Karnataka High Court
Jagadevi W/O Niranjan Goled vs Niranjan S/O Late Mallanna Goled on 27 November, 2023
Author: R.Devdas
Bench: R.Devdas
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MFA No. 200274 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO. 200274 OF 2021 (FC)
BETWEEN:
SMT.JAGADEVI W/O NIRANJAN GOLED
D/O SHIVARAYA GOLED,
AGE: ABOUT 50 YEARS,
OCC: PRINCIPAL, GODUTAI B.ED
COLLEGE FOR WOMEN BESIDE S.B COLLEGE,
(NOW PART TIME LECTURER AT S.B COLLEGE)
R/O H.NO.5-938, CHOTA ROZA,
PASHAPUR, KALABURAGI - 585 103.
...APPELLANT
(BY SRI. BHARAMAGOUDA K. PATIL, ADVOCATE)
Digitally signed by AND:
SOMANATH
PENTAPPA MITTE
NIRANJAN S/O LATE MALLANNA GOLED,
Location: HIGH
COURT OF AGE: 55 YEARS, OCC: AGRICULTURE & BUSINESS,
KARNATAKA
R/O LAXMI GUNJ, SHAHABAD PIN - 585 229
DIST: KALABURAGI.
...RESPONDENT
(BY SRI. MANVENDRA REDDY, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT-1984 PRAYING TO THIS HON'BLE COURT TO SET
ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED BY
THE DISTRICT JUDGE FAMILY COURT KALABURAGI IN
M.C. NO.266/2017 DATED:10/01/2020 IN THE INTEREST OF
JUSTICE AND EQUITY.
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MFA No. 200274 of 2021
THIS MFA, COMING ON FOR ADMISSION, THIS DAY,
C.M.JOSHI J., DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment in MC No.266/2017
dated 10.01.2020 by the District Judge and Family Court
at Kalaburagi, whereby her marriage with the petitioner
was declared null and void, the respondent therein has
approached this Court in appeal.
2. The parties are referred to as per their rank
before the Family Court for the sake of convenience.
3. The facts in brief are as below:
The petitioner-husband approached the Family Court
contending that his marriage with respondent Jagadevi
was solemnized on 25.11.2013 at Swami Samarth temple,
Humnabad road, Kalaburagi. At the time of the marriage,
the respondent was working as Principal of Godutai B.Ed.
College for women. The petitioner contended that later he
came to know that the respondent-Jagadevi had
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contracted a marriage with one Bhimasha @
Bhimashankar of Saidapur village, Tq: Basavakalyan on
11.05.1990 at Chennabasaveshwar temple Harkud. He
contended that the marriage of respondent with
Bhimashankar was not disclosed by the respondent at the
time of his marriage with respondent and the said
marriage was still subsisting. It was alleged that the
respondent was very cruel in treating the petitioner and
other members of his family and the effort made by the
elders went-in-vain. It was contended that the petitioner
got issued a legal notice on 23.08.2017 and the
respondent replied the same making false allegations. Not
only that, she also had filed criminal cases against the
petitioner and his family members.
4. On issuance of notice the respondent appeared
through her counsel and filed objection to the petition
contending that she was unmarried and was spinster at
the time of marriage with the petitioner and after the
marriage, they led happy married life for about 4 years.
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It was alleged that the petitioner always dominated on the
respondent and he is a womanizer. It is alleged that the
petitioner used to treat her with cruelty when the
respondent questioned about his bad habits. It was
alleged that the present petition is filed by creating false
documents and there was no such link, marriage or
relationship between Bhimasha @ Bhimashankar and the
respondent.
5. The petitioner got examined himself as PW1 and
the said Bhimasha @ Bhimashankar was examined as PW2
and Ex.P1 to Ex.P27 were marked in evidence. The
respondent got herself examined as RW1 and a witness
was examined as RW2. Ex.R1 to Ex.R10 were marked in
evidence.
6. After hearing the arguments, the learned Trial
Judge of Family Court, Kalaburagi framed the following
points for determination.
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1. Whether petitioner proves that his
marriage performed with respondent
is illegal and void ab-initio?
2. Whether the petitioner is entitled for
decree as prayed for?
7. Answering the point No.1 in the affirmative, the
petition came to be allowed and the marriage of the
petitioner and respondent was declared to be null and
void.
8. Assailing the said judgment of the Family
court, the respondent has approached this Court in appeal.
It is contended that the Trial Court has not appreciated the
evidence on record in the proper perspective and that
adequate opportunity were not provided to the
respondent. It was contended that the Trial Court relied
on inadmissible evidence like photographs and has given
more stress on such unreliable evidence. It is contended
that the Trial Court could not have believed the evidence
of PW2 and the exchange of notices between the parties.
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Therefore, she sought setting aside the impugned
judgment.
9. On issuance of notice, the respondent-petitioner
has appeared before this Court through his counsel. The
Trial Court records have been secured. The arguments by
the learned counsel for the appellant and counsel for
respondent were heard.
10. The learned counsel appearing for the
appellant-wife submitted that the trial Court has hurriedly
passed the erroneous decree by declaring the marriage
between the parties null and void. He submitted that the
Trial Court has failed to appreciate that the Ex.R3 and
Ex.R5, which are notices issued by respondent to PW2 and
the reply by PW2, should have been believed by the Trial
Court. It is submitted that the reply notice by PW2 as per
Ex.R5 was denied by PW2 in his evidence. However, the
Trial Court has believed the alleged notice issued by the
appellant as per Ex.P5, even though the appellant has
shown that she had not instructed her advocate to issue
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notice as per Ex.P5. Therefore, he contends that the Trial
Court has placed undue reliance on the documents
produced by the petitioner while disbelieving the evidence
placed by the appellant-respondent. He also submitted
that the evidence of the PW2 and the alleged photographs
of the marriage of the respondent and PW2-Bhimasha
were not believable and the photographs were not proved
as per law. Therefore, he has contended that the
impugned judgment is not sustainable under law.
11. Per contra, the learned counsel appearing for
the respondent herein and the petitioner contended that
the appellant-respondent had the knowledge of Ex.R3 and
Ex.R5, much prior to she filed the objection statement.
Even then she had not disclosed that she had not married
the PW2 and had not denied the allegation of the
petitioner, which she knew. Therefore, he contends that
the Trial Court has rightly appreciated the evidence on
record and has given credence to the evidence of the
petitioner. He submits that the appellant married the
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petitioner-respondent by misrepresenting that her
husband by the child marriage had died. He submits that
it was not a child marriage as claimed by the appellant,
but she had lived with PW2 for about six months. When
the evidence of PW2 itself show that he had married the
appellant, such evidence, which stood the test of cross
examination is reliable and was rightly accepted by the
Trial Court. Therefore, he has sought for dismissal of the
appeal.
12. The only point that arises for our consideration
is 'Whether the petitioner has proved that the respondent
was married to PW2 and therefore his marriage with the
appellant is null and void'.
13. The evidence of PW2 shows that he had married
the respondent on 11.05.1990 at Shree
Channabsaveshwar temple, Harkud and it was an arranged
marriage. He says that at the time of the marriage, she
was major and her date of birth was 09.09.1970. He
states that they led married life at Saidapur for about six
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months and due to her rude and dominating behaviour, he
could not live with her as she returned to her parental
house. He categorically states that there was no divorce
between him and the appellant herein. He has identified
the photographs at Ex.P25, wherein he and the appellant
herein are shown as bride and bridegroom. The cross
examination shows that he is living with one Lakshmibai
and she has given birth to a daughter Suhasini. He also
denied that he had received any notice from the appellant
and he had replied the said notice. He denies that in the
reply notice, he had denied the marriage with the
appellant.
14. The testimony of the RW1 show that she is
working as a Principal at Godutai College for women, she
states that she has completed B.A, B.Ed., M.A. and M.Phil.
She states that her date of birth is 09.09.1975. However,
in order to prove her date of birth and to establish that
she was born on 09.09.1975, there is no acceptable
documentary evidence produced by her. Even though
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there is elaborate cross examination about her date of
birth, such document is not forthcoming from the custody
of the appellant. On the other hand, the petitioner has
produced the copy of the SSLC certificate of the appellant-
respondent at Ex.P17. This document shows that the date
of birth of the appellant to be 09.09.1970.
15. The appellant herein has made effort to prove
her year of birth to be 1975 with the help of the Aadhar
Card at Ex.R9 and Voters ID Card at Ex.R10. These
documents were issued subsequent to the commencement
of the lis between the parties. On the other hand, Ex.P17
is related to an undisputed point of time. So also the basis
for entry of the date of birth in Ex.R9 and Ex.R10 is not
available on record. Aadhar card and voters ID are not
the proof of date of birth, but they are only of identity.
16. The RW1-Jagadevi in her testimony states that
she had not instructed her advocate Sri. Sahu to reply in
the manner as mentioned in Ex.P5. It is a reply to the
notice issued by the petitioner. In the said reply notice,
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she had admitted that she had married the PW2, but
contended that it was child marriage. It is relevant to
note that RW1 nowhere denies the date of the marriage as
contended by PW2. However, RW1 contends that it was a
child marriage. If it was a child marriage, the date of birth
of the appellant would become important. Therefore, in
the absence of any rebuttal evidence to negate the effect
of Ex.P17, no acceptable document is forthcoming from
the appellant. It was incumbent upon the appellant to
produce documents which show her actual date of birth.
17. It is pertinent to note that Ex.R3 is the notice
issued by RW1-appellant to PW2 seeking details of her
marriage with PW2 and the date, time and etc. The said
notice was issued after filing of the petition. Allegedly the
said notice was replied by PW2 through Ex.R5 by denying
the marriage with RW1. PW2 in his evidence has stated
that he had not instructed his advocate to reply as per
Ex.R5. He alleged that Ex.R3 and Ex.R5 were concocted
documents and he had not received any notice as per
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Ex.R3. Obviously the PW2 was not a party to the
proceedings and therefore there are no pleadings in that
regard. On the other hand, the appellant-respondent is a
party to the proceedings and she filed her objection
statements subsequent to the issuing of notice as per
Ex.R3 and Ex.R5. Therefore, she could have pleaded the
contention of PW2 in her written statement.
18. In the above circumstances, it is clear that the
Trial court placed much reliance on the testimony of the
PW2 and the petitioner. The RW1 could have very well
produced the proof of her date of birth, which was best
evidence to show that her marriage with PW2 was voidable
as it was child marriage. Such best evidence that could
have been produced by RW1 is not available. On the
other hand, RW1 tries to say that she had not instructed
her advocate to issue reply notice as per Ex.P5. In order
to prove it, she has produced the notice issued to her
counsel as per Ex.R7. Moreover, it was for the appellant
herein to have taken action in accordance with law, to get
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such marriage declared void before contracting marriage
with the petitioner.
19. Therefore, we find that the Tribunal has rightly
accepted the testimony of the PW2 and the documents
produced by the petitioner and discarded the contention of
the respondent. It has rightly observed that the appellant
has tried to put forth a case which was not pleaded by her,
despite she was in the knowledge of such contentions.
Under these circumstances, we are unable to accept the
contentions of the appellant herein. The rule of best
evidence required the appellant to produce the proof of
her date of birth as recorded in the educational institutions
and to disprove Ex.P17. Under these circumstances, we
hold that the petitioner had proved that the appellant had
married PW2 and during subsistence of such marriage, the
marriage with the petitioner was null and void, satisfying
the provisions of Section 11 of Hindu Marriage Act.
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20. For the above said reasons, the appeal is bereft
of merits and deserves to be dismissed. Hence, the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SMP
