IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
SECOND APPEAL NO. 41 OF 1990
1. Nagorao Bhujanga More ]..Appellants
(original
2. Venkati Nagorao More def.1 & 2)
VERSUS
1. Premalabai w/o. Digamber ]..Respondents
(deleted as per order dated (original
9th August, 1991) plaintiff)
2. Mahananda d/o. Digambar,
Aged 6 years, minor under
guardianship of maternal uncle
Balaji Shankar Jadhav.
Shri P.G. Godhamgaonkar, Advocate for the appellants.
Shri H.H. Padalkar h/f. Shri R.S. Deshmukh, Advocate
for the respondent.
CORAM : P.R. BORKAR, J.
RESERVED ON : 05.02.2009
PRONOUNCED ON : 10.02.2009
J U D G M E N T :-
. This is a second appeal preferred by original
defendant Nos. 1 and 2 who have challenged the decree
for partition and separate possession passed by the
learned 4th Additional District Judge, Nanded in
Regular Civil Appeal No. 92 of 1984 decided on 26th
October, 1989 and thereby reversing the judgment and
decree dismissing the suit, passed by the learned
::: Downloaded on – 09/06/2013 14:20:15 :::
( 2 )
Civil Judge, Junior Division, Biloli, in Regular Civil
suit No.302 of 1982 decided on 28th February, 1984.
2. It is no more disputed that one Digambar More
was resident of village Ratoli, Tal. Biloli, Dist.
Nanded. Appellant No.1 Nagorao is father and
appellant No.2 Venkati is brother of said Digambar.
The family owns suit-lands described in plaint
paragraph No.1. It is case of the
plaintiff/respondent No.1 - Premalabai that she was
legally
Mahananda
wedded
was
igborn
wife of Digambar and respondent
to them. Digambar died in
No.2
an
accident on 25th May, 1982. Relation between
respondent No.1 Premlabai and Digambar were strained
during lifetime of Digambar and as a result respondent
No.1 was driven out of the house of Digambar and she
was living with her mother. She filed application No.
40 of 1979 for maintenance under Section 125 of
Cr.P.C. against Digambar in the Court of J.M.F.C.,
Biloli. In that petition Digambar admitted that
respondent No.1 was his wife. The matter was
compromised and the respondent was taken by Digambar
to his house. Again respondent-Premalabai was
ill-treated and therefore she left the house. After
death of Digambar she tried to get share in the
::: Downloaded on – 09/06/2013 14:20:15 :::
( 3 )
property. She issued notice on 8th October, 1982;
but the notice was not replied and therefore suit is
filed for partition and separate possession.
3. The appellants who were defendants appeared in
the suit and filed their written statement jointly at
Exh.21 and denied relationship of present
respondent/plaintiff with Digambar. It is stated that
Digambar had first married with Sheshabai – daughter
of Govindrao resident of Hiparga, Tal. Biloli.
Digambar
married
could
one
ig not
Jijabai d/o.
adjust with Sheshabai
Narayan Hiparaga about
and so
14
years before filing written statement on 27.08.1983.
Digambar never married respondent No.1-Premlabai and
respondent No.2 was not born to Digambar. It is also
alleged in the written statement that on 7th February,
1979 Digambar obtained Rs.5000/- from appellant No.1
and orally relinquished his right in the family
property and therefore Digambar ceased to have right
in the property.
4. The Trial Court held while answering issue
No.1 that respondent No.1-Premla failed to prove that
she was legally wedded wife of Digambar. However, it
is proved that respondent No.2 is daughter of
::: Downloaded on - 09/06/2013 14:20:15 :::
( 4 )
Digambar. However, no share was given to
plaintiff/respondent No.2 as she was not legitimate
daughter of Digambar. The Trial Court has held that
the marriage of respondent No.1/Premlabai with
Digambar was not proved to be marriage validly
solemnised, as essential ceremonies were not performed
and the marriage was performed by Jangam –
Shivmurtiappa.
5. The Trial Court held while answering issue
No.3
his
that there was no relinquishment by Digambar
share in the property by accepting Rs.5000/- that
of
finding of fact was not challenged before the District
Court even by way of counter-claim and in-fact there
is no trustworthy evidence to show that there was
relinquishment. Appellant No.1 – Nagorao in his
cross-examination has stated that Digambar had
executed document about relinquishment of his right in
presence of witnesses, but no such document was
produced. Merely because son has taken some money
from father itself would not be relinquishment. There
is no substantially reliable evidence. The Trial
Court did not believe said version.
6. On the other hand the learned Additional
::: Downloaded on - 09/06/2013 14:20:15 :::
( 5 )
District Judge has held that there is presumption of
valid marriage and necessary onus to prove legal
marriage is discharged by respondent No.1. The
learned Additional District Judge decreed the suit for
partition and separate possession. The Court declared
that the respondents have 1/3rd share in the suit
properties.
7. It is argued that the First Appellate Court
has not properly considered the evidence and wrongly
came
to the conclusion that the marriage of
with respondent No.1 – Premala was legal and void.
Digambar
It
is argued that Sheshabai was first wife and Jijabai
was second wife of Digambar. Jijabai was examined in
the Court and there was no reason to disbelieve her
evidence.
8. As per order passed on 25.01.1991 the Second
Appeal is admitted on the ground Nos. 2 to 7, 9 and
14 of the appeal memo. To put it briefly the
substantial question of law which arises in this
matter is as follows:-
“Did respondent No.1 prove that she is legally
wedded wife of Digambar?”
::: Downloaded on – 09/06/2013 14:20:15 :::
( 6 )
9. The learned advocate for the respondents has
pointed out certain documents produced on record. He
brought to my notice certified copy of plaint bearing
Criminal Case No. 2511 of 1979 filed in the Court of
J.M.F.C., Biloli. It was a private complaint lodged
by present respondent No.1 - Premala against deceased
Digambar, Jijabai (who is said to be second wife as
per written statement filed by present appellants) and
other two persons. The offence alleged was under
Section
is stated to
494 r/w 34 of the I.P.C.
be 06.04.1979. It
The date of offence
is alleged that
respondent No.1 Premlabai was legally wedded wife of
Digambar and their marriage was subsisting. Their
marriage was performed four years before filing said
complaint on 05.05.1979. From said wed-lock Mahananda
(respondent No.2) was born and she was two years old.
The relations between respondent No.1 and Digambar had
become strained and she was driven out of the house
and she was residing with her parents and on
06.04.1979 Digambar had remarried Jijabai and thus
committed offence of bigamy. It is clear that
thereafter verification of Premala was recorded and
process was issued. It appears that thereafter for
absence of Premala and her counsel the complaint came
::: Downloaded on – 09/06/2013 14:20:15 :::
( 7 )
to be dismissed on 02.07.1979. It is argued before
this Court that this complaint clearly shows that
Premala had married Digambar before marriage of
Digambar with Jijabai and she had immediately
approached Court within a month stating that the
offence of bigamy was committed on 06.04.1979 by
Digambar by marrying Jijabai. The complaint was
lodged on 05.05.1979. It is worth noting that the
witness of present appellants D.W.2-Yadavrao More who
is cousin of appellant No.1 specifically admitted in
06.04.1979.
cross-examination that Jijabai had married Digambar on
There is no reason why this close
relative should give such admission unless it was
true. Respondent No.1 – Premala stated that after she
lodged said complaint and filed application for
maintenance, there was compromise and she was taken
for co-habitation by Digambar to his house. At this
stage, we may also note that on some day i.e.
05.05.1979 respondent No.1 Premalabai filed Cri.
Misc. Application No. 40 of 1979 under Section 125
of the Cr.P.C. before the J.M.F.C., Biloli claiming
maintenance for herself and respondent No.2. There is
also certified copy of written statement filed by
Digambar in which he admitted that he had married
respondent No.1 – Premala and claimed that she was his
::: Downloaded on – 09/06/2013 14:20:15 :::
( 8 )
second wife. He went to the extent of denying that
respondent No.2 Mahananda was his daughter. In para 1
it is stated that Premala had voluntarily left house
of Digambar and there was no cruelty to her. Digambar
went once or twice to bring her back but she did not
come with him. He offered to receive both the
respondents in his house and maintain them.
10. So, considering this documentary evidence
regarding filing of criminal case for bigamy and
filing
was two
application for maintenance and that Mahananda
years old at that time, coupled with clear
admission of Witness Yadavrao that Jijabai married
Digambar on 06.04.1979 it can be inferred that Jijabai
had married subsequent to the marriage of Digambar
with respondent No.1 – Premala.
11. In this case present appellants are out to
deprive respondents of their rights by hook or crook.
They went to the extent of falsely claiming that
deceased Digambar had orally relinquished his right in
the property by accepting Rs. 5000/- for which there
is no evidence and which contention was disbelieved by
both Trial Court and the District Court. Above said
discussion shows that the appellants have also come
::: Downloaded on – 09/06/2013 14:20:15 :::
( 9 )
with a false case that marriage of Jijabai with
Digambar was prior to marriage of Digambar with
Premala which fact is falsified by documents on record
so also admission of Yadavrao.
12. So far as contention of present appellants
that Sheshabai – first wife of Digambar is concerned,
except interested words of Nagorao and his cousin
Yadavrao, absolutely there is no evidence whatsoever.
Nagorao went to the extent of denying that respondent
No.1
married.
Premala
was wife of Digambar
So far as contention that Sheshabai had been
and they had
first wife of Digambar is concerned, absolutely there
is no reliable evidence and considering falsehood to
which the appellants have resorted to it is not
possible to rely on oral words of the appellant No.1
and his cousin Yadavrao. Both the Courts did not
trust words of Nagorao or Yadavrao about Sheshabai
being first wife of Digambar.
13. On the other hand there is evidence of
P.W.1-Premlabai who stated that her marriage with
Digambar was performed on one Sunday in the month of
“Jeshtha” at Siddheshwar Temple at Jahur about 9 years
before her statement on 06.02.1984. So, she must have
::: Downloaded on – 09/06/2013 14:20:15 :::
( 10 )
married in about 1975-76. According to her the
marriage was solemnized by one Shivmurtiappa Jangam
and 10-12 persons had come from Ratoli. In para 3 she
stated that Jangam recited Mangalashtaka. Digambar
and respondent No.1 taken seven rounds. Her father
performed Kanyadan. Meals were served. Her evidence
is supported by Shivmurtiappa Jangam examined at
Exh.41. He also stated that in the marriage there
were Mangalashtaka and Saat Fere (seven rounds). The
marriage was performed in Mahadev temple. It may be
after 9-10 years.
noted that statements of these witnesses were recorded
There is evidence of Baburao – the
father of Premala, who also stated that the marriage
had taken place 9 years ago and the ceremonies were
performed. It is argued before this Court that it is
not mentioned that Saptapadi and Hom were not
performed. However there is statement of having seven
rounds around Mahadev idol in the evidence of Chimnaji
Sadba.
14. Appellant No.1. Nagorao has stated that in
their community there is custom of Hom and Saptapadi
and marriage is performed by Brahmin and Jangam
performs marriage in Wani caste. It is not stated to
what cast or community respondent No.1 – Premala or
::: Downloaded on – 09/06/2013 14:20:15 :::
( 11 )
the appellant were belonging to. If we consider
Section 7 of the Hindu Marriage Act, it lays down that
marriage should be solemnised in accordance with the
customary rights and ceremonies by either parties.
So, it is not necessary that it should be always as
per customs and ceremony of bridegroom. Evidence of
respondent No.1, her father, Shivmurtiappa Jangam and
Chimnaji Sadba clearly indicate that they have
performed marriage according to their custom. So in
my considered opinion, merely because witnesses have
not
marriage
stated
about Saptapadi & Hom (sacred fire),
would not be invalid. It is nowhere
the
suggested that rites which were performed as stated by
Premala or her witnesses were not as per custom in
their community. No such issue was raised by
pleadings. Only after evidence of
respondent/plaintiffs was over the respondents stated
in their evidence that in their community Hom and
Saptapadi are performed and Brahmin officiates
marriage. This is nothing but after thought defence.
No suggestion was given to respondent No.1 or her
witness that in their community marriage is performed
by performing rites of Hom and Saptapadi and that the
parties are not Wani. In civil suits, no party can be
allowed to take new defence for which necessary
::: Downloaded on – 09/06/2013 14:20:15 :::
( 12 )
foundation is not laid in the pleading and when the
other side was not put to notice by any suggestion in
the cross-examination.
15. The learned advocate Shri Godhamgaonkar cited
case of Bhaurao Shankar Lokhande and anr. vs. The
State of Maharashtra and anr., AIR 1965 S.C. 1564.
In that case it is laid down that for proving offence
punishable under Section 494 of the I.P.C. two things
should be proved (i) the marriage is solemnized after
the
such
commencement of the Act, and (ii) at the date
marriage, either party had a spouse living.
of
The
word “solemnize” means, in connection with a marriage,
“to celebrate the marriage with proper ceremonies and
in due form”. It is observed that merely going
through certain ceremonies with the intention that the
parties be taken to be married, will not make the
ceremonies prescribed by law or approved by any
established custom. So, it was a case necessarily
under criminal law where proof has to be beyond
reasonable doubt.
16. The learned advocate for the respondents cited
case of Subhash Popatlal Shah Vs. Smt. Lata Subhash
Shah, AIR 1994 Bombay 43 has observed as follows:-
::: Downloaded on – 09/06/2013 14:20:15 :::
( 13 )
“8. ………………………………..
There is nothing in the evidence of either thehusband or the wife that saptapadi was a must
according to the religious rites, ceremonies
and customs prevalent between them.
Therefore, even if saptapadi was not one of
the items of the marriage ceremony undertaken
by the parties before us, we are of the
opinion that the marriage between the
appellant and the respondent cannot be held tobe illegal and invalid. In fact, when some
sort of marriage ceremony was undergone by and
between the parties, there is always a
presumption of validity of marriage unless the
presumption is rebutted by quite cogent and
satisfactory evidence. ………….”
.
the judgments
In that case the Division Bench has considered
in the case of Priya Bala Vs. Suresh
Chandra, AIR 1971 S.C.1153 and other cases and it is
observed that the judgments cited were in the cases of
offence of bigamy punishable under Section 494 of the
I.P.C. and in which it was held that when the parties
are both Hindus and performance of Saptapadi was not
proved, it cannot be said that second marriage was
proved beyond reasonable doubt and same is valid. It
is also observed that the judgments handed down by the
Supreme Court in criminal cases involving the proof of
the offence of bigamy punishable under Section 494 of
the I.P.C. would not be relevant in a matrimonial
proceedings. The Division Bench also referred to case
of Badri Prasad vs. Dy Director of Consolidation, AIR
::: Downloaded on – 09/06/2013 14:20:15 :::
( 14 )
1978 S.C.1557 in same paragraph 8.
17. Another case cited by the respondents is
Chandrabhagabai Ganpati Karwar (Dead) by L.Rs. Vs.
Sambhaji Narhari Karwar (Dead) by L.Rs., 2008 (1) All
M.R.54. In that case several authorities were
considered and in para 19 it is observed that there
was satisfactory evidence on record to show that
deceased Ganpati and the defendant lived together for
a considerable period and were regarded as husband and
wife. It
is observed that there is
legitimacy of the marriage and the defendants examined
presumption of
the witnesses who had attended the marriage and the
First Appellate Court committed parent error in
rejecting legality of the marriage because there was
no proof of performance of Hom and Saptapadi.
18. In this case, the appellants are not entitled
to take new defence for which no foundation was laid
in the pleading or during evidence of
respondent/plaintiffs. The evidence of appellants is
not trustworthy. The District Court has considered
all evidence in detail and rightly held marriage of
respondent No.1-Premalabai with Digambar as legal and
valid. In the present case, the view taken by the
::: Downloaded on – 09/06/2013 14:20:15 :::
( 15 )
First Appellate Court regarding validity and legality
of the marriage cannot be considered as perverse or
illegal. This second appeal has no merit and same
deserves to be dismissed.
19. In the result, the Second Appeal is dismissed.
Parties to bear their own costs.
[P.R. BORKAR, J.]
snk/2009/JAN09/sa41.90
::: Downloaded on – 09/06/2013 14:20:15 :::