Panchayati divorce does not override provisions of Hindu Marriage Act-1955

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH

FAO No.M- 101 of 2013(O&M) Date of Decision: February 10 , 2016.

Narinder Singh Mangat …… APPELLANT (s)

Versus

Harjinder Kaur …… RESPONDENT (s)

CORAM:- HON’BLE MR.JUSTICE RAJIVE BHALLA HON’BLE MRS.JUSTICE LISA GILL

Present: Mr. Arvind Kashyap, Advocate for the appellant.

Mr. R.S.Pandher, Advocate for the respondent.

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reports or not?

3. Whether the judgment should be reported in the digest?

RAJIVE BHALLA, J . CM No.2449-CII of 2016 Dismissed as withdrawn.

FAO No.M-101 of 2013

The appellant has filed this appeal to challenge order dated 12.03.2013 passed by the Additional District Judge, Fatehgarh Sahib dismissing his petition, filed under Section 11 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’).

2. Counsel for the appellant submits that the appellant has proved by adducing clear and cogent evidence that at the time of his marriage to the respondent, her marriage to Jasbir Singh was subsisting thereby, rendering her marriage to the appellant a nullity. The respondent has not denied her earlier marriage nor has she produced any judgment and decree, from a court of competent jurisdiction dissolving her marriage to Jasbir Singh. The so called panchayati divorce accepted by the trial court, as sufficient to prove that the first marriage was dissolved, has not been proved. Counsel for the appellant further submits that a marriage can only be dissolved by grant of a decree of divorce under the Act. The failure of the respondent to produce in evidence any judgment and decree dissolving her marriage to Jasbir Singh, entitles the appellant to a declaration that his marriage to the respondent is a nullity. Counsel for the respondent states that though it is the second marriage of both parties, but as the first marriage of the respondent was dissolved by a panchayati divorce, Mark R3, the trial court has rightly held that marriage between the parties is legal and valid. We have heard counsel for the parties, appraised the pleadings, the evidence and the judgment and decree recorded by the trial court. The only question that calls for an answer is whether the marriage between the parties is a nullity on the ground that marriage of the

[3] respondent to Jasbir Singh subsisted on the date of her marriage to the appellant. The parties were married on 11.05.2005 as per Sikh rites and ceremonies. The respondent, prior to this marriage, was admittedly married to one Jasbir Singh. The respondent is admittedly not in possession, of any judgment and decree, passed by a court of competent jurisdiction dissolving her first marriage. The respondent relies upon document mark R3, a so called panchayati divorce between her and her first husband, Jasbir Singh. A panchayati divorce does not override provisions of the Act as a marriage may only be dissolved under provisions of the Act. Admittedly, the respondent obtained a decree of divorce by mutual consent on 01.06.2006 from Jasbir Singh after her marriage to the appellant, thereby in essence, proving that on the date of her marriage to the appellant, her marriage to her first husband, Jasbir Singh though stated to be dissolved by a panchayati divorce, subsisted in law. This apart, the so called panchayati divorce has not been proved by either examining her first husband or any witness. The learned court below, therefore, erred in relying upon the panchayati divorce that has even otherwise not been proved in accordance with law. Consequently, as the first marriage of the respondent with Jasbir Singh was subsisting on the date of her marriage to the appellant, the marriage between the respondent and the appellant is null and void. At this stage, Mr. Narinder Singh Mangat son of Sh. Bikram

[4] Singh, the appellant, who is present in Court, states that he is ready to pay a permanent alimony of `10 lacs to the respondent in full and final settlement of any claim that she may have against him, whether of alimony or maintenance past, present or future. Mr. Narinder Singh Mangat also states that he shall not initiate any prosecution or proceedings against the respondent on account of the fact that on the date of his marriage to the respondent, her first marriage had not been dissolved. Ms. Harjinder Kaur, the respondent, who is present in Court states that as the appellant has agreed, to pay `10 lacs and not initiate any action or proceedings against her, she shall vacate the house situated at village Kalewal Tehsil Khamanon, District Fatehgarh Sahib within one week by handing over the keys to the appellant. The appellant and the respondent also state that they shall withdraw/get compromised any litigation pending inter parties. We accept the statements made by both parties, but also direct that in case, Narinder Singh Mangat, the appellant, initiates any prosecution or action against the respondent, she would be at liberty to approach this Court for further directions. In view of what has been recorded here-in-above, the appeal is allowed, judgment and decree dated 12.03.2013 is set aside and marriage between the parties is declared null and void. The appellant is restrained from initiating any proceeding or action against the respondent on the premise that on the date of their marriage, the respondent’s first

[5] marriage subsisted. Decree sheet be drawn up accordingly. No order as to costs. ( RAJIVE BHALLA ) JUDGE ( LISA GILL )

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