Mansimran Kaur

New Delhi, June 6, 2022: While observing that the Family Court had rightly concluded that there was no valid marriage between the appellant-husband and the respondent-wife as the appellant had failed to prove the divorce of the respondent from her first husband, the Delhi High Court has opined that mere oral assertion of divorce which comes in the realm of hearsay evidence, can be of no consequence in the absence of any cogent evidence. 

Referring to Section 112 of the Indian Evidence Act, 1872, the Division Bench of Justice Mukta Gupta and Justice Neena Bansal Krishna said, “…child born during the countenance of a valid marriage shall be a conclusive proof of the legitimacy of the child, unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten.”

This was a case wherein the appellant-husband and respondent-wife got married on February 17, 2007. Thereafter, the respondent got pregnant and she decided to deliver the child in her paternal home in West Bengal. It was alleged that the appellant suddenly noticed behavioral change in her conduct towards him and she went to her paternal home. Thereafter, the appellant was unable to even see the newborn child. Then, the appellant filed the petition under Section 9 of the  Hindu Marriage Act, 1955 and the the parties made a settlement that they would reside peacefully together.

However, the respondent yet again refused to stay at the matrimonial house which, in turn, compelled the appellant to file the present petition for Restitution of Conjugal Rights.  In view of the same, the respondent filed her written statement wherein she denied her marital ties with the appellant and confirmed her marital status with one Sankar Nandi on April April 30, 2002.  It was further stated by the respondent that she had secured a job as a Technical Support Engineer and she needed a residence which was offered by the appellant.  It was also alleged by the respondent that the appellant was blackmailing the respondent with some superimposed nude photographs and was demanding Rs 2 lakh to return the documents and withdraw the petition.  

The Family Court concluded that the respondent was already married to Sankar Nandi at the time of alleged marriage with the appellant. In relation to the same, the appellant filed an appellant under Order 9 Rule 13 of CPC for review and recall of the judgment, however,  the same was dismissed by the Family Court on July 6, 2019. Hence, this appeal was filed.

The Court noted that the respondent was married in 2007 , thus the first requirement of clause (i) of Section 5 of the Act, 1955 which provides that both the spouses must be unmarried at the time of marriage was not satisfied.Next, the Court commented that the statement of the parties and the final order dated February 28, 2009 clearly reflected that the parties did not make any admission or statement about being married according to Hindu customs and rites.  On the issue of child’s custody, the Bench opined that the child was born on January 4, 2008, during the subsistence of marriage between the respondent and Sankar Nandi and so, the child born during the countenance of a valid marriage was a conclusive proof of the legitimacy of the child.

In view of the aforesaid observations, the Court noted that the assertions of existence of a valid marriage between appellant and the respondent was not proved and the appellant also failed to even file the affidavit of evidence.  Thus, the Court observed that the impugned order did not suffer from any legal infirmity and accordingly, the appeal was dismissed on account of being meritless. 

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