Ajmer Singh vs Harpinder Kaur & Anr.
2013 Latest Caselaw 2711 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                 FAO No.265 of 2013 & CMs 9591-92/2013

                                        Decided on : 2nd July, 2013

       AJMER SINGH                              ..... Appellant
                           Through Mr.Mukesh Sharma, Adv.

                           versus

       HARPINDER KAUR & ANR.                        ..... Respondents
                   Through

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. This is an appeal filed against the order dated 5.3.2013 passed by

the learned ADJ by virtue of which the appellant/husband has been

directed to pay the maintenance @ Rs.8,000/- and Rs.6,000/-

respectively to the respondents 1 and 2 from the date of filing of

the petition.

2. Briefly stated the facts of the case are that the respondent no.1 got

married to the appellant according to Sikh rites and ceremonies on

13.10.1991. Parties cohabited as husband and wife and were

blessed with a female child namely Kumari Naina on 23.10.1992.

After the birth of the girl child, it seems that the parties had a

matrimonial discord because of which the appellant herein filed a

petition for dissolution of the marriage on the ground of cruelty

under section 13(1) (ia) of the Hindu Marriage Act which was

dismissed by the Court of learned ADJ on 22.11.2000. A petition

was filed by the appellant under section 25 and Section 9 of the

Guardians and Wards Act for claiming the custody of the

respondent no.2, minor child, which was also dismissed on

27.11.2000 by the Guardianship Court, Delhi.

3. So far as the respondent no.1 is concerned, she lodged an FIR

bearing no.869/1993, under section 406/498-A IPC at police

station Tilak Nagar against the appellant and his mother. Both the

appellant and his mother were convicted for the aforesaid offences

by the learned MM on 11.2.1998. On appeal being preferred, the

mother of the appellant was released on probation while as the

conviction and the sentence of the appellant was maintained. The

respondent no.1 also filed a petition under section 125 Cr.P.C.

which was allowed on 16.2.1995 and the revision petition was filed

against the said order of the learned Magistrate regarding grant of

maintenance @ Rs.400-500/- p.m. respectively to the respondent

which was also dismissed on 17.1.96.

4. The present order of maintenance was passed in a petition filed by

the respondent under section 18 and 20 of the Hindu Adoption and

Maintenance Act, 1956 in Civil Suit no.734/2012. The case which

was set up by the respondent no.1 was that she does not have any

independent source of income and she was being supported by her

parents. She claimed maintenance @Rs.10,000/- for herself and

@Rs.8000/- for her minor child. It was stated by her that so far as

the appellant is concerned, he was running a business under the

name and style of M/s Vishwakarma Engg. Works and was earning

approximately `80,000/- per month.

5. The appellant had filed the written statement and contested the

claim for grant of maintenance. Preliminary objection was taken to

the effect that the respondent no.1 herself is earning and, therefore,

she can maintain herself as well as her minor girl child. In any

case, it was also stated that she has already been granted

maintenance by the learned Magistrate which is being paid

regularly to her.

6. On merits, it was stated that the respondent no.1 was not entitled to

maintenance on account of the fact that she had re-married after

leaving the company of the appellant with one Sh.Harbhajan Singh

according to Sikh rites which disentitles her to any maintenance. It

was denied by the appellant that he was doing business and is

earning Rs.80,000/-. On the contrary, it was stated that he is

employed in some Concern and was earning Rs.8000/- to 10,000/-

and therefore, the maintenance as claimed by the respondent no.1 is

not liable to be paid after framing of two issues, which read as

under:

(i) Whether the plaintiffs are entitled to any maintenance from the defendants and if so at what rate?'

(ii) Relief?

7. The parties have adduced their respective evidence and after

hearing the arguments, the Court passed a detailed order granting

maintenance as impugned in the order.

8. I have heard the learned counsel for the appellant. The main

contention of the learned counsel is that the respondent no.1 had

remarried with Sh.Harbhajan Singh and accordingly, she was not

entitled to maintenance. It has been stated by him that the trial

court has failed to appreciate the evidence adduced by the appellant

by way of documentary evidence which would clearly establish

that the respondent no.1 got remarried. It has also been stated by

the learned counsel for the appellant that he has already filed an

application under order 18 Rule 17 CPC seeking permission to

produce additional evidence by getting the statement of

Sh.Harbhajan Singh, the second husband of the appellant, recorded.

It was contended by the learned counsel that though he would have

liked Harbhajan Singh, the second husband of the respondent no.1

to be examined in the first instance but as he was not willing,

therefore, he could not be examined earlier. It has been stated that

it is after great deal of persuasion that the appellant has been able

to persuade Sh.Harbhajan Singh testify in this case. He has also

drawn the attention of the Court to the complaint made by the so-

called second husband of the respondent under section 156 (3)

wherein the factum of marriage is stated to have been verified by

the police. The learned counsel has also referred to certain

documents in order to contend that these photographs show that the

respondent no.1 had remarried with Sh.Harbhajan Singh and,

therefore, she was not entitled to any maintenance.

9. I have carefully considered the submissions of the learned counsel

for the appellant.

10. So far as the question of adducing of additional evidence is

concerned, the law is very clear that Order 41 Rule 27 CPC, a party

can be permitted to produce additional evidence only when the

evidence which is sought to be produced by a party was not within

its knowledge or was beyond its control. It is not the case of the

appellant that he was not aware as to who was the second husband

of the appellant. If he was aware of the second husband of the

respondent no.1, he could have very well got him summoned as a

witness to testify before the Court. The appellant has tried to prove

the second marriage of the respondent no.1 by examining 'Granthi'

from the Gurudwara wherein the marriage is purported to have

taken place. This witness entered into the witness box and testified

that he had performed the second marriage of the respondent no.1

and made necessary entries in a register which was allegedly

maintained by the Gurudwara in the original discharge of its duties.

The trial court has disbelieved the testimony of the 'Granthi' or the

employee of the Gurudwara on the ground that though the register

is purported to have been maintained with regard to the marriage

performed in Gurudwara, all the entries are having the photographs

of the parties to the marriage except the entry purported to be

attributed to the respondent no.1 in proof of second marriage of the

lady as well as her proposed husband with whom she is alleged to

have got remarried. In the absence of these two photographs of the

respondent and her husband Sh.Harbhajan Singh in the records of

the Gurudwara, the trial court has considered this to be a suspicious

entry and has not placed any reliance on this entry, it will be

worthwhile to reproduce the observations of the trial court in this

regard, which reads as under:-

"15. To prove the second marriage of the petitioner no.1, the respondent has examined RW-3 Sh. Gurmukh Singh who was a Sevadar in the Gurudwara Sri Guru Singh Sabha and he produced the summoned record of 27.3.2007 and proved the copy of the same as Ex.RW-3/1. In his cross-examination, he admitted that in other record of marriages maintained in the registers, there are photographs of the parties but in the

document, there were no such photographs of the parties. He also stated that they do not take any age proof or affidavit at the time of marriage in their register and he admitted that the Gurudwara issues the Marriage Certificate on the basis of such records. He also testified that the Gurudwara maintains the number of Certificates issued on the basis of the records produced by him but the serial number of Certificate is not mentioned in the record but the date of issuance of the Certificate i.e. 16.7.2007 is mentioned and the said Certificate was handed-over to one Manmohan Singh. He also admitted that the marriage took place between Sh. Harbhajan Singh and Ms. Harjit Kaur.

16. Perusal of the testimony of this witness as well as the records produced by him does not inspire any confidence. The absence of the photographs of the bride and bridegroom in Ex.RW-3/1 creates the suspicion about the manner in which the record was prepared. It is equally surprising as to why the photographs of the parties were not taken or demanded by the Managing Committee of the Gurudwara when the photographs were affixed in other cases of marriage. RW-3 has also not stated if Harjit Kaur and petition no.1 are one and the same person. The respondent has also not examined any of the witnesses to the alleged second marriage of the petitioner no.1. Therefore, in my considered opinion, the respondent has failed to prove that petitioner no.1 has solemnized marriage with Sh.Harbhajan Singh. Hence, the claim of maintenance of the petitioner no.1 cannot be rejected on this ground."

11. Therefore, the evidence with regard to the proof of second

marriage of the appellant was correctly analyzed by the learned

ADJ and I find myself in full agreement with the same that the

appellant has not been able to establish the second marriage, it is

only by way of character assassination that the appellant has taken

false plea to deprive the respondent no.1 and respondent no.2 of

their legitimate right to get the maintenance.

12. So far as the ground of producing the husband of the appellant now

is concerned, it has been admitted by the learned counsel that

earlier he had filed an application under Order 18 Rule 17 CPC for

producing husband of the appellant as a witness which was

dismissed by the Court by a detailed speaking order.

13. I have gone through the said order. The trial court had rejected the

said application on the ground that the evidence of the appellant

has already been concluded and he was aware of his case that the

respondent no.1, according to him had got married to Sh.Harbhajan

Singh he should have taken steps in the first instance to summon

Sh.Harbhajan Singh as a witness. It was also observed that the

purpose of Order 18 Rule 17 CPC is not to permit a party to fill up

lacuna in his case.

14. Order 18 Rule 17 CPC is essentially to arrive at a fair and just

decision and for this purpose, the Court will go to the extent of

recording the statement of any witnesses but the purpose of Order

18 Rule 17 CPC is not to fill up the lacuna which the party might

have left in his case despite knowing its defence. Therefore, I feel

that this defence taken by the appellant is only a false and belated

plea in order to defeat the rights of the respondent no.1 and 2.

Accordingly, this plea is rejected.

15. So far as the questions of photographs of the alleged second

marriage are concerned, they are placed before the High Court for

the first time. The trial court did not have the advantage of taking

into consideration these photographs. Apart from this, in this

modern age, a photograph can easily be morphed. Therefore, if the

appellant was aware of the fact that the second marriage of the

respondent no.1 was photographed or videographed then

appropriate steps ought to have been taken by him before the trial

court in order to prove the second marriage. This Court finds

difficult to take into consideration the photographs so set aside the

decision of the trial court. No other point has been urged or

contended.

16. For the reasons mentioned above, I am of the considered opinion

that the present appeal is devoid of any merit and the same is

accordingly dismissed.

V.K. SHALI, J.

JULY 02, 2013 RN