Whether the second wife can prove the first marriage of husband by producing a photocopy of his passport before Family court?

The burden of proof to establish that there subsisted a marriage, is on the appellant. The appellant not being the holder of the document, she could only have produced photocopies of the passports. The rigor of the Indian Evidence Act, 1872 is not to be applied in a proceeding before the Family Court in view of Section 14 of the Family Courts Act, 1984. In the judgment in Sithara v. Harikrishnan Nair [MANU/KE/1677/2011 : 2011 (4) KLT 492], a Division Bench of this Court held that when a wife filed petition for declaration of marriage as null and void and produces a photocopy of prior marriage certificate, propriety required that Family Court declare the marriage null and void based on undisputed averments in the affidavit. Under Section 14, the Family Court may receive as evidence any document, information or matter that may in its opinion assist it to deal with a dispute, whether or not the same would be otherwise admissible under the Indian Evidence Act, 1872. In the present case, the appellant has discharged her burden of proof by filing affidavit in proof and producing photocopies of the passports of the respondent.

12. The respondent has not cared to appear in the Family Court proceedings and to controvert the evidence adduced by the appellant. Section 10 of the Family Courts Act, 1984 requires Family Courts to follow the provisions of the Code of Civil Procedure, 1908 subject to the other provisions of the Act. Order VIII Rule 10 of CPC provides that where any party from whom a written statement is required fails to present the same, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. The counsel for the appellant relied on a Division Bench judgment of the Patna High Court in Arti Jaiswal v. Pawan Chaudhary and others [MANU/BH/1208/2016 : AIR 2016 Pat. 200] wherein it was held that in a proceeding for declaration of nullity of marriage on ground of subsistence of earlier marriage, when evidence on record by way of affidavit and pleadings remain unchallenged, subsistence of earlier marriage can be presumed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 1132 of 2017

Decided On: 20.08.2019

 Namitha S. Nair  Vs.  V. Ravikanth

Hon'ble Judges/Coram:

C.T. Ravi Kumar and N. Nagaresh, JJ.

Citation: AIR 2020 Kerala 19

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Whether issue of suppression of first marriage can be raised in proceeding U/S 127 of CRPC?

 There is yet another ground of challenge raised by the petitioner and it
is regarding his marriage with the respondent being unlawful, as the
respondent suppressed the fact at the time of her marriage with the applicant
that she was already married and her marriage with her first husband was in
subsistence. This ground would not be available under section 27(1) of Cr.P.C
and in order to resort to this ground, the petitioner would be required to seek
necessary orders from the competent court regarding cancellation of his
marriage and then a resort can be made to the provisions contained in Section
127(2) of Cr.P.C. In fact the learned Magistrate has already found no merit in
this ground and this finding of the learned Magistrate now has attained
finality after the appeal against such finding came to be dismissed.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.133 OF 2015
Shri Akbar Hussain Khan,

V 
Smt. Saira Khan,

 CORAM: S. B. SHUKRE, J.
 DATE: 28TH JANUARY, 2016.
Citation: 2017 ALLMR(CRI)1058

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Whether second wife is entitled to get maintenance when her husband has performed marriage with her by concealing first marriage?

 In view of recording a specific finding that applicant No. 1 is not legally wedded wife and is second wife of the respondent, in view of the provisions of Section 125 of the Criminal Procedure Code, applicant No. 1 Prayagbai is disentitled to claim the maintenance.

 In so far as reported decisions are concerned, those are not helpful to the learned counsel for the applicants, because the facts of those cases are altogether different.

In so far as the authoritative pronouncement of the Apex Court is concerned, in the said case the Apex Court has specifically observed that the wife in the said case was married with the husband and at that time the factum of his first marriage was concealed from the wife, and therefore, she married with the husband. In that context, the Apex Court has observed that merely because she is second wife, that itself will not disentitle her to claim maintenance, especially when the husband contracted marriage with her by concealing the fact of his first marriage.

From the pleadings, evidence and also from hearing, it is clear in the case at hand that it is not the claim of Prayagbai that she was required to marry with Raghunath since the fact of his first marriage was concealed by Raghunath. Hence, said ratio is not applicable in the present case.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL REVISION APPLICATION NO.  32 OF 2002
Sau. Parighabai w/o Raghunath Jadhav,
  
VERSUS

Raghunath tatyaba Jadhav,
  



CORAM  :  V.M.DESHPANDE, J.
                DATED   :  13   January, 2015
  Citation: 2015ALLMR(Cri)1043

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Whether non disclosure of first marriage amounts to fraud?

In our opinion the pre-marital status of a party is a material fact which the other party must know before imparting consent for marriage. It may not be a very vital factor when both the parties are divorcees or there is a history of both of them being previously married. But in a case where one of the parties is previously married and the other is unmarried it becomes a relevant aspect to be considered by the party who is unmarried. A party is under an obligation to disclose whether he was previously married or not.

 There is no 

denial of the fact that solemnization and registration was lawful and valid. But the decree for annulment was passed on the ground for non- consummation of the marriage. It is thus clear that factum of earlier marriage though declared annulled cannot be disputed nor effect of the same for entering into the subsequent marriage can be ignored with the logic that once the decree of annulment of marriage is passed she is resorted to her status of spinster.

 In the eye of law it is true the plaintiff cannot be said to be a divorcee but at the same time she cannot be ascribed to the status of unmarried.The factum of occurrence of previous marriage is within the special knowledge of Saswati, hence it was her obligation to disclose it since she was adult, or for that matter her parents. They have failed to discharge the burden under Section 106 of Evidence Act. On the contrary, it has been noticed by the learned Trial Judge that the parents of the appellant or the appellant herself in a bid to conceal above material fact described meaningfully her status as unmarried in the application for registration under Hindu Marriage Act. Therefore, such representation before the Marriage Officer as well as Avik amounts to misrepresentation to put it mildly incorrect information. Under such circumstances Avik believed such representation to be true and correct, when it was made before a public servant there is no reason to disbelieve.

Kolkata High Court (Appellete Side)

Saswati Chattopadhyay (Nee ... vs Avik Chattopadhyay on 14 July, 2010

Present:

The Hon'ble Justice Kalyan Jyoti Sengupta
       And
The Hon'ble Justice Kalidas Mukherjee

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