Laxmibai vs Laxman

Budihal R.B., J.—This is the appeal preferred by the appellant/wife against the respondent/husband being aggrieved by the judgment and decree dated 23.10.2009, passed by the Principal Civil Judge (Sr. Dn.) at Bidar in MC No. 4/2004, dissolving the marriage of appellant as well as respondent on the ground of nullity of marriage.

The appellant has challenged the legality and correctness of the judgment and decree of the trial Court on the grounds as urged in the appeal memorandum.

Heard learned counsel appearing for the appellant/wife. Respondent and learned counsel appearing for respondent both are absent and no representation.

The brief facts of the case presented before the trial Court that the respondent/husband has filed a petition before the trial Court seeking declaration that the marriage of the appellant herein with the respondent is null and void as it was performed during the subsistence of marriage of the respondent/husband with one Kasturibai in the year 1983, hence, under Section 11 of Hindu Marriage Act and restraining the appellant herein from claiming arrears of maintenance in Misc. No. 5/2003. It was averred by the respondent/husband in the said petition that the plaintiffs/husband marriage was solemnized with Kastunbai in the year 1983 and they have got no issues. With the consent of said Kastunbai, the husband married with the present appellant. It is further contended that the wife has left the house on the ground of ill-treatment and resided with her parents house at Gadi Kushnoor and filed Misc. No. 6/1990 under Section 125 of Cr.P.C. The husband appeared in the said case and he denied the allegations made therein. He has also contended that the present appellant is his second wife. The learned JMFC Court Aurad has rejected the plea and order of maintenance of Rs. 500/- per month was ordered on 23.11.1998. The husband has preferred the Revision Petition No. 4/1999 against the said order but the same was dismissed. Hence, the husband has preferred again Criminal Revision Petition No. 65/2002 before this Court. This Court has directed the husband to pay the arrears of maintenance for six years. It is further contended that though the marriage was settled and the appellant is being the second wife and she is not entitled for maintenance and the said marriage was null and void under Section 11 of Hindu Marriage Act and she has deserted the husband since 1990.

The appellant/wife appeared before the trial Court and she has filed her counter, denying the allegations that she is the second wife of the respondent herein and she has contended that she is the legally wedded wife of the respondent herein and she has claimed the maintenance and the same was ordered by this Court on the ground that she has alleged that the husband was neglecting her and giving ill-treatment and also refused to maintain her. In the said Criminal Revision Petition No. 65/2002, this Court has ordered to pay the arrears of maintenance of Rs. 36,000/- for a period of six years against the husband, in order to avoid the payment of arrears of maintenance amount.

The husband has filed a petition making false allegations that earlier he had married with one Kasturibai and with her consent subsequently he has married the appellant herein. On the basis of the contentions raised by the parties, ultimately, the Court below has framed as many as four issues and after recording the oral evidence of the parties, comes to the conclusion that the petition filed seeking desolation of marriage as per the provisions of Section 11 read with Section 5(1) of Hindu Marriage Act, and the same was allowed partly and declared that the said marriage was null and void as it was performed during the subsistence of marriage of the husband with Kastunbai. Being aggrieved by the same, now the wife is before this Court by preferring this appeal.

The husband has examined himself as P.W. 1 before the trial Court and he has examined other two witnesses in his case as P.Ws. 2 and 3. He has produced one document i.e., the Marriage Invitation Card.

On perusal of the oral evidence of P.Ws. 2 and 3, during the course of their cross-examination, they have stated that it is true that Laxman and Laxmibai were related earlier to the marriage. They did not know that for an intention to safeguard the relationship, the parents of Laxmibai have performed her marriage with the appellant/plaintiff P.W. 3 during the course of his cross-examination, deposed that he did not go to the marriage of Laxmibai. He do not know Laxmibai and he cannot identified the parents and sisters of Kasturibai. The relative of Laxmibai came and told him that they have sending Laxmibai with Laxman.

Looking to the evidence of P.Ws. 2 and 3 examined on the side of the husband before the trial Court, there is no specific evidence by these two witnesses, at which place the marriage of the respondent herein was performed with said Laxmibai and what are the rituals followed in the said marriage and only on the bard and vague averments made in their oral evidence, the trial Court comes to the conclusion that the respondent herein has married Kasturibai. But the trial Court has totally ignored the pleadings presented by the wife that earlier she has filed a petition seeking maintenance and the matter even went up to this Court. Wherein the contentions of the wife was accepted that she is the wife and this Court has directed the respondent herein to pay the arrears of maintenance of Rs. 36,000/- to the appellant herein. All these aspects of the matter presented by way of pleadings by the wife were not at all considered by the trial Court and only on the basis of Ex. P1 -Marriage Invitation Card, the trial Court has comes to the conclusion that the marriage of the respondent was performed with said Kasturibai and said Kasturibai not examined in the case, though her examination was very necessary.

Looking to the material placed on record, we are of the opinion that there is no acceptable evidence, both oral and documentary placed by the respondent/husband to establish the fact that his marriage was performed with Kastunbai earlier to the marriage of the respondent with the present appellant. Therefore, the judgment passed by the trial Court is illegal and it is not sustainable in law. The trial Court has taken perverse and capricious view in coming to such conclusion without looking to the quality of evidence placed by the husband so also the evidence of P.Ws. 2 and 3. It is not going to prove the contention of the husband that the marriage of the appellant was performed during subsistence of the marriage of the respondent with Kastunbai. Therefore, the appellant has made out a case to interfere into the matter.

Accordingly, the appeal is allowed. The judgment and decree passed by the trial Court dissolving the marriage of the appellant with the respondent is hereby set aside. The respondent is liable to pay the cost of Rs. 1,000/- to the appellant.