Sunday, 21 February 2016

Whether second marriage becomes valid as husband has condoned second marriage of wife?

 Even assuming for the sake of arguments that Avtar
Singh was very much aware of the fact that Balbir Singh who married
Sawaranjit Kaur was alive and he preferred to condone the act of
Sawaranjit Kaur, the marriage of Sawaranjit Kaur with Avtar Singh
cannot be held valid as there can be no condonation of an act which
is prohibited under law.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No. 309-M of 2003
DATE OF DECISION :- August 03,2015
Smt. Sawaranjit Kaur ...Appellant
Versus
Lt. Col. Avtar Singh and others ...Respondents
FAO No. M-256 of 2009
Balbir Singh ...Appellant
Versus
Swaranjit Kaur ...Respondent
CORAM: HON’BLE MR.JUSTICE M.JEYAPAUL
HON'BLE MRS. JUSTICE RAJ RAHUL GARG

Citation;AIR 2016(NOC)176 P&H

1. Avtar Singh, the 1st respondent in FAO No. 309-M of
2003 having died, his legal representatives have been brought on
record to contest the appeal preferred by appellant Sawaranjit Kaur.
2. Avtar Singh who was the sole respondent in FAO No.
309-M of 2003 filed a petition under Section 11 of the Hindu Marriage
Act, 1955, praying to declare his marriage with the appellant
Sawaranjit Kaur as null and void. The trial Court allowed the petition
under Section 11 of the Hindu Marriage Act. Hence Sawaranjit Kaur
has preferred FAO 309-M of 2003.
3. Balbir Singh, the 1
st husband of Sawaranjit Kaur, filed a
petition under Section 13 of the Hindu Marriage Act praying for
dissolution of marriage on the ground of cruelty and desertion. The
petition was dismissed by the trial Court. Hence, Balbir Singh has
preferred FAO No. M-256 of 2009.
4. As both the appeals are inter-connected with each other,
the same are taken up together for final hearing.
5. Avtar Singh, the 1
st
respondent in FAO No.309-M of
2003, has contended in his petition that Sawaranjit Kaur started
living with Avtar Singh as a legally wedded wife but the marriage of
Avtar Singh with Sawaranjit Kaur was registered on 30.11.1993.FAO No. 309-M of 2003 and
FAO No. M-256 of 2009
3
Sawaranjit Kaur married Avtar Singh during the subsistence of her
marriage with Balbir Singh. But Sawaranjit Kaur gave wrong
information to Avtar Singh that her husband had died. Sawaranjit
Kaur had misrepresented that she was a widow and thereby
deceived Avtar Singh. Avtar Singh, therefore, has sought declaration
for declaring his marriage with Sawaranjit Kaur null and void.
6. Sawaranjit Kaur has filed replied to the petition filed by
Avtar Singh that her 1
st husband Balbir Singh who left the house but
did not return. His whereabouts were not known to anyone. Avtar
Singh got registered the marriage after fully satisfying himself about
the above fact. Disputing other allegations made in the petition by
Avtar Singh, Sawaranjit Kaur sought for dismissal of the petition filed
by him.
7. In the petition filed by Balbir Singh under Section 13 of
the Hindu Marriage Act, 1955, he has stated that he married
Sawaranjit Kaur on 14.12.1975 as per Hindu rites and ceremonies.
Two male children were born out of the wedlock. Sawaranjit Kaur
used to pick up quarrel with Balbir Singh. She treated Balbir Singh
with utmost cruelty. She abandoned Balbir Singh. Balbir Singh came
to know that Sawaranjit Kaur was given in marriage to Lakha Singh
and thereafter she married Avtar Singh. Balbir Singh was very much
alive in the year 1993. It was only Sawaranjit Kaur who left the
matrimonial house in the month of May, 1985 without sufficient cause
and thereby deserted him.FAO No. 309-M of 2003 and
FAO No. M-256 of 2009
4
8. Sawaranjit Kaur has filed reply to the above petition
preferred by Balbir Singh under Section 13 of the Hindu Marriage Act
that she performed her duties as a Hindu wife with dignity and
honesty. Balbir Singh used to consume liquor and gave severe
beatings to Sawaranjit Kaur. She was also not given proper food,
diet and medicines. Balbir Singh left the company of Sawaranjit Kaur
when she stopped him from indulging in consuming liquor. She
denied that she was given in marriage to Lakha Singh. She started
living as a maid servant with Avtar Singh. She took sincere efforts to
trace Balbir Singh who was not heard of. Therefore, she married
Avtar Singh in the year 1993. Sawaranjit Kaur has sought for
dismissal of the petition filed by Balbir Singh.
9. There is no dispute to the fact that Sawaranjit Kaur
married Balbir Singh on 14.12.1975. It is her own admission that she
married Avtar Singh in the year 1993 after her husband had left her
in the year 1985 when she was pregnant. Sawaranjit Kaur has set
up a plea that the whereabouts of Balbir Singh were not known to
her, therefore, she married Avtar Singh in the year 1993. But Avtar
Singh has established that though Sawaranjit Kaur lived with him as
a legally wedded wife after she was engaged as a maid servant in
the year 1989, the marriage as such was registered on 30.11.1993.
Balbir Singh was examined as PW3 in the case filed by Avtar Singh.
It was found that Balbir Singh was very much alive at the time when
Sawaranjit Kaur married Avtar Singh.FAO No. 309-M of 2003 and
FAO No. M-256 of 2009
5
10. Learned counsel appearing for Sawaranjit Kaur would
contend referring to Section 13(1)(vii) of the Hindu marriage Act,
1955 that Sawaranjit Kaur was entitled to marry Avtar Singh as her
previous husband Balbir Singh had not been heard of as being alive
for a period of seven years. He also referred to the provision under
Section108 of the Indian Evidence Act,1872 and submitted that once
it is established that Balbir Singh was not heard of for more than
seven years, the burden shifts on the other side to prove that he was
alive.
11. The learned Senior counsel appearing for Avtar Singh
submitted that a spouse may set up a plea for divorce on the ground
that the other spouse was not heard of as being alive for seven
years. Section 108 of the Indian Evidence Act, 1872 only deals with
the burden of proof and the shifting of burden.
12. As rightly pointed out by learned Senior counsel
appearing for Avtar Singh, the fact that a spouse having not been
heard of as being alive for a period of seven years is one of the
grounds for seeking dissolution of marriage under Section 13 of the
Hindu Marriage Act, 1955, but just because a spouse was not heard
of for seven long years, the other spouse cannot contract second
marriage which will create havoc in the matrimonial sphere. As per
Section 108 of the Indian Evidence Act, 1872, the party who pleads
that a person was not heard of as being alive for seven years should
first establish such a plea and thereafter the burden shifts on the
other side to prove that he was alive during that period.
13. Sawaranjit Kaur could not contract second marriage on
the plea that Balbir Singh was not heard of for seven years. If at all
her plea was true, she should have approached the competent Court
seeking divorce on that ground and thereafter she should have
contracted second marriage. No right to remarry has flowed from the
above provision of law.
14. On facts, it is found that Balbir Singh himself came alive
and deposed in favour of Avtar Singh that he never absconded. Avtar
Singh has established that Balbir Singh was very much alive when
Sawaranjit Kaur contracted second marriage with Avtar Singh.
Therefore, such a marriage solemnized by Sawaranjit Kaur with
Avtar Singh is patently illegal and is null and void.
15. Counsel appearing for Sawaranjit Kaur would further
contend that Sawaranjit Kaur was an illiterate woman. As her
husband had absconded for more than seven years she had
contracted second marriage.
16. Ignorance of law is no excuse. When the law lays down
that a marriage with another person during the subsistence of
marriage is null and void, Sawaranjit Kaur cannot hide herself behind
the plea of illiteracy and seek for validity of the marriage.
17. It was further contended by counsel appearing for
Sawaranjit Kaur that Avtar Singh should have verified before ever he
married Sawaranjit Kaur. It was further contended that Avtar Singh
was very much aware of the fact that Sawaranjit Kaur was already
married to Balbir Singh whose whereabouts were not known for
seven years. Further, Avtar Singh chose to condone the act of
Sawaranjit Kaur, it is submitted.
18. We find that there is no substance in the above
submissions made by counsel appearing for Sawaranjit Kaur. The
evidence on record would go to establish that Sawaranjit Kaur
having disclosed before the Registrar that she was a widow,
contracted second marriage with Avtar Singh and got registered the
same. There is no acceptable evidence on the side of Sawaranjit
Kaur that Avtar Singh was aware of the fact that Balbir Singh was
alive at the time when Sawaranjit Kaur married Avtar Singh.
19. Even assuming for the sake of arguments that Avtar
Singh was very much aware of the fact that Balbir Singh who married
Sawaranjit Kaur was alive and he preferred to condone the act of
Sawaranjit Kaur, the marriage of Sawaranjit Kaur with Avtar Singh
cannot be held valid as there can be no condonation of an act which
is prohibited under law.
20. In the above facts and circumstances, we are of the
considered view that Sawaranjit Kaur having married Avtar Singh
during the subsistence her marriage with Balbir Singh has caused
cruelty to Balbir Singh. Therefore, Balbir Singh is entitled to a decree
of divorce under Section 13 of the Hindu Marriage Act,1955.
Accordingly, the judgment and decree passed by the trial Court inFAO No. 309-M of 2003 and
FAO No. M-256 of 2009
8
HMA case no. 5 of 2009 is set aside and a decree of dissolution of
marriage as prayed for under Section 13 of Hindu Marriage Act is
granted. Accordingly, FAO No. M-256 of 2009 is allowed.
21. The judgment of the trial Court in HMA case no. 65 dated
29.10.1997/14.12.1998 is confirmed and consequently FAO No. 309-
M of 2003 is dismissed.
(M. JEYAPAUL)
JUDGE
(RAJ RAHUL GARG)
JUDGE
August 03, 2015



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