Yesudas vs Pramila

C.V. Bhadang, J.

By this appeal, the appellant-original petitioner is taking exception to the judgment dated 2.4.2002 passed by the learned Judge, Family Court at Nagpur in Petition No. B-20/1996. By the impugned judgment, the Family Court has dismissed the petition filed by the appellant under Section 11 of the Hindu Marriage Act, 1955 (the said ''Act'' for short) for declaring the marriage between the appellant and the respondent as null and void.

The brief facts are that the appellant and the respondent were married on 30.6.1985 at Wardha according to the Buddhist rites and customs. The parties resided for sometime at Nagpur. According to the appellant, although there was exchange of garlands by the parties, the respondent is not a legally wedded wife of the appellant, inasmuch as the appellant was previously married to one Anjira Jambhulkar on 11.6.1974 at Salebhata, Tahsil-Sakoli, District-Bhandara and the said marriage was subsisting. Thus the appellant claimed that the marriage between the appellant and the respondent was in contravention of the provisions of Section 5 (1) of the said Act and was null and void. It was contended that although the appellant was married to Anjira Jambhulkar, the appellant had married the respondent on account of the insistence by the friends and relatives.

The respondent resisted the petition. It was contended that the respondent was a legally wedded wife of the appellant. The respondent had filed Civil Suit No. 991/1987 as also Misc. Criminal Case No. 88/1987 in which the appellant had admitted that she was his legally wedded wife. It was contended that as such the appellant is estopped under Section 115 of the Indian Evidence Act from claiming to the contrary. It was contended that Civil Suit No. 991/1987 was decreed in favour of the respondent on 17.12.1990 thereby declaring that the respondent was a legally wedded wife of the appellant. It was next contended that even in Misc. Criminal Case No. 88/1987, maintenance was granted to the respondent by judgment and order dated 22.8.1989 upholding her status as the wife of the appellant. That was challenged by the appellant in Criminal Revision Application No. 526/1989, which was subsequently disposed of in terms of a compromise arrived between the parties on 1.9.1990 by which the maintenance granted at the rate of Rs. 400/- per month was reduced to Rs. 300/- per month. It was thus contended that the findings recorded in earlier proceedings would operate as res judicata and would estop the appellant from claiming otherwise.

The learned Judge of the Family Court framed as many as six issues. The appellant examined himself apart from Anjira Jambhulkar (PW2) and her father Pandhari Chaitu Tembhurne (PW3) and produced certain documents. The respondent did not lead any oral evidence, however, produced the copies of the judgment and order passed in Regular Civil Suit No. 991/1987 as also the written statement filed by the appellant therein and Misc. Criminal Case No. 88/1987 and the certified copy of the Criminal Revision Application No. 526/1989.

The learned Judge of the Family Court came to the conclusion that the decision in the Civil Suit would operate as res judicata. It was found that the appellant had failed to prove that the marriage between the appellant and the respondent was solemnized during the subsistence of the alleged first marriage of the appellant with PW2 Anjira. Thus, it was found that the appellant had failed to establish that the marriage between the appellant and the respondent was in contravention of Section 5 (1) of the said Act. In the face of such a finding, the petition came to be dismissed. That is how the appellant is before us.

We have heard Mrs. Deshpande, the learned counsel for the appellant. None for the respondent. With the assistance of the learned counsel for the appellant, we have perused the impugned judgment, as also the oral and documentary evidence led.

In view of the rival contentions, the following points arise for our determination. We have recorded our findings against the same, for reasons which follow :

"[1] Whether the appellant proves that the marriage between the appellant and the respondent was solemnized during the subsistence of the marriage between the appellant and PW2 Anjira.?

[2] Whether the appellant proves that the marriage between the appellant and the respondent was thus in contravention of Section 5 (1) of the Hindu Marriage Act.?

[3] Whether the finding recorded in Regular Civil Suit No. 991/1987 would operate as res judicata.?

[4] Whether the impugned judgment needs interference.?"

Mrs. Deshpande, the learned counsel for the appellant, submitted that the respondent has not entered into the witness box. It is submitted that the appellant had examined himself apart from his first wife Anjira and her father Pandhari Tembhurne (PW3). As such, in view of the oral evidence led, the learned Judge of the Family Court ought to have held that the marriage between the appellant and Anjira was in subsistence, when there was a semblance of a marriage ceremony gone into which only comprised of exchange of garlands between the appellant and the respondent. It is submitted that thus the learned Judge of the Family Court was in error in holding that the marriage between the appellant and the respondent was not in contravention of Section 5 (1) of the said Act. It is, therefore, submitted that the appeal may be allowed.

On hearing the learned counsel for the appellant and on a perusal of the impugned judgment, oral and documentary evidence led, we have no hesitation to hold that the appeal is without any merit and deserves to be dismissed.

The only contention with which the appellant approached the Family Court for declaration of the marriage as nullity is that the appellant was previously married to PW2 Anjira, which marriage was in subsistence when exchange of garlands took place between the appellant and the respondent. In the present case, it is not in dispute that the respondent had filed Regular Civil Suit No. 991/1987 for declaration that she is the legally wedded wife of the appellant and for temporary injunction restraining the respondent from marrying with one Maya Rahate. The appellant had filed his written statement in the said suit of which a copy is produced at Exh.50 before the family court and vide para No. 1 of the written statement, the appellant had clearly admitted that the respondent was his legally wedded wife and their marriage was solemnized on 30.6.1985 at Wardha. The said Civil Suit was decreed in favour of the respondent on 17.12.1990 and a copy of the same was produced on record at Exh.51 thereby granting a declaration that the respondent (plaintiff in the civil suit) was the legally wedded wife of the appellant (defendant No. 1 in the said suit). Even so far as the Misc. Criminal Case No. 88/1987 is concerned, the appellant had admitted therein that the respondent was his legally wedded wife. By a judgment and order dated 22.8.1989 (Exh.54) maintenance at the rate of Rs. 400/- per month was granted to the respondent, which was challenged in Criminal Revision Application No. 526/1989. The said revision application was disposed of on the basis of consent terms by which the maintenance was reduced to Rs. 300/- per month. Thus, it would appear that apart from the findings recorded by the competent court about the respondent being the legally wedded wife of the appellant, the appellant had also specifically admitted in the Civil Suit No. 99/1987 as well as Misc. Criminal Case No. 88/1987 that the respondent was his legally wedded wife. A perusal of the evidence of the appellant would show that the appellant had filed a petition for cancellation of maintenance being petition No. E-2840/1996 which was subsequently withdrawn. He has further admitted that it was for the first time in the memo of the criminal revision application that he contended that the respondent was not his legally wedded wife. The learned Judge of the Family Court, on considering the evidence, had come to the conclusion and in our opinion rightly so, that the findings in the suit would operate as res-judicata. Apart from that the respondent would also be estopped from claiming to the contrary, in as much as, he had clearly admitted in the earlier litigation between the parties that the respondent was his legally wedded wife. Thus, we do not find any infirmity in the impugned judgment and decree, so as to warrant interference. Consequently, the point Nos. 1 and 2 are answered in the negative, point No. 3 in affirmative and point No. 4 in negative.

In the result, the appeal fails and is hereby dismissed with no order as to costs.