Shamwati vs Smt. Parsandi and Others

L.N. Mittal, J.—This is revision petition by Shamwati � defendant No. 2 challenging order dated 18.07.2009 (Annexure P-2) passed by learned Additional Civil Judge (Senior Division), Palwal, thereby dismissing application Annexure P-1, for amendment of written statement, moved by the petitioner.

I have heard learned Counsel for the petitioner and perused the case file.

Petitioner is purchaser of property from Smt. Nirmal � defendant No. 1 (respondent No. 5). Nirmal allegedly inherited it from Tek Chand. Admittedly, Tek Chand was married with Parsandi � plaintiff-respondent No. 1. The petitioner claims that Nirmal is second wife of Tek Chand. By amendment, the petitioner wants to plead that there is custom among Jat Agriculturists of old Gurgaon District that a person having no male issue from his first wife can perform second marriage so as to continue his family and such second marriage would be valid marriage and both the wives would equally inherit the estate of the deceased husband. It is accordingly sought to be pleaded that Nirmal also inherited equally with Parsandi the estate of Tek Chand.

Learned Counsel for the petitioner contended that only custom is sought to be pleaded by amendment and the amendment should have been allowed. The contention cannot be accepted. The suit was instituted on 07.10.1999 and written statement was filed on 02.08.2001. However, amendment application is dated 04.06.2009. The amendment application was thus moved almost eight years after the filing of the original written statement and almost ten years after filing of the suit. The amendment application was moved when the suit was fixed for rebuttal evidence and final arguments. There is no explanation why the facts, now sought to be pleaded, were not pleaded in the original written statement. There is no explanation for the long delay in moving the amendment application. The only intent and purpose of moving the application appears to be to further delay the disposal of the suit, which was already almost a decade old.

In addition to the aforesaid, the proposed amendment would not serve any purpose. Section 5 of the Hindu Marriage Act, 1955 (in short � the Act) inter alia provides that marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage. Section 11 of the Act provides that any marriage solemnized after commencement of the Act, in contravention of the aforesaid condition, shall be null and void. Admittedly, in the instant case, alleged second marriage of Tek Chand with Nirmal � defendant No. 1 was solemnized after commencement of the Act, while Tek Chand already had living spouse namely Parsandi. Consequently, alleged marriage of Nirmal with Tek Chand was null and void ab initio and could not be validated even by alleged custom, which is now sought to be pleaded. Consequently, Nirmal could not inherit any estate of Tek Chand, her alleged marriage with Tek Chand being null and void.

For the reasons recorded herein above, I find no illegality in the impugned order of the trial court. The proposed amendment cannot be permitted. The revision petition is devoid of any merit and is accordingly dismissed in limine.