Bombay High Court
Vatslabai Sitaram Bavaskar vs Chango Balu Bavaskar And Another on 11 April, 2022
Bench: Mangesh S. Patil
(1) sa441.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
45 SECOND APPEAL NO.441 OF 2021
WITH CA/9679/2021 IN SA/441/2021
VATSLABAI SITARAM BAVASKAR
VERSUS
CHANGO BALU BAVASKAR AND ANOTHER
Mr.Dinkar G. Kamble, Advocate for the appellant
Mr. A. M. Gholap, Advocate for the respondent Nos. 1
and 2
CORAM : MANGESH S. PATIL, J.
DATE : 11 April 2022
P. C.
1. Heard the learned adavocate for the
parties.
2. The appellant is the original plaintiff who
claims to be wife of one Sitaram who died long back.
Sitaram had couple of brothers, Chango and Mango.
Mango also died unmarried and without leaving any
heir. She filed suit for partition and separate
possession of her share in the suit properties
stated to be ancestral and joint properties against
Chango. She also assailed sale deed of one of the
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(2) sa441.21
suit properties executed by him in favour of
Kusumbai who is respondent No.2 and original
defendant No.2
3. The respondents contested the suit denying
that she was legally wedded wife of Sitaram.
4. The trial court holding the appellant to be
legally wedded wife of Sitaram decreed the suit. The
respondents preferred the appeal before the District
Court which allowed the appeal, quashed and set
aside the judgment and decree passed by the trial
court and dismissed the suit recording finding that
there was no evidence of appellant being legally
wedded wife of Sitaram.
5. The learned Advocate Mr. Kamble for the
appellant vehemently submits that there was ample
evidence before the trial court demonstrating that
the appellant had cohabited with Sitaram for few
years and thereafter they got separated. Even the
respondents admitted this fact and consequently
there was no error in the trial court reaching the
conclusion of she being legally wedded wife of
Sitaram. The learned advocate would further point
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(3) sa441.21
out that even Sitaram had published a notice
mentioning all these facts and declaring unilateral
customary divorce. This conduct of Sitaram was
further considered by the trial court in reaching
the conclusion. There was no perversity or
arbitrariness in appreciation of all the facts,
circumstances and the evidence in the judgment of
the trial court which has been quashed and set aside
and reversed without there being sufficient and
cogent reasons. The learned Advocate further relied
upon the decision in the case of Subhash Popatlal
Shah Vs Smt. Lata Subhash Shah reported in AIR 1994
Bom 43. It is argued that when Sitaram and the
appellant had lived together as a man and woman and
the society had recognized them as husband and wife,
a presumption would arise under Sections 112 and 114
read with Section 32(5) of the Evidence Act in
favour of relation being legitimate one.
6. The learned Advocate for the respondents
submits that though there was evidence to
demonstrate that the appellant and Sitaram lived
together for few years, the presumption as is being
argued on behalf of the appellant would arise only
if the marriage between the two was legally
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(4) sa441.21
possible. She has specifically admitted that
Sakhubai was first wife of Sitaram and there was no
evidence to demonstrate that either the marriage
between the two was dissolved or that the appellant
had married him after demise of Sakhubai. The
marriage between appellant and Sitaram was not
legally possible. Consequently no presumption under
Sections 112 and 114 read with Section 32(5) of the
Evidence Act would arise. That presumption pre-
supposes that there could be a valid marriage
possible between a man and a woman, in the absence
of which the appellant is not entitled to take
benefit of fact that she had cohabited with Sitaram
for few years and even he published a notice giving
a public, customary divorce.
7. I have carefully considered the rival
submissions of the learned advocate of the parties.
Needless to state that the appellant would be
entitled to relief only if she succeeds in
establishing that she is legally wedded wife. The
answer in negative would make her not entitle to any
claim.
8. Without indulging into scrutiny in depth of
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(5) sa441.21
the evidence and the circumstances, suffice for the
purpose to observe that the appellant in her cross-
examination specifically admitted that Sakhubai was
first wife of Sitaram. Pertinently, her reply in
cross-examination was not in the form of stray
admissions. Without putting any suggestion it was
elicited that Sitaram's first wife was resident of
village Talvi and her name was Sakhubai. Meaning
thereby, the appellant has been alive to the fact
that Sitaram was married to Sakhubai. Though she in
subsequent cross examination denied suggestion that
there was no divorce between Sitaram and Sakhubai,
conspicuous absence of any pleading in the plaint in
spite of personal knowledge, admitting existence of
such a lady who happened to be first wife of Sitaram
coupled with absence of any allegations /averments
mentioning that the marriage between them was
dissolved either by some proceeding or by death of
Sakhubai, it was highly imperative for the appellant
to have led further evidence to demonstrate that the
valid marriage between her and Sitaram was possible,
so that by spending some time as man and woman would
have been sufficient to raise a presumption under
Sections 112 and 114 read with Section 32(5) of the
Evidence Act.
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(6) sa441.21
9. All such presumptions that are available
and recognized by catena of the judgments of the
Supreme Court and even this court pre-suppose that a
valid marriage between the couple is possible and
only then that presumption as to the marriage came
drawn.
10. If such was the scenario, when the
appellant was expected to lead evidence to
demonstrate that the marriage between her and
Sitaram was legally possible but had failed to do
so, no exception can be taken to the observations
and the conclusion of the lower Appellate Court in
refusing to recognize her as his widow and
consequently holding her not entitled to any claim
to the suit properties.
11. The trial court was apparently got swayed
away by the fact that even the respondent admitted
that the appellant was residing with Sitaram for few
years and that she had filed maintenance proceeding
against him and also that he had also published a
notice in a news-paper giving customary divorce to
her. It is important to note that in the plaint as
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(7) sa441.21
also in the evidence the appellant had come with a
case about her marriage with Sitaram being Gandharva
marriage and even latter in the public notice
asserted the same thing. The conspicuous absence of
any declaration by both of them that they were
legally married, so called admissions of the
respondents cannot be taken as admissions of the
fact that the appellant is legally wedded wife of
Sitaram.
12. No substantial question of law arises in
the second appeal and the appeal is dismissed. No
costs.
13. In view of the dismissal of the appeal, all
the civil applications do not survive and disposed
of.
[ MANGESH S. PATIL, J. ]
VishalK/sa441.21
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