ANUSAYABAI Vs. VISHWANATH TUKARAM SHINDE

JUDGEMENT

(1.) This matter was referred to the Division Bench for deciding a question of law which arose on the assumption that the appellant Anusayabai was not legally married to the respondent. However, on going through the evidence on record we are more than satisfied that the validity of the marriage cannot be assailed and hence it is not necessary to decide the question of law.

(2.) The facts in short are that the appellant was married to the respondent Vishwanath in the year 1957, and since then she was residing with him as his legally married wife till 1963 when she was driven out of the house. She filed an application for maintenance under Sec. 488 of the then Code Criminal Procedure in the same year and was awarded maintenance on the 18th April, 1964 at the rate of Rs. 18.00 per month. After she was deserted by the respondent, she was residing with her father who died subsequently. She had therefore to apply for an enhancement of the maintenance allowance and for that purpose she took the present proceedings under the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the said Act). Her claim was resisted by the respondent contending that he was already married to one Akkatai in the year 1945 and had a daughter from her in 1950. The daughter died in the year 1952 and for this purpose he relied upon an extract from the birth and death register. It was his case that in the year 1957 when he married the appellant, his marriage with Akkatai was subsisting since Akkatai was still alive. According to him, Akkatai had deserted him and her whereabouts were not known at that time. He conceded that he had not raised the plea of the invalidity of the marriage on the said ground in the maintenace proceedings under the Criminal Procedure Code. He also did not dispute the fact that when in the year 1963 he deserted the appellant, he had married another woman by name Vaijayanta and had children from her. On these facts, the learned trial Judge came to the conclusion that the burden of proving the invalidity of the marriage was on the husband and that he had failed to discharge the same by proving that Akkatai was alive on the date of the marriage. He therefore held that the plaintiff-wife was entitled to maintenance and fixed the maintenance at Rs. 900.00 yer year. Against the said decision of the trial Court, the respondent-husband preferred an appeal, and curiously enough the learned District Judge shifted the burden of proving the validity of marriage on the appellant-wife and held that since she had not proved that Akkatai was dead at the time of the marriage, the marriage was invalid. He therefore allowed the appeal and dismissed the suit. It is aggrieved by this decision that the present second appeal has been preferred by the wife.

(3.) We have already narrated the relevant facts above. The prominent among them are that the marriage between the appellant and the respondent took place in 1957 and that the respondent was married to Akkatai earlier. A daughter was born to the respondent from Akkatai in 1950. There is no evidence of any issue of the said marriage after 1950. The only evidence on record to prove that Akkatai was alive in 1957 is the assertion of the respondent that he had cohabited with Akkatai till 1956 and that in 1957 she had deserted him and although she was alive her whereabouts were not known. There is no other evidence produced by him to prove that Akkatai was alive in 1957. As against there are the maintenance proceedings initiated by the appellant in 1963 which admittedly resulted in an order of maintenance in her favour. That order was never challenged nor had the respondent raised the plea of the invalidity of the marriage in the said proceedings. Law presumes that all acts are valid till they are proved otherwise. When therefore the marriage between the appellant and the respondent took place in 1957, it will have to be presumed to be valid. To the world at large the respondent all along held out that the marriage was valid and the appellant was his lawfully wedded wife. The appellant had admittedly stayed with him for as many as seven years from 1957 to 1963. Assuming further that the respondent had a daughter from the earlier marriage, she was admittedly born in 1950 and no other issue was born thereafter. As many as seven years had elapsed from the birth of the said issue. Except for the assertion of the respondent that he had cohabited with Akkatai till 1956, there is no evidence on record to show that Akkatai was heard of after 1950. This circumstance coupled with the inability of the respondent to give the whereabouts of Akkatai entitles the Court to raise a presumption that Akkatai was dead in the year 1957 for the purposes of law. Hence the marriage with the appellant in the year 1957 is valid in the eyes of law.