HIGH COURT OF CHHATTISGARH AT BILASPUR ' DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR. JJ Appellant Respondents First Appeal (Ml No. 10/2006 Versus Smt. Sushma Choure, Hetendra Kumar Borkar JUDGEMENT FOR CONSIDERATION Sd/- T. P. Sharma Judge Hon'ble Mr. R.L. JHANWAR, J. .L. Jhanwar Judge Post for Judgment on: 30 /11/2009: SdJ- JUDGE 30/11/2009 48^»-^. ^ fy1"'^ "% ^s-^^^^ v^! "^SstS^" HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA SB HON'BLE MR. R.L. JHANWAR. JJ. Appellant First Appeal (M( No. 10/2006 1 Smt. Sushma Choure, aged about 36 years, W/o Hetendra Kumar Borkar D/o R.D. Chore, R/p Misiya Bada, Ambedkar Ward No< 7, Dongargarh, Distt. Rajnandgaon. Respondents Versus 1. Hetendra Kumar Borkar, S/d Manohar Borkar, aged about 30 years, R/o A/80 Karamchari Nagar, Sikolbhatha, Durg, Tahsil and Distt. Durg. APPEAL UNDER SECTION 19 (1> OF THE FAMILY COURT ACT, 1984. Present:- Shri Parag Kotecha, Advocate for the appellant. Shri D.N. Prajapati, Advocate for the respondent. JUDGEMENT (Passedon 30/11/2009) The following iudgment of the Court was passed by T.P. Sharma, J:- I 1. By this appeal under Section 19(1) of the Family Courts,| Act, 1984 the appellant has challenged the legality and propriety of the judgment and decree dated 27/2/06 passed by Principal Judge, Family Court, Durg in Civil Suit No. 305-A/05 whereby and where under learned Principal Judge Family Court, Durg has declared the| marriage between parties null and void Under Section Iljj; II of the Hindu Marriage Act, 1955 (in short 'the Act o^, 1955'). , The judgment and deeree is irhpugned on the ground that without any evidence of first marriage of appellant withj one Rakesh Kumar Meshram Court below has declaredi the niarriage null and void and thereby committed ari illegality. i| Facts necessary for disposal of this appeal as per pleadin^ of the parities is, present respondent/plaintiff has pleaded in his plaint that present appellant was having illicit relation with one Rakesh Kumar Meshram resident of Abagarh Chouki and 2 abortion took place as a result 6f illicit relation present respondent married with Rakesh Kumar Meshram and was residing with him as a wife.She had earlier also filed one application under Section 9 of the Act of 1955 for restitution of eonjugal right against Rakesh Kumar Meshram and during subsistence of her first marriage with Rakesh Kumar Meshram. after showing herself unmarried solemnized marriage with the respondent. The subsequent marriage during subsistence of first marriage is void on the ground of subsequent marriage during subsistence of first marriage of presenf; appellant. Respondent has filed the petition for declaration, ^^aSSSf3i-^_ ^€S|N, ^ - "i!>, of rnarriage null and void under Section 11 of the Act of 1955. . 1 4. Present appellant/defendant has specificaUy denied the' aUegation and pleaded that appellant was having illicit relation with Rakesh Kumar Meshram and both the persohs have initiated judicial proceeding and entered into compromise these facts was informed by the appellant and | his family naembers by respondent and his relativeSi before his raarriage with the present appellant. Appellanfil has not performed niarriage with the respondent during subsistence of her first marriage. At the time of her; marriage with the respondent the appellant was' unmarried. On fhe basis of averments of the parties' issues were framed and after affording an opportunity of hearing to the parties leamed Principal Judge Family Court has decreed the suit under Section 11 of the Act of 1955 filed by the respondent and declared the marriage null and void. 'l 5. Learned counsel for the parties are heard. i;! 6. Judgment and decree impugned and record of court belowi perused. i 7. Learned counsel for the appellant Shri Parag Kotecha vehemently argued that respondent has not proved th® fact of first marriage of the appellant with one Rakeshjl \- ^ Kumar Meshram the illicit relation of present appellant .!^"s!. SteB _<-t :5 with Rakesh Kumar Meshram is not . disputed and appellant and her relative has already intimated these facts to respondent and his relatives before solemnizatiori| of the marriage between the parties. The marriage betweenl parties was not in violation of Clause-1 of Section 5 of the 11 Act of 1955. The judgment and decree impugned is nof sustsdnable under the law. ; 8. On the other hand, leamed counsel for the respondent vehemently opposed the appeal and; submrts thatll documents filed on behalf of the parties are sufficient for drawing the inference that present appellant had earlieirl married with one Rakesh Kumar Meshram and durmg subsistence of her marriage with F?akesh ICum.ar Meshram; she had married with the present respondent same may irt. violation of Clause-1 of Secfion 5 of the Act of 1955 and;! the marriage between the parties is null and void. 1 9. In order to appreciate the contention of the parties, we have examined the evidence available on record. Thel burden to prove the existence offirst marriage of appellantlj with Rakesh Kumar Meshram at the time of the marriage | '.:. E of the appellant with respondent was on the respondentj j Respondent PW1 Hitendra Kumar Borkar has deposed in) his evidence that on 25/6/04 he married with appellan^l observing Hindu rituals and afterwards on the basis of her^ \ change behavior he came to know that appeUant was ^ already married and without divorce from her first .1, husband she had married with the respondent. He also| came to know fhat appeUant was pregnant twicely througM]| her first,,husband Rakesh Kumar Meshram and judicialj? proceeding were initiated betweeh appellant and RakesUi ICumar Meshram befbre the Court of Rajnandgaon. FW2; Methalal Meshram has also corroborated the factum of Brst marriage of appellant with Rakesh Kumar Meshram. |^ 10. Present appellant has exammed herself and deposed that she had married with the respondent and prior to heig1 marriage with the respondent negotiation of her niarriag^i i'^ with FSakesh Kumar Meshram took place and she used ttf travel with Rakesh Kumar Meshram she was havin^ physical relation wifh Rakesh Kumar Meshram for about one and half year but she had never married with the Rakesh Kumar Meshram. She has also deposed that witH a view to resolve the dispute between her and Rakesl"|| I..' Kumar Meshram they have filed civil suit. She had alsc^ I;' filed the copy of the docuraents of that civil suit as D-1 to, D-5. She has also deposed that all facts were well withiri1 r.; the knowledge of the respondent before the marriage. Tha factum of civil suit has been admitted by her witnessl alleged Rakesh Kumar Meshram but he has deposed that|| appellant is not his wife and had never married with th^; i. appellant. Her witness No. 3 Sanjay Baldekar has deposed that before marriage of respondent with appellant the fact relating to previous relation of appellant with Rakesy Kumar Meshram had already mtimated to the respondent.l 11. Ex. P-1 is a certified copy of the application filed underl Section 9 of the Act of 1955 by appellant against alleged Rakesh Kumar Meshram showing herself as a legally. •I i wedded \yife of the Rakesh Kumar Meshram Ex. P-1C is a i:: copy of the order sheet dated 6/2/03 of civil suit Noj 251A/01 in which it reveals that Rakesh Kumar Meshrarrt i i and present appellant had entered into compromise Ex D 1 to D5 are also related with the same civil suit and related to compromise. It appears from the documents Exi D-1 to D-4 that they are related to civil suit No. 251-A/Olj finaUy decided on the basis of compromise. On 6/2/0^ before the marriage of the appellant with presenf1 respondent which was pending before the Civil Judgq i Clause-2, Rajnandgaon. It further reveals from the EiX. P-1 that the present appellant has fUed one application under 1 . Section 9 of the Act of 1955 which was pending before the First Additional District Judge, Rajnandgaon in Civil Suit No. 36-A/01. Ex. D-5 reveals that appellant and RakesH I Kumar Meshram also entered into compromise in civil suif pending before the Additional District Judge; 1 Rajnandgaon. Ex. D-5 copy of compromise application '^' •^^.A.^^^. ^;^r'^^,2®3^ '''^ •s. ^ ^. j "9 ] -7- reveals that the present appellant was not wife of the'l Rakesh Kumar Meshram. j • •:. a 12. Both the parties had led oral and documentary evidence.|| i:»! The evidence of appellant and her witnesstes are! sufficient to prove the fact that she was having physicali ;M relation with Rakesh Kumar Meshram before 2003 fbrl -I about one and half year. She has denied the aUegation of her marriage with Rakesh Kumar Meshram. and ha^i admitted the initiation and disposal of judicial proceedingl j betcveen herself and Rakesh Kumar Meshram. Appellanf has admitted thaf she had Eled the application luidei;' Section 9 of the Act of 1955. The appUcation undeil|j Section 9 of the Act of 1955 Ex. P-1 reveals that appellant) had Eled the application against Rakesh KumarMeshrarri] l:jl showing herself the wife of Rakesh Kumar Meshram and | 1:: 1 the Rakesh Kumar Meshram as husband of the appellantl1| Ex P-1 was Eled on 25/1/01. The burden to prove th6j ' r marriage of the respondent with appellant during | subsistency of first marriage of the appellant was on th^; 1 respondent. To discharge the onus and to prove the fact, ' 1 the appellant has filed copy of the application filed undeij' Section 9 ofthe Act of 1955 E^c. P-1 by appellant againstj Rakesh -Kumar Meshram showing herself and Rakesh Kumar Meshram as husband and wife the onus toj disprove first marriage shifted upon the appellant:^ •^- iSi Appellant and her witnesses Fiakesh Kumar Meshram hasl^i' specifically deposed that they had never married biit the55:j 1 were having illicit relation on the ground of negotiation ofl| | fheir m.arriage therefore with a view to resolve th&j conta'oversy the appellant had filed fhe petition befbre the^ Civil Court. Appellant has deposed that Rakesh Kumar | Meshram was not her husband Rakesh Kumar Meshrarrt I has also deposed that appeUant was not his wife. The caseii is based on oral and documentary evidence if thq^i appeUant had not married wkh the Rakesh Kumaf'l Meshram then there was no propriety to file an application 1 under Section 9 of the Act of 1955 against the Rakeshjj Kumar Meshram for restitution of conjugal right before|i Additional District Judge, the subsequent document | reveals that other civil suit was also pending between appellant and Rakesh Kumar Meshram in which they enteredinto compromise, Ex. P-1. A veriEed copy of petition filed under Section 9 of the Act of 1955 by the appellant is sufficient for drawing the inference that appellant has married with the Rakesh Kumar Meshram. in the year 1998. The evidence of appellant and Rakesh Kumar Meshram that they are not husband and wife shows that they are concealing the truth on the ground that after marriage of the appellant with the respondent| they have withdrawn themselves from each other. Ex P-l| •5 is a petition for restitution of conjugal right filed on behalf of the appellant against the Rakesh Kumar Meshram is sufficient for drawing the presumption of lawful marriage| of appellant with Rakesh Kumar Meshram and subsequent documents arid evidence are not sufficient fori drawing the inference or for shifting the onus that they have never married. Present appellant has neither pleaded nor proved the divorce between her and Reikesh Kumar Meshram or dissolution of marriage between them by any mode permissible in accordance with the law. In absence of such pleading and prove the only inference was possible; that the appeUant was not unmarried at the time of her marriage with respondent and she married with the] respondent during subsistence of her first marriage wiftl Rakesh Kumar Meshram in contravention of Clause-1 of^ Section 5 of the Act of 1955 and such marriage was null and void in accordance with Section 11 ofthe Act of 1955.1 13. The Section 5 and Section 11 of the Act of 1955 reads as follows:- ;i 5. Conditions for a Hindu m.arriage - A marriage | may be solemnized between any two Hindus, if the following conditions are fulfilled, namely- (i) neither part-u has aspouse livina at the time i ofthe marriage; (ii) at the time ofthe marriage, neither party- o 'y-t '^ ^^S^S'-ss^ % ^^s!S!sy:s S .^" 14. (a) is incapable of giving a valid consent to it in consequence ofunsoundness ofmind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such dn extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time ofthe marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage goveming each of them. permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage goveming each of them permits ofa marriage between the two. ll.Void Marriages- Any marriage solemnized after the cornmencement of this Act shall be null and void and may, ona 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 specifiedin clauses (i), (iv) and (v) ofsection 5. Section 11 and 1 7 (monogamyj do not offend art 15(1j of the Constitution. After appreciating the documentary and oral evidence of the parties learned Principal Judge, Family Coiirt has arrived at a conclusion that during subsistence of her first marriage appellant has remarried with the respondent and Principal Judge, Family Court declared l\ 's?-",., ^ the marriage between the parties null and void under 1 Section 11 oftheActofl955. I !; 15. After close scrutiny of the evidence of the parties, we do! not find any illegality or infirmity in the judgment and decree impugned warranting any interferenceil 1 Consequently, appeal is devoid of merits and is liable to be dismissed and it is hereby disraissed. 16. No order.as to costs. i . 1 17. Decree be drawn up accordingly. I / Sd/- T. P. Sharma Judge Sd/- R.L. Jhaiiwar Judge ^