Assam Schedule VII, Form No 132

HIGH COURT FORM NO. (J) 2

HEADING OF JUDGMENT IN ORIGINAL SUIT/ CASE

District: Dibrugarh

In the Original Court of the Munsiff No 1, Dibrugarh

Present:Nisanta Goswami, AJS

Monday, the 22ndday of April 2013

Title Suit/ Case No 138/08

AnandaRajkhowa …………….. Plaintiff

Versus

GitanjaliGogoiOrs ……………….. Defendants

This suit/ case coming on for final hearing on 10/04/2013 in the presence of

Mr. A.K.Dutta …………………. Sr. Advocate for the plaintiff

And

Mr. S.Seal …………………. Advocate for the defendants

And having stood for consideration to this day the Court delivered the following judgment:

JUDGMENT

  1. This is a suit for declaration that the defendant is not the legally married wife of the plaintiff and that she is not entitled to any maintenance from the plaintiff

PLAINTIFF’S CASE:

  1. The case of the plaintiff, in brief, is that the plaintiff married SmtiJinaGogoi, daughter of LaramGogoi since deceased of Thakur Than, Mancotta, PO Thakur Than, PS Dibrugarh, District Dibrugarh on 05/03/1984 according to the Hindu rites. After their marriage they lived together as husband and wife at Rosegali, South Amolapatty, Dibrugarh. Out of their wedlock two daughters were born viz. Anima Rajkhowa and Nirma alias BharatiRajkhowa.
  1. In the year 1985 some dispute arose between the plaintiff and his wife and the later left the house of the plaintiff and went to her parental house along with her elder daughter. She filed a case against the plaintiff u/s 125 of the CrPC, being Case No 60/1985, claiming maintenance. The Court ordered the plaintiff to pay a monthly maintenance of Rs.300/- per month to JinaGogoi. Later on the case was compromised by the parties and the plaintiff and JinaGogoi started living together as husband and wife.
  1. The defendant GitanjaliGogoi was a friend of the plaintiff’s sister MonimalaRajkhowa and she used to visit the plaintiff’s house during the early part of the year 1991. The plaintiff’s wife JinaGogoi apprehended an illicit relation between the plaintiff and the defendant and she again left the house of the plaintiff because of that. Thereafter the plaintiff and the defendant developed a physical relationship and in the late 1991 the defendant gave birth to a female child viz. Bhagyashree. After some time the defendant left the house of the plaintiff and she filed a case against the plaintiff u/s 125 of the Criminal Procedure Code, being Case No 13/1996, claiming maintenance from the plaintiff. The Court of Judicial Magistrate at Dibrugarh ordered the plaintiff to pay maintenance of Rs.300/- per month to the defendant. Thereafter the maintenance amount was enhanced from time to time on the basis of petitions filed by the defendant. Meanwhile the plaintiff’s wife JinaGogoi again filed a maintenance case against the plaintiff, being Case No 69/03, and the plaintiff was ordered by the Court to pay maintenance of Rs.1,200/- per month to JinaGogoi.
  1. The plaintiff filed a petition u/s 127 of the Criminal Procedure Code in the Case No 13/96 with prayer to set aside the order of maintenance payable to the defendant since the plaintiff has been paying maintenance to his legally married wife. The Court of the Ld. SDJM, Dibrugarh rejected the petition of the plaintiff vide order dated 4/12/2006. The plaintiff filed a revision against the order of rejection in the Court of Sessions Judge Dibrugarh, being Criminal Revision Case No 6(1)/07.The Court of the Honble Sessions Judge rejected the revision vide judgment dated 29/04/2008 holding inter alia that the change in the circumstances should be declared by a competent civil court.
  1. The plaintiff has instituted this suit with prayers inter alia for a decree declaring that the defendant is not the legally married wife of the plaintiff and that she is not entitled to any maintenance from the plaintiff u/s 125 of the Criminal Procedure Code or under any other provisions of law.

DEFENDANT’S CASE:

  1. The defendant has contested the suit by filing written statement and counter claim. The defendant has contended that the plaintiff is an employee of the railways and soon after his marriage with the defendant he filed nomination papers in the railway department showing her as his wife. The defendant denied the fact that she came to the house of the plaintiff sometimes in 1991 and started living with him and they developed a physical relationship.
  1. According to the defendant the plaintiff married her on 17/04/1991 according to the Hindu rites and customs. Their marriage was performed in the house of the parents of GitanjaliGogoi at BordoibumGaon, PO Lezai, PS Borbaruah, District Dibrugarh, Assam and after marriage the plaintiff took her to his house at Rose Gally, South Amolapatty, PO and PS Dibrugarh, District Dibrugarh, Assam. They lived together as husband and wife and on 2/02/1992 she gave birth to a female child. They named their daughter as NirolaRajkhowa and later on her name was changed to BhagyabatiRajkhowa.
  1. After a few months from the birth of the child the plaintiff started torturing the defendant both physically and mentally with demands for dowry. On 08/05/1995 the plaintiff drove the defendant out of his house. The defendant lodged a complaint at the Amolapatty Police Out Post under the Dibrugarh PS and a case was registered against the plaintiff, being GR 1896/95 u/s 498A IPC. The defendant started residing in her parent’s house along with her daughter. On 18/03/1996 the defendant filed a maintenance case against the plaintiff in the Court of the Chief Judicial Magistrate Dibrugarh. On 19/07/1997 the plaintiff compromised the case with the defendant and he agreed to pay Rs.300/- per month as maintenance to her. According to the defendant in that compromise arrangement the plaintiff admitted that he married the defendant on 17/04/1991 according to the Hindu rites and customs.
  1. In 2002 the plaintiff filed a divorce case against the defendant, being TS (D) 49/02 renumbered as TS (D) 10/03. In the divorce petition the plaintiff specifically mentioned that on 17/04/1991 he married the defendant according to the Hindu rites and customs. The defendant has contended that in all the proceedings between the plaintiff and the defendant, the plaintiff never mentioned about his marriage with JinaGogoi. On 23/09/2006 the Court of the Additional District Judge Dibrugarh held that the defendant was the legally married wife of the plaintiff and that out of their wedlock BhagyabatiRajkhowa was begotten. The Court directed to pay maintenance to the defendant and later on his salary was also attached because of non compliance of the Court order.
  1. The defendant has prayed inter alia for dismissal of the case filed by the plaintiff with cost and for a declaration that the plaintiff is liable to pay a compensation of Rs.2,00,000/- to the defendant for the injuries caused to her.

WRITTEN STATEMENT AGAINST COUNTER CLAIM

  1. The plaintiff filed a written statement against the counter claim of the defendant. The plaintiff denied all the averments made in the counter claim. However the plaintiff reiterated that in the year 1991 the plaintiff and the defendant lived together for some time and as a result a female child was born.

ISSUES IN THE SUIT:

  1. On the basis of the rival pleadings of the parties, the following issues were framed in this suit:

i)Whether the suit as well as the counter claim are maintainable in law and in facts including the point of bar under section 2(2) and Order XXIII Rule 1 of CPC?

ii)Whether the suit is bad for non joinder of necessary parties?

iii)Whether there is any cause of action for the suit and that of the counter claim?

iv)Whether the defendant GitanjaliGogoi @ Rajkhowa is the legally married wife of the plaintiff?

v)Whether the plaintiff caused any damage/ loss to the defendant by filing several cases in different Courts?

vi)Whether the parties are entitled to the reliefs claimed for?

vii)To what reliefs the parties are entitled to?

DISCUSSION, DECISION AND REASONS THEREOF:

  1. During the course of the trial the plaintiff side adduced evidence of two witnesses and exhibited five documents. The defendant side adduced evidence of two witnesses and exhibited one document
  1. I have heard the learned counsels for both the parties and perused the materials on record
  1. Now let me discuss and decide the issues one after another

Issue No (i)

MAINTAINABILITY

  1. The defendant has stated in her written statement that on 15/03/2004 the Title Suit (D) 10/2003 was withdrawn without any leave for filing a fresh case and hence this suit is barred by Section 2(2) and Order 23 Rule 1 of the CPC. The defendant has not adduced any evidence to bring home this point. Even, copies of the order passed in the TS(D) case were not produced. Hence this Court holds that the suit is not barred on the ground shown by the defendant. The plaintiff side has also not shown anything which shakes the maintainability of the counter claim. Both the suit and the counter claim are maintainable. This issue is decided accordingly.

Issue No (ii)

NON JOINDER OF NECESSARY PARTIES

  1. The defendant has pleaded in the written statement that the plaintiff has not made NF Railway, Dibrugarh, Manager NF Railway Maligaon and Divisional Railway Manager, NF Railway, Tinsukia a party to this suit with a view to suppress some material facts. The plaintiff has prayed for a declaration that the defendant is not his legally married wife and that she is not entitled to maintenance from the plaintiff. Hence, it would be absurd to suggest that NF Railway is a necessary party in this suit. This issue is decided in favour of the plaintiff.

Issue No (iii)

CAUSE OF ACTION

  1. The plaintiff has stated that he married JinaGogoi in the year 1984. In the year 1991 when JinaGogoi left the house of the plaintiff, the defendant came to reside with the plaintiff. Later on the defendant also left the house of the plaintiff. BothJinaGogoi and GitanjaliGogoi filed maintenance cases against the plaintiff. The plaintiff contended that since he is paying maintenance to his legally married wife JinaGogoi, he should be exempted from paying maintenance to GitanjaliGogoi. The plaintiff seeks a declaration that GitanjaliGogoi is not his legally married wife. On the contrary, the defendant GitanjaliGogoi claims that she was married to the plaintiff in the year 1991. The bundle of these facts suggests that there is cause of action for both the suit and the counter claim. This issue is decided positively.

Issue No (iv)

WHETHER GITANJALI GOGOI IS THE LEGALLY MARRIED WIFE OF THE PLAINTIFF

  1. Although this issue was framed to determine whether the defendant GitanjaliGogoi is the legally married wife of the plaintiff, as a matter of fact, the defendant has not sought any such declaration in the counter claim filed by her. It is the plaintiff who has prayed for a declaration that the defendant is not his legally married wife. Hence, in this issue we shall proceed to decide whether the defendant is not the legally married wife of the plaintiff.
  1. According to the plaintiff the defendant GitanjaliGogoi is not his legally married wife. It is in the year 1991 when the plaintiff’s wife JinaGogoi left her matrimonial house, the defendant GitanjaliGogoi came to live with the plaintiff. They developed a physical relationship and as a result thereof the defendant gave birth to a female child. These are the pleas taken by the plaintiff in his plaint and he reiterated these facts in his affidavit. The defendant has denied the averments made by the plaintiff.
  1. The plaintiff has accepted that he paid maintenance to the defendant as ordered by the Court in a proceeding instituted by the defendant u/s 125 of the Criminal Procedure Code. The plaintiff was paying maintenance to both JinaGogoi and GitanjaliGogoi. Subsequently when the maintenance amount was enhanced from time to time, the plaintiff filed a petition u/s 127 of CrPC (in the maintenance case filed by the defendant) with prayer to set aside the order for payment of maintenance allowance to the defendant since the plaintiff was paying maintenance to his legally married wife JinaGogoi. The petition was rejected by the concerned Court. The plaintiff approached the revisional Court against the rejection of his petition. His revision petition was also dismissed. Only thereafter the plaintiff approached the civil Court for a declaration that the defendant is not his legally married wife.
  1. The defendant left the house of the plaintiff in the year 1996 and in the same year she filed the maintenance case against the plaintiff. It means that the defendant claimed herself to be the plaintiff’s wife in the year of 1996. It is difficult to understand why the plaintiff had not approached any Court for declaration against the claim of the defendant for all these years. On the contrary, the plaintiff has stated in his affidavit that once he filed a divorce case against the defendant. This indicates that the plaintiff had accepted the defendant as his wife.
  1. Apart from his own evidence, the plaintiff adduced evidence of one Sunil Lahon and JinaGogoi, who is claimed to be the first wife and legally married wife of the plaintiff. It appears from the evidence of PW 2 Sunil Lahon that he had not witnessed the marriage of the plaintiff and JinaGogoi. PW 2 has merely stated in his affidavit that he used to go to the residence of the plaintiff as the plaintiff was known to him. During the period of 1989-91 he had seen JinaGogoi in the house of the plaintiff as his wife. In his cross examination PW 2 has clarified that he doesn’t know when JinaGogoi got married. PW 3 JinaGogoi has stated in her affidavit that her marriage with AnandaRajkhowa was solemnized on 05/03/1984 as per the Hindu rites and customs. In her cross examination PW 3 has stated that she doesn’t know the name of the priest who performed homjagyain their marriage.
  2. It may not be possible for a person of ordinary prudence to remember the names of the priest who performed homjagyain their marriage, but a person who intends to prove the validity of a marriage ought to have adduced evidence of some independent persons who were present in the marriage ceremony. A mere assertion by the man and the woman who claim themselves to be husband and wife, that their marriage was solemnized as per the Hindu rites and customs, is not sufficient to infer that a valid marriage was actually performed; specially when there are some other evidence on the record which indicates the contrary. In Bhaurao v. State of Maharashtra AIR (1965) SC 1564 the Supreme Court has held that unless a marriage is celebrated or, performed with proper ceremonies and in due form, it cannot be said that to have been solemnized. The party claiming marriage must adduce cogent evidence to prove that their marriage was duly solemnized.
  1. In the case in hand, apart from the evidence of the plaintiff and SmtiJinaGogoi, whom the plaintiff claims to be his legally married wife, there is no evidence of any independent person who witnessed the solemnization of the marriage. The plaintiff has exhibited five documents in an attempt to prove his case. Out of those documents exhibit 1,2 and 5 are photocopies made from certified copies. These are not admissible in evidence. Section 63 of the Evidence Act provides that certified copies and copies made from or compared with the original documentsmay be considered as secondary evidence. Secondary evidence of documents may be given in those cases which are covered by Section 65 of the Evidence Act. A copy which is not made from the original but from a certified copy of the original cannot be considered even as a secondary evidence of the original document. The mere fact that those copies were marked as exhibits and signed by the Presiding Officer of the Court is of no consequence and the same cannot confer admissibility to those documents. For the same reason the document exhibited by the defendant and marked as Exhibit A is not admissible in evidence. Exhibit 3 is the certified copy of the judgment and order passed in the maintenance case No 69/03 and Exhibit 4 is the judgment and order passed in the Criminal Revision Case No 6(1)/07. There is nothing in Exhibit 3 and 4 which aids in proving the case pleaded by the plaintiff. On the contrary Exhibit 3 shows (Page 5, Para 2) that the plaintiff, who was the opposite party in the maintenance case filed by JinaGogoi, denied his marriage with JinaGogoi in the written objection filed by him. The DW 1 GitanjaliGogoi, who is the defendant of this case, has stated in her evidence that on 17/04/91 the plaintiff married her according to the Hindu rites and customs and the marriage was performed in the house of her parents. DW 2 GirishGogoi, who is the father of the defendant, has supported the plea of the defendant and stated that on 17/04/91 the plaintiff married his daughter GitanjaliGogoi according to the Hindu rites and customs and the marriage was performed in his house. In the cross examination of the DWs nothing was asked regarding the performance of the marriage ceremony. No effort was made to shake that portion of the evidence of the defendants.
  1. It appears from the above discussions that the plaintiff has failed to adduce cogent evidence to prove that JinaGogoi is his legally married wife. Under the Hindu Law a second marriage is not considered as valid during the subsistence of the first marriage. However, in order to prove that the second marriage of the plaintiff was not valid or that the woman who claims herself to be the wife of the plaintiff was, as a matter of fact, a kept mistress of the plaintiff because the plaintiff was already married, the plaintiff must strictly prove his first marriage. In Vimala (K) v. Veeraswamy (K) (1991) 2 SCC 375 …..theHonble Supreme Court has held that when an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. In Badri Prasad v. Dy. Director of Consolidation [1979]1SCR1 it was held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy.
  1. As has been observed in the above paragraph, the plaintiff has failed to prove his first marriage with JinaBordoloi. Hence he cannot take the plea that there cannot be a valid marriage with the defendant because he was already married. The plaintiff has not adduced evidence of any independent witness to prove that the defendant came to live with him as a kept mistress. This issue is decided against the plaintiff.

Issue No (v)