D.K. Paliwal, J.@mdashAppellant-husband has preferred this appeal u/s 28 of the Hindu Marriage Act, 1955 (for brevity "the Act") being aggrieved by the judgment and decree dated 22nd February, 2001 passed by Fourth Additional District Judge, Vidisha, in Case No. 25-A/98 HMA, whereby the petition of the respondent-wife for judicial separation has been allowed. Respondent-wife preferred a petition u/s 9 of the Act and in the alternative u/s 10 of the Act pleading that first wife of the appellant died in the year 1987 leaving behind four daughters. After the death of first wife, the appellant solemnized marriage in accordance with Hindu customs and rites with the respondent. After marriage appellant kept the respondent well for 1-2 years thereafter started ignoring her. The appellant used to harass her and deprived her of food and medicines. Ultimately the appellant-husband ousted the respondent-wife from his residence. It is further pleaded that as soon as she came to know that appellant has got published an advertisement for his third marriage in a magazine, she filed a civil suit and got stay. The respondent-wife also filed the petition for grant of maintenance. It is further pleaded that just to get rid of the respondent-wife, appellant conspired with his brother-in-law, who is a photographer in CID, Ramesh Saxena and Sanjay Sharma and by showing the respondent as Mamta wife of Sanjay Sharma, pasted her photo in the pass book of Gas Rahat. Thereafter, appellant himself lodged the report at Police Station, Teele Jamalpura, Bhopal, upon which a criminal case under sections 419, 467 and 468 of IPC has been registered against the respondent-wife. She was not at all involved in the case, but she was compelled to face the trial. The respondent-wife is willing and ready to discharge her marital obligations but appellant-husband is not willing to keep her. By amendment it has also been pleaded that in the proceeding u/s 125 of CrPC the appellant has alleged that respondent-wife is a characterless lady and residing with Sanjay Sharma and has 3-4 husbands. Due to false allegation against her character, it is impossible for the respondent to live with the appellant-husband. It is prayed that decree of judicial separation be granted and 1/3rd income of the appellant be awarded as permanent alimony.
2. In written statement the appellant has denied that respondent-wife is his legally wedded wife. It is stated that respondent-wife received interim relief from the office of Directorate Gas Relief and Rehabilitation, Bhopal illegally. Appellant never demanded dowry from her. By amendment it is pleaded that marriage of respondent has not been solemnized according to Hindu customs and rites. Therefore, the petition u/s 10 of the Act is not maintainable. It is prayed that petition be dismissed.
3. The learned Court below holding that respondent is legally wedded wife of the appellant and appellant has committed cruelty by leveling false allegations, granted the decree of judicial separation. Being aggrieved, the appellant-husband has knocked the doors of this Court.
4. It is submitted that the learned Court below has not properly considered the documents Ex. D-1 to Ex. D-13. From the documents, submitted by the appellant it is proved that respondent is the wife of Sanjay Sharma and she is receiving the interim relief from the office of Directorate Gas Relief and Rehabilitation, Bhopal. It is submitted that Sanjay Sharma, husband of the respondent, is alive and respondent has not obtained divorce, therefore, the marriage in the lifetime of Sanjay Sharma is void in view of section 5 of the Hindu Marriage Act, 1955.
5. Learned counsel for the respondent has supported the impugned judgment and decree and prayed for dismissal of the appeal.
6. We have considered the submissions of the learned counsel for the parties and scrutinized the evidence and material on record.
7. Saroj Saxena (AW 1) says that her marriage took place on 25th November, 1987 with the appellant at Narsinghgarh according to Hindu customs and rites. Her testimony is supported by Kanchan Saxena (AW 2), the mother of respondent, Jagdish (AW 3), Raghubir Prasad (AW 4) and Asha Saxena (AW 5), sister of Saroj Saxena.
8. Vishnu Prasad (NAW 1) has stated that his wife was late Snehlata Saxena. He knows Saroj since she filed this case. He has no relation with Saroj. He further says that as per the record of the gas relief, Sanjay Sharma has been named as husband of the respondent and in the Higher Secondary School mark-sheet, B.N. Saxena has been named as husband of the respondent. According to him he never married with Saroj.
9. The learned counsel for the appellant contended that on the basis of Ex. D-1, it is proved that the wife of Vishnu Prasad, namely Snehlata, died on 16.4.1988. Therefore, there is no occasion to marry with the respondent.
10. It is noteworthy that nowhere it is pleaded that Snehlata had died in the year 1988, therefore, evidence in this regard cannot be taken into account.
11. Learned counsel for the appellant placing reliance on the decisions rendered in
12. We have considered the submission, Vishnu Prasad (NAW 1) stated in chief examination that as per the documents of Gas Rahat Sanjay Sharma is the husband of Saroj. He further stated that in the mark-sheet of Higher Secondary, name of B.N. Saxena has been mentioned as husband of Saroj. Certified copy of the mark-sheet is Ex. D-2.
13. In Ex. D-3 Mamta has been shown as wife of Sanjay Sharma, residing at 19, Jamalpura. Ex. D-4 is a pass book of Mamta Sharma in which her husband''s name has been mentioned as Sanjay Sharma, resident of 19, Jamalpura, Bhopal. Ex. D-5 is a copy of the pass book, which shows that on 6.2.1993 Rs. 1,200/- has been paid. Ex. D-6 is the copy of Ration Card (Parivar Patra) in which names of Mamta Devi Sharma, Shyam Sharma, Smt. Reva Bai Sharma, Vinita Sharma and Kavita Sharma have been mentioned. Ex. D-7 is the application given by Sanjay Sharma to the Directorate, Gas Relief and Rehabilitation, Bhopal for getting interim relief. Ex. D-8 shows that photograph of the respondent has been enclosed.
14. Ex. D-9, pass book, shows that in the account of Mamta Sharma, wife of Sanjay Sharma, Rs. 6,000/- has been paid as interim relief. Ex. D-10, is the copy of the charge-sheet filed against Saroj Saxena, wife of Vishnu Prasad, along with Sanjay Sharma and others. Ex. D-11 is the certified copy of the statement of R.N. Vyas who has stated that he has brought the record of the Higher Secondary School Examination wherein Saroj Saxena has been mentioned as wife of B.N. Saxena.
15. Saroj Saxena (AW 1) has clearly stated in her chief examination that when she solemnized marriage with Vishnu Prasad, she was unmarried. She further stated that brother-in-law of Vishnu Prasad is Lalta Prasad who is a photographer in CID, Bhopal. He has received the interim relief from the Directorate, Gas Relief and Rehabilitation, Bhopal, affixing her photograph in the name of his daughter Mamta. She came to know about this fact when police has registered crime against her though she has never received any interim relief from the Directorate, Gas Relief and Rehabilitation. In para 7 she categorically stated that she does not know Sanjay Sharma and B.N. Saxena had never been her husband.
16. Kanchan Saxena (AW 2), mother of Saroj, has stated that Saroj never received the interim relief. Vishnu Prasad and his brother-in-law have lodged a false report against her daughter to get rid of her. Asha Saxena (AW 5) stated that Saroj never married with Sanjay Sharma and also has never received any money from Directorate, Gas Relief and Rehabilitation, Bhopal.
17. Saroj Saxena, in para 22 has denied the suggestion that she is residing with her husband, Sanjay Sharma. She further denied that she had performed second marriage with Vishnu Prasad. In para 12, she admitted that in the pass book her photograph is enclosed. She denied that when account was opened, she has given her thumb impression. She further denied that she has mentioned her name as Mamta and named Sanjay Sharma as her husband in the pass book. She has no knowledge that Rs. 6,000/- has been withdrawn from her account and how the entry has been made in her pass book. In para 14, she has stated that she does not know whether Sanjay Sharma is residing as tenant in the house of Ramesh Saxena at Bhopal. She has stated that she has mentioned this fact in her petition on the basis of challan. She does not know much rent was being paid by Sanjay Sharma.
18. Vishnu Prasad in para 8 of his cross-examination has admitted that four-five cases are pending against him in Vidisha Court. In para 10 he has admitted that name of Saroj Saxena has been mentioned as his wife in Ex. D-10. He further admits that in Ex. D-6 copy of Ration Card (Parivar Patra) name of Saroj Saxena is not mentioned. He has further stated that he has not filed any certificate to the effect that Saroj Saxena has married with Sanjay Sharma. In para 11 he denied that his brother-in-law Lalta Prasad is a photographer in CID. In para 14, he admits that in the revenue record of Khata No. 97, 98, 100 and 101 of village Turkipura his name has been entered. He further admits that his name has also been recorded in Khata of village Chowdharipura and Rawatpura. He himself has stated that he is not in possession of the land and today itself he came to know that the land is recorded in his favour. It is noteworthy that Vishnu Prasad is a Patwari, therefore, it cannot be believed that he would be unaware that agricultural land in revenue papers of village Turkipura, Chowdharipura and Rawatpura is recorded in his name. Denial of the above facts, shows that Vishnu Prasad can give false statement to any extent. As noticed earlier, brother-in-law of Vishnu Prasad is a photographer in CID at Bhopal and Vishnu Prasad is facing four-five cases in the Court of Vidisha, hence, the possibility of affixing photograph of Saroj in the papers submitted in the Directorate, Gas Relief and Rehabilitation, Bhopal, cannot be ruled out.
19. Vishnu Prasad, in para 6 denied that photograph marked as ''A'' in Ex. P-1 and Ex. P-2 are his photograph, Ex. P-5 is photograph of his brother-in-law and Ex. P-6 and Ex. P-7 are the photographs of his sister Sushma. Similarly, he also denied that photographs, Ex. P-9 to 23, are his photographs. He has stated that these photographs are forged. In para 8, he denied that marriage invitation card Ex. P-34 pertains to his marriage. He admitted that as a groom his name has been mentioned in the card. In view of photographs Ex. P-1 to Ex. P-23 and invitation card Ex. P-34, the testimony of Vishnu Prasad cannot be believed. Documents Ex. D-3 to Ex. D-9 falsely that Saroj Saxena was the wife of Sanjay Sharma, because in all these documents, name of Mamta Sharma has been mentioned as wife of Sanjay Sharma.
20. Exhibit P-36, certified copy of the affidavit of Vishnu Prasad, shows that in para 1 it has been clearly mentioned that the plaintiff solemnized marriage with him.
21. It is contended by the learned counsel for the appellant placing reliance in the decision rendered in
22. The Hon''ble Supreme Court in the case of
An admission by a party is substantive evidence of the fact admitted, and admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions.
23. Thus, in our considered opinion, in the instant case the admission of Vishnu Prasad in his affidavit that he has married with respondent can be taken into account, therefore, we are unable to accept the submission of learned counsel for the appellant. In view of it, statement of Vishnu Prasad that he has not married with the respondent appears to be false.
24. For proving the fact that Saroj Saxena is the wife of Sanjay Sharma the best witness would have been Sanjay Sharma, but he has not been examined by the appellant. A suggestion has been given to Saroj Saxena in para 14 that Sanjay Sharma was residing as a tenant of Ramesh Saxena at Bhopal, in view of this, the appellant could have examined Ramesh Saxena to prove that Saroj Saxena was living with Sanjay Sharma as his wife, but Ramesh Saxena has not been examined by the appellant. Thus, material evidence has been withheld.
25. In view of the aforesaid analysis, testimony of Vishnu Prasad that he never married with Saroj Saxena and Saroj Saxena is the wife of Sanjay Sharma does not inspire confidence of the Court. Thus, submission of the learned counsel for the appellant that alleged marriage of Saroj Saxena with Vishnu Prasad in the lifetime of Sanjay Sharma without obtaining divorce is void u/s 5 of the Hindu Marriage Act, 1955, is devoid of any merits. In our considered opinion, learned trial Court has not committed any error in holding that Smt. Saroj Saxena is the legally wedded wife of Vishnu Prasad.
26. Saroj Saxena deposed that after marriage, the husband kept her well for 1-2 years, but thereafter started beating her and also deprived her of food etc. She further stated that Vishnu Prasad used to demand Rs. 25,000/- as dowry and used to say that he has kept her as a maid. In para 3, she further stated that Vishnu Prasad tried to marry with Ahilya, daughter of her paternal aunt, and got published an advertisement for his third marriage in a magazine. Thereafter, she filed the civil suit for injunction. Kanchan, PW 2, corroborated the testimony of Saroj Saxena.
27. Vishnu Prasad has not controverted the testimony of the respondent''s witnesses, rather in para 17 he has admitted that in the statement Ex. P-38 given before the Magistrate Court, he has stated that, Saroj Saxena was residing with him as maid servant. In para 9, he has admitted that case is pending against him for injunction against marriage and Saroj Saxena has filed an application for temporary injunction. Regarding Ex. P-35, a copy of reply, and Ex. P-36, certified copy of affidavit, according to Vishnu Prasad he has signed these documents without reading them. It is noteworthy that this witness is a Patwari, therefore, it cannot be believed that he had signed the documents Ex. P-35 and Ex. P-36 without going through its contents.
28. Saroj in her cross-examination has denied the suggestion that Vishnu Prasad has never beaten her nor made false allegation regarding her character. She further denied that Vishnu Prasad never harassed her nor turned her out from the house. Thus, Saroj remained firm in her cross-examination. Her testimony finds corroboration from the testimony of Kanchan Saxena, Jagdish Saxena, Raghubir Saxena and Asha Saxena. Therefore, there is no reason to disbelieve the testimony of Saroj Saxena.
29. From the above discussion, we find that it is proved that Vishnu Prasad has committed cruelty with Smt. Saroj Saxena. In our considered opinion, learned Court below has appreciated the evidence in its proper perspective and assigned cogent reasonings in support of its findings. We see no reason to disturb the well merited findings. In view of the above, we do not find any merit in this appeal. The appeal deserves to be dismissed. Consequently, we affirm the judgment and decree passed by the Court below and dismiss this appeal. Appellant shall bear his costs and also of respondent. Advocate fees as per schedule. Decree be drawn up accordingly.
