SOMMAWATI Vs. SANTOSH

JUDGEMENT

(1.) This is an appeal challenging the order of the court below rejecting the application for grant of succession certificate to the appellant.

(2.) The short question that arises in this appeal is : whether the findings of the court below that appellant No. 1 was not duly legally wedded wife of the deceased Charan Das in respect of whose assets she is claiming succession certificate is irroneous. Admittedly, appellant No. 1 had been married earlier and she had not obtained any divorce from her previous husband. She entered into the second marriage with Charan Das, who was admittedly a widower, having two daughters from his previous wife. The court below has found that the appellant Nos. 2 to 5 are sons born to appellant No. 1 and the late Charan Das. The only question which has been decided against appellant No. 1 is that she was not the duly wedded wife of Charan Das, since she has not obtained any decree for divorce from her previous husband.

(3.) Under Section 5 of the Hindu Marriage Act, 1955 one of the necessary conditions for the marriage is that neither party has a spouse living at the time of marriage. The marriage of appellant No. 1 with Charan Das is said to have been performed sometime in 1965, is after coming into force of U.P. Hindu Marriage Act, 1955 and, therefore, the rights of the parties will be governed by the provisions of the said Act. Appellant No. 1 while filing an application for succession came with the allegations that she was duly wedded wife of Charan Das. Obviously, the burden of proving this fact lay heavily on her. Although it is admitted that she had been living with Charan Das as husband and wife and four sons were born to them, yet on the question of validity of the marriage, the appellant has not led any evidence to show that previous husband had died before the date of her marriage with Charan Das. The admitted facts are that she had been married before her marriage with Charan Das and that she had not obtained any divorce from the previous husband.