Wife contracted second marriage during subsistence of first marriage-cruelty against husband-divorce granted to husband

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO No. 309-M of 2003 DATE OF DECISION :- August 03,2015

Smt. Sawaranjit Kaur …Appellant

Versus

Lt. Col. Avtar Singh and others …Respondents F

AO No. M-256 of 2009 Balbir Singh …Appellant Versus Swaranjit Kaur …Respondent

CORAM: HON’BLE MR.JUSTICE M.JEYAPAUL HON’BLE MRS. JUSTICE RAJ RAHUL GARG Present:- Mr. J.S. Manipur, Advocate for the appellant in FAO No. 309-M of 2003 Mr. M.S. Bedi,Senior Advocate with Mr. Ajit Paul, Advocate for the respondent in FAO No. 309-M of 2003 Mr. J.S. Bhatia, Advocate for the appellant in FAO No. 256-M of 2009. Mr. J.S. Manipur, Advocate for the respondent in FAO No. 256-M of 2009. *** 1 of 8 ::: Downloaded on – 23-07-2016 12:42:23 ::: FAO No. 309-M of 2003 and FAO No. M-256 of 2009 2 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not? Yes/No 3. Whether the judgment should be reported in the digest? Yes M.JEYAPAUL, J. 1. Avtar Singh, the 1 st respondent in FAO No. 309-M of 2003 having died, his legal representatives have been brought on record to contest the appeal preferred by appellant Sawaranjit Kaur. 2. Avtar Singh who was the sole respondent in FAO No. 309-M of 2003 filed a petition under Section 11 of the Hindu Marriage Act, 1955, praying to declare his marriage with the appellant Sawaranjit Kaur as null and void. The trial Court allowed the petition under Section 11 of the Hindu Marriage Act. Hence Sawaranjit Kaur has preferred FAO 309-M of 2003. 3. Balbir Singh, the 1 st husband of Sawaranjit Kaur, filed a petition under Section 13 of the Hindu Marriage Act praying for dissolution of marriage on the ground of cruelty and desertion. The petition was dismissed by the trial Court. Hence, Balbir Singh has preferred FAO No. M-256 of 2009. 4. As both the appeals are inter-connected with each other, the same are taken up together for final hearing. 5. Avtar Singh, the 1 st respondent in FAO No.309-M of 2003, has contended in his petition that Sawaranjit Kaur started living with Avtar Singh as a legally wedded wife but the marriage of Avtar Singh with Sawaranjit Kaur was registered on 30.11.1993. 2 of 8 ::: Downloaded on – 23-07-2016 12:42:24 ::: FAO No. 309-M of 2003 and FAO No. M-256 of 2009 3 Sawaranjit Kaur married Avtar Singh during the subsistence of her marriage with Balbir Singh. But Sawaranjit Kaur gave wrong information to Avtar Singh that her husband had died. Sawaranjit Kaur had misrepresented that she was a widow and thereby deceived Avtar Singh. Avtar Singh, therefore, has sought declaration for declaring his marriage with Sawaranjit Kaur null and void. 6. Sawaranjit Kaur has filed replied to the petition filed by Avtar Singh that her 1 st husband Balbir Singh who left the house but did not return. His whereabouts were not known to anyone. Avtar Singh got registered the marriage after fully satisfying himself about the above fact. Disputing other allegations made in the petition by Avtar Singh, Sawaranjit Kaur sought for dismissal of the petition filed by him. 7. In the petition filed by Balbir Singh under Section 13 of the Hindu Marriage Act, 1955, he has stated that he married Sawaranjit Kaur on 14.12.1975 as per Hindu rites and ceremonies. Two male children were born out of the wedlock. Sawaranjit Kaur used to pick up quarrel with Balbir Singh. She treated Balbir Singh with utmost cruelty. She abandoned Balbir Singh. Balbir Singh came to know that Sawaranjit Kaur was given in marriage to Lakha Singh and thereafter she married Avtar Singh. Balbir Singh was very much alive in the year 1993. It was only Sawaranjit Kaur who left the matrimonial house in the month of May, 1985 without sufficient cause and thereby deserted him. 3 of 8 ::: Downloaded on – 23-07-2016 12:42:24 ::: FAO No. 309-M of 2003 and FAO No. M-256 of 2009 4 8. Sawaranjit Kaur has filed reply to the above petition preferred by Balbir Singh under Section 13 of the Hindu Marriage Act that she performed her duties as a Hindu wife with dignity and honesty. Balbir Singh used to consume liquor and gave severe beatings to Sawaranjit Kaur. She was also not given proper food, diet and medicines. Balbir Singh left the company of Sawaranjit Kaur when she stopped him from indulging in consuming liquor. She denied that she was given in marriage to Lakha Singh. She started living as a maid servant with Avtar Singh. She took sincere efforts to trace Balbir Singh who was not heard of. Therefore, she married Avtar Singh in the year 1993. Sawaranjit Kaur has sought for dismissal of the petition filed by Balbir Singh. 9. There is no dispute to the fact that Sawaranjit Kaur married Balbir Singh on 14.12.1975. It is her own admission that she married Avtar Singh in the year 1993 after her husband had left her in the year 1985 when she was pregnant. Sawaranjit Kaur has set up a plea that the whereabouts of Balbir Singh were not known to her, therefore, she married Avtar Singh in the year 1993. But Avtar Singh has established that though Sawaranjit Kaur lived with him as a legally wedded wife after she was engaged as a maid servant in the year 1989, the marriage as such was registered on 30.11.1993. Balbir Singh was examined as PW3 in the case filed by Avtar Singh. It was found that Balbir Singh was very much alive at the time when Sawaranjit Kaur married Avtar Singh. 4 of 8 ::: Downloaded on – 23-07-2016 12:42:24 ::: FAO No. 309-M of 2003 and FAO No. M-256 of 2009 5 10. Learned counsel appearing for Sawaranjit Kaur would contend referring to Section 13(1)(vii) of the Hindu marriage Act, 1955 that Sawaranjit Kaur was entitled to marry Avtar Singh as her previous husband Balbir Singh had not been heard of as being alive for a period of seven years. He also referred to the provision under Section108 of the Indian Evidence Act,1872 and submitted that once it is established that Balbir Singh was not heard of for more than seven years, the burden shifts on the other side to prove that he was alive. 11. The learned Senior counsel appearing for Avtar Singh submitted that a spouse may set up a plea for divorce on the ground that the other spouse was not heard of as being alive for seven years. Section 108 of the Indian Evidence Act, 1872 only deals with the burden of proof and the shifting of burden. 12. As rightly pointed out by learned Senior counsel appearing for Avtar Singh, the fact that a spouse having not been heard of as being alive for a period of seven years is one of the grounds for seeking dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955, but just because a spouse was not heard of for seven long years, the other spouse cannot contract second marriage which will create havoc in the matrimonial sphere. As per Section 108 of the Indian Evidence Act, 1872, the party who pleads that a person was not heard of as being alive for seven years should first establish such a plea and thereafter the burden shifts on the 5 of 8 ::: Downloaded on – 23-07-2016 12:42:24 ::: FAO No. 309-M of 2003 and FAO No. M-256 of 2009 6 other side to prove that he was alive during that period. 13. Sawaranjit Kaur could not contract second marriage on the plea that Balbir Singh was not heard of for seven years. If at all her plea was true, she should have approached the competent Court seeking divorce on that ground and thereafter she should have contracted second marriage. No right to remarry has flowed from the above provision of law. 14. On facts, it is found that Balbir Singh himself came alive and deposed in favour of Avtar Singh that he never absconded. Avtar Singh has established that Balbir Singh was very much alive when Sawaranjit Kaur contracted second marriage with Avtar Singh. Therefore, such a marriage solemnized by Sawaranjit Kaur with Avtar Singh is patently illegal and is null and void. 15. Counsel appearing for Sawaranjit Kaur would further contend that Sawaranjit Kaur was an illiterate woman. As her husband had absconded for more than seven years she had contracted second marriage. 16. Ignorance of law is no excuse. When the law lays down that a marriage with another person during the subsistence of marriage is null and void, Sawaranjit Kaur cannot hide herself behind the plea of illiteracy and seek for validity of the marriage. 17. It was further contended by counsel appearing for Sawaranjit Kaur that Avtar Singh should have verified before ever he married Sawaranjit Kaur. It was further contended that Avtar Singh 6 of 8 ::: Downloaded on – 23-07-2016 12:42:24 ::: FAO No. 309-M of 2003 and FAO No. M-256 of 2009 7 was very much aware of the fact that Sawaranjit Kaur was already married to Balbir Singh whose whereabouts were not known for seven years. Further, Avtar Singh chose to condone the act of Sawaranjit Kaur, it is submitted. 18. We find that there is no substance in the above submissions made by counsel appearing for Sawaranjit Kaur. The evidence on record would go to establish that Sawaranjit Kaur having disclosed before the Registrar that she was a widow, contracted second marriage with Avtar Singh and got registered the same. There is no acceptable evidence on the side of Sawaranjit Kaur that Avtar Singh was aware of the fact that Balbir Singh was alive at the time when Sawaranjit Kaur married Avtar Singh. 19. Even assuming for the sake of arguments that Avtar Singh was very much aware of the fact that Balbir Singh who married Sawaranjit Kaur was alive and he preferred to condone the act of Sawaranjit Kaur, the marriage of Sawaranjit Kaur with Avtar Singh cannot be held valid as there can be no condonation of an act which is prohibited under law. 20. In the above facts and circumstances, we are of the considered view that Sawaranjit Kaur having married Avtar Singh during the subsistence her marriage with Balbir Singh has caused cruelty to Balbir Singh. Therefore, Balbir Singh is entitled to a decree of divorce under Section 13 of the Hindu Marriage Act,1955. Accordingly, the judgment and decree passed by the trial Court in 7 of 8 ::: Downloaded on – 23-07-2016 12:42:24 ::: FAO No. 309-M of 2003 and FAO No. M-256 of 2009 8 HMA case no. 5 of 2009 is set aside and a decree of dissolution of marriage as prayed for under Section 13 of Hindu Marriage Act is granted. Accordingly, FAO No. M-256 of 2009 is allowed. 21. The judgment of the trial Court in HMA case no. 65 dated 29.10.1997/14.12.1998 is confirmed and consequently FAO No. 309- M of 2003 is dismissed. (M. JEYAPAUL) JUDGE (RAJ RAHUL GARG) JUDGE August 03, 2015 p.singh 8 of 8 ::: Downloaded on – 23-07-2016 12:42:24 :::

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s