High Court Punjab-Haryana High Court

Balwinder Kaur vs Jiwan Lal And Another on 4 September, 2008

Punjab-Haryana High Court
Balwinder Kaur vs Jiwan Lal And Another on 4 September, 2008
FAO No.M-51 of 2008                            -1-

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH


                                                 FAO No. M-51 of 2008
                                   Date of decision: September 04, 2008
Balwinder Kaur
                                                       .....APPELLANT
Versus

Jiwan Lal and another
                                                     .....RESPONDENTS

CORAM:      HON'BLE MR JUSTICE T.P.S.MANN

PRESENT: Mr Parveen Kumar, Advocate
         for the appellant.

            Respondents exparte.

T.P.S.MANN, J.

The appellant has filed the present appeal against the

judgement dated 17.11.2007, whereby her petition under Section 11 of

the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”) for

declaring her marriage with respondent No.1 as null and void or in the

alternative for dissolution of her marriage by way of a decree of divorce

under Section 13 of the Act, was dismissed.

It was the case of the appellant that she married Jiwan Lal-

respondent on 2.10.1994 as per Sikh rites. From this wedlock one

daughter was born on 25.10.1996. The appellant, being a qualified

nurse got a job in Italy and went there in the year 2001. Jiwan Lal-

respondent also agreed to shift to Italy. However, while the appellant was

staying in Italy, she had sent a sum of Rs.20,000/- to her husband. When

she came back from Italy, she found that Jiwan Lal had played a fraud

with her and had started residing with Gurmeet Kaur-respondent. She

further learnt that Jiwan Lal was already married to Gurmeet Kaur, which
FAO No.M-51 of 2008 -2-

marriage was never dissolved and during subsistence of that marriage, he

married the appellant. As such, the marriage of the appellant with Jiwan

Lal-respondent was null and void. She also stated that since she left for

Italy her husband did not joint her there, though he had agreed to reach

there later-on. She, accordingly, prayed for declaring her marriage with

Jiwan Lal-respondent as null and void or in the alternative for dissolution

of her marriage by a decree of divorce on the ground of desertion.

Jiwan Lal-respondent could not be served in the ordinary

way and ultimately publication was effected in the Daily Ajit, but still he

did not come present. He was, accordingly, proceeded against exparte by

the learned trial Court vide order dated 3.9.2007. Gurmeet Kaur-

respondent, however, appeared through her counsel on 10.1.2007. Later

on she did not come present and was also proceeded against exparte.

In support of her case, the appellant had examined Kamaljit

Kaur PW-2, Jaswant Kaur PW-3 and Jasbir Singh PW-4, besides

appearing herself as PW-1. All of them made their statements in the

shape of affidavits, which were taken on record.

As mentioned above, learned Additional District Judge,

Hoshiarpur dismissed the petition filed by the appellant, leaving her to

bear her own costs.

The appeal came up for motion hearing on 3.3.2008, when

after hearing learned counsel for the appellant, notice of motion was

issued and the records were requisitioned. The parties were directed to

be present on the next date of hearing. On 26.5.2008, when the matter

came up for further hearing, it was observed that the notices issued to the

respondents had been received back with the report that the service was
FAO No.M-51 of 2008 -3-

effected by way of affixation. In spite of the same, neither the

respondents nor any one on their behalf put in appearance. Under these

circumstances, the respondents were proceeded against exparte, more so

as they had earlier been proceeded against exparte before the learned trial

Court.

Learned counsel for the appellant submits that there is

evidence available on the file in the shape of testimonies of PW-1 to PW-

4, in support of the case of the appellant. These testimonies remained un-

rebutted as the respondents did not appear before the learned trial Court

to contradict them. It is also submitted that Jiwan Lal-respondent already

stood married to Gurmeet Kaur-respondent before marrying the appellant

on 2.10.1994. As Jiwan Lal already had a spouse living at the time

when he married the appellant, his marriage with the appellant was null

and void in view of the provisions of Section 11 of the Act.

Accordingly, it was prayed that the appeal be accepted and the marriage

of the appellant with Jiwan Lal-respondent be declared void.

The appellant had also taken the plea of desertion in support

of her petition under Section 13 of the Act. However, it is not clear from

the evidence if Jiwan Lal-respondent had agreed to shift to Italy to join

the appellant there, where she was working as a nurse or after the return

of the appellant to India, he had not stayed with her and instead, started

living with Gurmeet Kaur-respondent. Therefore, the plea of the

desertion raised by the appellant remains unsubstantiated. The relief of

divorce sought by the appellant under Section 13 of the Act cannot be

granted to her.

FAO No.M-51 of 2008 -4-

As regards the case of the appellant that Jiwan Lal-

respondent married the appellant during subsistence of his earlier

marriage with Gurmeet Kaur-respondent, I find that there is un-rebutted

testimonies of PW-1 to PW-4. None of the respondents has taken pains to

appear before the learned trial Court or even before this Court to

contradict the evidence of the appellant. At one point of time, Gurmeet

Kaur-respondent appeared before the learned trial Court through her

counsel, but thereafter she never came present to oppose the plea of the

appellant. There is no requirement of law that some independent witness

has to come and support the testimonies of the appellant and her

witnesses. Kamaljit Kaur PW-2, Jaswant Kaur PW-3 and Jasbir Singh

PW-4, who are relatives of the appellant, have corroborated the oral

testimony of the appellant. From the evidence available on the record, it

stands established that at the time of his marriage with the appellant,

Jiwan Lal-respondent was already married to Gurmeet Kaur-respondent

and the said marriage was in subsistence.

In view of the above, the marriage of Jiwan Lal-respondent

with the appellant was void, having been contracted during the

subsistence of his first marriage. Therefore, the marriage of Jiwan Lal

with the appellant needs to be declared void under Section 11 of the Act.

Resultantly, I accept the appeal and set aside the order dated

17.11.2007, passed by learned Additional District Judge, Hoshiarpur.

The marriage of Jiwan Lal-respondent is declared void under Section 11

of the Hindu Marriage Act.

September 04, 2008                                   (T.P.S.MANN)
Pds.                                                     JUDGE