with Puspha Devi be declared as null and void. Ganesh Chandra as well as all the family members made Pushpa Devi believe that she was the second wife of Ganesh Chandra and her marriage was void, as his first marriage was subsisting when she got married to Ganesh Chandra. 3 On 16.10.1990, Pushpa Devi received a registered notice from court, thereupon, she consulted her advocate Mr. D.P. Bijalwan, who informed her that the notice was with regard to her eviction from the house of Ganesh Chandra. He also informed her that she should take all the papers from him and consult some other advocate as there were many complications in the matter. Therefore, on 07.09.1991 she obtained all the papers from Mr. D.P. Bijalwan and consulted some other Advocates namely Mr. Naresh Saxena and Mr. Jitendra Kumar. They inspected the record of suit no. 11 of 1987 and found that her marriage with Ganesh Chandra had been declared as null and void vide decree dated 05.07.1988. Her advocates during the inspection also discovered that Ganesh Chandra had obtained decree of divorce dated 23.03.1982 in petition no. 324 of 1981 vide which marriage between Ganesh Chandra and Madhu Bala had been dissolved. The certified copy of the said decree was obtained by her advocates on 16.09.1991. At that point of time only, Puspha Devi came to know that her marriage with Ganesh Chandra was legal and valid as the same was performed after the marriage between Ganesh Chandra and Madhu Bala had been dissolved. She also came to know that Ganesh Chandra had not disclosed this fact in his pleadings of suit no. 11 of 1987. Thus, he committed fraud upon the court by concealing the material fact that his marriage with Madhu Bala was not in existence, at the time of marriage between him and Pushpa Devi. After acquiring the knowledge of correct facts respondent Pushpa Devi filed present suit on 14.10.1991 for declaring the decree dated 05.07.1988 as null and void. 4 Ganesh Chandra expired on 18.10.1995 during the pendency of the suit. The suit was amended after the death of Ganesh Chandra. Puspha Devi impleaded all legal heirs of Ganesh Chandra as party in the suit. However, Rajeshwari Devi, mother of Ganesh Chandra also died on 27.07.1998. Initially, the suit was contested by Ganesh Chandra, who admitted that Pushpa Devi was resident of Pauri Garhwal. He also admitted that he filed suit no. 11 of 1987 and the same was decreed. He also stated that notice of said suit was duly served on Pushpa Devi but she did not contest the said suit, though she was having full knowledge of all the facts of the case. However, he did not deny that he had not mentioned in the pleading of suit no. 11 of 1987 with regard to his divorce with Madhu Bala. Appellant Madhu Bala also submitted written statement wherein she admitted that her marriage with Ganesh Chandra was dissolved vide ex parte decree dated 23.03.1982, but the said decree has been set aside in appeal, thus she is legally wedded wife of Ganesh Chandra. It is also admitted that in the suit filed by Ganesh Chandra it is mentioned that his first wife was still alive, however, plaintiff Pushpa Devi did not contest the suit and same was decreed ex parte. She further submitted Pushpa Devi did not file any case against Mr. D.P. Bijalwan on the ground that he had committed fraud or kept her (Puspha Devi) in the dark. On the basis of the pleadings of the parties the court below framed following issues: 5 i. Whether decree dated 05.07.1988 passed in suit no. 11 of 1987 (Ganesh Vs. Pushpa Devi) was obtained by deception, if so it’s effect? ii. Whether the suit is under-valued and the proper court fee has not been paid? iii. Whether the suit barred by limitation? iv. Whether this court has no jurisdiction to entertain the suit? v. Relief. In order to prove it’s case, Puspha Devi herself appeared as PW1 and submitted some documents. On the other hand, Madhu Bala appeared as DW1, who submitted some photographs and documents in order to prove that she has been the legally wedded wife of Ganesh Chandra. The trial court after taking into consideration the facts and circumstances of the case and evidence available on record, decided all the issues in favour of the plaintiff/ respondent no. 1 and decreed the suit. The court below while decreeing the suit has held that Ganesh Chandra had obtained the decree dated 05.07.1988 in Civil Suit No. 11 of 1987 by concealing the true facts from the court. Since aggrieved the appellants /defendants Madhu Bala and her son Lalit Mohan have challenged the decree. The challenge to the judgment is two fold. The first argument of the learned counsel for the appellants is that the court below i.e. Family Court has no jurisdiction to set aside the decree passed in another suit. By referring to the provision of section 7 of the Family Courts Act, 1984, it is 6 argued that this is not a suit for decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage nor it is a suit for a declaration of validity of marriage or any other proceeding as provided in sub Clause ‘a’ to ‘g’ of Explanation referred to Section 7 of the Family Courts Act, 1984. The argument of the learned counsel for the appellants is totally misconceived. Admittedly suit no. 11 of 1987 was filed before the court of Civil Judge, Dehradun, but it was transferred to Family Court, after the family court was established at Dehradun. The jurisdiction of family court is specified under section 7 of the Family Courts Act, 1984. Section 7 of the family Courts Act, 1984 is reproduced below : - “7 Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall- (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. 7 Explanation: The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise- (a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order 8 for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment Sub clause ‘a’ of sub section (1) of section 7 of the Act says that Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. Clause ‘a’ to the Explanation provides that a suit or proceeding between the parties to a marriage for a decree of nullity of marriage. Clause ‘b’ to the explanation provides that a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person. A perusal of above provisions, it is clear that the Family Court can exercise its jurisdiction to try a suit or proceedings between the parties to a marriage for a decree of nullity of marriage and also a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person. Here, in the present case the plaintiff Pushpa Devi filed a suit for declaration of her matrimonial status by setting aside the ex parte decree, which was obtained by Ganesh Chandra by playing fraud on the court as well as on her. Clause ‘a’ and ‘b’ of the explanation of sub section (1) Section 7 of the Family Courts Act, 1984 clearly confers jurisdiction on Family courts in such matters. 9 The second argument of learned counsel for the appellants is with regard to the limitation. Learned counsel for the appellants argued that plaintiff in her pleadings stated that notice in the suit was served upon her on 27.07.1987 and she also engaged the advocate. Thus, she had sufficient knowledge from the said date that Ganesh Chandra had filed suit for dissolution of marriage on the ground that his marriage with Madhu Bala was still subsisted at the time of his marriage with Pushpa Devi. He further argued that plea of the plaintiff Pushpa Devi that she had authorized her father-in-law for contesting the case, cannot be accepted as there is no authorization letter on record. She herself had signed vakalatnama in favour of Mr. D.P. Bijalwan. Even in her pleadings she clearly stated that she was under the impression that marriage of her husband and Madhu Bala still subsisted at the time of her (Pushpa Devi’s) marriage with Ganesh Chandra, therefore, she did not contest the suit. Learned counsel for the appellants also argued that even if any order or decree is void or voidable the same has to set aside by filing appropriate proceeding within the period of limitation as provided under the Limitation Act. In support of his argument, he referred to the judgment of Apex Court passed in the case of M. Meenakshi and others Vs. Metadin Agarwal and others reported in 2006 (7) SCC 470. He further argued that plaintiff Puspha Devi should have challenged the said decree well within time i.e. within three years from the date of her knowledge. He pointed out that the decree was passed on 05.07.1988 whereas notice was served upon her 10 (Puspha Devi) on 27.07.1987 which clearly shows she had knowledge regarding the filing of suit in the month of July, 1987 but she did not contest the suit. She filed present suit for setting aside the decree dated 05.07.1988 on 15.10.1991. Thus, the suit is hopelessly barred by limitation i.e. beyond three years from the date of knowledge. Learned counsel for the appellants referred to the statement made by Pushpa Devi before the court wherein she has nowhere stated that her father-in-law in any way played fraud on her. She has simply stated that in good faith she had handed over the papers to her father-in-law. However, pleadings show that she herself contacted the lawyer and signed vakalatnama and thus, period of limitation would start from the date of her knowledge i.e. from 27.07.1987. On the other hand, learned counsel for the plaintiff respondent argued that plaintiff has clearly stated she was made to believe by Ganesh Chandra and all the family members that Madhu Bala was the first wife of Ganesh Chandra and their marriage was still subsisting. She had no knowledge about the decree of divorce dated 23.03.1982 thereby dissolving the marriage of Ganesh Chandra and Madhu Bala. She only came to know about the said decree when she contacted her lawyers Mr. Naresh Saxena and Mr. Jitendra Kumar, who inspected the entire record and told her that vide decree dated 23.03.1982 marriage between Ganesh Chandra and Madhu Bala had already been dissolved. 11 From the above facts on record, it is well proved that Ganesh Chandra had played fraud on court as well as on Pushpa Devi. He did not make any mention in his pleadings of suit no. 11 of 1987 that his marriage with Madhu Bala had already been dissolved on the date when he got married to Pushpa Devi. He obtained decree by concealing this fact from the court. In case, this fact had come to the knowledge of the court the decree dated 05.07.1988 would have never been passed. It is well established that any judgment or decree obtained by playing fraud on the court is nullity and non-est in the eyes of law. All such decrees passed by the court have to be treated as nullity by every court whether superior or inferior. The Apex Court in the case of S.P. Chengalvaraya Naidu Vs. Jagannath reported in AIR 1994 Supreme Court 853 observed as under: “The courts of law are meant for imparting justice between the parties. One who comes to the court must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” 12 The facts of the present case leave no doubt in any manner that Ganesh Chandra obtained decree dated 05.07.1988 by playing fraud on the court and respondent Pushpa Devi. Such act of deliberate deception with the design of securing something by taking unfair advantage of another is a fraud. Non production and even non mentioning of ex parte decree dated 23.03.1982 by which marriage of Ganesh Chandra and Madhu Bala was dissolved before civil court tantamounts to playing fraud on the court as well as on the other party. As Ganesh Chandra had withheld vital document in order to gain advantage, we are of the view that decree obtained by Ganesh Chandra by playing fraud on court is nullity and non-est in the eyes of law. With regard to the limitation, we are of the view that plaintiff respondent Puspha Devi acquired knowledge about the decree of divorce dated 23.03.1982 vide which Ganesh Chandra had obtained divorce from his first wife Madhu Bala only on 06.09.1991, when certified copy of the said decree was obtained from the court by her advocates. Mr. D.P. Bijalwan had handed over all the papers to her on 07.09.1991 and asked to consult some other advocate as there were many complications in her matter. Thereupon, she consulted advocates Mr. Naresh Saxena and Mr. Jitendra Kumar, who inspected the record of suit no. 11 of 1987. When further inquiries were made, her advocates obtained the certified copy of decree dated 23.03.1982 also. It has come on record that Puspha Devi is not highly educated. According to her, she could only read and write a little bit of Hindi. In these circumstances, it cannot be assumed that she had acquired knowledge of all the 13 facts after she was being served with notice in the civil suit no. 11 of 1987 filed by Ganesh Chandra. She has categorically stated that she handed over all the papers to her father-in-law believing that he was her well wisher but it appears that her father-in-law did not disclose all the facts to her. Ultimately, she acquired knowledge about the facts through her advocates Mr. Naresh Saxena and Mr. Jitendra Kumar only in the month of September, 1991. Thereafter, she filed suit within limitation i.e. on 14.10.1991. Accordingly, we do not find any ground to interfere with impugned judgment. We uphold the findings of the court below. Judgment and decree dated 17.03.2008 under challenge are hereby confirmed. The appeal is dismissed. (Nirmal Yadav, J.) (B.C. Kandpal, J) 30.03.2010 SKS