Court No. - 16
Case :- FIRST APPEAL No. - 513 of 2013 Appellant :- Gavrav Kumar Respondent :- Smt. Sangita Gautam, Counsel for Appellant :- A.K.Singh,Sandeep Kumar Counsel for Respondent :- Manish Pandey,Sudama Ji Shandilya
Hon'ble Ashwani Kumar Mishra,J.
1. This appeal has been preferred under Section 28 of the Hindu Marriage Act against the judgment and decree passed by the Special Judge (S.C. /S.T.) Act/ Addl. District Judge, Jalaun at Orai in Matrimonial Petition No. 142 of 2011 filed under Section 11 of the Hindu Marriage Act.
2. Appellant presented a petition under Section 11 of the Hindu Marriage Act for dissolution of marriage with the allegation that he got married with the defendant Smt. Sangeeta Gautam on 17.6.2010, after following the traditions and customs of a Hindu marriage. The factum of marriage is not in dispute. Since thereafter, the parties have fell a part and proceedings have been instituted for dissolution of marriage. One of the grounds taken for dissolution of marriage is that defendant had previously contracted marriage on 26.8.2009 with one Vinod Kumar, son of Rati Ram, and the earlier marriage was subsisting on the date of their marriage. It is alleged that this fact was suppressed. Written statement has been filed by the wife admitting her marriage with the appellant. In para-21 of the written statement, defendant has categorically denied her marriage with Vinod Kumar. In support of the contention that the defendant had previously contracted marriage, the plaintiff has brought on record the marriage certificate issued by the Arya Samaj, Chandra Nagar, Kanpur as well as the application submitted by the defendant alongwith Vinod Kumar for the purpose before the Arya Samaj. Apart from the marriage certificate, the plaintiff has also brought on record certificate issued by the Registrar of Hindu Marriage, Kanpur Nagar. The marriage certificate records that the application submitted by the defendant-wife about her marriage with Vinod Kumar has been filed at Sl. No. 289 at pages 209 to 220 of Volume-40 of the Registration Act. The defendant in para-21 has denied her earlier marriage with Vinod Kumar. It is stated that this allegation is false. The defendant further states that her father has already initiated criminal proceedings against Vinod Kumar of having fabricated and manipulated various documents and such complaints have been made with higher authorities. Para-21 of the written statement is relevant and is extracted hereinafter:
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3. Oral and documentary evidence have been adduced by the parties before the Court below where after six issues were framed by the court below. Issue number 4 has been framed on the question as to whether Vinod Kumar, alleged previous husband of the defendant was alive on the date of marriage and whether the marriage is liable to be dissolved on such grounds. In order to prove the factum of earlier marriage, the plaintiff has produced the manager of Arya Samaj Chandra Nagar, Kanpur who had issued the documents of previous marriage and has proved it alongwith the application submitted by the defendant and Vinod Kumar certifying that they intend to marry each other. The photographs of parties have also been verified. The defendant, in her oral statement, has stated that Vinod Kumar had taken her for the purpose of securing admission in B. Ed. and had taken her signatures and it is possible that such signed papers may have been misused by him. Father of defendant had also filed a Complaint Case No.2757of2009 against Vinod Kumar, before the concerned court, it was also brought on record that Vinod Kumar had already died. In such circumstances, the Court below has opined that in the absence of Vinod Kumar, the factum of marriage is not proved and it is also not clear as to whether he was alive on the date of marriage of defendant with plaintiff i.e. on 17.6.2010. For such reasons, the court below has decided issue no.4 against the plaintiff. Application for dissolution of marriage, consequently, has been set aside.
4. The decree has been challenged before this Court the present appeal. An application under Order -XLI Rule-27 CPC for taking on record additional evidence has been filed and the same has been allowed. The plaintiff-appellant has brought on record the certified copy of the first information report in Case Crime No. 525 of 2010 under Sections 279,338 and 304 I.P.C. read with Section 182 of the Motor Vehicles Act. This FIR has been registered on 14.11.2010, as per which in a road accident Vinod Kumar son of Rati Ram died at 1.30 p.m. on 14.11.2010. Certified copy of the post mortem report has also been brought on record to prove that Vinod Kumar actually died on 14.11.2010. The post mortem was performed by the medical officer concerned on 15.11.2010. It is contended with reference to the additional evidence filed before this Court that Vinod Kumar was alive on the date when the plaintiff contracted marriage with defendant. It is contended that the second marriage could not have been performed by the defendant while the first husband was alive and the plea for dissolution of marriage is liable to succeed.
5. In the present appeal, Sri Sudama Ji Shandilya, Advocate has appeared for the defendant-wife and filed his Vakalatnama . This Court on 7.10.2017 has recorded statement of Sri Sudama Ji Shandilya that he is no longer having instructions to appear on behalf of the respondent. Fresh notices were accordingly issued to the respondent wife to engage a fresh counsel. An office report has been submitted that the respondent wife has refused to accept notice. On 7.12.2017, service of notice upon the respondent has been deemed to be sufficient and the appeal was directed to be listed for hearing. Today also none has appeared for the respondent. The appeal, thus, ha been heard ex-party and is being disposed off by this judgment. On the basis of materials placed the only point that arises for determination is as to whether the defendant had married Vinod Kumar son of Rati Ram on 26.8.2009, which was subsisting on the date of her marriage with plaintiff on 17.6.2010.
6. From the materials brought on record, it is apparent that the dissolution of marriage, is sought by the plaintiff essentially on the ground that she had earlier contracted a marriage which was subsisting on the date of present marriage. Marriage Certificate of Arya Samaj alongwith the application duly signed by the defendant- wife has been adduced in evidence. The Secretary of the Arya Samaj has also appeared as a witness in support of such certificate and such documents have been proved. The marriage is otherwise registered and the registration certificate has been brought on record. In view of Section 114 of the Evidence Act, their would arise a presumption of corrections of official document. The defendant, in her written statement, has not disputed the fact that she knew Vinod Kumar and has stated that her signatures were obtained fraudulently by Vinod Kumar. Criminal proceedings apparently were initiated by the father of the defendant against Vinod Kumar by filing a complaint, which appears to have abated on account of death of Vinod Kumar. Evidence on record clearly suggest that duly signed papers of the defendant were actually presented before the Arya Samaj Manager on the basis of which a certificate was issued by them. The statement of the manager that marriage was performed by the parties and that their photographs were also verified is also relevant. The defendant wife has claimed that her signatures were obtained on blank paper and were misutilised which also needs to be examined. She has appeared as witness and her statement is on record. There is nothing on record to show that the plaintiff was ever informed by the defendant that her signatures were misused by Vinod Kumar or that criminal proceedings had been initiated by the father of defendant against Vinod Kumar. The marriage with Vinod Kumar was also registered by the Registrar of Marriages on which contains the signatures of the defendant and Vinod Kumar. The explanation furnished to disbelieve all such evidence is the plea that blank signatures were obtained fraudulently from her by Vinod Kumar. Such a plea however is not convincing. The mere fact that criminal complaint was filed against Vinod Kumar, which apparently abated due to death of Vinod Kumar would not be a sufficient basis to dislodge the weight of evidence adduced by the plaintiff. Factum of marriage of defendant with Vinod Kumar, as alleged in the plaint, is thus found to be proved. The Trial Court has disbelieved the plaintiff's plea on the ground that Vinod Kumar has not appeared and it is not clear as to whether he was alive on the date of marriage with present appellant. The additional evidence filed before this Court clearly goes to show that Vinod Kumar has died on 14.11.2010 and was therefore alive on the date of marriage. Obviously, Vinod Kumar could not have appeared as a witness in this case as he was not alive by then. Trial Court, however, was not justified in denying the factum of first marriage, only for such reason. The view taken by the trial court cannot be approved.
7. In the facts and circumstances as has been brought on record, this Court finds that the plea of the plaintiff that his wife had earlier contracted marriage with Vinod Kumar has been proved by adducing evidence.
8. In view of such discussions and finding, ,the inescapable conclusion is that the defendant was already married on the date she contracted marriage with the plaintiff on 17.6.2010. The factum of earlier marriage has neither been disclosed nor the second marriage was otherwise permissible in law. The ground pleaded by the plaintiff for dissolution of marriage, on such count, is therefore liable to succeed.
9. For the reasons recorded above, this appeal succeeds and is allowed. The judgment and decree dated 7.8.2013 passed by Special Judge (SC/ ST) Act / Addl. District and Sessions Judge, Jalaun at Orai in Matrimonial Petition No. 142 of 2011, dismissing the Matrimonial Petition is set aside. Petition filed under Section 11 of the Hindu Marriage Act is allowed and the marriage between the parties is dissolved.
10. Parties to bear their own costs.
Order Date :- 22.2.2018 n.u.