Sital Dass vs Smt. Vijay Kumari

A.P. Chowdhri, J.—This F.A.O. is directed against judgment and decree dated 28th March, 1985, of Subordinate Judge, 1st Class, Garhshankar, dismissing husband''s petition u/s 9 of the Hindu Marriage Act, 1955 (for short ''the Act'')

The facts necessary for the disposal of this appeal may be briefly stated.

Sital Dass (hereinafter referred to as the petitioner/husband) instituted an application u/s 9 of the Act against Smt. Vijay Kumari (hereinafter refened to as the respondent/wife) on 30th September, 1982, with the averments that he was married to the respondent about 10 years earlier The parties lived together as husband and wife. A daughter was born from the wedlock. She died immediately after birth at Village Rahon, Tehsil Nawanshehr, District Jullundur. After two years of marriage, the parents of the respondent took her away and did not allow her to come back to the matrimonial home. The petitioner got issued a search warrant and in consequence thereof, the respondent came and resumed cohabitation with him. Sometime in the beginning of 1981, the respondent went to her parental village Rahon on the pretext of seeing her parents. She failed to return. The petitioner made efforts to bring her back with the help of respectables of his village. The parents of the respondent were greedy persons and wanted to marry her again some where for consideration. In these circumstances, the respondent had withdrawn from the society of the petitioner without any sufficient cause. The petitioner prayed for restitution of conjugal rights.

The petition was contested. In the written statement a number of prelim nary objections were taken. It was stated that the petitioner had no cause of action; and that the petition was barred by res judicata. On merits, it was denied that the respondent was ever married with the petitioner. It was pleaded that in fact the real elder sister of the respondent named Birjo was married to the elder brother of the petitioner named Shambu Dass Shambu Dass used to beat Birjo and demand dowry. His demand could not be satisfied. Shambu Dass then started harassing the father of the respondent. Shambu Dass along with the petitioner Sital Dass forcibly took away the respondent as well as elder sister Birjo from their father''s house. Respondent''s father filed two criminal complaints in the Court of Judicial Magistrate, 1st Class. Nawanshehr and also made an application u/s (sic), Code of Criminal Procedure, in the Court of Sub- Divisional Magistrate, Garhshankar He also made several complaints to the Senior Superintendent of Police, Jullundur and other concerned authorities, but to no purpose. The petitioner and his brother failed all attempts of the father of the respondent in recovering the respondent. Ultimately the respondent was traced out and recovered and since then she had been living with her parents. It was also pleaded that the respondent had been married to Joginder Ram son of Bhana Ram, Ad Dharmi of village, Rurki Khas and from their wedlock a daughter was born to her, who died immediately after her birth. It was further pleaded that in the absence of marriage with the petitioner, there was no question of withdrawal from his society.

The learned trial Court framed the following issues:-

(1) Whether the petition is maintainable as alleged?

(2) Whether the applicant has locus standi to file this application?

(3) Whether the petition is hit by principle of res judicata?

(4) Whether Vijay Kumar is legally wedded wife of Sital Dass as alleged?

Issue No. 4, which was the most important was dealt with in detail and it was held that the petitioner failed to prove that he was married to the respondent. Issue Nos. 1 and 2 were decided against the petitioner and it was held that the petition was not maintainable and the petitioner had no locus standi to file this petition. Issue No. 3 was decided against the respondent as she failed to lead any evidence at all. In the result, the petition was dismissed with costs. The husband has filed this F.A.O.

At the outset, learned counsel for the appellant referred to an application dated 22.3.1985 made in the trial court for additional evidence, in which the petitioner sought to examine Shri D.K. Dutta, Dy. S.P., Balachaur to prove a statement dated 25.10.1983 made by Mohinder Ram father of the respondent during the course of enquiry into a complaint made by the petitioner. In that statement Mohinder Ram is said to have admitted having married his daughter Vijay Kumari to Sital Dass in 1973. The application was opposed and it was rejected by the learned trial Court by order dated 26.3.1985. The contention of the learned counsel in appeal is that application for additional evidence should have been allowed and if the additional evidence were permitted, it would be proved that the petitioner was in fact married with the respondent, as alleged by him. The undisputed facts and circumstances relating to the alleged admission are firstly, that the admission came into being on 25.10.1983 long after the alleged marriage had been denied in the course of the petition u/s 9 of the Act filed by the husband on 30.9.1982 and secondly, the so-called admission was recorded by a police officer in the course of enquiry in a complaint made by the husband. It was an admission not of the party to the marriage but of her father. It is well settled law that admissions are relevant against the maker thereof and as laid down in section 31 of the Indian Evidence Act, they are not conclusive proof of the matters admitted, but they may operate as estoppel. It is further settled law that an admission can be shown to be erroneous and can be withdrawn. No case for interference with the order of the learned trial Court rejecting the application for additional evidence has been made out.

This brings us to a consideration of the evidence already on record:

The petitioner examined Bhagat Ram, Sarpanch, of his village as A.W. 2, his sister-in-law Smt Birjo, A.W. 3 and Daulat Pam, A.W. 4 also of his village besides himself appearing as A.W. 1. The respondent appeared as R.W. 1 and produced her father Mohinder R.W. 2 and Kewal Ram, R.W. 3. The witnesses referred to above supported the case of the party for whom they appeared. No documentary evidence was produced from either side In a situation like this, where the parties choose to rely on oral evidence, the Court has to decide the matter on a careful consideration of the preponderance of probabilities on the basis of admitted, proved or other circumstances, which cannot be disputed. Such circumstances proved in the facts of the case are that all along the respondent consistently denied hiving married the petitioner. The petitioner failed to prove even a single occasion when the respondent may have admitted that she was married to the petitioner. This is so in spite of the fact that admittedly there have been several rounds of litigation both civil and criminal apart from several applications for search warrant u/s 97 of the Code of Criminal Procedure. It is well known that in pursuance of search warrant u/s 97 of the Code of Criminal Procedure, the person who is allegedly kept in wrongful confinement is got produced and after ascertaining the true facts from such person necessary orders are passed. In the absence of any record relating to search warrant proceedings, the irresistible conclusion is that at no stage the respondent admitted having been married with the petitioner. This, therefore, furnished a clinching circumstance against the petitioner.

Equally important circumstance against the petitioner is that admittedly the respondent was married to one Joginder Ram in 1980. She has given birth to two children, one of whom was a daughter, who died soon after the birth and another is a son who is alive. At the time of her testimony in Court as R.W. 1 she was carrying a pregnancy of about eight months. Yet another circumstance against the petitioner is the non-production of voters list and ration card. It was put to Vijay Kumari, respondent (R.W. 1) in cross-examination that she had been enrolled as a voter along with the petitioner at village Mohar and that she was shown as a member of the family of the petitioner in the ration card. The respondent denied both these suggestions. The petitioner failed to produce these documents, which would inevitably lead to the inference that the documents in question did not support the case of the petitioner.

There is no dispute that respondent''s elder sister Smt. Birjo was married to Shambu Dass elder brother of the petitioner. Smt. Birjo appeared as A.W. 3 and supported the petitioner''s case, A question naturally arises that being real sister of the respondent, she would not support the case of the petitioner. We have carefully considered the evidence on record in this respect. Smt. Birjo, A.W. 3, stated in cross examination that her husband Shambu Dass died in the middle of 1984. No intimation regarding his death had been sent to her parents nor anyone came to condole the death. This circumstance goes a long way to show that Smt. Birjo had practically severed her relations with her parents and according to her father Mohinder Singh, R.W. 2, she had been living with Sital Dass, petitioner, who is maintaining her. In the extraordinary circumstances, apparent on record, the evidence of Smt Birjo has to be properly evaluated before being accepted. While the petitioner failed to examine any close relation of his who might have attended his marriage with the respondent, the respondent examined her father who categorically denied having married the respondent with the petitioner. The respondent also examined Darshan Dass, R.W. 4, who is a family Mahant of the respondent''s father for over 20 years and who had performed the ceremonies relating to marriage of Smt. Birjo with Shambu Dass. The petitioner stated that from the boy''s side Rattan Dass of Bachhori was the Pandit who performed the ceremonies connect d with the marriage. He was not examined and the explanation given was that he had gone abroad. According to Darshan Dass, Mahant, R.W. 4, the custom obtaining in the community of the parties was that no Pandit performed the ceremonies related to marriage from the boy''s side. Such ceremonies are performed by a Mahant from the side of the girl.

Assuming for the sake of argument that the petitioner had married the respondent, the marriage must be deemed to have come to an end. The respondent Vijay Kumari gave her age as 23 at the time of her examination in the Court as R.W. 1 in November, 1984. According to the petitioner the marriage took place in August, 1973. It follows that the respondent was below 15 years of age at the time of the alleged marriage. Before attaining the age of 18, she declined to go with the petitioner. In fact, she married Joginder Ram sometimes in 1980. There was thus repudiation of the marriage by conduct.

For the reasons discussed above, we affirm the finding of the learned trial Court that the petitioner had failed to prove that he was married to the respondent. In the result, the appeal fails and the same is dismissed. In the circumstances of the case, there shall be no order as the costs.