Rajni Bala vs Rajesh Dhiman

Ajay Kumar Mittal, J.

The challenge in this appeal is to the judgment and decree dated 9.7.2014 whereby the petition filed under Section 12 of the Hindu Marriage Act, 1955 (in short "the Act") for declaring the marriage of the parties as nullity, has been allowed. Put shortly, the facts necessary for adjudication of the instant appeal as narrated therein are that the marriage of the appellant with the respondent was solemnized on 19.7.2009 according to Hindu ceremonies at Amritsar. Out of the said wedlock, no child was born. Prior to the performance of the marriage, the respondent was divorcee as his previous marriage was dissolved by way of decree of divorce dated 12.6.2007. Before the marriage, the parents of the appellant had shown the agreement dated 27.12.2007 of divorce to the respondent and his family members that the appellant had been divorced from her first husband, namely, Satish Kumar by way of agreement in writing. After the marriage, the appellant-wife started creating scenes on trifle matters and also created unhealthy scenes and kept the atmosphere of the house in tense. The respondent brought the matter into the notice of the parents of the appellant but to no avail. On 12.9.2010, the appellant left the company of the respondent along with all the gifts and gold jewellery and cash lying in the house by stating that she was going just for 2/3 days and refused to return back. However, later on, with the intervention of respectables, the dispute was resolved and the respondent attended the marriage of the brother of the appellant. After passing of considerable time, when the appellant did not turn back, the respondent again approached the appellant and the parents of the appellant refused to send their daughter to her matrimonial home. Thereafter, the respondent demanded a copy of order of dissolution of earlier marriage of the appellant with her previous husband Satish Kumar. Upon this, the parents of the appellant told that the earlier marriage of the appellant had not been dissolved by any competent court of law and they have performed the marriage only to enjoy with the money of the respondent who was a Central Government employee. Accordingly, the respondent filed a petition under Section 12 of the Act for declaring the marriage of the parties as nullity or in the alternative petition under Section 13 of the Act for dissolution of marriage of the respondent with the appellant by passing decree of divorce on the ground of cruelty. The said petition was contested by the appellant-wife by filing written statement. Besides raising various preliminary objections in the written statement, it was pleaded that by showing agreement of divorce dated 27.12.2007, it was brought to the notice of the respondent and their parents that the appellant had been divorced from her first husband Satish Kumar who after verifying the same agreed for the marriage. It was further pleaded that after the marriage, the respondent and his family members started harassing, beating and maltreating the appellant-wife for bringing inadequate dowry. They also demanded a car. According to the appellant, her father had given Rs. 10,000/- besides sweets, clothes and other articles on the occasion of Lohri, 2010. At the time of marriage of brother of the appellant on 19.9.2010, her parents had given clothes and Rs. 30,000/- in cash to the respondent and his family members for purchasing electronic articles. Further, on Karva Chauth, the parents of the appellant had also given a sum of Rs. 10,000/- in cash to the respondent. The other averments made in the petition were denied and a prayer for dismissal of the same was made. From the pleadings of the parties, the trial court framed the following issues:-

"1) Whether there has been fraud on the part of the respondent at the time of marriage? OPP

2) Whether the respondent was lawful divorcee at the time of marriage? OPR

3) Whether the petition for divorce is maintainable? OPP

4) Whether the petitioner is entitled to the relief of decree of divorce as prayed for? OPP

5) Relief."

The trial court took issues No. 1 and 2 together being interconnected and on appreciation of evidence led by the parties decide the same in favour of the husband and against the wife holding that the consent of the respondent for marriage with the appellant was obtained on the basis of false representations regarding dissolution of her previous marriage with Satish Kumar by way of decree of divorce. Issues No. 2 and 3 being interconnected were decided together in favour of the respondent-husband holding that the petition for divorce was maintainable and as such the respondent was entitled to get his marriage dissolved by the appellant as per Section 12(1)(C) of the Act. Accordingly, the court below vide judgment and decree dated 9.7.2014 declared the second marriage of appellant-Rajni with respondent-Rajesh Dhiman as nullity as her previous marriage with Satish Kumar was not dissolved by way of decree of divorce by any competent court of jurisdiction at the time of solemnizing her second marriage with the respondent. Hence, the present appeal.

Learned counsel for the appellant submitted that there was a divorce between the parties by Panchayatnama and in such a situation; the petition under Section 12 of the Act was not maintainable. In case, the respondent had any remedy, he could file a petition under Section 11 of the Act. It was urged that the petition filed under Section 12 of the Act was beyond limitation as the marriage was solemnized on 19.7.2009 and the petition was filed on 16.11.2010. It was also urged that the husband knew about the earlier marriage of the appellant with Satish Kumar which was dissolved by Panchayatnama.

We have heard learned counsel for the appellant.

We do not find any merit in the contention of the learned counsel for the appellant that the petition filed was beyond limitation. The trial Court had concluded that the appellant or her family members had not supplied any document of earlier divorce between Rajni Bala and Satish Kumar to the husband. Therefore, it could not be presumed that husband had knowledge about valid divorce between mem. Further, it could not be attributed to the husband by implication as well. Once that was so it could not be held that the present petition filed by the husband was beyond limitation. The Trial Court while rejecting the aforesaid contention that the petition filed under Section 12 of the Act was beyond limitation had noticed as under:-

"The contention of ld. counsel for the respondent that petition of the petitioner is barred by period of limitation as petitioner has knowledge about dissolution of previous marriage of respondent with Satish Kumar by way of agreement from the very beginning of his marriage with respondent, is devoid of any force as Sudesh Gabha, father of respondent himself has admitted that no document of divorce was handed over to petitioner despite a demand made in this regard by him and dispute between the parties is mat they had not supplied order of the court regarding divorce of Rajni with Satish Kumar as discussed in issue No. 1 & 2. Hence, when no document regarding divorce has been supplied to the petitioner, then it cannot be believed that petitioner was having knowledge about dissolution of previous marriage of respondent Rajni with Satish Kumar by way of agreement Ex.R-1 from the very beginning of his marriage with respondent Rajni Bala. Petitioner has categorically stated in para No. 11 of his petition as well as in his statement on oath in affidavit form Ex.PW-3/A that he had come to know regarding non dissolution of previous marriage of respondent with Satish Kumar and existence of first marriage of respondent with Satish Kumar at the time of performance of marriage of respondent with petitioner about few days back when respondent and her parental relation declared so and he got it confirmed later on. The marriage of the petitioner with respondent was Solemnized on 19.7.2009 and present petition has been filed by the petitioner on 16.11.2010. So it cannot be said that present petition has not been filed by the petitioner within period of one year from the date fraud had been discovered as required under sub-section 2 of section 12 of Hindu Marriage Act. Thus, petition of the petitioner is maintainable in the present form and as such petitioner is entitled to get his marriage dissolved with respondent as per section 12(1)(C) of Hindu Marriage Act."

In view of the aforesaid when the appellant had not been able to prove that it was within the knowledge of the husband regarding the divorce of appellant-Rajni Bala with Satish Kumar, it could not be said that the petition was beyond limitation.

Accordingly, we do not find any infirmity in the judgment and decree passed by the trial court. Finding no merit in the present appeal, the same is hereby dismissed. No costs.

"12. Voidable marriages. - (1) Any marriage solemnized whether before or after the commencement of this Act, shall be voidable and may be annulled by a divorce of nullity on any of the following grounds namely:-

(a) xxxxxxx

(b) xxxxxxx

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent, or

(d) xxxxxxxx

(2) xxxxxxxx

Under clause (c) sub-section (1) of Section 12 of the Act, a marriage is voidable where the consent of the party has been obtained by fraud. In the present case, the trial Court had come to the conclusion that the wife or any of her family members had not shown any document whereby Rajni Bala had obtained valid divorce from her earlier husband-Satish Kumar. In such circumstances, the marriage between Rajni Bala and Rajesh Dhiman was a result of fraud and the aforesaid provision would clearly apply. No doubt, in the absence of valid divorce between Rajni Bala and Satish Kumar, it would result in a void marriage under Section 11 of the Act as well. In the present facts and circumstances of the case, the contention that the remedy was only to file a petition under Section 11 of the Act and not under Section 12 of the Act would not help the appellant.

Further viewed from another angle, it may be noticed that no doubt under Section 29(2) of the Act, no provision of the Act would affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage whether solemnized before or after the commencement of the Act. In other words, divorce under custom is recognized and still persists. However, in order to establish the same, party who alleges custom has to plead such custom in the pleadings and establish that it is ancient, certain, reasonable and is not opposed to public policy and prove it by producing cogent and convincing evidence. In the absence of any such specific pleading or evidence on record Panchayatnama cannot be regarded as valid proof of divorce between Rajni Bala and Satish Kumar. Accordingly, we do not find any infirmity in the judgment and decree passed by the trial Court. Finding no merit in the present appeal, the same is hereby dismissed.