MANDAKINI Vs. CHANDRASEN

JUDGEMENT

(1.) This appeal by the original defendant is directed against the judgment and decree dt. 29th Sept. 1984 whereby the learned Civil Judge, Senior Division, Mapusa, decreed the suit filed against the appellant and consequently, annulled their marriage solemnized on 30th Dec. 1978, and further held that the respondent is entitled to recover the gold ornaments mentioned in the plaint, from the appellant.

(2.) The relevant facts may be stated. The appellant and the respondent got married under the Civil law on 30th Dec. 1978. This marriage was solemnized by the Civil Registrar of Vasco-da-Gama. Sometime after the said marriage, it appears that differences of opinion arose between the respondent and the appellant and ultimately, the respondent filed a suit for annulment of the said marriage on the ground that on inquiries he had come to know that the appellant is an illegitimate child and that if he had known this circumstance, he would not have married her. He also prayed for the return of the gold ornaments that he had given to the appellant. This suit was resisted by the appellant on several grounds, particularly, on the ground that she is not an illegitimate child, but on the contrary, she is the legitimate daughter of Pundalik Govind Salkar and Premlata Salkar who got married under the Hindu religious rites at Vengurla. In addition, according to the appellant, she has been always treated and reputed to be a legitimate issue not only by her relatives, but also by the public in general. She stated that the respondent got married to her because he liked her and, therefore, made a proposal to get married with the appellant. The proposal was sent through Prakash Verlekar, who happens to be the brother-in-law of the appellant. Specifically and in respect of the marriage of Pundalik Govind Salkar with Premlata, the appellant averred that the said Pundalik was married to Smt. Sokubai alias Satyawati. There were no issues from the wedlock of the said Sokubai, nor there was any hope of having an issue and, therefore, at the instance of the said Sokubai, Pundalik got married to Premlata on 4th April, 1944. The said marriage was solemnized at Vengurla under the Hindu religious rites, which is the place of residence of Premlata's parents. It is further the appellant's case that when the said marriage was solemnized at Vengurla, that portion of the country was under British rule and it was lawful for a Hindu, at that time, to get married twice even during the lifetime of the first wife specially when there was no issue from the first wife. After the said marriage, Pundalik and Premlata lived together and Sokubai or Satyawati was also living with them. Premlata and Pundalik were treated and reputed as husband and wife by their relatives and by the public. Similarly, after the birth of the brothers and sisters of the appellant and her own birth, all the issues of Premlata and Pundalik were treated by the relatives and public as legitimate issues. The respondent according to the appellant was fully aware of all these facts before the marriage, being a fact that after the engagement he used to visit the appellant very frequently at her residential house in Calangute. Not only that but also the respondent's brother and sisters-in-law had visited the appellant and her family in their house at Calangute before the marriage and have even had occasion to have dinner and lunch in the appellant's house. On such occasions, Sokubai or Satyawati had acted as a member of the family and was present. So far as the gold ornaments, the appellant's case is that the said gold ornaments were gifted to her by the respondent out of love and, therefore, there is no ground for their return. On these grounds, the appellant submitted that the suit was liable to be dismissed. Issues were framed on the basis of such pleadings and the burden of proving whether the appellant is an illegitimate daughter of the late Pundalik Salkar and whether the plaintiff gave his consent to the marriage with the belief that the appellant was a legitimate child and that he learnt about her illegitimacy only in the month of Feb. 1979 was put on the respondent Other issues were framed in respect of the gold ornaments. The learned trial Judge answered these issues in favour of the plaintiff and consequently, decreed the suit by the impugned judgment

(3.) Now, it is the case of the appellant that the learned trial Judge has erred in decreeing the suit for the respondent has failed to discharge the burden lying on him to prove that he would not have married the appellant if he knew that she was an illegitimate child. Besides, the appellant (respondent?) completely failed to prove that the respondent (appellant?) is, in fact, an illegitimate child being a fact that the evidence led by her clearly and conclusively established that she has been born out of the wedlock of Pundalik and Premlata. In the circumstances, therefore, the learned Judge could not have decreed the suit.