Darsa Bai vs Gangaprasad

B.M. Lal, J.—This appeal u/s 28 of the Hindu Marriage Act (hereinafter referred to as the Act) is filed by the wife against the judgment and decree dated 8th Dec, 1984 whereby she has been non-suited in a petition for divorce.

The short facts leading to this appeal are as under:

The Appellant on 11th Sept., 1987 filed a petition u/s 13 of the Act for annulling the marriage. Her case was that in the year 1964 her marriage with the Respondent was solemnized according to the Hindu rites and customs prevalent among their caste ''Satnami''. Out of this wedlock a female child was born to her. The Respondent was addicted to liquor and used to ill-treat the Appellant-wife which resulted in her mental agony. She further alleged that the Respondent entered into a second marriage with one Jugri Bai and started living with her and three children were born out of the second wedlock.

The Appellant reported the matter to Police and also to the village Panchayat, but no heed was paid. Therefore, she filed the petition for divorce. The Respondent resisted the petition; he submitted that he did not enter into second marriage. All other adverse allegations were also denied by him.

Upon these pleadings the learned Lower Court framed in all six issues of which No. 6 was:

Whether the Respondent entered into second marriage with Jugri Bai after the first marriage with the Petitioner and committed adultery?

On this issue the findings reached by the learned Lower Court is that the Respondent is having illicit relation with Jugri Bai which is not voluntary. On this ground the Appellant was non-suited vide judgment and decree dated Intercourse between husband and second wife is adultery 8th Dec, 1984 against which the instant appeal has been filed.

The Appellant as AW 1 has stated that the Respondent is leading adulterous life with Jugri Bai. This statement of Appellant has been supported by Harilal (PW2) who stated that Jugri Bai is living with the Respondent as his wife. Similar are the statements of Bhagwati Bai (PW3), Bhagatram (PW4) who stated that Ganga Prasad (Respondent) married Jugri Bai and she is living with him. Sukhidas (PW6) the village Kotwar has varified that of the second wife three children were born. Therefore, the findings arrived at by the Lower Court that the alleged adultery is not voluntary, has no substance.

In Gitabai Vs. Fattoo and Another, , Division bench of this Court ruled that: husband marrying second wife during lifetime of first wife without seeking legal divorce-the second marriage is a nullity and intercourse between the husband and the second wife is a nullity and intercourse between the husband and the second wife is adultery attracting the provisions of Section 13(1)(i) of the Act. A marriage solemnised after the commencement of the Act, in the lifetime of a marriage spouse, renders the second marriage null and void ab initio. It is a nullity even when no party applies for a decree of nullity. Sexual so as to attract the provisions of Sections 10(1)(f) and 13(1)(i) of the Act.

The statement of witness referred to above consistently show that the Respondent is living with Jugri Bai and three children were born of that relationship. This being so, the Respondent has committed consensual sexual intercourse with Jugri Bai during the subsistence of first marriage with the Appellant-wife. Therefore, the Respondent is leading an adulterous life and it renders the second marriage a nullity. Similar view has been taken in Gita Bai''s case (Supra).

This being so, in the opinion of this Court, learned Lower Court has acted contrary to the true-interpretation of provisions of Section 10(1)(f) and Section 13(1)(i) of the Act, while non-suiting the Appellant-wife.

From the discussion aforesaid, this appeal succeeds and is hereby allowed. The judgment and decree impugned are set aside and the suit of the Appellant for annulling the marriage is decreed with costs. Counsel''s fee Rs. 750/- if certified.