RSA No.2378 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.2378 of 2009 DATE OF DECISION: 10.3.2010 **** Kishan Chand . . . . Appellant VS. Smt. Jaidevi and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.D.S. Bali, Sr. Advocate with Mr.Salil Bali, Advocate for the appellant. **** RAKESH KUMAR JAIN J. Defendant is in second appeal against the judgment and decree of both the Courts below whereby, suit of the plaintiff for declaration has been decreed by the learned trial Court to the effect that she is the wife of the defendant and plaintiffs No. 3 & 4 are his daughter and son, with a further relief that plaintiffs No.1, 3 & 4 shall have a charge of maintenance over the house in question and defendant is also restrained from alienating it or dispossessing the plaintiffs from it except in due course of law. Briefly put, the case set up by the plaintiff No.1 is that she is his wife of defendant No.1 and plaintiffs No.2 and 3 are his daughters. Defendant is a drunkard and gambler, who used to squander away his salary for these purposes and whenever objected to by plaintiff No.1, she was used to be beaten. It is alleged that for the RSA No.2378 of 2009 -2- last few years, defendant had stopped maintaining the plaintiffs for which a Panchayat was convened but despite that no amount of maintenance was given, which led to the filing of a petition under Section 125 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) against defendant. It is further alleged that plaintiffs are living in house No.246, Patel Nagar, Hisar, which is the only abode for them over which they have charge under Section 18 and 19 of the Hindu Adoption and maintenance Act, 1956 (for short ‘the Act’) and Section 39 of the Transfer of Property Act, 1882 (for short ‘T.P. Act’). It was further submitted by the plaintiffs that since defendant wanted to alienate the house in question by forcibly dispossessing them, therefore, suit has been filed. In reply, defendant had alleged that plaintiff No.1 was married to one Ram Baksh s/o Ganesh Dass, R/o Village Mingni Khera, Tehsil and District Hisar and Plaintiffs No.2 to 4 were born out of their wedlock. Ram Baksh husband of plaintiff No.1 had expired on 12.4.1990. Prior to her marriage with Ram Baksh, she was married to Bhagwan Dass s/o Kalu Ram R/o Gandhi Nagar, Hisar and gave birth to a female child on 20.10.1974. Plaintiff No.1 was also married to one Radhey Sham s/o Khandu Ram, Caste Arora r/o Bhiwani in the year 1971 before her marriage to Bhagwan Dass s/o Kalu Ram R/o Gandhi Nagar, Hisar. It was also alleged that defendant was married to some other lady, who expired in the year 1987 and after her death, plaintiff No.1 had worked as a domestic help for cooking food etc. on monthly payment and left his house after some years. As a matter of fact, the marriage was denied and allegation was made against plaintiff No.1 that she is in the habit of indulging in nefarious activities by RSA No.2378 of 2009 -3- involving persons to grab their property by making wild allegations of marriage as alleged in the suit. On the pleadings of the parties, issues were framed on 12.2.1999 and after taking both oral as well as documentary evidence, the trial Court decided issue No.1 partly in favour of the plaintiff and issues No.2 to 4 in favour of the plaintiffs and against defendant and decreed the suit partly vide its judgment and decree dated 30.9.2005. In the First Appellate Court, defendant had opened the entire evidence once against for the purpose of re-appreciation, which was taken into consideration and after a detailed discussion the appeal has been dismissed and the judgment and decree of the learned trial Court has been upheld. Learned First Appellate Court has found from the birth certificates (Ex.PW3/2 and Ex.PW3/3) that a male child was born on 23.8.1985 and a female child was born on 5.7.1988 and father’s name of these children is mentioned as Kishan Chand (defendant) and mother’s name is mentioned as Jai Devi (Plaintiff No.1). Ration card (Ex.P1) shows the name of defendant as the husband and plaintiff No.1 as the wife whereas, Anju, Naveen and Manju as their children. Plaintiffs have also examined Saroj Bala as PW3, who has proved nomination form Ex.P4 filed by the defendant in which plaintiff No.1 is shown as his wife, plaintiff–Naveen as his son and Leena as his daughter. As per the said nomination form, nominees were held entitled to receive share to the extent of 1/3rd each. The form was filled in the year 1986. At that time, only Naveen was born as Manju was born in the year 1988. The defendant had also filled nomination in favour of his daughter Leena, who was born out of his earlier marriage. The learned Court below has also taken care of the arguments raised by the defendant that at the time of his alleged RSA No.2378 of 2009 -4- marriage with plaintiff No.1, his wife was alive, who had died in the year 1987, therefore, it could not have been held to be a valid marriage. The Court had found that the defendant has failed to lead evidence much less death certificate of his wife to show that she had died in the year 1987. It was upheld that had the wife of the defendant died in the year 1987 then he would have definitely mentioned her as nominee in the nomination form Ex.P4. It was also held that where the parties live together for a long period as husband and wife there is a presumption in favour of the legal wedlock. The Court below had relied upon various decisions in this respect. The learned Court below has also observed that there were two children born to plaintiff No.1 from Ram Baksh, namely, Anju and Sundari. Sundari was given to Kako Bai wife of Ram Baksh. Thus, it was held by the learned Court below that Anju though is the daughter of plaintiff No.1 but was not born out of the wedlock of plaintiff No.1 with the defendant. From the birth certificates (Ex.PW3/2 and PW3/3), it was held that plaintiffs-Naveen and Manju, were born out of the wedlock of plaintiff No.1 with defendant. Thus, keeping in view the documentary evidence on record, learned Courts below gave a concurrent finding of fact in favour of the plaintiffs and decreed the suit. In the present appeal, only argument raised by the counsel for the appellant is that in the suit, plaintiff No.1 had alleged that defendant is the father of Anju, Manju and Naveen out of which Anju is not found to be daughter of defendant by both the Courts below. Therefore, a suit in toto should have been dismissed. It is also submitted that in the absence of performance of Sapt-padi and other rituals, there is no valid marriage of the plaintiff No.1 with defendant. RSA No.2378 of 2009 -5- I have heard learned counsel for the appellant in detail and have perused the available record. Insofar as the first argument is concerned, the learned Courts below have given a categoric finding that she had two daughters from Ram Baksh (previous husband), namely, Anju and Sundari, out of whom Sundari was given to Kako Bai wife of Ram Baksh. Meaning thereby, Anju stayed back with plaintiff. She became the mother of Anju and other children, namely, Manju and Naveen, who were born out of the wedlock of defendant. Her allegation is that Anju is also a daughter of Kishan Chand, which do not disentitle her to claim a declaration that she is the wife of Kishan Chand and other two children are from the loins of the defendant. In my view, the findings recorded by both the Courts below in this regad does not want any interference nor it is a substantial question of law. Insofar as the second argument is concerned that there is no evidence of Sapt-padi and rituals for the purpose holding the marriage to be legal, the Courts below relied upon various judgments titled as “Tulsa and others Versus Durghatiya and others” 2008(1) RAJ 316, “Mai Singh and another Versus Ram Kaur” AIR 1973 Punjab & Haryana 124, “Badri Prasad Versus Dy. Director of Consolidation and others” AIR 1978 SC 1557, “S.Yellamma & others Versus S.Anjaneyulu and another” 2004(1) LJR 41, to hold that that if two persons are living together for a considerable long time then the presumption is that they are married. This presumption, of course, is rebuttable be but there is no evidence led by the appellant in this regard rather documentary evidence available on record proves to the contrary because in the birth certificates of the children (Ex.PW3/2 & PW3/3) the defendant is recorded as their father and plaintiff No.1 is recorded as the mother. RSA No.2378 of 2009 -6- Similarly in the nomination form (Ex.P4), the plaintiff No.1 has been nominated along with the son. Thus, from the preponderance of the evidence, learned Courts below have decided that the plaintiff No.1 is the wife of defendant and plaintiffs No.3 and 4 are the daughter and son of the defendant. Thus, in my opinion, it is a case where a pure finding of fact has been recorded by both the Courts below in which no question of law much less substantial is involved. Hence, the present appeal is dismissed, in limine, though, without any order as to costs. (RAKESH KUMAR JAIN) March 10, 2010 JUDGE vivek