Bhupeshwari Devi and Others vs Ram Krishan

Surjit Singh, J.—This Regular Second Appeal, by the defendants, is directed against the judgment and decree dated 27th February, 2009 of learned Additional District Judge, Shimla, whereby their appeal against the judgment and decree dated 1st September, 2007 of the trial Court, declaring that defendant-appellant No. 1 Bhupeshwari Devi is not the wife of plaintiff-respondent Ram Krishan, has been dismissed and the said decree dated 1st September, 2007 of the trial Court has been affirmed.

Plaintiff-respondent Ram Krishan filed a suit for declaration that appellant Bhupeshwari Devi, who was impleaded as defendant No. 1, was not his wife and by way of further relief prayer was made for passing a decree of permanent prohibitory injunction, restraining the said appellant from claiming or proclaiming herself to be the wife of respondent.

Suit was contested by the defendants-appellants, especially Bhupeshwari Devi. She claimed that she was the legally wedded wife of plaintiff-respondent Ram Krishan.

Trial Court decreed the suit, after recording the evidence and hearing the parties. Appeal filed by the appellants before the learned District Judge stands dismissed.

It is submitted on behalf of the appellants that declaratory decree could not have been granted, unless order of maintenance, earlier passed by the Chief Judicial Magistrate in favour of appellant Bhupeshwari Devi and her children, was challenged and got set aside. Another submission made on behalf of the appellants is that there is an admission by respondent Ram Krishan, in a notice, copy Ex. R-7, served through a Lawyer, that Bhupeshwari Devi is Ram Krishan''s wife.

I have gone through the record. Finding by the Chief Judicial Magistrate in a petition, u/s 125 of the Code of Criminal Procedure, is only for the purpose of grant of maintenance. Finding of a criminal Court cannot stand in the way of a person, seeking a declaration contrary to the finding by the criminal Court by filing a suit. Legal position is well settled in this regard and, thus, this submission does not give rise to a substantial question of law.

As regards alleged admission in notice, copy Ex. R-7, the two Courts below have noticed this document. They have not relied upon the admission in the notice, for the reason that evidence on record shows that respondent Ram Krishan is having another wife by the name of Asha Devi and marriage between the respondent and said Asha Devi had taken place prior to the alleged marriage between appellant Bhupeshwari Devi and respondent Ram Krishan. Parties are admittedly Hindus. Thus, the alleged marriage between appellant No. 1 Bhupeshwari Devi and respondent Ram Krishan is a nullity.

In view of the abovestated position, appeal is dismissed. Pending applications also stand disposed of, having become infructuous.