Sona Rakshel vs Vinod Kumar Nayak

G. Minhajuddin, J.—This appeal has been filed u/s 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 11th August, 2011 passed by the First Additional Principal Judge, Family Court, Raipur, in Civil Suit No. 179-A/2007, whereby the application filed by the respondent/plaintiff u/s 11 of the Hindu Marriage Act, 1955 for declaring the marriage performed between the appellant and the respondent on 19-6-2003 as null and void, has been allowed. Facts not in dispute are that marriage between the parties was solemnized on 19-6-2003 at Arya Samaj, Sector-6, Bhilai Nagar, Distt. Durg.

The facts, in brief, as projected by the respondent/plaintiff in his plaint, are that the first marriage of the respondent/plaintiff was solemnized with Smt. Kiranmai Nayak on 23-6-1988 and out of their wedlock, a son named Vikram Nayak was born. Smt. Kiranmai Nayak is engaged in law profession and the appellant/defendant is also engaged in law profession since last 10 years. The appellant/defendant was junior/associate of Smt. Kiranmai Nayak and used to visit the office of Smt. Kiranmai Nayak in connection with the profession. In the year 1999, the appellant/defendant suffered heart disease, and Smt. Kiranmai Nayak took her for treatment to Puttavarti (Andhra Pradesh) and got her treated there and took care of her. However, the appellant/defendant established illicit relationship with the respondent/plaintiff and thereafter, on account of illicit relationship, the appellant/defendant on the threat of committing suicide, performed marriage with the respondent/plaintiff on 19-6-2003 at Arya Samaj Mandir, Bhilai Nagar, Distt. Durg. The respondent/plaintiff has pleaded that there is no divorce between the respondent/plaintiff and Smt. Kiranami Nayak and the appellant/defendant, despite knowing this fact, by threatening him to commit suicide, has performed second marriage with him and as such, this second marriage performed on 19-6-2003 is null and void.

The appellant/defendant in her written statement denying the adverse allegations made by the respondent/plaintiff, had averred that there has been customary divorce between the respondent/plaintiff and Smt. Kiranmai Nayak, there is no conjugal relationship between them and they are living separately for the last 15 years and just to maintain their image in the society, they pretend themselves to be still husband and wife. The respondent/plaintiff had himself informed her (appellant) that there has been customary divorce between the respondent and Smt. Kiranami Nayak. The appellant/ defendant has denied that she had ever given threat of committing suicide to the respondent/plaintiff and in fact, the respondent / plaintiff has performed second marriage with the appellant of his own sweet will at Arya Samaj Mandir, Bhilai Nagar, on account of there being customary divorce between the respondent/plaintiff and his first wife Smt. Kiranmai Nayak.

Learned Family Court after hearing the respective parties and on close scrutiny of the material available on record, by the impugned judgment and decree allowed the application of the respondent/plaintiff u/s 11 of the Hindu Marriage Act, 1955 and thereby declared the second marriage of the respondent/plaintiff with the appellant/ defendant as null and void.

Heard Learned Counsel for the parties, perused the LCR as also the impugned judgment and decree.

The core question to be decided in this appeal is - whether marriage of appellant/defendant Sona Rakshel was performed with respondent/plaintiff Vinod Kumar Nayak during subsistence of his first marriage with Smt. Kiranmai Nayak?

It is not in dispute that marriage of the respondent/plaintiff with Smt. Kiranmai Nayak was solemnized in the year 1988 and out of their wedlock, a son named Vikram Nayak was born in the year 1989, who is presently studying in Australia. The appellant/defendant has alleged that about 15 years back, marriage between the respondent and Smt. Kiranmai Nayak was dissolved as per customs prevailing in their community. On the contrary, the respondent/plaintiff (PW-1) as well as his wife Smt. Kiranmai Nayak (PW-2) have stated that their marriage is still subsisting and they are living even today as husband and wife and there had been no divorce as per any custom prevailing in their community. It is not in dispute that the appellant had married the respondent on 19-6-2003 at Arya Samaj Mandir, Bhilai Nagar, Distt. Durg. In such a state of affairs, the burden to prove that previous marriage of the respondent with Smt. Kiranmai Nayak solemnized in the year 1988 was dissolved as per customs prevailing in their community, lies on the present appellant. However, the appellant has not adduced any evidence, oral or documentary, except her statement, to discharge this "burden. On the contrary, the appellant/defendant has admitted in her cross examination that only on the assurance given by the respondent/plaintiff that his marriage with his previous wife Smt. Kiranmai Nayak has been dissolved as per customary mode, that the appellant had believed this fact to be true and married him at Arya Samaj Mandir, Bhilai Nagar. In such a state of affairs, the present appellant has utterly failed to prove that before marrying the respondent on 19-6-2003 at Arya Samaj Mandir, Bhilai Nagar, marriage between the respondent and his previous wife Smt. Kiranmai Nayak had stood dissolved by customary mode. As such, the marriage solemnized between the appellant and the respondent on 19-6-2003 at Arya Samaj Mandir, Bhilai Nagar, having been solemnized during the subsistence of previous marriage of the respondent with Smt. Kiranmai Nayak, is clearly void in view of the provisions of Section 5 of the Hindu Marriage Act, 1955 and the learned Family Court has not committed any illeglity or infirmity in passing the impugned judgment and decree declaring the marriage performed between the parties on 19-6-2003 as null and void.

In the result, the appeal fails and is accordingly dismissed. The impugned judgment and decree dated 11th August, 2011 passed by the First Additional Principal Judge, Family Court, Raipur, in Civil Suit No. 179-A/2007 is hereby affirmed. No order as to costs. The Additional Registrar (Judicial) shall draw up a decree accordingly.