R.S.A. No.1205 of 1981 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1205 of 1981 Date of Decision: 9.3.2009 Smt. Daljit Kaur @ Tony .....Appellant Vs. Smt.Amarjit Kaur and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Harpreet Giani, Advocate for the appellant. Mr.Alok Jain, Advocate for respondent no.1. .... RAJIVE BHALLA, J The appellant challenges the judgement and decree dated 21.4.1981, passed by the Additional District Judge, Amritsar, reversing the judgement and decree dated 12.9.1978, passed by the Sub-Judge, 3rd Class, Amritsar. Amarjit Kaur, plaintiff-respondent no.1, filed a suit for possession of 17 kanals 6 marlas of land, situated in village Naranjanpur Fattuwal, Tehsil and Distt. Amritsar, on the pleading that she was married to one Mohinder Singh, who was serving in the Indian Army. On account of personal differences, they began living separately. Her husband passed away on 31.7.1974 leaving her as his only heir. Daljit Kaur defendant/appellant no.1 and Sukhbir Kaur defendant/appellant no.2 falsely allege that they are the widow and daughter respectively of Mohinder Singh. The suit was contested by the appellant no.1 and respondent no.2 R.S.A. No.1205 of 1981 2 (now transposed as appellant no.2), who filed a written response inter alia asserting that Daljit Kaur is the wife of the deceased, whereas the plaintiff/respondent no.1-Amarjit Kaur is the wife of one Gurdial Singh s/o Atma Singh of Batala, from whom she has begotten three children. In addition to the aforementioned plea, it was contended that in case the marriage between Amarjit Kaur and Mohinder Singh is proved, Mohinder Singh had divorced Amarjit Kaur before marrying appellant no.1. On the basis of the pleadings, the learned trial Court framed the following issues :- “1. Whether the plaintiff has locus standi to file the present suit ? OPP. 2. Whether the suit of the plaintiffs bad for non- joinder and mis-joinder of the parties ?OPD. 3. Whether the plaintiff is estopped by his act and conduct to file the present suit ? OPD. 4. Whether the plaintiff is widow of Mohinder Singh deceased ? OPP. 5. Whether Daljit Kaur defendant no.1 is the widow of Mohinder Singh deceased and defendant no.2 is the daughter of Mohinder Singh deceased ? OPD. 6. If issue no.4 is proved whether she was validly divorced by Mohinder Singh deceased ? OPD. 7. Relief.” Upon an appraisal of the pleadings, the evidence and the arguments addressed, the learned trial Court dismissed the suit by rejecting the testimony of Amarjit Kaur and her witnesses with respect to her R.S.A. No.1205 of 1981 3 marriage to Mohinder Singh. The trial Court took note of Amarjit Kaur's statement that though, she is the wife of Mohinder Singh, she is living with Gurdial Singh from whom she has three children and, therefore, negatived her claim as the widow of Mohinder Singh. The learned trial Court also placed reliance upon the document Ex.PW-4/1, which refers to Gurdial Singh as father of Amarjit Kaur's children, Ex.D-4 that refers to her as the wife of Gurdial Singh, Ex.PW-5/1 an application for a tubectomy operation, wherein she is described as the wife of Gurdial Singh and a photograph Ex.PW-7/1, which shows Amarjit Kaur with Gurdial Singh and their two children. The claim putforth by Daljit Kaur the appellant no.1, that she is the widow of Mohinder Singh, was upheld on the basis of the record produced by the military authorities that reflects declaration made by Mohinder Singh about his marriage to Daljit Kaur. Aggrieved by the aforementioned judgement and decree, respondent no.1 filed an appeal. The first appellate Court accepted the appeal, set aside the judgement and decree passed by the trial Court and decreed the suit by holding that there was sufficient evidence on record to establish the marriage between Amarjit Kaur and Mohinder Singh. It is also held that in the absence of evidence of a divorce, she was entitled to succeed to his estate being his widow. The first appellate Court placed reliance upon the oral testimony of witnesses produced by Amarjit Kaur to hold that she had succeeded in proving her marriage to Mohinder Singh. It was further held that as in a suit brought by Joginder Singh brother of the deceased Mohinder Singh, asserting ownership of the suit land, Daljit Kaur appellant no.1 herein, had filed a written statement, Ex.PZ, asserting that Mohinder Singh had divorced Amarjit Kaur prior to their marriage, this R.S.A. No.1205 of 1981 4 averment was an admission of the marriage of Mohinder Singh and Amarjit Kaur. Reliance was also placed on an additional plea, raised in her written statement filed in the present case, that in case the marriage of Amarjit Kaur and Mohinder Singh is proved, he had divorced her prior to their marriage, to hold that appellant no.1 has admitted the marriage between Amarjit Kaur and Mohinder Singh. Amarjit Kaur's living with Gurdial Singh and bearing his children was held to be, insufficient in the absence of any decree of divorce to disentitle her to claim rights due to her as the widow of Mohinder Singh. Counsel for the appellant submits that appellant no.1 is a resident of Mizoram. Mohinder Singh married her, while he was posted in the army. As per the document Ex.D-1 dated 2.3.1968, Mohinder Singh made a declaration of his marriage to appellant no.1 and acknowledged the birth of their daughter vide Ex.D-2 dated 24.4.1971. These documents, produced by the military authorities, are an admission on the part of Mohinder Singh that Daljit Kaur is his wife and Sukhbir Kaur is his daughter. It is further submitted that Mohinder Singh did not make any declaration to the military authorities of his marriage to Amarjit Kaur and, therefore, in the absence of any documentary proof of such a marriage, the learned trial Court rightly dismissed the suit, but the first appellate Court wrongly placed reliance upon oral depositions of respondent no.1 and her witnesses to hold that their statements are sufficient to establish Amarjit Kaur's marriage to Mohinder Singh. The statements are false, concocted and discrepant in material particulars and, therefore, should have been rejected by the first appellate Court. It is further submitted that in the absence of any denial of her relationship with Gurdial Singh, the first R.S.A. No.1205 of 1981 5 appellate Court should have dismissed the appeal instead of holding that though, Amarjit Kaur was leading an unchaste life, she remained the wife of Mohinder Singh upto his death and would, upon his demise succeed to his estate as his widow as the appellants have failed to establish any divorce, under the Hindu Marriage Act. It is further argued that the first appellate Court could not have placed reliance upon the averments in the written statement, filed in the suit brought by Joginder Singh, as admittedly the written statement does not bear the signature of appellant no.1. DW-6 Kulwant Singh, the Advocate, who filed the written statement admitted that the written statement was not filed on the instructions of appellant no.1. The alleged admission could, therefore, not have been read into evidence against appellant no.1. It is also urged that the first appellate Court has not referred to the documents, produced by the military authorities, that clearly establish appellant no.1's marriage to Mohinder Singh. It is submitted that as appellant no.1 is the legally wedded wife of Mohinder Singh, the present appeal be allowed and the judgment and decree passed by the first appellate Court be set aside. Counsel for respondent no.1, on the other hand, submits that the impugned judgement does not suffer from any error of law or of jurisdiction, as would raise any question of law. much less a substantial question of law. The first appellate Court rightly held that Amarjit Kaur is the legally wedded wife of Mohinder Singh by relying upon the deposition of Amarjit Kaur's father, relatives and residents of the village. As this finding of fact is neither perverse nor arbitrary, the first appellate Court's finding be affirmed. It is further argued that whatever be the relationship of Amarjit Kaur with Guridial Singh, in the absence of any decree of divorce R.S.A. No.1205 of 1981 6 granted under the Hindu Marriage Act, 1956, it would not disentitle her to claim the status of Mohinder Kaur's widow. It is further argued that in the absence of any evidence of divorce between Mohinder Singh and Amarjit Kaur, the second marriage of Mohinder Singh with appellant no.1 is null and void and, therefore, does not confer the status of a wife or a widow upon Daljit Kaur. As a result, the declaration made by Mohinder Singh, before the military authorities, acknowledging his marriage to Daljit Kaur would not bind Amarjit Kaur or affect her status as Mohinder Singh's widow. Another argument addressed by counsel for respondent no.1 is that one Joginder Singh, brother of Mohinder Singh filed a suit claiming title with respect to the suit land. Appellant no.1 filed a written statement alleging that she had married Mohinder Singh after he divorced Amarjit Kaur. The admission in the written statement, binds appellant no.1. Though it does not bear her signatures, it was filed on her behalf and was not disavowed while filing the written statement in the present case. The written statement, therefore, was rightly considered by the first appellate Court. It is further pointed out that in the present case also, appellant no.1 has raised a similar plea. She cannot, therefore, deny Mohinder Singh's marriage to Amarjit Kaur. These averments are in essence, an admission of respondent no.1's case. In the absence of any proof of divorce, the first appellate Court, rightly accepted the appeal, set aside the judgement and decree passed by the trial Court and dismissed the suit. The following substantial questions of law have been framed by counsel for the appellants :- “1. Whether the reversal of a well reasoned judgement based on sound findings and reasoning was itself not a R.S.A. No.1205 of 1981 7 substantial question of law in the matter of determining the genuineness of a Will ? 2. Whether the non-consideration of exhibit D-1 and D-2 (the certificates issued by the Army authorities regarding changes in the kindred role of Mohinder Singh) does not itself constitute a substantial question of law ? 3. Whether the non-consideration of the exhibit D-3 (the marriage agreement) issued by the Deputy Commissioner, Mizo District doe not itself conclusively prove the marriage of the appellant with deceased Subedar Mohinder Singh ? 4. Whether the birth of Sukhbir Kaur D/o Daljit Kaur and Subedar Mohinder Singh at Simla on 24.4.1971 does not itself conclusively establish the marriage between the parties ?” I have heard learned counsel for the parties, perused the impugned judgement and am of the considered opinion that the questions of law, framed by counsel for the appellants are neither substantial nor questions of law. The dispute in the present appeal relates to inheritance to the estate of Mohinder Singh, deceased. While serving in the Indian Army in Mizoram and after marrying the appellant Dajit Kaur, Mohinder Singh filed a declaration Ex.D-1 of this marriage, to the military authorities. After birth of their daughter Sukhbir Kaur, he filed another declaration acknowledging R.S.A. No.1205 of 1981 8 that she is their daughter. Upon the demise of Mohinder Singh, a dispute arose as to inheritance to the estate of Mohinder Singh. His brother Joginder Singh filed a suit claiming ownership over the suit land. Daljit Kaur,appellant no.1 filed a written statement, signed by her counsel, asserting that before Mohinder Singh married her, he had obtained a divorce from Amarjit Kaur. The said suit was dismissed. Thereafter, Amarjit Kaur filed a suit asserting her right to succeed to the estate of Mohinder Singh, as she is his widow. Appellant no.1 opposed the suit by asserting that she is the legally married wife of Mohinder Singh and even if, it is established that Amarjit Kaur was married to Mohinder Singh, he had obtained a divorce, prior to his marriage to appellant no.1. Appellant no.1 also relied upon the declaration made by Mohinder Singh to the military authorities that he had married her. The learned trial Court dismissed the suit by placing reliance upon the declaration made by Mohinder Singh, to the military authorities acknowledging his marriage with appellant no.1. The trial Court rejected the oral evidence, adduced by Amarjit Kaur, in support of her assertion that she was married to Mohinder Singh. The first appellate Court, on the other hand, reversed the aforementioned finding and held that the depositions of the witnesses produced by Amarjit Kaur are sufficient to establish her marriage with Mohinder Singh and the fact that she may have been abandoned by Mohinder Singh and was thereafter living with Gurdial Singh would not suffice to nullify her marriage to Mohinder Singh and, therefore, Mohinder Singh and Daljit Kaur's marriage was null and void. The first appellate Court, however, upheld the right of Sukhbir Kaur daughter of Mohinder Singh, from his alleged illegal marriage with R.S.A. No.1205 of 1981 9 appellant no.1, to succeed to the estate of Mohinder Singh in equal shares with Amarjit Kaur. The first question of law, merits summary dismissal, as the reversal of a judgement would not in the absence of substantial infractions of law by itself raise a substantial question of law. In the absence of any infraction of law, the first question of law does not merit consideration. The 2nd, 3rd and 4th questions of law would have to be answered together, as they relate to the documents that evidence the marriage of appellant no.1 with Mohinder Singh. The documents Ex.D-1, D-2 and D-3 that contain a declarations by Mohinder Singh that he has married Daljit Kaur and a daughter Sukhbir Kaur has been born to them would have, by themselves been sufficient to confer the status of a legally wedded wife and now a widow, upon appellant no.1, but for Mohinder Singh's prior marriage to Amarjit Kaur. During the subsistence of a marriage, a person cannot remarry and therefore, a second marriage is a nullity in law. As a result, and as held by the first appellate Court, even if appellant no.1 proves her marriage to Mohinder Singh, this marriage would not confer the legal status of a wife and thereafter of a widow upon appellant no.1. The legality of appellant no.1's marriage to Mohinder Singh would, therefore, depend upon the failure of Amarjit Kaur to establish her marriage to Mohinder Singh or appellant no.1's, establishing that prior to her marriage to Mohinder Singh, his marriage to Amarjit Kaur was dissolved by grant of a decree of divorce. The plaintiff/respondent no.1 has produced oral evidence in support of a plea that she was married to Mohinder Singh. The first appellate Court has, upon a considered appraisal of oral deposition of PW-1 R.S.A. No.1205 of 1981 10 Bir Singh, a resident of the Village, who has deposed that he attended the marriage of Amarjit Kaur with Mohinder Singh, the deposition of PW-2 Darshan Singh father of Amarjit Kaur,who has also deposed with respect to the marriage, the statement of PW-3 Subedar Kehar Singh a real uncle of Mohinder Singh, PW-4 Charan Singh, who states that he accompanied the marriage party as the barbar of the Village, PW-5 Shiv Singh, the person who arranged the marriage, PW-6 Gurdial Singh, a first cousin of Mohinder Singh, held that this evidence is sufficient to establish the marriage of Mohinder Singh with Amarjit Kaur. The findings of fact recorded by the first appellate Court, after a considered appraisal of these depositions is neither perverse nor arbitrary and as no error has been pointed out or is discernible, it does not require interference. A finding of fact based upon a considered appraisal of the evidence on record cannot be reversed in appeal till such time, as it is shown to suffer from an arbitrary or perverse consideration of the evidence or is recorded by ignoring material pleadings and evidence. The finding recorded by the first appellate Court does not suffer from any of these disabilities. The view adopted by the first appellate Court that Mohinder Singh was married to Amarjit Kaur before he married appellant no.1 is based upon a reasonable and a rationale assessment of the evidence on record and is affirmed. It would, therefore, necessarily follow that even if Mohinder Singh married appellant no.1, as evidenced by the documents Exs.D-1, D-2 and Ex.D-3, this marriage would be legal, only if appellant no.1 could successfully establish that Mohinder Singh obtained a decree of divorce, prior to his marriage to appellant no.1. During the subsistence of a marriage, a second marriage, whatever be the circumstances, is barred under the provisions of the Hindu Marriage Act. R.S.A. No.1205 of 1981 11 Appellant no.1 has failed to adduce any evidence, much less prima facie, to suggest that Mohinder Singh obtained a decree of divorce, prior to his marriage to her. The documents Ex.D-1 to D-3 and the birth of Sukhbir Kaur would not by themselves negate Amarjit Kaur's marriage with Mohinder Singh. A decree of divorce can only be granted by a Court of competent jurisdiction, exercising powers under the Hindu Marriage Act. The mere fact that a woman is abandoned by her husband or that a woman after being abandoned by her husband live with another man, would not raise an inference that their marriage stands dissolved. It would necessarily require mention that in a suit filed by Joginder Singh, appellant no.1 filed a written statement, though signed by her counsel, submitting therein that prior to her marriage to Mohinder Singh, he had obtained a divorce from Amarjit Kaur. This averment, though appearing in the unsigned written statement was not disavowed by appellant no.1 at any stage of those proceedings. It would also be necessary to notice that in the present case also, appellant no.1 has incorporated a guarded averment that in case the marriage of Mohinder Singh with Amarjit Kaur is established, he had obtained a divorce before his marriage to appellant no.1. These averments, in my considered opinion, were rightly held by the first appellate Court as sufficient to fortify the factum of Amarjit Kaur's marriage with Mohinder Singh. The arguments advanced by counsel for appellant no.1 that as appellant no.1 is an outsider, Mohinder Singh's relatives got together to manufacture the present suit, cannot be accepted. Amarjit Kaur has successfully established her marriage to Mohinder Singh. The other argument that Amarjit Kaur is admittedly living with Gurdial Singh and has R.S.A. No.1205 of 1981 12 given birth to three children is sufficient to negative her claim of being the widow of Mohinder Singh, cannot be accepted. The unchastity of a wife is a ground for divorce but in the absence of a decree of divorce, cannot be pressed into service to disinherit even a unchaste wife from claiming her rights as a widow. In view of what has been stated herein above and as the impugned judgement and decree does not suffer from any error that would raise any question of law, much less a substantial question of law, the present appeal is dismissed and the judgement and decree passed by the first appellate Court is upheld. 9.3.2009 (RAJIVE BHALLA) GS JUDGE