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IN THE HIGH COURT OF MADHYA PRADESH
Ravi Malimath, CJ and Milind Ramesh Phadke, J.
Rahul Sharma v. Smt. Reetu Sharma
First Appeal No. 57 of 2010 (Gwalior): against the judgment
and decree dated 27.1.2010 passed by the 6th Additional
District Judge (Fast Track), Bhind in RCS-HM No. 19 of 2009;
Decided on 12.3.2024
(1) Hindu Marriage Act, 1955 -- S. 12 -- Evidence Act, 1872 --S.112 -- voidable marriage -- legitimacy of child born during marriage -- held -- merely stating that birth of child has taken place within approximately seven months of marriage, would not indicate that respondent-wife was pregnant from some other person prior to marriage -- even otherwise, baby born prematurely also survives -- nothing on record to show that son was born from cohabitation of respondent-wife with another person -- held further -- burden to prove that boy was legitimate or illegitimate lay upon appellant, which was not discharged by adducing proper evidence -- merely stating that he had no physical relation with her, cannot be accepted -- it cannot be said that respondent-wife was pregnant from some other man at time of marriage, which rendered marriage voidable. [Paras 8 & 11]
(2) Evidence Act, 1872 -- S. 112 -- legislative intent -- once validity of marriage is proved, then there is strong presumption about legitimacy of children born within wedlock -- presumption of legitimacy is presumption of law -- this presumption can only be displaced by strong preponderance of evidence, not by mere balance of probabilities -- law presumes against vice and immorality -- presumption of legitimacy is that child born of married woman is deemed to be legitimate -- person who says it is illegitimate has burden of proving it. [Para 10]
(3) Evidence Act, 1872 -- S. 112 -- scope -- this section has no application to disputes of maternity. [Para 10]
(4) Evidence Act, 1872 -- S. 112 -- presumption of legitimacy of child born during marriage -- is based on principle that nothing odious or dishonourable will be presumed by law. [Para 10]
(5) Hindu Marriage Act, 1955 -- S.11 -- void marriage -- no evidence brought on record by appellanthusband to prove that at time of their marriage, respondent-wife was already married -- also there is no proof that consent of appellant was taken by deceiving and applying fraud upon him -- not entitled for getting marriage declared void. [Para 12]
¼1½ fganw fookg vf/kfu;e] 1955 & /kkjk 12 & lk{; vf/kfu;e] 1872 & /kkjk 112 & 'kwU;dj.kh; fookg & fookg ds nkSjku tUesa ckyd dh /keZtrk & vfHkfu/kkZfjr & ek= ;g dgus ls fd ckyd dk tUe fookg ds yxHkx lkr ekl ds Hkhrj gqvk gS] ;g minf'kZr ugha gksxk fd çR;fFkZuhZ&iRuh fookg ds iwoZ fdlh vU; O;fä ls xHkZorh Fkh & vU;Fkk Hkh] le; iwoZ tUek f'k'kq Hkh thfor jgrk gS & vfHkys[k ij ;g n'kkZus ds fy, dqN ugha fd iq= dk tUe çR;fFkZuh&iRuh }kjk fdlh vU; O;fä ls lgokl fd, tkus ls gqvk & vkxs vfHkfu/kkZfjr & ;g lkfcr djus dk Hkkj vihykFkhZ ij Fkk fd ckyd /keZt gS ;k v/ket ftldk fuoZgu mfpr lk{; is'k djds ugha fd;k x;k & ek= ;g dFku fd mldk iRuh ds lkFk dksbZ 'kkjhfjd laca/k ugha Fkk] Lohdkj ugha fd;k tk ldrk & ;g ugha dgk tk ldrk fd çR;fFkZuh&iRuh fookg ds le; fdlh vU; iq:"k ls xHkZorh Fkh] ftlls fookg 'kwU;dj.kh; gks x;kA ¼iSjk 8 ,oa 11½
¼2½ lk{; vf/kfu;e] 1872 & /kkjk 112 & fo/kk;h vk'k; & fookg dh fofèkekU;rk lkfcr gks tkus ij] nkaiR;ca/ku esa tUeh larkuksa dh /keZtrk ds ckjs esa –ढ+ mi/kkj.kk gksrh gS & /keZtrk dh mi/kkj.kk fof/k dh mi/kkj.kk gS & ;g mièkkj.kk lk{; dh –ढ+ çcyrk }kjk gh foLFkkfir dh tk ldrh] vf/klaHkkO;rkvksa ds larqyu ek= ls ugha & fof/k esa nksf"krk vkSj vuSfrdrk ds fo:) mi/kkj.kk gksrh gS & /keZtrk dh mi/kkj.kk ;g gS fd fookfgrk ls tUek ckyd /keZt le>k tkrk gS & tks O;fä mls v/keZt dgrk gS] ml ij ,slk lkfcr djus dk Hkkj gksrk gSA ¼iSjk 10½
¼3½ lk{; vf/kfu;e] 1872 & /kkjk 112 & O;kfIr & ;g /kkjk ekr`Ro lacaèkh fooknksa dks ykxw ugha gksrhA ¼iSjk 10½
¼4½ lk{; vf/kfu;e] 1872 & /kkjk 112 & fookg ds nkSjku tUes ckyd dh /keZtrk dh mi/kkj.kk & bl fl)kar ij vk/kkfjr gS fd fof/k }kjk fdlh Hkh fuanuh; ;k yTtktud ckr dh mi/kkj.kk ugha dh tk,xhA ¼iSjk 10½
¼5½ fganw fookg vf/kfu;e] 1955 & /kkjk 11 & 'kwU; fookg & vihykFkhZ𝔦 }kjk ;g lkfcr djus ds fy, vfHkys[k ij dksbZ lk{; ugha yk;k x;k fd muds fookg ds le; çR;fFkZuh&iRuh igys ls fookfgr Fkh & bldk Hkh dksbZ lcwr ugha fd vihykFkhZ dh lEefr mls çoafpr dj vkSj mlls diV djds vfHkçkIr dh xbZ Fkh & fookg 'kwU; ?kksf"kr djkus dk gdnkj ughaA ¼iSjk 12½
JUDGMENT
1. The instant appeal under section 28 of the Hindu Marriage Act, 1955 is directed against the judgment and decree dated 27.1.2010 passed by the Sixth Additional District Judge (Fast Track Court), Bhind in HMA case No.19 of 2009, whereby an application preferred under section 11 and 12 of the Hindu Marriage Act by the appellant seeking dissolution of marriage either void/voidable has been rejected.
2. Short facts of the case are that the marriage was solemnized between the appellant and the respondent on 2.5.2009 as per the Hindu religious rites and customs at village Urai Road Mihona Tehsil Lahar District Bhind. After the marriage, the respondent-wife lived with the appellant-husband till 8.5.2009. Thereafter, she went to her maternal home and returned back to her matrimonial home on 11.5.2009 and lived there only for 7 days. During that period the respondent-wife had denied the appellant the marital happiness. The respondent-wife told the appellant-husband that she is already married to one Vivek Mishra, therefore, she cannot live with him and she gave the appellant a mobile No. 9753936690 of Vivek Mishra and made the appellant talk with him on the mobile, where Vivek Mishra told the appellant about the fact of his marriage with the respondent and he threatened the appellant not to have any marital relations with the respondent, otherwise the appellant-husband would have to face the consequences. Thereafter, when the appellant called the family members of the respondent-wife and informed them about the same, they gave understanding to the respondent-wife to live with the appellant but she refused to do so. Thereafter, the respondent-wife left her matrimonial home with ornaments and other articles and went to her maternal home and since then she is living with her parents.
3. At the time of marriage on 2.5.2009 the respondent was pregnant with the child of Vivek Mishra. Therefore, the appellant- husband has filed the petition under section 11 and 12 of the Hindu Marriage Act submitting that the respondent-wife and her family had committed a fraud with him, as no physical relation took place between them and the respondent-wife was already married to other person, namely, Vivek Mishra, which is against and in contravention of the Hindu religious rites and was pregnant from him, therefore the marriage is null and void/voidable in the eye of law. Though the notices were issued to the respondent-wife by registered post, even then she has not appeared during the trial.
4. Learned trial Court on the basis of the pleadings of the appellant framed issues. On behalf of the appellant-husband he examined himself as PW-1 and got examined his father Vijayraj Sharma as PW-2 and one Ram Autar Sharma as PW-3, wherein they all supported the case of the appellant-husband. During the pendency of the case, the respondentwife gave birth to a child on 4.12.2009 in the Public Health Centre Mihona District Bhind. The learned trial Court after appreciating the evidence available on record by the impugned judgment and decree dated 27/01/2010 dismissed the said application. Aggrieved by the aforesaid, the present appeal has been filed.
5. Learned counsel for the appellant while assailing the said order had contended that the trial Court has not examined the evidence both oral and documentary in its right perspective, thus, has erred in dismissing the application. It was further submitted that even though, the father of the appellant Vijayraj Sharma (PW-2) and Ram Autar Sharma (PW-3) had supported the case of the appellant (PW-1) the learned trial Court has dismissed the application, which is per se illegal.
6. Learned counsel for the appellant has further submitted that though the notices were issued to the respondent-wife by registered post, even then she did not appear in the trial. At the time of marriage on 2.5.2009 the respondent was pregnant with the child of Vivek Mishra but learned trial Court had not appreciated the said fact and had n
The judgment establishes that not every misrepresentation or concealment of fact constitutes fraud under the Hindu Marriage Act, and it emphasizes the importance of proving grounds for annulment.
Marriage can be declared voidable if consent is obtained through fraud or coercion, especially in cases involving serious allegations and the parties' young age.
(1) Nullity of marriage – Husband is strongly presumed to be father of child born to his wife. Presumption could be rebutted only when husband proves that husband and wife had no access to each other....
A subsequent marriage is void if one party is still married at the time of the new marriage, violating the Hindu Marriage Act.
Section 11 of the Hindu Marriage Act does not apply to marriages where the bride is below the age of 18 at the time of marriage.
A marriage can be declared null and void under Section 11 of the Hindu Marriage Act, 1955, if either party has a living spouse at the time of the marriage.
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