Smt. Manti Sahu vs Mahesh Ganjeer
2022 Latest Caselaw 5139 Chatt

                                                                                                 AFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR


                              Second Appeal No.326 of 2021

                           Judgment Reserved on :               5.7.2022
                           Judgment Delivered on :            12.8.2022

Smt. Manti Sahu, D/o Shri Ramdayal Sahu, age about 40 years, R/o Village
Belgaon, Tahsil Dongargarh, District Rajnandgaon, Chhattisgarh,
7691995582
                                                           ---- Appellant
                                versus

Mahesh Ganjeer, S/o Dharmu Ram Ganjeer, age 45 years, R/o Ward No.08,
Sevtaatola, College Road Dongargaon, District Rajnandgaon, Chhattisgarh
                                                                                   --- Respondent

                                                 and

                              Second Appeal No.327 of 2021

Smt. Manti Sahu, D/o Shri Ramdayal Sahu, age about 40 years, R/o Village
Belgaon, Tahsil Dongargarh, District Rajnandgaon, Chhattisgarh,
7691995582
                                                           ---- Appellant
                                versus

Mahesh Ganjeer, S/o Dharmu Ram Ganjeer, age 45 years, R/o Ward No.08,
Sevtaatola, College Road Dongargaon, District Rajnandgaon, Chhattisgarh
                                                                                   --- Respondent

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For Appellant : Appellant Smt. Manti Sahu in person For Respondent : Shri Sudhir Verma, Advocate

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. Since both the second appeals arise out of a common judgment,

they are heard and disposed of together.

2. The instant appeals arise out of the common judgment dated

11.10.2021 passed by 2nd Additional District Judge, Rajnandgaon,

whereby the first civil appeal, i.e., Civil Appeal No.13A of 2020

moved by Mahesh Ganjeer has been allowed and the cross-appeal,

i.e., Civil Appeal No.12A of 2020 filed by Smt. Manti Sahu has been

dismissed. Civil Appeal No.12A of 2020 and Civil Appeal No.13A

of 2020 arise out of the common judgment and decree dated

6.3.2019 passed by the Additional Judge to the Court of 1 st Civil

Judge Class-II, Rajnandgaon in Civil Suit No.66A of 2013.

3. Facts of the case, in short, are that plaintiff Mahesh Ganjeer filed a

civil suit, being Civil Suit No.66A of 2013 before the Trial Court for

declaration of agreement dated 21.1.2009 to be null and void. It

was pleaded by him that due to family relation between him and the

defendant and due to poor economic circumstances of the

defendant, he employed the defendant in his clinic as a nurse and

also availed her a rented house in Dongargaon. Since the

defendant used to commit misbehaviour with the patients as also

she was negligent towards her work, she was removed from the

work and also asked to vacate the rented house. On this issue, a

dispute arose between them. Thereafter, the defendant made a

false and fabricated report against him alleging commission of rape

with her. To save himself and his reputation, he executed an

agreement dated 21.1.2009 and signed it before the Notary. Since

the agreement was executed due to undue pressure created by the

defendant, it is not binding upon him. It was further pleaded that as

he is already married, the agreement dated 21.1.2009 is null and

void.

4. Defendant Manti Sahu filed her written statement and also filed her

cross-objection before the Trial Court. It was pleaded by her that

virtually plaintiff Mahesh Ganjeer performed a marriage with her

and, therefore, he executed the agreement dated 21.1.2009 in this

regard. At the time of marriage and prior to that also, the plaintiff

told her that he was unmarried and he performed marriage with her.

Later on, she came to know that the plaintiff was already married.

When a legal notice was sent by her to the plaintiff, he, admitting

performance of marriage with her, executed the agreement dated

21.1.2009. In the agreement, the plaintiff also agreed that he will

pay her Rs.2,000 per month towards her maintenance. He also

agreed that he will arrange a house and household articles for her

or else, in lieu thereof, he will pay her Rs.5,000 per month.

5. The plaintiff filed his written statement to the cross-objection of the

defendant and denied her all the allegations.

6. The Trial Court framed four issues. After recording of evidence of

both the parties and hearing their arguments, vide judgment dated

6.3.2019, the Trial Court dismissed the suit preferred by Mahesh

Ganjeer and partly allowed the cross-objection moved by defendant

Manti Sahu and granted Rs.2,000 per month as maintenance in her

favour.

7. Being aggrieved by the judgment and decree passed by the Trial

Court, both the parties preferred their appeals. Vide the common

impugned judgment dated 11.10.2021, the First Appellate Court

allowed the appeal of plaintiff Mahesh Ganjeer and dismissed the

appeal of defendant Manti Sahu. Hence, the instant second

appeals before this Court by defendant Manti Sahu.

8. On 3.3.2022, Second Appeal No.326 of 2021 was admitted for

hearing on the following substantial question of law:

"Whether the learned first appellate Court was justified in reversing the finding recorded by the learned trial Court, who has recorded a finding that the plaintiff has failed to prove that the agreement has been executed in violation of Section 23 of the Contract Act?"

On 3.3.2022 itself, Second Appeal No.327 of 2021 was admitted for

hearing on the following substantial question of law:

"Whether the learned First Appellate Court was justified in setting aside the judgment and decree passed by the trial Court by which the trial Court has granted Rs.2,000/- pm as interim maintenance in favour of the defendant on perverse finding?"

9. Appellant/defendant Smt. Manti Sahu appeared in person before

this Court and submitted that the findings of the First Appellate

Court are contrary to the facts and the evidence available on

record. Before the Trial Court, plaintiff Mahesh Ganjeer failed to

discharge the burden and, therefore, the Trial Court rightly

dismissed the suit and partly allowed her cross-objection. The First

Appellate Court also ignored the fact that at the time of performing

marriage with her, plaintiff Mahesh Ganjeer had not disclosed about

his first marriage. From the evidence adduced by her, it is well

established that marriage between her and the plaintiff was

performed in Sankardahra Temple at Dongargaon, District

Rajnandgaon on 8.5.2008 and they also executed the agreement

dated 21.1.2009 admitting their marriage with each other. It was

further submitted by her that from perusal of the agreement dated

21.1.2009 it is clear that plaintiff Mahesh Ganjeer had assured her

that he will arrange a house and household articles for her.

Therefore, the amount of maintenance ordered by the Trial Court

should be enhanced and the First Appellate Court has wrongly

rejected her cross-appeal.

10. Shri Sudhir Verma, Learned Counsel appearing for

Respondent/plaintiff Mahesh Ganjeer submitted that from the

evidence available on record both oral and documentary, it is well

established that at the time of performing the alleged marriage with

defendant Manti Sahu, plaintiff Mahesh Ganjeer was already

married and he had one son also from his first wife. Therefore, the

alleged second marriage with Manti Sahu is a void marriage as

contained in Section 11 of the Hindu Marriage Act. He further

submitted that from the evidence adduced by plaintiff Mahesh

Ganjeer, it is established that the agreement dated 21.1.2009 was

executed due to pressure created by Manti Sahu and it was also

executed by Mahesh Ganjeer for protecting himself from the

allegations of rape made by Manti Sahu. Therefore, the agreement

is void as per the provisions of Section 23 of the Indian Contract

Act.

11. I have heard the contentions raised from both the sides and

perused the records with due care.

12. It is not in dispute that the agreement (Ex.P1) was executed

between both the parties on 21.1.2009. As contained in paragraph

3 of the agreement (Ex.P1), the marriage between the parties was

solemnised at Village Sankardahra on 8.5.2008. In the private

complaint (Ex.P2) moved by Manti Sahu, she herself admitted the

fact that after the marriage, Mahesh Ganjeer informed her

regarding his first marriage and there being a son from his first wife.

This private complaint (Ex.P2) was filed on 1.12.2010. In the

written complaint dated 31.5.2009 (Ex.P5) made by Manti Sahu, it

is mentioned by her that on 4.5.2009 for the last time Mahesh

Ganjeer, on the pretext of performing marriage with her, committed

sexual intercourse with her. A notice (Ex.P7) was also sent by

Manti Sahu to Mahesh Ganjeer. In paragraph 3 of the said notice,

it is mentioned by Manti Sahu that the marriage between her and

Mahesh Ganjeer was solemnised with the consent of first wife of

Mahesh Ganjeer, namely, Maheshwari Ganjeer. In paragraph 4 of

her affidavit submitted under Order 18 Rule 4 of the Code of Civil

Procedure also, Manti Sahu admitted the fact that after the

marriage, Mahesh Ganjeer informed her that he was already

married and he has one son also from his first wife.

13. From perusal of the above stated oral and documentary evidence

available on record, it is well established that Mahesh Ganjeer first

performed marriage with Maheshwari and without obtaining divorce

from Maheshwari the alleged second marriage was performed by

him with Manti Sahu on 8.5.2008. As contained in the facts

mentioned in the notice (Ex.P7), this marriage was solemnised with

the consent of first wife of Mahesh Ganjeer, which shows that at the

time of performing of the alleged second marriage with Manti Sahu,

it was known to Manti Sahu that Mahesh Ganjeer was already

married and his first wife Maheshwari was living with him. Section

11 of the Hindu Marriage Act, 1955 declares a marriage of a Hindu

woman with a Hindu man having a living spouse null and void.

Section 11 reads as under:

"11. Void marriages.--Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5."

14. Clause (i) of Section 5 of the Hindu Marriage Act, 1955 lays down

that for a lawful marriage neither party should have a spouse living

at the time of marriage. A marriage in contravention of this

condition is null and void. Dealing with the issue, the Supreme

Court in (1988) 1 SCC 530 (Yamunabai Anantrao Adhav v.

Anantrao Shivram Adhav) observed thus:

"8. We, therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code. The appeal is accordingly dismissed. There will be no order as to costs. During the pendency of the appeal in this Court some money was paid to the appellant in pursuance of an interim order. The respondent shall not be permitted to claim for its refund."

15. Thus, it is well established that the marriage solemnised between

Mahesh Ganjeer and Manti Sahu is a void marriage.

16. In paragraphs 3 and 4 of her affidavit submitted under Order 18

Rule 4 of the Code of Civil Procedure, Manti Sahu deposed that

she sent a registered notice (Ex.P6) to Mahesh Ganjeer on

5.1.2009. Thereafter, Mahesh Ganjeer came to her village and

admitted before the villagers that he had performed marriage with

her. Thereafter, both of them went to District Court Rajnandgaon

and there they executed the agreement dated 21.1.2009 in

presence of their Advocates. From the contents of the written

complaint (Ex.P5), it also appears that in the said written complaint

it is mentioned by Manti Sahu that Mahesh Ganjeer kept on

committing sexual intercourse with her from May, 2008 to May,

2009 on the pretext of marriage with her. From the above, I find

that the First Appellate Court has rightly arrived at the conclusion

that though the agreement dated 21.1.2009 was executed with the

consent of both the parties, this agreement was executed by

Mahesh Ganjeer to protect himself from future consequence of any

criminal case which could arise due to the said second marriage

with Manti Sahu. Thus, it is also rightly held by the First Appellate

Court that the agreement dated 21.1.2009 has been executed in

violation of Section 23 of the Indian Contract Act. As discussed

above, the agreement dated 21.1.2009 is a void agreement and it

has been executed in violation of Section 23 of the Indian Contract

Act. Therefore, it is rightly held by the First Appellate Court that

Manti Sahu is not entitled to get any maintenance from Mahesh

Ganjeer. Accordingly, the substantial questions of law framed in

both the second appeals are answered in positive.

17. Consequently, both the present second appeals are dismissed and

the impugned judgment dated 11.10.2021 passed by the 2 nd

Additional District Judge, Rajnandgaon in Civil Appeal No.12A of

2020 and Civil Appeal No.13A of 2020 is affirmed.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal