2010 Supreme(Kar) 436

High Court of Karnataka
THE HONOURABLE MR. JUSTICE MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE RAVI MALIMATH
Smt. Suma Gouda @ Anitha @ Vasanthi
Versus
M.K. Poovaiah
Miscellaneous First Appeal No.8648 of 2006 (FC)
Decided on : 05-04-2010

Headnote:HINDU MARRIAGE ACT, 1955 - Sections 5 & 13: [Manjula Chellur & Ravi Malimath, JJ] Husband/Respondent’s Petition for declaring the marriage with appellant as null and void in view of her subsisting marriage with another persons ’R’ - In support of his claim husband relied on one HRC proceedings where the appellant had admitted that she was the wife of one ’R’ and also the letter of appellant’s sister wherein appellant was addressed as wife of ’R’ - Appellant’s contention that Respondent was working as Junior in an Advocate’s Office and it is at his instance she had made the statement in HRC proceedings - Also alleging harassment by Respondent -Family Court allowed the petition - Held, Section 5(1) refers to solemnisation of marriage which again refers to solemnization of marriage with accepted ceremonies. Therefore, mere admission of marriage or someone describing someone else as wife will never be equal to the establishment of solemnisation of marriage. The catena of decisions ultimately would go to show that appreciation of evidence so far as civil litigation concerning establishment of marriage, especially the factum of marriage it requires strict establishment of such fact of marriage. Similarly, in a case where question of curbing a social evil of causing harassment to women with demand of dowry or a case of domestic violence, strict proof or establishment of such right need not be a strict one. The relief sought now is for declaration of nullity of marriage between the appellant and the respondent-husband. Unless the solemnisation of marriage of appellant with "R" is in accordance with the customary rights or in other form known to law is established, the relief sought by the appellant cannot be granted. The trial Court without understanding the provisions of Sections 21,31,50 and 58 of the Evidence Act and Sections 5 and 11 of the Hindu Marriage Act in the right perspective has proceeded to grant the declaration sought. The petition filed under Section 11 of the Hindu Marriage Act seeking declaration that the marriage of the appellant with the respondent as nullity is dismissed with costs throughout.

       INDIAN EVIDENCE ACT, 1872 - Section 31: [Manjula Chellur & Ravi Malimath, JJ] Admission - Court has to see to what extent said admission will be binding so as to estop the person who appears in the case from denying the same. It is well-settled that the admission though could be reasonable presumption to be true, it can be refuted by the party by way of rebutting the facts admitted. It is well-settled that admissions are not conclusive unless they constitute estoppel. The maker is at liberty to prove they are mistaken or/are untrue. It is also a piece of evidence like any other evidence.

       INDIAN EVIDENCE ACT, 1872 - Section 50: [Manjula Chellur & Ravi Malimath, JJ]"Relationship" - The word ’relationship’ under Section 50 takes into its ambit all kinds of relationships including relationship by blood, marriage or adoption. The word ’opinion’ referred to at Section 50 of Evidence Act definitely does not include information arising out of gossip. Therefore, mere general repetition cannot be evidence as contemplated under Section.

       INDIAN EVIDENCE ACT, 1872 - Section 50: [Manjula Chelur & Ravi Malimath, JJ] Adultery or bigamy - Proof - In cases of adultery complainant is required to strictly prove the factum of marriage. Fact of living together as husband and wife and giving birth to their child cannot be considered in a prosecution for matrimonial offence. Therefore, the conduct referred to at Section 50 is nothing more than a conduct and such conduct alone is not substituted for strict proof of a fact. For example, even if the accused in his statement under Section 313 of Cr.P.C. admits that the woman was the legally wedded wife of the complainant, it will not be of any avail to the prosecution if it otherwise fails to prove marriage between the complainant and the woman. It is well-settled that admission of marriage by the accused is not evidence for the purpose of proving the marriage either in the case of adultery or bigamy. Though presumption arises in favour of a marriage where there had been a lengthened co-habitation, especially in cases where the alleged marriage had taken place long ago, and where it is difficult to get trustworthy account of what actually occurred, continual long cohabitation and acknowledgment of it, through conduct will lead to established marriage and legitimacy of the off-springs of such marriage. In the present case, there is no such recognition or presumption of marriage because of long cohabitation between Appellant and Respondent.

       INDIAN EVIDENCE ACT, 1872 - Section 50, Proviso: [Manjula Chellur & Ravi Malimath,JJ] Applicability - As a matter of fact, Proviso to Section 50 applies only to cases coming under the Indian Divorce Act and prosecution under Section 494,495, 497 or 498 IPC. Such proviso was needed because strict proof of marriage was required in original prosecutions and also matters pertaining to Indian Divorce Act. Therefore, it is well settled that in cases of prosecution for penal action as stated above and also in cases of divorce or petition for damages by reason of adultery, strict proof of factum of marriage is required. Hence the proof of factum of marriage is required. Hence the proof of fact of marriage should not depend on opinion or conduct of evidence in proceedings for divorce, etc. As a matter of fact, the reliefs sought by the respondent-husband in the present case is nothing short of putting an end to the registered marriage dated 14.7.1994 on the ground of existence and subsistence of a previous valid marriage between appellant and Respondent.