AJAY CHANDRAKAR Vs. USHABAI

JUDGEMENT

(1.) THIS is defendants' second appeal under Section 100 C. P. C. . The following substantial questions of law were formulated by order dated 7-8-1991 at the time of admission of this appeal :-

(2.) THE facts relevant for the decision of the questions referred above are that plaintiff Smt. Ushabai married to defendant No. 1 Ajay Chandrakar on 17-5-1986. There is a concurrent finding of fact of the trial Court and the first appellate Court that this marriage still subsists and there has been no dissolution of this marriage according to caste-custom. This finding is based on proper appreciation of evidence on record.

(3.) THE plaintiffs case is that her husband defendant No. 1 Ajay Chandrakar has remarried defendant No. 4 Pramila on 28-5-1988. Maganlal (P. W. 5) is Vice President of Chandrakar caste. He has deposed that Ajay Chandrakar has married Pramila and she was living with him. In cross-examination he has stated that he was not present in the marriage of Ajay Chandrakar with Pramila. Though he was not present at the time of performance of the marriage ceremony his evidence on this point that Pramila is living with Ajay Chandrakar is relevant under Section 50 of the Evidence Act. Ramlal (P. W. 4) is the father of the plaintiff. He has deposed that Ajay Chandrakar has remarried Pramila and he is living with her. He has further stated that Chandulal, father of Pramila has been ex-communicated because he married Pramila with Ajay Chandrakar who was already married to the plaintiff. Tukaram (P. W. 3) has also stated that the father of Pramila admitted before him that he has married her to Ajay Chandrakar. Ajay Kumar (D. W. 1) has denied that he has married Pramila. Pramila has not been examined to rebut the testimony of the plaintiff. The finding in civil suit is based upon preponderance of probability. The first appellate Court on the basis of evidence on record has also held that the defendant No. 1 Ajay Chandrakar has remarried defendant No. 4 Pramila. Such a second marriage is usually performed in the absence of first wife and therefore, she cannot be expected to adduce any direct evidence on that point. The evidence relating to the second marriage is mostly circumstantial. This Court is also of the opinion that Ajay Chandrakar has remarried Pramila and she is living with him as his second wife.