Kala Devi v. Yogendra Giri

first marriage, the husband re-marries, then in that event, second wife is entitled for maintenance and to support the same, relied upon a recent pronouncement in the case of Badshah v. Sou. Urmila Badshah Godse & Anr decided on 18.10.2013 in connection with Cr. Misc. Petition No. 19530/2013 in Special Leave Petition (Crl) No. 8596/2013. 4

#6. It has also been submitted that from the evidence having been adduced on behalf of petitioner, it is evident that Vikash Giri was begotten during subsistence of marriage which still survives and so a presumption will go in favour of petitioner in accordance with Section-112 of the Evidence Act. It was upon the O.P. to contend and prove by cogent and reliable evidence in its rebuttal wherein the O.P. failed. Therefore, dismissal of the petition by the learned lower court is bad, illegal, arbitrary and is fit to be set aside.

#7. On the other hand, learned counsel for Opposite Party submitted that for the purpose of valid marriage, it is mandatory that either of the parties should not have spouse since before. When there happens to be own admission of the petitioner regarding presence of her first husband as well as subsistence of earlier marriage then, in that event, without having been divorced by a judicial pronouncement, there is no constitution of valid marriage. In likewise manner, it has also been submitted that petitioner was not fair in her conduct because of the fact that at the time of filing of petition had concealed the aforesaid fact which is found exposed during course of evidence apart from petitioner, the witnesses so examined on her behalf. Therefore, petitioner will not get any support from the decision so relied upon on behalf of petitioner.

#8. Altogether five witnesses have been examined on behalf 5 of petitioner while on behalf of O.P. also altogether 5 witnesses have been examined. Ext-A, A/1 are the certified copies of deposition of petitioner as well as witness in Jaley P.S. Case No. 38/2000. After going through the evidence of the PWs, it is evident that witnesses are conflicting over previous marriage of Kala Devi/petitioner. PW-1 during his examination-in-chief had deposed that Kala Devi/petitioner was married with Yogendra Giri and during subsistence of marriage she had begotten a son, namely, Vikash Giri. During cross- examination at para-9, he had stated that he is unaware of the fact whether Kala Devi was married with anybody else before being married with Yogendra Giri. In para-11, he had further stated that he is unaware of the fact that Kala Devi had got a child from her first marriage. Although, he had claimed to be uncle of petitioner, Kala Devi.

#9. PW-2 in, examination-in-chief, had reiterated the same version. During cross-examination, he had claimed that Kala Devi is his sister. In para-14, he had stated that Kala Devi was already married since before and from that marriage, she had got a child.

#10. PW-3 is the priest who had claimed to have performed the marriage of Kala Devi with Yogendra Giri in the temple. In para- 24, 25 and 26 of cross-examination he had shown his ignorance by stating that he is not knowing the place where first marriage of Kala 6 Devi was performed. He had not seen her first husband. In para-29, he had denied to have deposed in criminal case that Kala Devi was married at village, Musharia and got a son although he had stated like so during deposing in connection with Jaley P.S. Case No. 38/2000.

#11. PW-4 is the applicant herself who had stated that her marriage was solemnized with Yogendra Giri at Belwara temple and thereafter, she came to railway quarters where she continued with her marital life and on account thereof, she had begotten a son, namely, Vikash Giri. In para-22, she had stated that she was not married to anybody else before marrying with Yogendra Giri. She had denied to have deposed in a criminal case that she was married at an earlier occasion at village-Sonbarsa with Lalbabu Giri. In para-13, she had stated that Yogendra Giri had got no wife since before her marriage with him.

#12. PW-5, Vikash Giri aged about three years and simply identified the O.P. to be his father in his examination-in-chief but during cross-examination, he had not claimed identification.

#13. OPWs No. 1, 2, 3, 4 (OPW No. 4 has mistakenly been numbered twice), and OPWs No. 5 as well as 6 are on the contrary issue disowning the inter se relation ship as claimed by the petitioner.

#14. Petitioner Kala Devi was examined as PW-6 Ext-A during criminal proceeding launched at her behest wherein at para-2, 7 she had stated that she was already married at Sonbarsa before this marriage which was effected 5-6 years ago. She had begotten one child during subsistence of aforesaid marriage. He is Lalbabu Giri. When Lalbabu Giri died, then she re-married. Again she disclosed by volunteering herself that first marriage was solemnized 12-13 years ago. From Ext-A/1, deposition of Tapeshwar Puri, the priest, it is evident from para-4 of his cross-examination that first marriage of Kala Devi was solemnized at village-Musharia but he has got no knowledge with regard to name of her husband. She had one child from the first marriage.

#15. By having concealment of aforesaid fact since inception of the proceeding and further keeping the aforesaid theme out of purview of instant proceeding although, she was well aware since before on the basis of filing of show-cause whereunder specific averment was made that she was already married since before, it happens to be serious matter which cannot be found to be dealt with in lighter vain.

#16. The aforesaid theme is found itself admitted by the applicant not only during course of cross-examination rather from Ext-A, the evidence which she had deposed against the Opposite Party in a criminal proceeding. The decision so relied upon by the learned counsel for the petitioner is not going to help the petitioner because of 8 the fact that in that case the husband after concealing the factum of first marriage, re-married. Here the situation is just opposite. Petitioner was married since before and after concealing the aforesaid event got herself engaged with opposite party, she had not even deposed that factum of first marriage was already disclosed to the opposite party before marriage. Hence, the decision cited on behalf of petitioner has got no relevance in the facts and circumstances of the present case. Petitioner was already married since before and then concealing the aforesaid fact, even not disclosing in the petition, not deposing during her evidence virtually, attracts prescription and on account thereof, the finding so recorded by the learned lower court do not require interference. Petition is rejected.

#17. However, petitioner will be at liberty to get her status properly identified by a competent court which could only give a solid plank to enable her to seek legal entitlement. Patna High Court 20th December 2013 Perwez/AFR (Aditya Kumar Trivedi, J)