Ranjana vs Tej Bhan Sharma
2007 Latest Caselaw 817 Del

JUDGMENT

S. Muralidhar, J.

1. This appeal is directed against the judgment dated 21-2-2007 passed by the Additional District Judge, Delhi in HMA No. 172 of 2006.

2. The petition HMA No. 172 of 2006 under Section 11 of the Hindu Marriage Act, 1955 (Act) was filed by the respondent seeking to declare void the marriage between the parties which took place on 28-4-1998 at the Arya Samaj Mandir, Bhogal, New Delhi. The ground was that the appellant here was married at the time, which fact was not known to the respondent. The trial Court framed the three issues as under:

1. Whether the marriage between the petitioner and respondent on 28-4-1998 at Arya Samaj Mandir, Bhogal, New Delhi was contrary to the provisions of Hindu Marriage Act and void ab initio? OPP

2. Whether the petitioner was aware of the respondent having a husband living at the time of undergoing marriage ceremony with the respondent on 28-4-1998 at Arya Samaj Mandir, Bhogal, New Delhi? OPR.

3. Whether the petitioner is entitled to the relief of declaration of the marriage with the respondent as void ab initio? OPP

3. As regards issue No. 1, the admitted position was that the petitioner applied for ' and sought divorce from her earlier husband only in 2001. This admission was made by her in her cross examination in the following manner.

My first husband name is Tilak Raj. I have a son from that wedlock named Sunil Raj. I was divorced from him in 2001. I do not recall the exact date of decree of divorce but it was perhaps 1-9-2001. It is correct on the date of my marriage with the petitioner which was on 28-4-1998, I have not yet divorced from my previous husband. (Vol. However, the divorce petition was pending at the time of my marriage with the petitioner herein.)

4. The trial Court after examining Sections 5 and 11 of the Act and in light of the admissions made concluded that the marriage between the parties was void. The trial Court further held that even if it was assumed that the respondent had knowledge about the previous marriage at the time of marriage with the appellant, that would make no difference to the nullity of the marriage.

5. This Court finds no error whatsoever in the conclusion reached by the trial Court on this aspect. Learned Counsel for the appellant submits that the appellant had moved an application seeking amendment of the written statement where it was sought to be contended that there had been a customary divorce in respect of the earlier marriage. This application was rejected by the trial Court by its order dated 22-9-2006. In that order the trial Court noted that the appellant here was taking contradictory stands and she even questioned the validity of the marriage with the respondent. Learned Counsel for the appellant on this aspect, states that the appellant was perhaps misled by the lawyers who were representing her.

6. This Court is unable to accept that contention. A plea of customary divorce has to be specifically taken and evidence has to be led to prove it. However the matter does not end there. There is nothing in the Act that allows customary divorce by way of a defense under Section 5(i) read with Section 11 of the Act. Therefore, such a plea may not help the appellant at all.

7. Learned Counsel for the appellant then states that the petitioner was permitted to lead additional evidence by the Order dated 8-11 -2006 of the Additional District Judge. This was in form of the deposition of the respondent in certain departmental proceedings against the appellant. She refers to two answers given by the respondent in the said Departmental Inquiry. During his cross examination the respondent admitted having been informed by the appellant of the dissolution of the earlier marriage according to custom. She states that once the respondent has admitted that the appellant's earlier marriage was dissolved by custom, the Court should have taken note of that and not passed the decree of nullity.

8. This Court is unable to agree with the submission. The burden of proving divorce by way of custom is on the appellant and cannot be shifted on to the respondent merely because he was informed of the dissolution. This evidence also therefore does not help the appellant.

9. No ground is made out for interference in this appeal. The appeal is dismissed. The application is also dismissed.