Madhya Pradesh High Court
Smt. Priyanka Bijol vs Union Of India on 16 April, 2025
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE SHRI ANAND PATHAK &
HON'BLE SHRI HIRDESH, JJ
ON THE 16th OF APRIL, 2025
FIRST APPEAL No. 549 of 2024
SMT. PRIYANKA BIJOL
Versus
UNION OF INDIA AND OTHERS
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Appearance:
Shri H.K. Shukla- learned counsel for appellant.
Shri Praveen Kumar Newaskar- learned Deputy Solicitor
General for respondent No.1/ Union of India.
None for respondent Nos. 2 and 3.
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JUDGMENT
Per Justice Hirdesh:-
1. The present appeal is filed under Section 19 of the Family
Courts Act against judgment and decree dated 10/02/2024 passed
by Additional Judge to the Court of Principal Judge, Family
Court, Gwalior (M.P.) in RCSHM No.30332/2021, whereby the
prayer of appellant claiming herself to be legally-wedded wife of
late Shri Umesh Kumar has been rejected.
2. Brief facts of the case are that Shri Umesh Kumar (since
deceased) was working as a driver of staff car in the office of
respondent No.1. Firstly, Shri Umesh Kumar was married with
late Smt. Neetu and after death of Neetu, late Shri Umesh Kumar
entered into a second marriage with present appellant and
obtained a marriage registration certificate from Village
Panchayat Lithora, District Gwalior. Respondent No.2 Vimla
Devi is mother of Shri Umesh Kumar and respondent No.3- Jatin
is minor son of Shri Umesh Kumar and is born out from the first
wife- Smt. Neetu. At the time of second marriage, family
members of Shri Umesh Kumar including his mother and other
family members were present and photographs were also taken.
After marriage, Shri Umesh Kumar had given a written
application to his Department to include the name of appellant
Priyanka Bijol in his service records as his wife. As a routine
manner, the Department had issued ID card in favour of appellant
for showing herself as wife of Shri Umesh Kumar. Unfortunately,
Shri Umesh Kumar died in harness and after his death, his
parents deserted the appellant and had given mental and physical
torture and denied to accept her as daughter-in-law while all the
family members participated in the marriage. On account of death
of Shri Umesh Kumar, appellant has become hand to mouth.
Since her father was also died, therefore, she is wholly depend
upon the income of her mother, whose financial status is also not
so good.
3. In view of aforesaid, appellant submitted an application
before the Department seeking compassionate appointment and
in the departmental proceedings, respondent No.2- Vimla Devi
submitted objection to the application filed by appellant for
compassionate appointment and other monitory benefits. It was
objected that the appellant was not legally- wedded wife of her
son- late Shri Umesh Kumar, therefore, appellant is not entitled to
get service as compassionate appointment and other benefits.
Appellant had also applied before the Central Administrative
Tribunal, New Delhi seeking compassionate appointment. The
Central Administrative Tribunal decided the matter on
16/09/2019 with observation that appellant had to approach in
appropriate Court/forum for declaration that she is legally-
wedded wife of late Shri Umesh Kumar. In consequence thereof,
the appellant filed an application before the Family Court seeking
declaration that she is legally-wedded wife of late Shri Umesh
Kumar.
4. It was further pleaded on behalf of appellant that she and
late Shri Umesh Kumar belong to Jatav community and there was
a cultural tradition of Chhod-Chutti in the marriage and parents
of late Shri Umesh Kumar had participated in their marriage. She
is residing separately from her earlier husband from 16.07.2013
with the mutual consent. On 09.01.2015, she filed a divorce
petition before the Family Court with mutual consent. She was
residing with late Shri Umesh Kumar till 2013 and they are
known as husband and wife in society. There was no opposition
of her mother-in-law/respondent No.2 meaning thereby marriage
of appellant with late Shri Umesh Kumar was accepted by
respondent No.2.
5. After service of notice, Union of India proceeded ex- parte.
Respondent Nos. 2 and 3 submitted written objection that the
marriage of appellant with late Shri Umesh Kumar is fictitious
and the marriage certificate is also false for snatching away the
retiral dues. She is not legally- wedded wife of late Shri Umesh
Kumar because when her marriage was performed with late Shri
Umesh Kumar, her first husband was also alive and she had not
obtained a decree of divorce from her first husband Manfool.
6. The Family Court framed the issues and after taking
evidence of both the parties, the Family Court rejected prayer of
appellant claiming herself to be legally-wedded wife of late Shri
Umesh Kumar
7. Being aggrieved by the judgment and decree passed by the
Family Court, appellant filed the instant appeal before this Court.
8. It is submitted on behalf of appellant that it is clear from
the documentary evidence as well as admission of late Shri
Umesh Kumar that appellant is the wife of late Shri Umesh
Kumar and since they are residing as husband and wife in
Official Quarters and they are also well-known in the society as
husband and wife, therefore, it should be presumed that the
appellant is legally- wedded wife of late Shri Umesh Kumar. It is
further submitted that from the written statement of respondent
No.2- Smt. Vimala (mother of late Shri Umesh Kumar), nowhere
there was any allegation about the marriage of appellant with late
Shri Umesh Kumar. It was the case of Union of India that the
marriage certificate is false and entry in service record was
obtained by late Shri Umessh Kumar in drunken state.
9. It is further contended on behalf of appellant that the
marriage was not disputed by any other person even either
Manfool Ahirwar or Umesh Kumar Bijol, hence, Union of India
has no right to challenge the the marriage of appellant. So, it is
prayed that the impugned judgment and decree passed by the
Family Court be set-aside and it be declared that appellant and
late Shri Umesh Kumar is legally-wedded husband and wife and
the appellant is entitled for retiral or other benefits and also
entitled for compassionate appointment on account of death of
Shri Umesh Kumar.
10. Learned counsel for respondent No.1- Union of India
opposed the contentions of appellant. It is submitted that the
appellant is not legally-wedded wife of late Shri Umesh Kumar
and appellant has obtained the marriage certificate by means of
fraud and in enquiry proceedings, it was found that no marriage
certificate was issued by concerned Gram Panchayat Dabra,
District Gwalior (M.P.) in favouor of appellant. The Union of
India produced documents in this regard vide Annexure R-6 in
which, the Chief Executive Officer, Janpad Panchayat Dabra,
District Gwalior on 03/10/2017 gave a report to the Deputy
Director, Ministry of Electronic and Information Technology,
New Delhi stating that the marriage certificate of appellant is
forged and fabricated. Hence, prayed for dismissal of appeal.
11. Although upon service of notice, earlier counsel appeared
on behalf of respondents No. 2 and 3 but today, no body appears
on behalf of respondents No.2 and 3.
12. Heard learned counsel for appellant as well as Union of
India and perused the record as well as documents available on
record.
13. Along-with the appeal, appellant has filed an application
i.e. IA No. 351/2025, an application under Order 41 Rule 27 read
with Section 151 of CPC for taking the additional documents on
record.
14. In support of application, it is submitted on behalf of
appellant that in cross-examination before the Family Court, the
appellant admitted in her evidence that before her marriage with
Shri Umesh Kumar, she was married with one Manfool Ahirwar
and a decree of divorce was passed on 30 th of August, 2015 on
the divorce application filed before the Family Court, Bhopal
while the appellant married with late Shri Umesh Kumar Bijol on
02/06/2015. On these grounds, the Family Court refused to
accept the appellant as a legally- wedded wife of late Umesh
Kumar. Her previous husband- Manfool Ahirwar was belonging
to Scheduled Tribe Community (Jatav) in which culture and
tradition of Chhod Chhutti for dissolving the marriage is in the
society, therefore, both the parties had submitted a joint petition
for divorce under Section 13-B of the Hindu Marriage Act before
the Family Court, Bhopal on 09/01/2015. Thereafter, a decree of
divorce was pronounced on 03/08/2015 by the Family Court on
the basis of mutual consent. The documents regarding statements
of both parties were recorded before Family Court, Bhopal on
07/04/2015, which were necessary for just decision of the matter
by the Family Court, Gwalior, however, appellant could not able
to produce during trial before the Family Court, Gwalior.
Therefore, it is prayed that application be allowed by taking
documents on record.
15. Learned Counsel for respondent No.1- Union of India
opposed the application.
16. Heard.
17. Before deciding the instant application Order 41 Rule 27 of
CPC read with Section 151 of CPC, for the sake of convenience,
the provisions are reproduced as under :-
''Production of additional evidence in Appellate Court--
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the Appellate Court, But if--
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which ought
to have been admitted, or [414]
[(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the exercise
of due diligence, be produced by him at the time
when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial
cause,
the Appellate Court may allow such evidence
or document to be produced, or witness to be
examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall
record the reason for its admission.''
18. Since the documents regarding statements of both parties
recorded before Family Court, Bhopal on 07/04/2015 and the
decree of divorce passed by the Family Court, Bhopal are the
Court proceedings and are for just decision by the Family Court,
Gwalior, therefore, IA No. 351/2025 deserves to be and is hereby
allowed. Documents are taken on record.
19. Another application under Order 6 Rule 17 of CPC has
been moved on behalf of appellant i.e. IA No. 350/2025 seeking
amendment of pleadings in the plaint filed before Family Court,
Gwalior. Appellant wants to amend her plaint averments by
inserting following Para 8-A as under :-
^^;g fd] vkosfndk dk iwoZ esa euQwy vfgjokj ds
lkFk fnukad 13-07-2013 dks fookg gqvk Fkk fdUrq mHk; i{k
ds e/; ikfjokfjd lac/a k vPNs uk gksus ds dkj.k mHk;
i{k }kjk ifjokj U;k;ky; Hkksiky ds le{k fnukad 09-01-
2015 dks /kkjk 13 ch fgUnq fookg vf/kfu;e dk vkosnu
izLrqr dj lgefr ls fookg foPNszn dh vkKfIr izkIr djus
gsrq izLrqr fd;k x;k FkkA mijksDr izdj.k esa fnukad 07-04-
2017 dks mHk; i{k ds lgefr ls fookg foPNsn gsrq dFku
fy;s x;s Fks vkSj izdj.k fu.kZ; gsrq fnukad 03-08-2015 dks
fu;r fd;k x;k FkkA pwafd vkosfndk vkSj mlds iwoZ ifr
euQwy ds dFku vkilh lgefr ls fookg foPNsn djus gsrq
U;k;ky; }kjk fjdkWMZ fd;k tk pqdk Fkk] bl ij ls
vkosfndk ds iwoZ ifr ls oSokfgd lac/a k lekIr gks x;s Fks ek+=
fu.kZ; dh vkSikpfjdrk iw.kZ gksuh Fkh] pwfa d vkosfndk ,oa
euQwy vuqlfw pr tutkfr ds lnL; Fks vkSj muds lekt esa
NksM NaqV~Vh dh lkekftd jhfr fjokt ijaijk jgh gS bl
ijaijk ds eqckfcd dksVZ esa c;ku nsus ds i'pkr nksuks i{k ds
oSokfgd lac/a k lekIr gks x;s] ftl ij fo'okl djds
vkosfndk }kjk viuk nwljk fookg mes'k dqekj fctkSy ds
lkFk dj fy;k FkkA^^
20. Learned Counsel for the Union of India opposed the prayer
of appellant seeking amendment of plaint.
21. Heard.
22. Before deciding the instant application (IA No. 350 of
2025), for the sake of convenience, provisions enshrined under
Oder 6 Rule 17 of CPC are reproduced as under :-
''Amendment of pleadings-- The Court may at any stage
of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be
just, and all such amendments shall be made as may be
necessary for the purpose of determining the real
questions in controversy between the parties.
Provided that no application for amendment
shall be allowed after the trial has commenced, unless
the Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter
before the commencement of trial.
23. On bare perusal of provisions of Order 6 Rule 17 of the
CPC, it is clear that the Court at any stage of the proceedings
may allow either party to alter or amend the pleadings in such
manner which is just and proper, but such pleadings may not be
allowed after the trial has commenced which changes the nature
of plaint.
24. In the present case, appellant is well- known about the
status and customs of the society, especially when once the
appellant has admitted in her cross-examination that her first
husband was alive, then after meted out lacuna in her statements
given before the Family Court, Gwalior, she is seeking aforesaid
amendment in the plaint during pendency of instant appeal. Such
type of amendment fulfiling the lacuna of evidence, can not be
allowed. Accordingly, IA No. 350 of 2025 stands rejected.
25. In the present case, the moot question arises before this
Court is that whether the appellant is a legally-wedded wife of
late Shri Umesh Kumar or not ?
26. Before discussing the evidence in detail as stated above,
for the sake of convenience, provisions of Section 5 and 11 of
Hindu Marriage Act are reproduced as under :-
''Section 5 of the Hindu Marriage Act :-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;
Section 11 of the Hindu Marriage Act :- Void
marriages.- Any marriage solemnized 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.''
27. In the present case, appellant filed a suit with a declaration
that she is legally-wedded wife of late Shri Umesh Kumar
before the Family Court, Gwalior. She, in her pleadings, stated
that her marriage was performed with late Shri Umesh Kumar at
Village Panchayat Lithora, Janpad Panchayat Dabra, District
Gwalior. She further stated in her pleadings that she belongs to
Scheduled Tribe Community (Jatav) in which Chhod-Chutti
customs prevails. Appellant also admitted in her cross-
examination that before marriage with late Shri Umesh Kumar,
her marriage was performed with Manfool Ahirwar and she also
admitted in her cross-examination that when she performed
marriage with late Umesh Kumar, her first husband-Manfool
Ahirwar was alive and also admitted that she did not wait for
divorce with Manfool Ahirwar and before divorce, she married
with late Umesh Kumar.
28. This is also proved from documents which were produced
by appellant before the Family Court that a mutual decree of
divorce was granted by the Family Court, Bhopal in Case No.
50A/2015 (HMA) on 03/08/2015 in favour of appellant and
Manfool Ahirwar. Her statement was recorded before Family
Court on 29/07/2015, therefore, it is clear that before taking
divorce from Manfool Ahirwar, appellant entered into second
marriage with late Shri Umesh Kumar on 02/06/2015. Therefore,
appellant violated the condition of Section 5(i) of the Hindu
Marriage Act. According to Section 11 of the Hindu Marriage
Act, any marriage solemnized after commencement of this Act
shall be null and void, if it contravenes any one of the conditions
specified in Clauses (i), (iv) and (v) of Section 5 of the Hindu
Marriage Act.
29. In view of above discussion, it is proved that appellant
entered into second marriage on 02/06/2015 with late Umesh
Kumar but on that date, her first legally-wedded husband-
Manfool Ahirwar was alive and their marriage was in existence.
Therefore, Family Court has not committed any error in declaring
that she is not legally-wedded wife of late Shri Umesh Kumar
because her first husband-Manfool Ahirwar was alive and
marriage was also in existence, when she performed second
marriage with late Umesh Kumar.
30. In the considered opinion of this Court, the appeal fails and
the same is hereby dismissed and the judgment and decree dated
10/02/2024 passed by Additional Judge to the Court of Principal
Judge, Family Court Gwalior (M.P.) in RCSHM No.30332/2021
is hereby affirmed.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
Prachi
