Madhya Pradesh High Court
Smt. Shobha Bende vs Dhanraj Bende on 22 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 22 nd OF FEBRUARY, 2024
SECOND APPEAL No. 3 of 2020
BETWEEN:-
SMT. SHOBHA BENDE W/O DHANRAJ BENDE, AGED
ABOUT 45 YEARS, OCCUPATION: DOMESTIC WORKER
D/O NARAYAN KAWRAIT WARD NO. 1, SAUSAR TEH.
SAUSAR DISTT. CHHINDWARA (MADHYA PRADESH)
.....APPELLANT
(BY MS. PURNIMA BHALERAO - ADVOCATE FOR APPELLANT)
AND
DHANRAJ BENDE S/O LAXMI CHAND BENDE, AGED
ABOUT 53 YEARS, WARD NO. 2 SAUSAR TEH. SAUSAR
DISTT. CHHINDWARA (MADHYA PRADESH)
.....RESPONDENT
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal under Section 100 of the C.P.C. has been preferred
feeling aggrieved by the Judgment and decree dated 05.10.2019 in Case
No.300054/2016 by Additional District Judge, Sausar, District-Chhindwara
arising out of judgment and decree dated 27.01.2016 in Civil Case No.166-
A/2013 by Civil Judge Class-I, Sausar, District-Chhindwara (M.P.) whereby the
decree has been passed in favour of respondent that appellant is not the legally
wedded wife of the respondent. As stated in plaint a Civil Suit before Civil
Judge Class-I, Sausar was filed on 19.12.2012 by the respondent that for
declaration that appellant/defendant is not legally wedded wife of the
plaintiff/respondent. She is misusing his name describing him as her husband. A
relief of permanent injunction and deleting the name in the Aadhaar Card as
husband of defendant was also prayed.
2. Appellant/defendant contested the case and submitted that she was
married to respondent/plaintiff 18 years ago. She gave birth to a child from the
wedlock. Name of plaintiff/respondent was recorded as a father of her son in
School. She was not previously married with any person at the time of marriage
with plaintiff/respondent. It was also relied that suit was barred by limitation and
Civil Judge has no jurisdiction to decide the case.
3. Trial Court framed total 8 issues and recorded the testimony of
plaintiff/respondent as PW-1 and witnesses Mahadeve as PW-2 and Narayan as
PW-3 and admitted the documents as Ex.P-1 to P-21. Defendant/appellant
examined herself as DW-1 exhibited the documents as D1 and D2.
4. Appreciating the evidence, trial Court recorded the finding that
appellant/defendant was married to Kailash @ Bhura son of Mukunda and no
dissolution of marriage of appellant/defendant was arise so appellant is not the
illegally wedded wife of plaintiff/respondent and she is misusing the name of
plaintiff in documents has her husband. Trial Court also recorded the finding
that Civil Judge has jurisdiction to decide the case and the suit is within
limitation and decreed the suit in favour of the plaintiff/respondent. First
Appellate Court affirmed the judgment and decree of the trial Court.
5. Appreciating the evidence, Trial Court dismissed the suit of the
plaintiff and first Appellate Court affirmed the findings of the Trial Court. This
second appeal has been preferred proposing the substantial questions of law :-
"i. Whether the courts below have acted lawfully while
decreeing the suit filed by the respondent/plaintiff ?
ii. Whether a dispute pertaining to matrimony was
sustainable and maintainable in civil court in view of the
provisions of Hindu Marriage Act, 1952 and Family
Courts Act read with the provisions of Civil Procedure
Court ?
iii. Whether the courts below are justified in not
dismissing the suit on the ground of limitation ?
iv. Whether the courts below are justified in passing the
impugned judgment and decree ?
v. Whether the findings recorded by the Courts below are
perverse ?"
6. Heard.
7. Perused the record of both the Courts below.
8. Firstly, this Court is considering the order dated 05.01.2016 passed in
Criminal Revision No.1287/2004 by High Court of Madhya Pradesh, Jabalpur.
Proceeding was filed by son of appellant/defendant. Para Nos.25 and 27 of the
proceeding under Section 125 of Cr.P.C. is being reproduced below :-
"25. In above facts and circumstances the relation
for the purpose of maintenance awarded under the
provisions of Section 125 of the Code is sufficient that
Shobhabai and respondent Dhanraj were lived together as
husband and wife though not legally married but the
applicant is son of this couple, hence he is entitled to get
maintenance amount from the respondent Dhanraj.
27. After perusal of both the orders of Courts
below, I find that impugned Revisional order dated
07.05.2004 passed by learned Revisional Court deserves
to be set aside because, learned Revisional Court
committed error while deciding this fact that Shobhabai is
not wife of the respondent for the limited purpose of
awarding the maintenance amount under the provisions of
Section 125 of the Code."
9. Observations recorded in above quoted paragraphs does not help
appellant/defendant in a proceedings for declaration of the status of
appellant/defendant as "legally wedded wife".
10. Trial Court has recorded the finding that appellant/defendant was not
married to respondent/plaintiff. Trial Court has based his finding on the
testimony of plaintiff (PW-1) and Mahadeve (PW-2) and silence on
appellant/defendant regarding her previous marriage. Documents relied on by
the appellant/defendant Ex.D-1 is the Bill of June, 2015 issued by M.P. East
Zone Electricity Distribution Company in which the name of plaintiff/respondent
is recorded with appellant/defendant. Ex.D-2 is the progress report of
educational sessions 2011-2012 issued by Queen Marry Convent Higher
Secondary School, Sausar in which the name of her son is entered in 7th Class
in the School register and respondent/plaintiff's name is mentioned as her son's
father.
11. Trial Court has appreciated both the documents properly and they
are not found any evidence of marriage of appellant/defendant with
plaintiff/respondent. More so, manner of marriage as mentioned in the plaint
does not fulfill the requirement of Section 7 of Hindu Marriage Act, 1955.
12. Findings of limitation and jurisdiction are properly recorded,
therefore, no substantial question of law as proposed by appellant arises.
Hence, this Second Appeal is not fit to be admitted. Accordingly, It is
dismissed at the admission stage.
(GAJENDRA SINGH)
JUDGE
DPS
