Sunday, October 28, 2012
First wife can file declaration suit to declare second marriage null and void
“FISRT WIFE CAN FILE A DECLARATION SUIT AGAISNT SECOND MARRIAGE TO DECLARE NULL AND VOID.
It is clear from the above provisions that if the marriage between the plaintiff and defendant No. 1 is to be declared null and void, then either of them can file the petition, or if dispute arises between defendant No. 1 and defendant No. 2 regarding the marriage, then either of them can file a petition under Section 11. But plaintiff is not a party to the particular marriage which is sought to be declared as void. Therefore, when plaintiff files a suit for declaration that the marriage of defendant No. 1 with defendant No. 2 is void, the suit is to be filed according to the provisions of Section 9 of the Civil P. C. read with Section 34 of the Specific Relief Act (Section 42 of the old Act)”
Harmohan Senapati vs Smt. Kamala Kumari Senapati And ... on 29 August, 1978
Equivalent citations: AIR 1979 Ori 51
Author: N Das
Bench: N Das
N.K. Das, J.
1. Defendant No. 1 is the appellant against a confirming decision. The case of the plaintiff is that she and defendant No. 1 are husband and wife and their marriage took place in 1958 according to Hindu rites. After she gave birth to a child, defendant No. 1 drove her out of his house. Subsequently, without dissolution of her marriage with defendant No, 1, the latter married defendant No. 2 on 8-2-66 and started living with her. So, she has prayed for a declaration that the marriage of defendant No. 1 with defendant No. 2 is null and void.
Defendant No. 2 did not contest, nor appeared in Court. Defendant No. 1 in his written statement contends that he has no connection with defendant No. 2 and the allegation of second marriage is not true. According to him, plaintiff left his residence to her parents' house in 1964 against his will and did not return in spite of several requests and when plaintiff came to know that defendant No. 1 was intending to file a case for judicial separation, she has filed this suit on false allegations.
2. Both the Courts below have concurrently found that plaintiff is the married wife of defendant. No. 1. Defendant No. 1 married defendant No. 2 and the said marriage is null and void. Marriage of defendant No. 1 with plaintiff is not now disputed.
3. Two points have been canvassed on behalf of the appellant (defendant No. 1). Firstly, the suit was not maintainable in the Court of the Munsif and it should have been filed in the Court of the District Judge, or the Subordinate Judge, as provided in the Hindu Marriage Act; and secondly, the onus of proof of the second marriage being on the plaintiff, she has failed to discharge the onus, inasmuch as she has not established the ingredients required under law for proof of marriage of defendant No. 1 with defendant No. 2.
4. As regards the first point, the contention of the appellant is that Section 11 of the Hindu Marriage Act, 1955 envisages that a marriage can be declared to be null and void on a petition to be presented if there is contravention of any of the provisions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. Section 5(i) provides that a marriage of a person can be performed according to law if neither party has a spouse living at the time of the marriage. Reference was made also to Section 19 of the Act which provides that every petition under the Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction either the marriage was solemnised or the respondent, at the time of the presentation of the petition, resides, or the parties to the marriage last resided etc. 'District Court' has been defined in Section 3(b) which means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt within this Act.
It is not disputed that petitions under the Hindu Marriage Act are to be filed either in the district court or in the Court of the Subordinate Judge, as notified by the State Government of Orissa. Appellant contends that the suit being for a declaration that the marriage of defendant No. 1 with defendant No. 2 is null and void, the petition should have been filed in the Court of the District Judge, or the Subordinate Judge. This contention has no force. Section 11 of the Act clearly states that any marriage solemnised after the commencement of this Act shall be null and void and may, on a 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 specified in Clauses (i), (iv) and (v) of Section 5. So also in case of divorce, as provided in Section 13 of the Act, a petition is to be presented by either the husband or the wife. It is clear from the above provisions that if the marriage between the plaintiff and defendant No. 1 is to be declared null and void, then either of them can file the petition, or if dispute arises between defendant No. 1 and defendant No. 2 regarding the marriage, then either of them can file a petition under Section 11. But plaintiff is not a party to the particular marriage which is sought to be declared as void. Therefore, when plaintiff files a suit for declaration that the marriage of defendant No. 1 with defendant No. 2 is void, the suit is to be filed according to the provisions of Section 9 of the Civil P. C. read with Section 34 of the Specific Relief Act (Section 42 of the old Act).
The aforesaid view of mine is fortified by the decisions of the Allahabad High Court, Andhra Pradesh High Court, Madras High Court, Patna High Court and Madhya Pradesh High Court. In Jokhan Prasad Shukla v. Lakshmi Devi, ILR (1973) 2 All 853, it has been held that a suit filed by the previous wife for declaration that the second marriage of her husband was null and void is not barred by Section 19 of the Act. 'Either party thereto' clearly means either party to the marriage sought to be declared null and void. A petition by a person who is not a party to the marriage sought to be declared null and void, will not lie under Section 11. Reliance has been placed on the case reported in Lakshmi Ammal v. Ramaswami Naicker, AIR 1960 Mad 6. In the Madras case, it has also been held that the first wife cannot apply under Section 11 for declaring the marriage of the second wife as void and that the first wife can file a suit under the ordinary law for a declaration that the marriage of her husband with the second wife is illegal and void under the Hindu Marriage Act. The aforesaid Lakshmi Ammal case has also been followed by the Andhra Pradesh High Court in Rajeswar Reddy v. Lakshmi Bai, (1964) 2 Andh WR 142, wherein it has been held that under the Hindu Marriage Act, if the marriage of the 2nd defendant with the 1st defendant was performed after coming into force of the Act, it would be void and the plaintiff can file a suit in the Civil Court for a declaration to that effect. Her right to file such a suit is under Section 9, Civil P. C. read with Section 42 of the Specific Relief Act. So far as Section 11 of the Hindu Marriage Act is concerned, it is a special remedy given to either party to the marriage which was sought to be declared void. That remedy is not open to the plaintiff at all.
A Division Bench of the Patna High Court in Kedar Nath Gupta v. Sm. Supraya, AIR 1963 Pat 311, has also held that a petition for the annulment of second marriage under Section 11 can be presented only by the husband or his second wife, who were the parties to the marriage in question and the first wife, who is not a party to the second marriage, is not entitled to present such petition under the Act. She may seek her remedy, if any, under the general law. In this case, the decision reported in Lakshmi Animal case (supra) has also been followed. A decision of the Madhya Pradesh High Court in Amarlal Goru v. Vijayabai, AIR 1959 Madh Pra 400, which is on the very same point, has also been followed by the Patna High Court.
On the aforesaid analysis, I hold that the suit was maintainable in the Munsif's Court by virtue of Section 9 of the Civil P. C. read with Section 34 of the Specific Relief Act.
5. As regards the second point, it is contended by Mr. Das, the learned counsel for the appellant, that plaintiff has not established the ingredients of marriage of defendant No. 1 with defendant No. 2 and, as such, the Courts below have erred in finding that the marriage has been proved. Reliance has been placed on Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564. This is a case under Section 494 of the Indian Penal Code for punishment for bigamy. The appellant also relies on Rabindra Nath Dutta v. State, AIR 1969 Cal 55 and Venkata Subbarayudu Chetty v. Tanguturu Venkatiah Shresti, AIR 1968 Andh Pra
107. All the aforesaid cases are under Section 494 of the I.P.C. for punishment for bigamy, and were criminal cases. In a criminal case, the prosecution has to prove the offence beyond all reasonable doubts, but such position is not attracted in a civil suit where the allegations are to be proved by preponderance of probabilities". The Supreme Court in Dr. N.G. Dastane v. Mrs. S. Dastane, AIR1975 SC 1534, while deciding a case of judicial separation under the Hindu Marriage Act, has distinguished the position relating to proof between a criminal case and a civil suit under the Hindu Marriage Act. The question that was answered in the aforesaid case is that though the burden lies on the party to establish the charge, what is the standard of proof to be applied in order to judge whether the burden has been discharged. The Supreme Court has stated (at pp. 1539, 1540):--
"The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man. so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second, Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. xx xx In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.
XX XX XX
Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to tha accused. It is wrong to import such considerations in trials of a purely civil nature,"
6. Both the Courts below, after analysing the evidence available on record, both oral and documentary, have concurrently come to the conclusion that marriage of defendant No. 1 with defendant No. 2 has been proved by the plaintiff. P.W. 7 is the son of the tailor from whom the father of the appellant had learnt the trade of tailoring before the appellant's father became a rich man. This fact has not been disputed. His evidence is to the effect that he is close to the family of defendant No. 1 and accordingly he was invited to attend the marriage of defendant No. 1 with defendant No. 2 at Ladu Baba. He has given the details of the performance of marriage which took place in his presence. According to him, the priest from Puri attended the marriage, Homa was performed and fathers of defendant No. 1 and defendant No. 2 were also present and Kanyadan was done. His testimony is corroborated by the evidence of subsequent conduct of defendants 1 and 2 by P.W. 8, an advocate of Nayagarh and an admitted neighbour of defendant No. 1 at the relevant time. He has stated that he has seen defendant No. 1 and defendant No. 2 moving together and had the information that defendant No. 2 was the second wife of defendant No. 1 and the marriage took place in 1966. P. W. 5, a businessman of the locality has also deposed the similar effect. Though attempt has been made on behalf of defendant No. 1 to deny his marriage with defendant No. 2, there are glaring materials on record which go against this contention,
D. W. a is the father of defendant No. 1 and admittedly they are living together. From his evidence, it appears that he is suppressing the truth. He states that he cannot say if defendant No. 1 has married defendant No. 2. He is a man of proficiency and is having business. His testimony indirectly indicates that marriage of defendant No. 1 took place with defendant No. 2 and this supports the contention of P. W. 7. An attempt was made on behalf of the appellant to show that the priest said to have acted in the second marriage was dead and reliance was placed on a voter list. It has been rightly held by the Courts below that the voter list is of no help and by the time of the second marriage the priest was alive. P. W. 6 was a business associate of defendant No. 1 which is admitted. Undisputedly, this witness had fallen out from defendant No. 1 and entered into litigation with him. This witness has produced letters relating to the second marriage. He did not conceal the fact that he had played treachery and tricks to secure the letters for proof against defendant No. 1. He has stated that he is acquainted with the handwriting of defendant No. 1. For this, his evidence cannot be thrown out. He identifies Exts, 6 and 6/a to be the letters written by defendant No. 1. Ext. 6/a is an inland letter bearing postal seals. This letter has been written by defendant No. 1 to the father of the second defendant and the latter has been described as "father-in-law". Ext. 6 is in the letter pad of defendant No. 1 and the addressee is the brother of defendant No. 2. The handwriting expert compared these two letters with the admitted handwriting of defendant No. 1 in the Vakalatnama. Defendant No. 1 was asked to give his specimen handwriting.
A look at this specimen writing would give an impression that the writer laboured hard to suppress his mode of writing. Defendant No. 1 has admittedly read up to B.A. standard. But a look at the writing would clearly show that defendant No. 1 tried to write in a manner as if he has no experience in writing. The conduct of suppressing evidence, which he could have well supplied, would lead to the inference that he was under fear of presenting evidence would have gone against him had he supplied the same. The Courts below have examined this in detail and have rightly come to the conclusion that these were written by defendant No. 1. There are two other documents, Ext. 3 series, which are entries in the Admission Register of a school at Puri. It is in evidence that defendant No. 1 has got four children through defendant No. 2. One of the daughters was admitted by defendant No. 1 in the school and defendant No. 1 has been described as the father of the girl and has signed the same. After going through the evidence in detail, I am in agreement with the finding of the Courts below that defendant No. 1 has got her admitted in school as his daughter. On ultimate analysis and after going through the records, I am fully convinced that the evidence of P. W. 7 has been corroborated by the testimony of P. Ws. 5 and 8 as well as Ext. 3 series and Ext. 6 series. The evidence of D. W. 3 also to a great extent supports the testimony of P. W. 7.
If the evidence regarding second marriage is examined according to the die-turns of the Supreme Court in Dr. N.G. Dastane case (supra), the findings of the Courts below appear to have been based on reasonable grounds and the contention of the appellant is without any force.
This Court has also held in Linga Malik v. Ajodhya Malikani, (1973) 2 Cut WR 1108 : (AIR 1974 Orissa 107) that it is well established that where a marriage in fact has been performed, it will be presumed that necessary ceremonies have also been duly performed and it is incumbent on him who challenges the legality of the marriage to rebut the presumption and to establish by evidence that the form of marriage is invalid in some respect or the other. It is not necessary that the witnesses to the marriage should prove all the details which taken together constitute a valid marriage under the Hindu Law. This Court relied on a decision of the Privy Council in Mouji Lal v. Chandrabati Kumari, (1911) ILR 38 Cal 700 (PC).
For the aforesaid reasons, I hold that plaintiff has discharged the onus of proving the second marriage of defendant No. 1 with defendant No. 2 and the finding of the Courts below on this point is sustained.
7. In the result, there is no merit in this appeal arid it is accordingly dismissed. In the circumstances, I make no order as to costs.