SURJIT KAUR Vs. JHUJHAR SINGH

JUDGEMENT

(1.) Surjit Kaur appellant married Sardul Singh on February 13, 1955. On April 16, 1959, the appellant filed a petition for judicial separation against Sardul Singh alleging that the latter had turned her out of his house in March, 1955, and did not care to look after her thereafter. She further alleged that Sardul Singh had left for Indonesia and had deserted her for morn than two years. Sardul Singh having been sufficiently served did not put in appearance. Ex parte proceedings were ordered to be taken against him. The Senior Subordinate Judge, Ferozepur, vide order dated March 8, 1960, granted the appellant a decree !or judicial separation against Sardul Singh. The appellant did not obtain a decree for divorce at any stage against Sardul Singh.

(2.) On May 24, 1970, the appellant married Jhuihar Singh respondent. They got their marriage registered at Ferozepur on June 3, 1970. The appellant have birth to a son from the respondent on October 27, 1971. Differences arose between the parties and they started living separately. The respondent filed a petition for restitution of conjugal rights against the appellant. It was, however, got dismissed as withdrawn in the Court of Senior Subordinate Judge, Faridkot. On February 13, 1975, the respondent filed a petition under Section 11 of the Hindu Marriage Act (hereinafter the Act) for a declaration that their marriage was a nullity inasmuch as the appellant was already married on May 24, 1970, when her previous husband (Sardul Singh) was alive. The parties compromised during the pendency of that petition. It was agreed that. they will move a point petition for divorce. The petition under Section 11 of the Act was got dismissed as withdrawn. The parties did not move a joint petition for divorce. On November 11, 1976, the respondent filed another petition under Section 11 of the Act for a declaration that their marriage was void inasmuch as the previous marriage of the appellant with Sardul Singh subsisted on that date.

(3.) The appellant admitted in her written statement that she was married with Sardul Singh in 1955, and further she had obtained a decree for judicial separation against him on March 8, 1960. She averred that Sardul Singh had left India about 19/20 years ago and he had not been heard of since then by her or by those who would have naturally heard of him if he had been alive. In view of the presumption raised under Section 108 of the Indian Evidence Act, the question of a subsisting marriage between her and Sardul Singh on May 24, 1970, did not arise. She also averred that according to the custom prevalent, she could effect a valid second marriage even during the lifetime of her previous husband as the latter had deserted her since long.