Pingli Bai vs Khelan Bai @ Khelibai
2023 Latest Caselaw 5467 MP

                                   1



IN    THE     HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 3rd OF APRIL, 2023
              SECOND APPEAL No. 1000 of 2017
BETWEEN:-
1.   PINGLI BAI Wd/O DHARAMLAL,
     AGED ABOUT 50 YEARS, R/O
     VILLAGE AMVLAJHARI TEHSIL
     AND    DISTRICT   BALAGHAT
     (MADHYA PRADESH)
2.   YOGENDRA    S/O  DHARAMLAL,
     AGED ABOUT 28 YEARS, R/O
     VILLAGE AMVLAJHARI, TEHSIL
     AND    DISTRICT    BALAGHAT
     (MADHYA PRADESH)
                                                      .....APPELLANTS
(BY SHRI SANJAY SHARMA - ADVOCATE)
AND
1.   KHELAN BAI @ KHELIBAI Wd/O
     LATE DHARAM LAL, AGED ABOUT
     60 YEARS, R/O VILLAGE PATHRI,
     TEHSIL    KIRNAPUR   DISTRICT
     BALAGHAT (MADHYA PRADESH)
2.   STATE  OF    M.P.  THROUGH
     COLLECTOR BALAGHAT, DISTRICT
     BALAGHAT (MADHYA PRADESH)
                                                    .....RESPONDENTS
(RESPONDENT NO.1 BY SHRI JANAK LAL SONI - ADVOCATE &
RESPONDENT NO.2/STATE BY SHRI R. MATHAI - PANEL LAWYER )

      This appeal coming on for admission this day, the court passed the

following:

                            JUDGMENT

This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 02/08/2017 passed by

Additional District Judge to the Court of First Additional District Judge, Balaghat (M.P.) in Civil Appeal No.75A/2016 arising out of judgment and decree dated 27/10/2016 passed by Second Civil Judge Class-1, Balaghat in Civil Suit No.43A/2014.

2. The facts of the case in short are that the plaintiff/ respondent filed a suit for declaration of title, partition and possession on the ground that she is the legally wedded wife of Dharamlal, therefore she has 1/3rd share along with defendants No.1 and 2 in agricultural land bearing khasra No.76/2p area 0.126 hectare, khasra No.100/3x area 0.174 hectare and khasra No.100/6d area 0.186 hectare situated in village Amvlajhari, District Balaghat.

3. The defendants filed their written statement denying the plaint averments. It was denied that the plaintiff is the legally wedded wife of Dharamlal. On the contrary, it was pleaded that the defendant No.1 is the legally wedded wife of Dharamlal, whereas defendant No.2 is the child born out of the wedlock of defendant No.1 and Dharamlal and thus, it was claimed that the defendants are the legal heirs and owners of the entire suit property.

4. In the additional pleadings, it was pleaded that the marriage of the plaintiff had taken place with Dharamlal in the year 1959 and Gauna ceremony was performed after three years of the marriage. However the plaintiff was in habit of moving here and there, therefore on account of dispute between the husband and wife, i.e. plaintiff and Dharamlal, divorce took place as per customs on 27/02/1974 and the plaintiff had also put her thumb impression which was scribed by Jagoba Thakur resident of village Atarni, District Balaghat in which, it was mentioned that both the parties shall be free to perform the

marriages and they will not take any legal action against each other. It was also claimed that the plaintiff after divorce with Dharamlal is residing with Shivlal by performing Paat marriage in the year 2009.

5. The Trial Court after framing issues and recording evidence decreed the suit and held that the plaintiff is entitled for 1/2 share in the property in dispute. The factum of divorce between Dharamlal and the plaintiff was not found to be proved.

6. Being aggrieved by the judgment and decree passed by the Trial Court, the appellants preferred an appeal and the First Appellate Court has modified the decree passed by the Trial Court by reducing the share of the plaintiff from 1/2 to 1/3 as only 1/3rd share was claimed by the plaintiff in the suit.

7. Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellants that the plaintiff herself has admitted in paragraph 7 of her cross-examination that her marriage took place at the age of seven years and the Gauna ceremony was performed after three years and she resided with Dharamlal for the next 15 years and thereafter because of family disputes she started residing in her parental house. By referring to Section 5 of the Hindu Marriage Act, it is submitted that since the marriage of the plaintiff with Dharamlal was void therefore, the Courts below have committed material illegality by holding that the plaintiff is the legally married wife of Dharamlal and proposed the following substantial questions of law:-

"(i) Whether, both the courts below properly considered and applied provisions of Hindu Marriage Act and Succession Act, 1925, in the facts and circumstances of the present case and according to the

provisions, plaintiff is legally wedded wife of the Dharamlal and she can claim any share in the property of Dharamlal?

(ii) Whether, both the courts below ignored section 19 of Evidence Act, relating to 30 Years old documents and properly consider Ex.D-4 dated 27.02.1974?

(iii) Whether, whether finding recorded on issue No.5 by the Learned Trial Court is perverse and contrary to law with regard to deciding issue of Court fees?

(iv) Whether the findings of Courts below are perverse recorded overlooking material admission by the plaintiff and her witnesses or recorded considering irrelevant pleading and evidence of the parties therefore suit ought to have been dismissed?"

8. Per contra, it is submitted by the counsel for the respondent that once it was held that the plaintiff is the legally wedded wife of Dharamlal and no divorce had taken place, then the defendant No.1 had no right or share in the property and therefore, the Trial Court did not commit any mistake by declaring the share of the plaintiff as 1/2 and therefore it should not have been reduced by the First Appellate Court to 1/3.

9. Heard the learned counsel for the parties.

10. Section 5 of the Hindu Marriage Act reads as under:-

"5. Conditions for a Hindu marriage.-- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:--

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party--

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity;

(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."

11. Section 11 of the Hindu Marriage Act 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."

12. From the plain reading of Sections 5 and 11 of the Hindu Marriage Act, it is clear that the marriage in contravention of Section 5(iii) of the Hindu Marriage Act is not a void marriage. Thus, the counsel for the appellants is wrong in submitting that since the marriage of the plaintiff was performed with Dharamlal at the age of seven years, therefore her marriage with Dharamlal was a void marriage. Furthermore, the defendants themselves had admitted that the marriage of the plaintiff with Dharamlal was performed and their

contention that the divorce had taken place could not be proved. Under these circumstances, the marriage of the plaintiff with Dharamlal was duly proved by the plaintiff.

13. So far as the reduction of the share by the First Appellate Court is concerned, the counsel for the respondent is correct in submitting that since the defendant No.1 got married during the lifetime of spouse of Dharamlal, therefore her marriage with Dharamlal was void as per Section 11 of the Hindu Marriage Act. Therefore, she was not having any right or title in the property but the unfortunate part is that the plaintiff herself had claimed only 1/3rd share in the property. If the parties have gone to the suit with a clear understanding of dispute, then the same cannot be modified by the Courts by denying a share to defendant No.1. Furthermore, the plaintiff has not filed written cross- objection for enhancement of her share. It is true that the respondent can raise an objection to any of the finding given by the Court without filing a cross-objection, but in case if the decree is to be modified, then a written cross-objection should have been filed and the verbal submission with regard to any finding cannot be entertained. If the contention of the respondent that the share of the respondent should not have been reduced to 1/3rd then in absence of written cross-objection such verbal submission cannot be considered.

14. Accordingly, no substantial question of law arises in the present appeal.

15. Ex consequenti, the judgment and decree dated 02/08/2017 passed by Additional District Judge to the Court of First Additional District Judge, Balaghat (M.P.) in Civil Appeal No.75A/2016 is hereby affirmed.

16. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE shubhankar Digitally signed by SHUBHANKAR MISHRA Date: 2023.04.05 13:56:29 +05'30'