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PUNJAB & HARYANA HIGH COURT
J.M.Tandon, J.
Surjit Kaur
Versus
Jhujhar Singh
First Appeal First Order No. 38M of 1978,
Decided On : MARCH 18, 1980
HINDU MARRIAGE ACT - SECTION 11 - SECTION 107, 108 OF THE INDIAN EVIDENCE ACT - PRESUMPTION OF DEATH - BURDEN OF PROOF - NULLITY OF MARRIAGE - SECTION 23(1)(D) OF THE ACT - DELAY IN FILING PETITION.
Fact of the Case:
The appellant, Surjit Kaur, married Sardul Singh in 1955. In 1959, she filed for judicial separation against him, alleging desertion. A decree for judicial separation was granted in 1960. In 1970, the appellant married the respondent, Jhujhar Singh. They had a son in 1971. Differences arose between the parties, and the respondent filed for restitution of conjugal rights, which was later withdrawn. In 1975, the respondent filed a petition under Section 11 of the Hindu Marriage Act, seeking a declaration that their marriage was null and void as the appellant's previous husband was still alive. The appellant claimed that Sardul Singh had deserted her and that she could remarry under a prevalent custom. The trial court found that Sardul Singh was alive on the date of the appellant's second marriage and granted a decree of nullity. The appellant appealed, arguing that the respondent had failed to prove that Sardul Singh was alive on that date.
Finding of the Court:
The High Court held that the appellant had failed to discharge the burden of proving that Sardul Singh was dead on the date of her second marriage. The court noted that Sardul Singh was admittedly alive in 1960 when the appellant obtained a decree for judicial separation against him. The court also held that the presumption under Section 108 of the Indian Evidence Act, which raises a presumption of death after seven years of unexplained absence, would not apply in this case as the respondent had led evidence to show that Sardul Singh was alive within 30 years of the date of the appellant's second marriage. The court further held that the respondent was not required to prove that Sardul Singh was alive on the date of the appellant's second marriage, as the appellant had the burden of proving that he was dead. The court also rejected the appellant's argument that the decree of nullity should be refused under Section 23(1)(d) of the Act due to the respondent's delay in filing the petition, as the marriage was null and void from the beginning.
Issues: 1. Whether the appellant had discharged the burden of proving that her previous husband, Sardul Singh, was dead on the date of her second marriage? 2. Whether the respondent was required to prove that Sardul Singh was alive on the date of the appellant's second marriage? 3. Whether the decree of nullity should be refused under Section 23(1)(d) of the Act due to the respondent's delay in filing the petition?
Ratio Decidendi: 1. The burden of proving that a person is dead lies on the person who affirms it (Section 107 of the Indian Evidence Act). 2. The presumption under Section 108 of the Indian Evidence Act, which raises a presumption of death after seven years of unexplained absence, does not apply where there is evidence to show that the person was alive within 30 years of the date in question. 3. A marriage that is null and void from the beginning cannot be validated by delay in filing a petition for a declaration of nullity.
Final Decision: The appeal was dismissed, and the decree of nullity granted by the trial court was affirmed.
1. Surjit Kaur appellant married Sardul Singh on February 13, 1955. On April 16, 1959, the appellant filed a petition for judicial separation against Sardul Singh alleging that the latter had turned her out of his house in March, 1955, and did not care to look after her thereafter. She further alleged that Sardul Singh had left for Indonesia and had deserted her for more than two years. Sardul Singh having been sufficiently served did not put in appearance. Ex parte Proceedings were ordered to be taken against him. The Senior Subordinate Judge, Ferozepur, vide order dated March 8, 1960, granted the appellant a decree for judicial separation against Sardul Singh. The appellant did not obtain a decree for divorce at any state against Sardul Singh.
2. On May 24, 1970, the appellant married Jhujhar Singh respondent. They got their marriage registered at Ferozepur on June 3, 1970. The appellant gave birth to a son from the respondent on October 27, 1971. Differences arose between the parties and they started living separately. The respondent filed a petition for restitution of conjugal rights against the appellant. It was, however, got dismissed as withdrawn in the Court of Senior Subordinate Judge, Faridkot. On February 13, 1975, the respondent filed a petition under Section 11 of the Hindu Marriage Act (hereinafter the Act) for a declaration that their marriage was a nullity inasmuch as the appellant was already married on May 24, 1970, where her previous husband (Sardul Singh) was alive. The parties compromised during the pendency of that petition. It was agreed that they will move a joint petition for divorce. The petition under Section 11 of the Act was got dismissed as withdrawn. The parties did not move a joint petition for divorce. On November 11, 1976, the respondent filed another petition under Section 11 of the Act for a declaration that their marriage was void inasmuch as the previous marriage of the appellant with Sardul Singh subsisted on that date.
3. The appellant admitted in her written statement that she was married with Sardul Singh in 1955, and further she had obtained a decree for judicial separation against him on March 8, 1960. She averred that Sardul Singh had left India about 19/20 years ago and he had not been heard of since then by her or by those who would have naturally heard of him if he had been alive. In view of the presumption raised under Section 108 of the Indian Evidence Act, the question of a subsisting marriage between her and Sardul Singh on May 24, 1470, did not arise. She also averred that according to the custom prevalent, she could effect a valid second marriage even during the lifetime of her previous husband as the latter had deserted her since long.
4. The following issues were framed :
1. Whether the marriage between the respondent (now appellant) and Sardul Singh did not subsist at the time of her marriage with the petitioner (now respondent) ?
2. Whether the present petition is not competent as per objections taken in paragraph 8 of the written statement ?
5. The trial Court found issue No. 1 against the appellant and issue No. 2 in favour of the respondent and consequently vide order dated February 16, 1978, granted a decree to the respondent declaring the marriage between the parties a nullity. It is against this order that the present appeal is directed.
6. This appeal was heard by Surinder Singh, J., who accepted it vide order dated October 24, 1978, by reversing the finding of the trial Court under issue No. 2. No finding was given under issue No. 1. The order of the trial Court was set aside and the petition of the respondent under Section 11 of the Act was dismissed. The respondent filed Letters Patent Appeal No. 638 of 1978, which was accepted on December 11, 1979. The order of the learned single Judge dated October 24, 1978, was set aside. The appeal has again come up before me for decision on merits.
7. The learned counsel for the appellant has not pressed t
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