HARMOHAN SENAPATI Vs. KAMALA KUMARI SENAPATI

JUDGEMENT

(1.) Defendant No. 1 is the appellant against a confirming decision. The case of the plaintiff is that she and defendant No. 1 are husband and wife and their marriage took place in 1958 according to Hindu rites. After she gave birth to a child, defendant No. 1 drove her out of his house. Subsequently, without dissolution of her marriage with defendant No, 1, the latter married defendant No. 2 on 8-2-66 and started living with her. So, she has prayed for a declaration that the marriage of defendant No. 1 with defendant No. 2 is null and void. Defendant No. 2 did not contest, nor appeared in Court. Defendant No. 1 in his written statement contends that he has no connection with defendant No. 2 and the allegation of second marriage is not true. According to him, plaintiff left his residence to her parents' house in 1964 against his will and did not return in spite of several requests and when plaintiff came to know that defendant No. 1 was intending to file a case for judicial separation, she has filed this suit on false allegations.

(2.) Both the Courts below have concurrently found that plaintiff is the married wife of defendant. No. 1. Defendant No. 1 married defendant No. 2 and the said marriage is null and void. Marriage of defendant No. 1 with plaintiff is not now disputed.

(3.) Two points have been canvassed on behalf of the appellant (defendant No. 1). Firstly, the suit was not maintainable in the Court of the Munsif and it should have been filed in the Court of the District Judge, or the Subordinate Judge, as provided in the Hindu Marriage Act; and secondly, the onus of proof of the second marriage being on the plaintiff, she has failed to discharge the onus, inasmuch as she has not established the ingredients required under law for proof of marriage of defendant No. 1 with defendant No. 2.