JASBIR SINGH Vs. INDERJIT KAUR

JUDGEMENT

(1.) This appeal has been filed by the husband, against the dismissal of the petition under Section 11 of the Hindu Marriage Act, filed by him against the wife, seeking annulment of marriage by a decree of nullity.

(2.) The facts in brief are that initially Jasbir Singh (husband) had filed the petition under Section 12 of the Hindu Marriage Act (hereinafter referred to as the Act), for annulment of marriage by a decree of nullity, against respondent-wife Smt. Inderjit Kaur. It was alleged in the petition that the marriage between the parties had taken place on 1-3-1987. It was alleged that the petitioner-husband had married the respondent-wife due to fraud committed upon him, as he was told by her father that she was unmarried and even the respondent had stated that she was unmarried. It was alleged that on 14-4-1987, the petitioner-husband came to know that the respondent-wife was already married to one Lachhman Singh and she had been divorced by Lachhman Singh. It was alleged that when the petitioner confronted the respondent with this fact, after some hesitation, she accepted the truth and left the house on the next day i.e. 15-4-1987. It was alleged that if the fraud had not been committed upon him that the respondent was unmarried, the petitioner would not have married the respondent. It was alleged that the marriage between the parties was the result of fraud, committed by the respondent and her parents and as such the marriage was required to be annulled. In the written statement filed by the respondent-wife, it was alleged that it was in the knowledge of the petitioner and his parents and other relatives that the respondent was the previously divorced wife of Lachhman Singh. It was alleged that the father of the petitioner namely Kehar Singh had visited the village of the respondent about 17 days prior to the marriage, accompanied by the petitioner and one Kashmir Singh (brother-in-law of the respondent) and at that time the dowry articles of the first marriage, which were returned by the previous husband, were shown to them. It was alleged that the factum about the previous divorce was told to the petitioner and his family members before the marriage and it was in the knowledge of the petitioner and his family that the respondent was a divorcee, inasmuch as two sisters of the respondent were already married in village Amama Nagar (village of the petitioner-husband). It was alleged that all the family members of the petitioner had agreed to the marriage with the respondent. It was alleged that at the time of marriage, various dowry articles, which were returned to the respondent after divorce with the previous husband, were given along with other presents and gifts. It was alleged that the petitioner had sent the respondent to her house to bring more money from her parents or to sell the land in her name and when she declined, she was thrown out of the house by the petitioner when she was pregnant and that the respondent was not allowed to enter the house, when efforts were made in this regard, personally and through the Panchayat.

(3.) Subsequently, when the evidence of both the sides had been recorded and the case was at the stage of arguments, application under Order 6, Rule 17, CPC was filed by the petitioner-husband, seeking the amendment of the petition so as to plead that his marriage be annulled under Section 11 of the Act, inasmuch as at the time of her marriage with the petitioner, the respondent was already the wife of Lachhman Singh and was not divorced by him in accordance with law. The said application was contested by the respondent-wife. Vide order dated 3-8-1988, the learned trial Court allowed the amendment, so as to make it a petition under Section 11 of the Act, instead of a petition under Section 12 of the Act. In the reply to the amended petition under Section 11 of the Act, it was alleged by the respondent-wife that the respondent was a divorcee at the time of her marriage with the petitioner and the said divorce had taken place as per the custom prevailing in the family of the respondent and her previous husband as well as in the family and brotherhood of the petitioner. It was alleged that the petitioner had verified about the previous marriage and the divorce of the respondent from the previous husband and the petitioner had also accepted the factum of customary divorce of the respondent from her previous husband. It was alleged that the writing of the customary divorce was also seen by the petitioner and the petitioner had married the respondent, treating the respondent as a divorcee. It was alleged that the petitioner was estopped from treating the respondent as already married and not a divorcee, at the time of her marriage with the petitioner. It was alleged that such a customary divorce was well known among Jat Sikhs, in the area of the parties, in fact throughout undivided Punjab. It was alleged that in fact the marriage between Lachman Singh and the respondent had come to an end by a customay divorce and a writing to that effect was also executed.