The main legal point established in the judgment is that the marriage between the parties was null and void under Section 11 of the Hindu Marriage Act as the appellant's previous spouse was alive at the time of marriage, and no evidence was led to establish any custom or usage prevalent in the community of the appellant under which divorce through writing of panchayatnama was permissible.

Vinod K.Sharma, J.

1. This appeal by the appellant/wife is directed against the judgment and decree dated 30.7.2002 passed by the learned Additional District Judge, Patiala vide which petition filed by the respondent/husband under Sections 11 and 12 of the Hindu Marriage Act, 1955 (for short the Act), was allowed.

2. The respondent/husband filed a petition under Sections 11 and 12 of the Act against the appellant/wife on the allegations that the marriage between the parties was solemnized on 5.12.1997 at Ropar. Prior to the marriage the respondent/husband was married to one Surjit Kaur and a female child namely Jaswinder Kaur was born on 15.8.1993. Surjit Kaur died on 10.5.1995 and thereafter the marriage between the parties was performed.

3. The case set up by the respondent was that after the marriage the husband came to know that the appellant was already married with Jaspal Singh son of Hardial Singh resident of House No. 75-A, Ward No. 1, Jhugian Road, Kharar. Jaspal Singh was still alive and the marriage between the appellant and Jaspal Singh had not been dissolved. It was also the case set up that on inquiries family members of the appellant including the appellant disclosed that the marriage between the appellant and Jaspal Singh was dissolved by a decree of divorce but the copy thereof was retained by their counsel. However, no copy was shown to the respondent. It was also the case of the respondent that even sub-caste of the appellant was not disclosed which was, in fact, the same as that of the respondent. Thus, plea of fraud was taken for declaring the marriage to be nullity.

4. Petition was contested on the plea that the respondent/husband has suppressed the material facts regarding birth of a female child on 5.2.1999 in Kiran Nursing Home, Ropar. Smt.Surjit Kaur earlier wife of the respondent had died as a result of dowry death. FIR No. 115 dated 5.5.1995 was registered at Police Station Sadar Patiala against the respondent and his father. It was alleged that the marriage between the parties was arranged through Ms. Kamaljit Kaur wife of Mohan Singh and not by Daljit Singh. It was disclosed that sub-caste was correctly disclosed at the time of marriage. It was pleaded that sub castes of the parties were different. It was also pleaded that the fact regarding previous marriage was disclosed to the respondent. Stand was taken that the marriage with Jaspal Singh was dissolved through writing in the panchayat which was written on stamp paper and signed by both the parties. Stand was also taken that the marriage between the parties was solemnized after dissolution of earlier marriage of the appellant with Jaspal Singh in the panchayat, and that Jaspal Singh had also solemnized second marriage with Baljinder Kaur daughter of Jagir Singh on 30.6.1998. It was denied that the certified copy of the decree was ever asked from the appellant.

5. In the replication, averments made in the written statement were denied and that of the petition were reiterated.

6. On the pleadings of the parties learned trial Court framed the following issues :-

1. Whether the petitioner is entitled to annulment of his marriage with respondent Rajinder Kaur within the provisions of Sections 11 nand 12 of the Hindu Marriage act ? OPA

2. Relief.

The respondent to prove the sub-castes of the parties proved on record pe-degree tables Ex. P.1 and P.2 . The respondent appeared in the witness box and also examined Smt. Parkash Kaur, Sucha Singh and Dalbir Singh, to prove the castes of the parties.

7. Learned matrimonial Court held that sub-caste of both the parties was the same. However, plea of the respondent that fraud was played as the sub caste was not disclosed was not accepted. It was held that the fact was in fact disclosed to the respondent. On appreciation of evidence and fact regarding prosecution of the respondent regarding death of Surjit Kaur was taken to hold that the respondent must have been informed about the sub caste and the pl