DAMAYANTI NAHAK ALIAS PRUSTY Vs. SMT. KALPANA BHATACHARYA

JUDGEMENT

(1.) This is an appeal under Section 100 of the C.P.C. against the judgment and decree passed by learned District Jude, Puri in RFA No.54 of 2003 allowing the appeal and reversing the judgment and decree of the learned Civil Judge (Senior Division), Nimapara in T.S. No.140 of the 2001.

(2.) The facts leading to the present appeal can summarily be narrated as follows: Respondents No.1 as plaintiff instituted T.S. No.140 of 2001 before learned Civil Judge (Senior Division), Nimapara seeking a declaration that the present appellant is not the legally married wife of Kamalakanta Prusty and that the (plaintiff) is the only legally married wife of Kamalakanta. She also prayed for declaration that the entry describing the present appellant as wife of Kamalakanta is a wrong, invalid and result of undue influence and that she is not entitled to draw pension, gratuity and provident fund of Kamalakanta Prusty. The present appellant as defendant No.1 filed written statement wherein she claimed herself as the legally married wife of Kamalakanta taking a specific plea that although Kamalakanta and the plaintiff were married, they were subsequently divorced and after such divorce she married Kamalakanta in 1986 and became his legally married wife. She accordingly claimed that she is entitled to receive the pensional benefits of late Kamalakanta. Learned trial Court framed several issues, received evidences of the parties and on consideration of those evidences dismissed the suit of the plaintiff with the observation that the plaintiff could not prove her legal marriage with Kamalakanta and that the documents filed by defendant No.1 established the marriage of defendant No.1 with Kamalakanta. These findings were challenged by the plaintiff in RFA No.54 of 2003 of the Court of learned District Judge, Puri. That appeal was allowed and the decree of the trial Court was set aside with the findings that from the admission of defendant No.1 and the documentary evidence of marriage between the plaintiff and Kamalakanta was clearly established and that defendant No.1 not having produced any evidence regarding divorce of the plaintiff and Kamalakanta, her (defendant No.1' s) subsequent marriage, if any, with Kamalakanta was invalid in the eye of law. The said judgment and decree of the first appellate Court is under challenge in the present appeal.

(3.) At the time of admission, learned counsel for the parties propose for disposal of the appeal at the stage of admission. Accordingly, the appeal is taken up for final disposal and the following questions of law are formulated for consideration in the appeal;