ADARSH KISHORE Vs. KAMINI DEVI

JUDGEMENT

(1.) This is a husbands second appeal arising out of a wifes suit for judicial separation which has been decreed by both the courts below. The courts have also awarded maintenance of Rs. 300.00 per month to the wife for herself and her child from the appellant husband.

(2.) The findings of fact recorded by the lower appellate court which have not been questioned in this Court are these: The appellant had married one Tara Devi in 1964. In 1969 there was a separation between him and Tara Devi. Tara Devi gave birth to a child by the appellant on 4-2-1969 and this child died on -7-1970. On 17-7-1970, appellant lodged police report against his in-laws about misbehaviour and assault on his visit to their place to fetch Tara Devi. In Aug. 1971, the appellant filed a declaration before his employer, the Food Corporation of India that he was married and had one wife living. On 16-2-1972 a Hindu marriage was solemnised between the appellant and the respondent. In this background the respondent filed a petition for judicial separation. The appellants defence was that the marriage itself was null and void because he had the earlier spouse Tara Devi living on the date of marriage. The lower appellate court held that there was no satisfactory and reliable evidence to prove that Tara Devi was alive on 16-2-1972 the day of solemnisation of appellants marriage with the respondent.

(3.) The only point canvassed in second appeal is that this finding is erroneous in law because after having found that Tara Devi was alive till Aug., 1970, the lower appellate court in the absence of any evidence about her death should have held that she was alive on 16-2-72 also and the marriage with the respondent was, therefore, void in accordance with Sec. 11 of Hindu Marriage Act. Reliance has been placed on Sec. 107, Evidence Act which runs as follows:-