The importance of unchallenged evidence and pleadings in determining the validity of a marriage under Section 11 of the Hindu Marriage Act.

Navaniti Prasad Singh, J.

1. The present appeal, under Section 18 of the Family Courts Act, 1984, arises from the judgment and decree dismissing the suit, as filed by the appellant under Section 11 of the Hindu Marriage Act, to declare the marriage as solemnized on 20.04.2007, between her and opposite party No. 1, Pawan Choudhary, as a nullity. The suit was filed on the ground that opposite party No. 1, Pawan Choudhary, had a subsisting marriage with opposite party No. 3, Lakshmi Devi, which was not disclosed at the time of marriage. The applicant had further claimed that her Stridhan and other money be returned to her. The case was registered as O.S. Case No. 150 of 2007 before the Principal Judge, Family Court, Vaishali at Hajipur. Notices of the suit were issued to the three opposite parties, but they evaded service of notice. Step by step efforts were made to serve notice to the opposite parties. All of them have their residence at Ranchi. Ultimately, a newspaper publication of notices was made. In spite of that, none of the opposite parties had chosen to appear. In support of her case, the appellant filed examination-in-chief for three witnesses i.e. her father-in-law, herself and a neighbour. As no one appeared, the witnesses being present, were not cross-examined, therefore, there was no written examination to the plaint nor any cross-examination to the examination-in-chief as filed on behalf of the appellant. Curious to note that trial court noted all these things but it committed serious error on record in noting that there is no other evidence, either oral or documentary, or affidavit in support of the averments made in the petitions by the applicant. We have called for the record and examined the same. The three examination-in-chief supported by affidavit are there on record. Thus, to say that there is no evidence, is void ab initio. In any view of the matter, the appellant being present in the court, the plaint being there, no one was ready to cross-examine the witnesses, in the facts and circumstances of the case, the learned court below ought to have decreed the suit without contest. It was not correct on the part of learned Principal Judge, to dismiss the application on the ground of lack of evidence. It is well settled principle that unless the things are traversed and contradicted, they would be deemed to be admitted. Here, in the present case, none appeared to oppose, whereas, there was evidence by way of affidavit, filed. Thus, in our view, the learned trial court was wrong in dismissing the suit. To the contrary, we are of the opinion that, in view of the evidence on record, by affidavit, and the pleadings which have remain unchallenged, it has to be assumed that opposite party No. 1 to whom the appellant had been married, in spite of subsisting marriage, would have rendered this marriage void ab initio. Therefore, we have no option but to set aside the judgment and decree of the trial court and allow this appeal, upholding the marriage as between the appellant and opposite party No. 1, Pawan Choudhary, as solemnized on 20.04.2007, being void and nullity.

2. The curious aspect may be noted for the second part of the prayer. Even without notice being issued, opposite party No. 2, mother-in-law of the appellant, has appeared in the Court in these appellate proceedings, but again she has chosen not to oppose the prayer. We have noted the circumstances under which she has appeared in our earlier orders. We think, she has rightly appeared only to get peace in this old age. She is personally present in the Court and represented through a lawyer Sri Umesh Prasad, A.O.R. No. 4365. Though, on her behalf, it is contested that the story of first marriage, is not correct. She has chosen not to oppose it. As she says that her son, Pawan Choudhary, who had been arrested in one of the cases lodged by the appellant under Section 498A, has abandoned the house and the family, the day next to release from the jail. He