M.M. Dutt, J.@mdashThe Appellant Kanailal Roy, who is the husband of the Respondent Sm. Monika Roy, has in this appeal challenged the propriety of the judgment of the learned Additional District Judge, Tenth Court, Alipore, dismissing his application u/s 24(1)(i) of the Special Marriage Act, 1954.
2. The case of the Appellant is that during his stay at Surya Sen Nagar, Khardah, 24-Parganas, the Respondent Monika Roy came in his contact. The Respondent was also residing at Khardah and an intimacy grew up between them. Thereafter they were married and the marriage was registered by the Marriage Registration Officer on October 15, 1961, according to the Special Marriage Act, 1954. Later, the Appellant came to know that the Respondent was living with one Lalit Roychowdhury and that she was his legally married wife. The actual name of the Respondent was Sm. Monarani Roychowdhury. Lalit had a daughter named Dhira by the Respondent. Accordingly, it was prayed by the Appellant in the application u/s 24(1)(i) that his marriage with the Respondent was a nullity as she had a spouse living, namely, the said Lalit Roychowdhury.
3. The application was opposed by the Respondent wife. Her case is that sometime in the month of November 1955, the Appellant himself made a proposal to her to marry her and accordingly, she and the Appellant were marriaed at Kalighat on December 8, 1955, in accordance with Hindu rites. On October 15, 1961, the said marriage was registered under the Special Marriage Act. It has been denied by her that she was ever married to Lalit Roychowdhury and that her name was Monarani Roychowdhury. Further, she has denied that she has a daughter named Dhira by the said Lalit Roychowdhury. It is not disputed that a daughter was born to the Appellant and the Respondent in 1957 and a second daughter was also born to them in March 1961. It is alleged by the Respondent that she came to know that the Appellant had married for the second time one Bina Roy, the daughter of one Amulya Roy of Habra on December 8, 1961.
4. The learned Additional District Judge came to the findings that the Respondent was never married to Lalit Roychowdhury and that she was married to the Appellant according to the Hindu rites. In view of the said findings the learned Additional District Judge dismissed the application of the Appellant praying for a decree of nullity u/s 24(1)(i) of the Special Marriage Act. Hence this appeal.
5. At the outset, it may be pointed out that the application of the Appellant u/s 24(1)(i) for a declaration of nullity of marriage between him and the Respondent was not maintainable. Under Clause (a) of Section 4 of the Act, one of the conditions of solemnisation of special marriage under the Act is that neither party has a spouse living. Section 24 provides as follows:
1. Any marriage solemnised under this Act shall be null and void and may be so declared by decree of nullity if
(i) any of the conditions specified in Clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled; or
(ii) the Respondent was impotent at the time of the marriage and at the time of the institution of the suit.
2. Nothing contained in this section shall apply to any marriage deemed to be solemnised under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in Clauses (a) to (e) of Section 15;
Provided that no such declaration shall be made in any case where an appeal has been preferred u/s 17 and the decision of the District Court has become final.
6. It has been already stated that u/s 4(a) one of the conditions of a valid marriage under the Act is that neither party has a spouse living. Section 18 provides that where a certificate of marriage has been finally entered in the Marriage Certificate Book under chap. Ill, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnised under the Act. Sub-section (2) of Section 24, however, specifically excludes the provisions of Section 18 for the purpose of declaring a marriage null and void by a decree of nullity.
So, in spite of the fact that a marriage, though not solemnised under the Act, has been registered under chap. III of the Act, shall be deemed to be a marriage solemnised under the Act, still, for the purpose of Section 24, it shall not be so deemed. It is not the case of the Appellant that their marriage was solemnised under the Special Marriage Act but their marriage was registered under chap. Ill o� the Act. Indeed, the certificate of marriage (Ex. A) shows that it was declared by the Appellant and the Respondent before the Marriage Officer that a ceremony of marriage had been performed between them and that they had been living together as husband and wife since the time of their marriage. The marriage certificate was granted according to their desire to have their marriage registered under the Special Marriage Act. u/s 24, the condition precedent to declare a marriage as null and void is that the marriage was solemnised under the Act. As the marriage of the Appellant and the Respondent was not solemnised under, the Act and as Section 18 of the Act has been specifically excluded by Sub-section (2) of Section 24, it must be held that the application of the Appellant for a declaration of their marriage as null and void u/s 24(1)(i) read with Section 4(a) of the Act was not maintainable. The learned Additional District Judge has also expressed the same view and we agree with him.
7. The Appellant examined a number of witnesses in the proceeding in order to prove that the Respondent was married to the said Lalit Roychowdhury before the Appellant married her. It is not necessary for us to discuss the oral evidence of the witnesses examined on behalf of the Appellant, for the learned Additional District Judge has elaborately analysed the same and has given his reasons why he has not been able to place any reliance on them. We have looked into the evidence of the witnesses examined on behalf of the Appellant and we entirely agree with the learned Additional District Judge that no reliance can be placed on their evidence. The Appellant has miserably -failed to prove that the Respondent was married to Lalit Roychowdhury. It is significant to be noticed that the said Lalit Roychowdhury, who is alive, has not been examined by the Appellant. Before the trial had commenced a summons was taken out by the Appellant to be served upon the said Lalit Roychowdhury. He, however, did not appear before the Court to give evidence. The learned Additional District Judge has pointed out that at the time of trial the Appellant did not take any steps in the matter, save and except that he made an application for examining the said Lalit Roychowdhury as a Court witness. In our view, the learned Additional District Judge rightly rejected that application. It seems to us that the Appellant was not willing to examine the said Lalit Roychowdhury. No evidence has been adduced on behalf of the Appellant to show that the said Lalit Roychowdhury ever protested against the conduct of the Respondent in leaving his house and in marrying the Appellant. It is also curious that if the Appellant''s case is to be believed, the Appellant mixed with the Respondent during the time when she was living with Lalit Roychowdhury as his wife. The evidence of the witnesses examined by the Appellant does not at all impress us.
8. After considering the facts and circumstances of the case and the evidence of the witnesses examined on behalf of the Appellant, we agree with the finding of the learned Additional District Judge that the Appellant has miserably failed to prove that the Respondent was married to Lalit Roychowdhury long before she was married to the Appellant and that the Respondent had a daughter named Dhira by the said Lalit Roychowdhury.
9. In the result, the judgment and decree of the learned Additional District Judge are affirmed and this appeal is dismissed with costs.
10. The application of the Appellant for additional evidence is also dismissed as we do not think that any additional evidence is necessary for the proper adjudication of the appeal. The other application filed by the Respondent for stay of the appeal till payment of the arrear maintenance has become infructuous as the appeal has been disposed of. The Respondent, however, will be entitled to realise the arrear maintenance from the Appellant in accordance with law.
Sharma, J.
I agree.
(Mentioned)
11. It appears that by our judgment dated July 16, 1975, we dismissed the appeal with costs. As the appeal arose out of a matrimonial proceeding, under the Rules of the Appellate Side, the cost has to be assessed by us.
12. In the circumstances, we assess the costs at a consolidated sum of Rs. 85.
13. Let this order be treated as part of our judgment.
