Bombay High Court
Kavita Piraji Kharat vs Gulab S/O Narayan Kamble on 22 September, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
918.FCA.3069.22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO.67 OF 2022
WITH
CA/13050/2022 IN FCA/67/2022
Kavita Piraji Kharat,
correct name Kavita w/o Gulab Kamble,
Age : 28 years, Occu : Household,
R/o : Chattrapati Colony,
Tq. and Dist. Jalna. ... APPELLANT
VERSUS
Gulab Narayan Kamble
Age : 30 years, occu: Labour
R/o. Chattrapati Colony,
Tq. and Dist. Jalna. ... RESPONDENT
...
Ms. Maya R. Jamdhade, advocate for appellant
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
DATE : 22.09.2022
ORDER (MANGESH S. PATIL, J.) :
Heard the learned advocate Ms. Jamdhade for the appellant.
The appellant is impugning the common judgment and order passed by the
Family Court in a petition filed by the respondent seeking a declaration
regarding nullity of the marriage between the appellant and him under
Section 11 of the Hindu Marriage Act, 1955 (herein after the Act) on the
ground that she was having spouse living at the time of marriage, and in her
petition filed under Section 125 of the Code of Criminal Procedure, whereby
the Family Court allowed the respondent's petition and dismissed her's.
918.FCA.3069.22.odt
2. It transpires during the course of argument and after going
through the judgment that in addition the respondent was also seeking
nullity of the marriage under Section 12 of the Act on the ground that his
consent for the marriage was obtained by fraud, falsely pretending that the
appellant had dissolved her first marriage. However, the Family Court, in
our considered view has rightly discarded that ground of voidability of the
marriage on the ground of fraud.
3. Learned advocate Ms. Jamdhade would vehemently submit that
the Family Court has miserably erred in appreciating the rival stand and the
evidence. The judgment is perverse and arbitrary. There was evidence to
demonstrate that the petitioner's first marriage was legally dissolved. Even
the Family Court had rightly discarded respondent's stand of his consent for
the marriage having been obtained by fraud. Admittedly, both had
solemnized marriage and had lived together as husband and wife for few
years. Even she had become pregnant but had to undergo an abortion. Her
first husband who was near relative was also examined as a witness. A deed
of dissolution of marriage which was notarized was also produced on
record. It was a customary divorce which is recognized by law as is laid
down in the matter of Yamanaji H. Jadhav Vs. Nirmala; (2002) 2 SCC 637.
4. We have carefully considered the submission of the learned
advocate and perused the record.
5. Admittedly, the couple had solemnized the marriage in Aarya
Samaj regarding which a witness was also examined. There was also
918.FCA.3069.22.odt
evidence in respect of the forms filled in by both of them independently in
their own hands and were submitted in the Aarya Samaj. Those were duly
proved and exhibited, wherein, the appellant had disclosed about her first
marriage and had also disclosed that it was dissolved. Incidentally the
respondent examined her first husband Siddharth as his witness.
Interestingly, during his cross-examination on behalf of the appellant, even
suggestion was put to him that he had never married to her which he flatly
denied. He specifically stated about the marriage having been solemnized
between them in the year 2009. They stayed together for one to two
months and thereafter got separated and a deed was notarized by styling it
as 'Divorce Deed'. In spite of having taken such a stand, the learned
advocate for the appellant for the first time is raising new ground before us,
regarding which there is no foundation in the pleading of the appellant and
even no evidence was laid before the Family Court regarding legality of
customary divorce. She tried to salvage some ground by submitting that it
was a customary divorce between the appellant and her first husband which
is recognized by law.
6. There cannot be dispute about the legal position that there
could be a customary divorce as well, as has been laid down under Section
29(2) of the Act. However, this is a completely new stand by the appellant.
Even the learned advocate for the appellant fairly conceded the fact that no
such pleading was made and even no evidence was led to prove such a
custom.
918.FCA.3069.22.odt
7. As a last resort even the learned advocate makes feeble attempt
and request that the matter may be remanded to enable the appellant to
prove such custom.
8. There are no pleadings and even there is no specific request in
the appeal memo for remand of the matter. This apart, as is mentioned
herein above, during cross-examination of her first husband Siddharth,
suggestion was put by her that no marriage was solemnized between them.
If this is so, permitting the appellant to now take a contrary stand would be
impermissible and illegal.
9. In view of such state of affairs, when the fact of first marriage of
the appellant has been duly proved and there is no evidence about it having
been dissolved, the marriage between the appellant and the respondent was
not legally permissible in view of Section 5(i) of the Act.
10. As a logical and legal corollary, not being the wife of the
respondent, the appellant is also not entitled to claim maintenance under
Section 125 of the Code of Criminal Procedure.
11. Learned Judge of the Family Court has correctly appreciated the
evidence and has rightly passed the impugned judgment and order. We find
no sufficient and cogent reason to cause any interference. The Appeal is
dismissed in limine.
12. Pending civil application is disposed of.
(SANDEEP V. MARNE, J.) (MANGESH S. PATIL, J.)
habeeb
