Jaswant Kaur vs Lal Singh and another

P.C. Jain, J.—Briefly the facts of this case are as follows:

Smt. Jaswant Kaur appellant filed a petition u/s 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for the dissolution of her marriage said to have been solemnized at Ludhiuna with respondent No. 1 by mutual consent on 4th February, 1953. It is averred that at the time of marriage, respondent No. 1 had mentioned that he was unmarried and had no living wife. In January, 1961, Smt. Bhagwant Kaur, respondent No. 2, came to live with respondent No. 1 and it was then that the appellant learnt that her husband, respondent No. 1, was already married to Smt. Bhawgant Kaur, respondent No.2 and had three children from their wedlock. Hence the present petition for divorce was presented on 26th March, 1964.

The respondents contested the petition and inter alia pleaded that the petitioner at the time of her marriage was in very much know of their marriage, that because of knowledge the petitioner was estopped from filing the petition and that the petitioner-appellant was not entitled to any relief as she had condoned the alleged illegality. On the pleadings of the parties the following issues were framed:

Whether the petition has not been rightly and correctly verified? If so, to what effect?

Whether the petitioner has condoned the first marriage of respondent No. 1 ? If so, to what effect?

2A. Whether the petitioner is estopped by act or conduct from filing the present petition ?

Relief.

The trial Court decided issues Nos. 1 and 2 in favour of the appellant. On issue No. 2A it was held that the petitioner (appellant) as estopped by her conduct from now claiming dissolution of marriage by a decree of divorce. Under the issue of relief, the trial Court further field that no relief could be granted to the petitioner on two grounds, (sic) that marriage as contemplated by the Act was not proved between the parties and (ii) that the petition was presented after considerable delay which remains unexplained. Accordingly the petition was dismissed leaving the parties to bear their own costs. Feeling aggrieved from the order of the trial Court, the present first appeal has been filed by Smt. Jaswant Kaur.

Mr. M.S. Jain, learned counsel appearing on behalf of the appellant contended that the finding of the learned Subordinate Judge on issue No. 2A was not maintainable. According to the learned counsel, the plea of estoppel was not available to the respondents. In order to obtain dissolution of marriage by a decree of divorce u/s 13 (2)(i), the only requirement which the petitioner (appellant) had to prove was that at the time of the presentation of the petition, the other wife should be alive which fact admittedly has been proved in the instant case. Even on merits, the learned counsel contended that the onus of issue No. 2A was on the respondents and they had miserably failed to discharge that onus.

After giving my thoughtful consideration. I feel that the contention of the learned counsel is well-founded. Section 13(2)(i) of the Act is in the following terms:

13(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground-

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner.

Provided that in either case the other wife is alive at the time of the presentation of the petition.

The learned Subordinate Judge, after considering the statements of the parties as there was no other evidence led on either side, observed

here is thus, a glaring case where the petitioner has made the respondent No. 1 alter his position, in a way to his detriment, while the petitioner entered into marriage with him with full knowledge of his marriage with the respondent No. 2 and even continued to live with them for 8, 10 years without a demur and she cannot now be allowed to reprobate and is decidedly estopped by her conduct, from now claiming a decree of dissolution of her marriage with him.

I fail to understand as to how respondent No. 1 was made to alter his position and how the principle of estoppel is applicable in this case. From the reading of this clause it is clear that a petition for dissolution of marriage by a decree of divorce can lie if:

(i) Both the marriages of the respondent have been solemnized before the enforcement of this Act;

(ii) The first wife is alive at the date of the solemnization of the subsequent marriage;

(iii) The first marriage was valid and subsisted at the date of the subsequent marriage;

(iv) The subsequent marriage also was a valid marriage;

(v) Both the wives are alive at the date of the presentation of the petition.

A statutory right is given to a wife to present an application for divorce and the only limitation under this section put on the right of a wife who applies for divorce is that the other wife should be alive at the time of the presentation of the petition. Respondent No. 1 was never made to alter his position; rather it was he who made the petitioner-appellant change her position by marrying him. The only ground on which relief can be refused to a petitioner under the Act is on any of the grounds enumerated in section 23 of the Act. Thus I am of the clear view that in a case where a divorce petition is presented u/s 13(2)(i), the petitioner cannot be non-suited on the plea of estoppel.

On merits too I find myself unable to agree with the finding of the learned Subordinate Judge. The onus of issue No. 2A was on respondent No. 1 who has appeared as his own witness and has led no other evidence. In his statement, he has deposed that the petitioner knew about his first wife (respondent No. 2) and had married him with that knowledge. Except this statement, there is no other assertion to prove the ingredients of estoppel. Respondent No. 2 has neither been examined by respondent No 1 nor lists she come herself in the witness-box to support the version of respondent No. 1. Jaswant Kaur appellant has come into the witness-box as A.W. 1. Her plea is that it was for the first time when she was posted at Khanna in the year 1961 that she learnt about the first wife (Smt. Bhagwant Kaur) of respondent No. 1. From the reading of the entire statement of the appellant I feel that the plea taken by respondent No. I that the appellant at the time of her marriage knew about his previous marriage is not convincing.

It is a common case of the parties that the appellant before her marriage used to take private tuition of the daughter of respondent No. 1. The appellant in her statement has not denied that she did not know Bhagwant Kaur, respondent No. 2 or the children. What she has stated is that on her asking, respondent No. 1 told her that she (respondent No. 2) was his brother''s wife who was in the military and that the children were his brother''s children. Respondent No. 1, as deposed by him, was the Manager of Guru Nanak Kanya Pathshala, Ludhiana, in which the appellant was working as a teacher. It seems that respondent No. 1, taking advantage of his position, started making love with the appellant and the poor girl, though of her own accord, fell prey to his love and without knowing that he had a living wife and children from that wife, married him. It is very difficult for me to hold on the bare statement of respondent No. 1 that at the time of her marriage, the appellant had knowledge of the previous marriage of respondent No. 1 with respondent No. 2. In this view of the matter I find unable to uphold the finding of the trial Court on issue No. 2A and accordingly set aside the same.

The appellant was non-suited on two other grounds, (i) that marriage, as contemplated by the Act, was not proved between the parties and (it) that the petition was presented after considerable delay which remains unexplained. Great stress was laid by Mr. Bali, learned counsel appearing on behalf of the respondents on ground No. (i). The contention of the learned counsel was that the application under the Act was not maintainable as the appellant in her petition did not allege that her marriage with respondent No. 1 was performed according to the custom or law by which they were governed. This proposition cannot be disputed that if the marriage is not solemnized according to the custom or the law by which the parties are governed than there is no marriage in the eye of law and the provisions of the Act cannot be made applicable. However, I find that the findings referred to above under the issue of relief have been given by the trial Court without any plea or any issue on these points. The respondents in their written statement did not raise any plea with regard to the non-applicability of the provisions of the Act on account of the marriage having not been solemnized in accordance with custom or law by which the parties were governed or that the petition was presented after considerable delay. If any such objection had been raised by the respondents, the appellant would have led evidence in rebuttal. By giving a finding on these points the appellant has completely been taken by surprise. u/s 23 of the Act, power is given to the Court to refuse a relief to which a party may be found entitled under the Act if any of the grounds enumerated therein exists, but the trial Court has no jurisdiction to give a finding on a point on which there is no pleading or an issue. It is not open to the trial Court to disregard the pleadings and reach any conclusions that it thinks are just and proper. In this view of the matter I hold that the trial Court was not justified in holding that the marriage, as contemplated by the Act, was not proved and that the petition was presented after considerable delay as these fundings were based on no evidence.

No other point was urged.

For the reasons recorded above, I allow this appeal, set aside the judgment of the trial Court and grant the appellant a decree for dissolution of marriage by divorce. The appellant will have her costs also from respondent No. 1.