The burden of proof lies on the applicant to establish the validity of the first marriage of the non-applicant, and admissions made in summary proceedings under Section 125, CrPC, cannot conclusively prove the first marriage.

Dr. Vineet Kothari, J.-This appeal under Section 28 of the Hindu Marriage Act, 1955 (for short “the Act of 1955” hereinafter) is directed against the Judgment and order dated 27.03.1998 of learned Additional District Judge No. 2, Bikaner while deciding the Misc. Civil Case No. 10/97 (133/95) allowing the application of the husband Bhanwarlal under Section 11 of the Act of 1955 and declaring the marriage of the applicant Bhanwarlal with Amita d/o Poonaram, by caste Harijan void under Section 5(i) read with Section 11 of the Act.

2. The applicant Bhanwarlal filed the said application before the Court below with the allegation that in April, 1987, he contracted a “Nata marriage” according to the prevalent customs of his community with the non-applicant Amita and out of the said wedlock, one son Laxman and one daughter Vijayshri were born to the said couple. At the time of the marriage, the non-applicant as well as her father told the applicant that non-applicant Amita was a widow and the applicant also disclosed to them that from his previous wife, who was not alive, there were five children. According to the said plaint, after sometime, the marriage went on the rocks and on 02.05.1995 during the course of some altercation between the husband and wife, the wife disclosed to the applicant that she did not accept the applicant as her husband as her marriage had taken place with one Sheeshpal s/o Shankerlal Harijan. Therefore, the applicant filed the said application for declaring the marriage between the applicant and non-applicant as void in view of Section 5(i) read with Section 11 of the Act and in the alternative to grant divorce under Section 13 of the Act.

3. The Court below after recording the evidence and hearing the arguments allowed the said application and has declared the said marriage between the applicant-husband Bhanwarlal and non-applicant Amita as void.

4. Mr. Haider Aga, learned Counsel appearing for the appellant non-applicant Smt. Amita has vehemently submitted that the learned trial Court has committed grave error in law in declaring the said marriage as void merely on the allegation of the applicant after about 8 years of the marriage with the non-applicant during some altercation disclosed to him that she was already married to one Sheeshpal and that the learned Court below has relied upon a Judgment of Civil Judge (JD) No. 1, Bikaner rejecting the application for maintenance filed under Section 125, CrPC, by his client, Amita during some period in the past when she was living separately in which that Court noted that in statements recorded during those proceedings before that Court, she admitted to have earlier got married with the said person Shri Sheeshpal. Learned Counsel submitted that merely on the basis of the said Judgment , it could not be taken as an admission on the part of the non-applicant for having contracted the earlier marriage and the burden was on the applicant-husband to prove independently in these civil proceedings that earlier marriage was in accordance with ceremonies according to the Hindu Marriage Act or customs and that the spouse was living at the time of this second marriage. He submitted that proceedings under Section 125, CrPC, are of summary nature and mere production of that Judgment in the present case before the trial Court does not conclusively prove the first marriage of non-applicant Amita with Sheeshpal and, therefore, the marriage between the applicant and the non-applicant could not be declared to be void.

5. He relied upon the decision of the Bombay High Court in the case of Indu vs. Sumanbai Kadu Pawar & Ors., reported in 1997 (II) DMC (Divorce & Matrimonial Cases) 33, wherein the Court held that in summary proceedings under Section 125, CrPC, the Court cannot decide the question about the validity of marriage. He also relied upon the Judgment of this Court in Prem Mittal (Dr.) vs. State of Rajasthan & Ors., reported in 2000 CrLR (Raj.) 372, wherein a