Surjit Kaur vs Karnail Singh and Another

A.P. Chowdhri, J.—This appeal is directed against the judgment and decree dated January 11, 1988, of the Additional District Judge, Ropar allowing the husband''s petition u/s 11 of the Hindu Marriage Act, 1955 (hereinafter referred to as ''the Act'') against Surjit Kaur Appellant.

Karnail Singh husband-petitioner was married in Kareva form of marriage to Surjit Kaur respondent No. 1 in April 1985. The respondent had a 12 years old son from her previous marriage with one Piara Singh. According to the petitioner, the respondent represented that she was earlier married to Piara Singh, who had died leaving the aforesaid son, who at the time of respondent''s second marriage with the petitioner was about 12 years, old. After about six months of the marriage, the petitioner discovered that Piara Singh, the previous husband of the respondent, had not died but was alive and was living at village Theda, Tehsil Nalagarh, District Solan (Himachal Pradesh). He, therefore, stopped living with the respondent and sent her a notice dated October 28,1985, and since then the parties had been living separately from each other. The petitioner prayed for the marriage with the respondent being declared void on the ground that, her earlier spouse was alive and the respondent''s marriage with the petitioner was null and void. The petitioner, impleaded Piara Singh as respondent No. 2 in the petition.

In the written statement, respondent No. 1 stated that she was married to Piara Singh deceased about 24 years back, After 8 or 9 years of marriage with her, Piara Singh contracted some mental ailment and he went away from the house. A son was born from respondent''s marriage with Piara Singh after about three months of his departure from the house. Piara Singh had not been heard of since then. Through Gian Singh and one Mohinder Kaur respondent''s marriage with the petitioner took place as the respondent had no source of income and she had to fend for her son as well It was admitted that an agreement in writing was executed between the parties at the time of marriage on April 10, 1985. The petitioner knew these facts and had made enquiries that said Piara Singh had not been heard of for about 13 years and was, therefore, presumed to be dead. In fact, according to the respondent, the trouble arise, because the petitioner''s -brother Gurmail Singh and his wife became greedy on account of property held by the petitioner and they instigated the petitioner against the respondent.

Another written statement purporting to be on behalf of Piara Singh respondent No. 2 was filed through counsel. Therein, marriage with Surjit Kaur and. birth of a son were admitted and it was stated that the marriage still subsists. It was also stated that Piara Singh continued residing at village Theda, Tehsil Nalagarh. Respondent''s second marriage with the petitioner was denied for want of knowledge.

The trial Court framed the following issues:-

Whether the respondent had a spouse i.e. respondent No. 2 already living at the time of marriage ? OPP.

Whether the marriage between the parties is a nullity? OPP.

Whether the petitioner is entitled to the decree prayed for ? OPP.

Relief.

On a consideration of the evidence, it was held that the respondents previous spouse Piara Siagh was alive and therefore, her second marriage with the petitioner was a nullity. Accordingly, the petition was decreed. Aggrieved by the judgment, the wife has preferred this appeal.

I have heard Mr. P.K. Gupta, learned counsel for the wife-appellant and Mr. A.K. Mittal, learned counsel for the husband-respondent.

The first contention of Mr. Gupta is that defence of the respondent-husband is liable to be struck off as he had failed to comply with the order dated September 15, 1988, passed u/s 24 of the Act granting maintenance pendente lite at the rate of Rs.175/- per mensem from April 1988 onwards during the pendency of the appeal, besides litigation expenses amounting to Rs.1,000/-. During the pendency of the appeal,-the appellant-wife made Civil Misc. No.21-M of 1988 u/s 24 of the Act on March 16, 1988. By order dated September 15, 1988 the respondent-husband was directed to pay pendente lite maintenance and litigation expenses at the rates already mentioned. Admittedly, this order has not been complied with. In support of his contention, Mr. Gupta placed reliance on Sheela Devi v. Madan Lal 1981 H.L.R. 126 and Smt. Surinder Kaur v. Manahar Singh 1978 MLR 276.

In reply, Mr. Mittal, learned counsel for the respondent-husband, submitted that in view of the provisions of Section 5 and 11 of the Act, the marriage between the respondent and the petitioner being void, the respondent did not have the status of ''wife'' within the meaning of Section 24 of the Act, and therefore, non-compliance with the order u/s 24 of the Act directing payment of maintenance and litigation expenses does not render the defence of the husband liable to be struck off. He placed reliance on Manjeet Singh Vs. Parson Kaur, .

After hearing learned counsel for both the parties, I am of the view that the contention put forward by Mr. Mittal, namely, that the marriage of the parties being void, Section 24 of the Act was not attracted, ought to have been raised at the time of the passing of the order dated September 15, 1988, disposing of the application u/s 24 of the Act. this was evidently not done, with the result that the order was passed and the same having not been challenged has attained finality. The matter can be seen from another angle. The claim of the husband in the original petition was that the previous spouse of the respondent was alive and, therefore, her second marriage with the petitioner was void. No doubt, the trial Court has decreed that claim but the judgment and decree have been assailed in the appeal. An appeal is a continuation of the original cause and in that sense the decree of the trial Court has not as yet attained finality. Even a void order remains operative unless and until it is declared to be so by a Court of competent jurisdiction. For this proposition, reference may be made to the observations in State of Punjab and Others Vs. Gurdev Singh, . Though this was a case on the point of limitation, it was observed by the apex Court that even an action which is ultra vires, against principles of natural justice and void, remains operative unless and until it is declared to be so by Court It was further observed that consequent upon such declaration, it automatically collapses and there is no need to quash it. If the statutory limit expires, the Court cannot give the declaration sought for. The principle underlying these observations clearly applies to the present case. For these reasons, I am of the view that defence of the respondent is liable to be struck off.

I would, however, not like, to base the decision only on the above finding and I would, therefore, proceed to discuss the merits of the case as well.

Before dealing with the merits of the case a brief reference may be made to the evidence on record.

Karnail Singh petitioner appeared as PW-1 and stated that the respondent was also known as Sito. She told him that her previous husbaad Piara Singh had died. Accepting that representation, he married her and an agreement dated April 10, 1985, was executed between the parties. After about six months he discovered that the said Piara Singh was alive. He went to village Theda. Piara Singh was not available there. The petitioner was informed that Piara Singh used to reside in the village and also sometimes at a Gurdwara at Mandi in Himachal Pradesh. He along with some of his relations went to Mandi and found him there. He was working as a Langri (cook) in the Gurdwara at Maadi Enquiry was made without letting Piara Singh know about their presence. It was thereafter that the present petition was filed. In cross-examination, he admitted that Ajmer Kaur, wife of Gian Singh, of his village had been instrumental in arranging petitioner''s marriage with the respondent. Before marrying the respondent, he did not go to village Theda in order to verify whether her previous husband was alive or not When be met Piara Singh at Mandi, he did not disclose his identity and, in fact, did not talk to him. He also did not talk to Piara Singh about his marriage with Surjit Kaur. In fact, Sarpanch who accompanied the petitioner had a talk with said Piara Singh- He went on to state that Piara Singh told the Sarpanch that he was a married person and also had a child. He denied that the respondent had told him that her previous husband was not traceable for the last about 15 years. He denied the suggestion that Piara Singh was not alive.

PW-2 Naghaya Singh was Sarpanch of village Manpur. In fact, the panchayat of villages Manpur and Theda is a joint one. He stated that Piara Singh, previous husband of the respondent, is alive and sometimes he resides at village Theda and sometimes at Gurdwara Haripur. Previously Piara Singh was clean-shaven but now he is a Sikh with long hair. The petitioner along with Sarpanch of village Ghanauli came to his village to enquire about Piara Singh and he had told them that Piara Singh was alive and in these days he was residing at Mandi in Himachal Pradesh. The cross-examination shows that he never accompanied the petitioner to Mandi, nor he had any occasion to meet Piara Singh in the presence of Karnail Singh petitioner.

Dalip Singh PW-3 is Sarpanch of village Ghanauli. He is related to the petitioner. He along with the petitioner made enquiries from the Sarpanch of village Manpur, implying Naghaya Singh PW-2 about the whereabouts of Piara Singh of village Theda. They were informed that Piara Singh was alive and was residing in the Gurdwara at Mandi (Himachal Pradesh). He accompanied the petitioner to Mandi and found Piara Singh working as a cook in the Gurdwara. On enquiry, Piara Singh confirmed that he was a married person, resident of Theda, and had a son. In cross-examination, he admitted that he did not know Piara Singh earlier.

The petitioner also produced copy of the relevant entry from the electoral rolls Exhibit P-2 and the agreement Exhibit P-1.

The respondent appeared as RW-1 and stated that Piara Singh disappeared from the house after having developed some mental trouble and he had not been heard of for the last more than 15 years. It was in these circumstances that she entered into Kareva marriage with the petitioner and an agreement in writing was also executed at that time. Her statement was corroborated by Gian Singh who was responsible for arranging the marriage of the respondent with the petitioner as also Ramji Dass, Lambardar of village Theda. Both of them supported the case of the respondent.

After hearing learned counsel for both the parties, 1 am of the view that this appeal deserves to succeed.

The Admitted case of the parties is that the respondent disclosed to the petitioner about her earlier marriage to Piara Singh. This fact was duly mentioned in the written agreement Exhibit P-1, The existence of a 12 years old son from the loins of Piara Singh, about which there is a mention in the agreement, conclusively shows that the respondent could not have withheld the information that she had been previously married. It is normally to be excepted that the petitioner must have made enquiries whether the previous husband, namely, Piara Singh was alive or not, especially as the marriage was arranged through Gian Singh and/or his wife. In other words, it was not a marriage which may have been arranged through matrimonial advertisement etc. The additional circumstances is that the go-between would not think of even proposing a second marriage if the spouse of the woman is alive and is living normally in the matrimonial home. Further it is highly improbably that if the respondent''s previous husband were alive and living normally in the village, the respondent would describe him as dead, as was done in the agreement Exhibit P-1. It is totally consistent with the probability of the case that version of the respondent is right and Piara Singh had left his house for some unknown place after 8/9 years of his marriage with the respondent and he had not been heard of by those who would naturally hear from him or about him for more than 7 years. The period of more than 7 years is fixed by the fact that Bant Singh was born after three months of his departure and he was aged about 12 at the time of the agreement Exhibit P-1. The irresistible conclusion, therefore, is that the respondent must have disclosed to the petitioner that she was married to Piara Singh earlier, that she had a son from him and that Piara Singh had gone away from the house and had not been heard of for more than 12 years and was, therefore, presumed to have died. Instead of describing the whole thing in the precise legal manner set out above, it appears that in layman''s language Piara Singh was described as having died. The recital with regard to Piara Singh in the agreement Exhibit P-1 is, in the facts and circumstances of the case, substantially true in the sense explained above. Once the above facts are held proved, Section 108 of the Evidence Act comes into play. It reads: -

"108. BURDEN OF PROVING THAT A PERSON IS ALIVE WHO HAS NOT BEEN HEARD OF FOR SEVEN YEARS :- Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."

The burden of proving that Piara Singh was alive at the time when the respondent married that petitioner is thus shifted on the petitioner, who is now asserting that he discovered after six months of his marriage with the respondent that Piara singh was alive. The question on which the fate of this appeal turns is, therefore, whether the petitioner has succeeded in proving that Piara Singh Was alive at the time of petitioner''s marriage with the respondent. The petitioner impladed Piara Singh as respondent No. 2 in this petition. It is further claimed that Piara Singh was served and he put in appearance in these proceedings through a counsel and filed a written statement admitting the material facts alleged by the petitioner No effort was made to examine any witness who might have identified Piara Singh at the time of service of summons in the case. The counsel himself was not examined to show on what basis he claimed that it was Piara Singh, previous husband of the respondent, who had signed the written statement filed through him. The easiest thing for the petitioner was to have examined Piara Singh himself if he were really alive and available.

No effort was made to lead evidence to show that the signature of Piara Singh appearing on the Vakalatnama as also the written statement tallied with the admitted signature of Piara Singh. The filling of the written statement, therefore, does not advance the case of the petitioner.

The next piece of evidence relied on is an entry from the electoral roll relating to the year 1986. It is well known that entries in the electoral roll are repeated in subsequent electoral rolls unless the fact is otherwise reported. No enumerator has been examined to prove that when the entry was made Piara Singh was contacted in person. This is apart from the fact that in the entry Exhibit P-2 the name appearing is ''Piara Lal'' instead of Piara Singh and the name of the respondent is mentioned as, Sito instead of Surjit Kaur.

The oral evidence led by the petitioner fails to prove that Piara Singh was alive. Naghaya Singh, Sarpanch of gram panchayat of villages Manpur and Theda, PW-2 did not admittedly go to Haripur Gurdwara at Mandi (Himachal Pradesh) to identify Piara Singh. He only claimed that he had seen Piara Singh in the village. If that were so, there should have been no difficulty in producing Piara Singh in the Court to show that he was alive. Dalip Singh, Sarpanch of village Ghanauli PW-3 is stated to have gone to the Gurdwara at Mandi (Himachal Pradesh) and met Piara Singh there. On his own admission, Dalip Singh P-3 did not know Piara Singh earlier. He did not have Piara Singh identified by any employee of the Gurdwara Management. He did not consult any record of employees kept in the Gurdwara. What is more, it is totally difficult to understand why the petitioner who is supposed to have accompanied Dalip Singh PW-3 felt shy in talking to said Piara Singh. As against the above, Surjit Kaur respondent RW-1 and Gian Singh, resident of Khizrabad, the village of the petitioner, who was examined as PW-2, as well as Ramji Dass, Lambardar of village Theda, categorically stated that Piara Singh had not been heard of ever since his disappearance in the house and it could not, therefore, be said that he was alive. In my view, the above evidence leads to only one conclusion and that is that the petitioner failed to prove that Piara Singh was alive on the material date.

In view of the above discussion, the appeal succeeds and the same is allowed with costs, assessed at Rs.2,500/-. The petition filed by Karnail Singh u/s of 11 of the Act stands dismissed.