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
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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
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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