SUSHMA PATEL Vs. BRIJESH PATEL

JUDGEMENT

(1.) Heard on the question of admission. This writ petition under Article 227 of the Constitution of India is filed by the defendant before the Family Court, against the order dated 04.05.2013 passed in Civil Suit No. 36-A/2008 (434-A/2007) by which the I Additional Principal Judge, Family Court, Jabalpur has allowed the application made under Section 65 of the Indian Evidence Act by the respondent/plaintiff. It is contended that a suit under Section 11 of the Hindu Marriage Act, 1955 has been filed by the respondent/plaintiff against the petitioner/defendant seeking declaration of the marriage between the parties as null on the ground of fraud. The marriage between the parties was performed on 05.03.2003. It is alleged in the plaint that the petitioner herein was already married and this fact was concealed by the parents of the petitioner and, thus, the marriage between the petitioner and the respondent is a nullity. To prove the fact that the petitioner was already married, a certificate of marriage from Gayatri Shakti Peeth, Manmohan Nagar, Jabalpur, is said to be produced but not in original and only a photocopy of the same. The witness was examined by the respondent to prove such a certificate, who deposed in his Court statement that the original certificate is not available as after the period of five years from the date of marriage, except the register, all records are destroyed by the Society. From the statement of such witness since the certificate could not be proved, the respondent moved an application under Section 65 of the Indian Evidence Act seeking permission of the Family Court to adduce secondary evidence. Such an application was opposed by the petitioner stating that a photocopy of certificate of marriage said to be performed between the petitioner and somebody could not be admitted as secondary evidence under the provisions of Section 63 of the Act aforesaid, therefore, such a permission cannot be granted to the respondent/plaintiff to adduce secondary evidence. However, since by impugned order the application of respondent is allowed, this writ petition is required to be filed.

(2.) Upon notice of the writ petition, the respondent has appeared before this Court through counsel and it is stated by learned Counsel for the respondent that as only the question of law is required to be decided, no return is filed by the respondent. However, orally all the allegations made in the writ petition are denied.

(3.) Heard learned counsel for the parties at length and perused the record.