The central legal point established in the judgment is the interpretation of the provisions of Sec. 5 and Sec. 11 of the Hindu Marriage Act in determining the validity of a marriage and the rights of the parties in a property dispute.

JUDGMENT

1. This Second Appeal under Sec. 100 of CPC has been filed against the judgment and decree dtd. 02/08/2017 passed by Additional District Judge to the Court of First Additional District Judge, Balaghat (M.P.) in Civil Appeal No.75A/2016 arising out of judgment and decree dtd. 27/10/2016 passed by Second Civil Judge Class-1, Balaghat in Civil Suit No.43A/2014.

2. The facts of the case in short are that the plaintiff/ respondent filed a suit for declaration of title, partition and possession on the ground that she is the legally wedded wife of Dharamlal, therefore she has 1/3rd share along with defendants No.1 and 2 in agricultural land bearing khasra No.76/2p area 0.126 hectare, khasra No.100/3x area 0.174 hectare and khasra No.100/6d area 0.186 hectare situated in village Amvlajhari, District Balaghat.

3. The defendants filed their written statement denying the plaint averments. It was denied that the plaintiff is the legally wedded wife of Dharamlal. On the contrary, it was pleaded that the defendant No.1 is the legally wedded wife of Dharamlal, whereas defendant No.2 is the child born out of the wedlock of defendant No.1 and Dharamlal and thus, it was claimed that the defendants are the legal heirs and owners of the entire suit property.

4. In the additional pleadings, it was pleaded that the marriage of the plaintiff had taken place with Dharamlal in the year 1959 and Gauna ceremony was performed after three years of the marriage. However the plaintiff was in habit of moving here and there, therefore on account of dispute between the husband and wife, i.e. plaintiff and Dharamlal, divorce took place as per customs on 27/02/1974 and the plaintiff had also put her thumb impression which was scribed by Jagoba Thakur resident of village Atarni, District Balaghat in which, it was mentioned that both the parties shall be free to perform the marriages and they will not take any legal action against each other. It was also claimed that the plaintiff after divorce with Dharamlal is residing with Shivlal by performing Paat marriage in the year 2009.

5. The Trial Court after framing issues and recording evidence decreed the suit and held that the plaintiff is entitled for 1/2 share in the property in dispute. The factum of divorce between Dharamlal and the plaintiff was not found to be proved.

6. Being aggrieved by the judgment and decree passed by the Trial Court, the appellants preferred an appeal and the First Appellate Court has modified the decree passed by the Trial Court by reducing the share of the plaintiff from 1/2 to 1/3 as only 1/3rd share was claimed by the plaintiff in the suit.

7. Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellants that the plaintiff herself has admitted in paragraph 7 of her cross-examination that her marriage took place at the age of seven years and the Gauna ceremony was performed after three years and she resided with Dharamlal for the next 15 years and thereafter because of family disputes she started residing in her parental house. By referring to Sec. 5 of the Hindu Marriage Act, it is submitted that since the marriage of the plaintiff with Dharamlal was void therefore, the Courts below have committed material illegality by holding that the plaintiff is the legally married wife of Dharamlal and proposed the following substantial questions of law:-

"(i) Whether, both the courts below properly considered and applied provisions of Hindu Marriage Act and Succession Act, 1925, in the facts and circumstances of the present case and according to the provisions, plaintiff is legally wedded wife of the Dharamlal and she can claim any share in the property of Dharamlal?

(ii) Whether, both the courts below ignored Sec. 19 of Evidence Act, relating to 30 Years old documents and properly consider Ex.D-4 dtd. 27/2/1974?

(iii) Whether, whether finding recorded on issue No.5 by the Learned Trial Court is perverse and contrary to law with rega