The burden of proof lies with the party making a claim, and mere exhibition of a document is not sufficient to establish a fact. The court emphasized the importance of meeting the burden of proof in legal proceedings.

JUDGMENT

A.S.Chandurkar, J. - The challenge raised in this appeal is to the judgment of the Family Court, Akola, in A Petition No. 27/2017 dated 26.04.2018.

2. The appellant and the respondent were married on 29.04.2015. After their marriage they resided together for some period after which the relations between them got strained. On 07.02.2017 the respondent-husband filed petition under Section 11 read with Section 5 of the Hindu Marriage Act, 1955 seeking a declaration that his marriage with the appellant-wife was null and void in view of the fact when they were married on 29.04.2015, the wife had a spouse living due to her earlier marriage dated 24.06.2007. Besides this ground, it was also pleaded that the wife was treating the husband with cruelty.

3. In the written statement filed by the wife it was vaguely denied that she had married earlier and that her spouse from her earlier marriage was living. The parties led evidence before the Family Court and after considering the same, the learned Judge of the Family Court recorded a finding that the husband had proved that when he had married the appellant on 29.04.2015 her husband from the earlier marriage was living. On that count the marriage was declared to be null and void. Being aggrieved the wife has challenged the said judgment.

4. Shri O.Y.Kashid, learned counsel for the appellant-wife submitted that even though the wife had contracted marriage on 24.06.2007, she had separated from her husband by virtue of obtaining customary divorce. Referring to the divorce deed at Exhibit 24 dated 12.07.2010 it was submitted that by virtue of this customary divorce, it could not be said that when the appellant married the respondent she had a spouse living. It was his contention that the wife had specifically deposed about obtaining of customary divorce and there was no specific cross-examination of the wife on that aspect. Moreover when the divorce deed was exhibited the same was not objected to by the husband. It was further submitted that in the proceedings under the Protection of Women from Domestic Violence Act, 2005, the husband had taken a stand that the appellant was his legally wedded wife. In view of these contentions it was submitted that the judgment of the Family Court was liable to be set aside.

5. On the other hand, Shri A.J.Thakkar, learned counsel for the respondent-husband supported the impugned judgment. He submitted that the wife having pleaded the aspect of customary divorce the burden was on her to prove the same. In the cross-examination it was specifically admitted by the wife that all divorces in their community took place by way of decree of the Court. Placing reliance on the decisions in MM.Malhotra Vs. Union of India and ors AIR 2006 SC 80, Shahni Dhanraj Shirsat Vs. Dhanraj Tukaram Shirsat 2017(3) All M R 735 and Mangala Bhivaji Lad Vs. Dhondiba Rambhau Aher 2010 (4)MhLJ 486 it was submitted that in absence of customary divorce being proved by the wife, that defence was not liable to be accepted. He therefore submitted that there was no reason to interfere with the impugned judgment.

6. In the light of the aforesaid discussion, the following point arises for adjudication :

Whether the appellant has proved that the judgment of the Family Court holding her marriage to be null and void is not in accordance with law?

7. We have heard the learned counsel for the parties at length and we have perused the documents on record. In the divorce petition it was the specific case of the husband that his wife had earlier married one Vinod Jayprakash Pande and this marriage had not been dissolved by decree of the Court. The wife in her deposition at Exhibit 21 stated that her earlier marriage came to an end by virtue of the document of divorce. She placed the divorce deed on record which was marked as Exhibit 24. In that document it has been stated that as per the custom prevailing in her community the divorce was obtained. In the cross-examination of the wife it was admitted