# Smt. Kajal Kiran Gupta @ Guddi v. Raj Kumar @ Golu

- **Citation:** (2024) 8 ILRA 473
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-29
- **Case number:** First Appeal No. 133 of 2012
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kajal-kiran-gupta-guddi-v-raj-kumar-golu-52376
- **Pages:** 9

## Headnote

A. Family Law - Hindu Marriage Act, 1955
- Section 12 (1) (C) - Voidable marriage -
Fraud - Concealment of fact regarding
wife's first marriage - Appellant failed to
prove her assertion that the factum of
previous marriage was disclosed to the
respondent/plaintiff and only thereafter
marriage of the appellant was solemnized
with the respondent - No evidence has
been led on behalf of the appellant nor
appellant has produced her mother or
brother or father in the witness box to
prove the said fact - There was no decree
of divorce of her first marriage - Effect -
Held, the factum of previous marriage of
the appellant with Rajendra Kumar Gupta
was a material fact concerning the wife
(respondent)
relating
to
her
marital
status, which was never disclosed to the
husband (plaintiff), as such, the consent
of the respondent for marriage with the
appellant was obtained by fraud and
deceipt thereby attracting Section 12 (1)
(c) of the Act, 1955. (Para 19 and 20)

Appeal dismissed. (E-1)

List of Cases cited:

## Text

8 All. Smt. Kajal Kiran Gupta @ Guddi Vs. Raj Kumar @ Golu
473

22. The term "desertion" has been
explained by the Hon'ble Supreme Court in
Debananda Tamuli v. Kakumoni Kataky:
(2022) 5 SCC 459, in the following words: -

"7. ...The law consistently laid down
by this Court is that desertion means the
intentional abandonment of one spouse by the
other without the consent of the other and
without a reasonable cause. The deserted
spouse must prove that there is a factum of
separation and there is an intention on the part
of deserting spouse to bring the cohabitation to
a permanent end. In other words, there should
be animus deserendi on the part of the deserting
spouse. There must be an absence of consent on
the part of the deserted spouse and the conduct
of the deserted spouse should not give a
reasonable cause to the deserting spouse to
leave the matrimonial home.

* * *

8. The reasons for a dispute between
husband and wife are always very complex.
Every matrimonial dispute is different from
another. Whether a case of desertion is
established or not will depend on the peculiar
facts of each case. It is a matter of drawing an
inference based on the facts brought on record
by way of evidence."

23. The respondent had left the
appellant's house on 09.05.2014 and she did not
return to live with him till date, i.e. for more
than a decade. The respondent is not contesting
the appeal, which shows that she has no interest
in her relation with the appellant and which
indicates that the respondent has abandoned the
relationship between herself and the appellant
and an animus deserendi on her part, which is
sufficient to constitute desertion.

24. In view of the aforesaid facts, we are
of the considered view that the respondent has
deserted the appellant.

25. The aforesaid facts are sufficient for
grant of a decree of divorce in favour of the
plaintiff-appellant. The Family Court has erred in
dismissing the plaintiff's suit for grant of divorce.

26. In view of the aforesaid discussion, our
decision of the points involved in this appeal is as
follows: -

a) The facts and circumstances of the
case evidenced by the material available on record
make out the grounds of cruelty and desertion.

b) The judgment and decree passed by
the Family Court dismissing the suit for divorce is
unsustainable in law.

27. Accordingly, the appeal is allowed. The
judgment and decree dated 08.02.2022, passed by
the First Additional Principal Judge, Family
Court, Hardoi, in Regular Suit No.607 of 2019:
Apoorva Gupta Versus Vandana Gupta, under
Section 13 of Hindu Marriage Act, 1955 is set
aside and the suit is decreed. A decree of divorce
is granted in favour of the plaintiff dissolving his
marriage with the defendant-respondent, which
was solemnized on 14.04.2012.

28. Costs of the litigation made easy.
----------
(2024) 8 ILRA 473
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 133 of 2012

Smt. Kajal Kiran Gupta @ Guddi
 ...Appellant
Versus
Raj Kumar @ Golu ...Respondent

Counsel for the Appellant:
474 INDIAN LAW REPORTS ALLAHABAD SERIES
U.S. Sahai

Counsel for the Respondent:
Madan Gopal Misra

A. Family Law - Hindu Marriage Act, 1955
- Section 12 (1) (C) - Voidable marriage -
Fraud - Concealment of fact regarding
wife's first marriage - Appellant failed to
prove her assertion that the factum of
previous marriage was disclosed to the
respondent/plaintiff and only thereafter
marriage of the appellant was solemnized
with the respondent - No evidence has
been led on behalf of the appellant nor
appellant has produced her mother or
brother or father in the witness box to
prove the said fact - There was no decree
of divorce of her first marriage - Effect -
Held, the factum of previous marriage of
the appellant with Rajendra Kumar Gupta
was a material fact concerning the wife
(respondent)
relating
to
her
marital
status, which was never disclosed to the
husband (plaintiff), as such, the consent
of the respondent for marriage with the
appellant was obtained by fraud and
deceipt thereby attracting Section 12 (1)
(c) of the Act, 1955. (Para 19 and 20)

Appeal dismissed. (E-1)

List of Cases cited:

1. Raghunath Gopal Daftardar Vs Vijaya
Raghunatha Gopal Daftarda; 1971 SCC OnLine
Bom 52

2. Harbhajan Singh Vs Shrimati Brij Balab; 1963
SCC OnLine Punj 139

(Delivered by Hon'ble Om Prakash Shukla, J.)

Prelude

(1) This is an appeal filed under
Section 28 of the Hindu Marriage Act,
1955 by the wife/appellant, challenging the
judgment/ decree dated 31.07.2012 passed
by the Principal Judge, Family Court,
Faizabad in Original Suit No. 44 of 1997:
Raj Kumar alias Golu vs. Smt. Kajal Kiran
alias Guddi and another, filed by the
husband/respondent
under
Section
12
(Voidable
marriages)
of
the
Hindu
Marriage Act, 1955.

(2) Vide judgment/decree dated
31.07.2012, the Principal Judge, Family
Court, Faizabad, has allowed the Original
Suit No. 44 of 1997 and has declared the
marriage of the respondent/ husband with
appellant/wife dated 26.04.1994 as void
and ineffective.

Factual Matrix

(3) Shorn of unnecessary details, facts
in brief, as borne out from the pleadings,
are as under:-

I. On 26.04.1995, the marriage of
the
appellant
was
solemnized
with
respondent. Gauna took place subsequently
and thereafter appellant and respondent
lived as husband and wife at Faizabad. One
Shri Rajendra Prasad Gupta, resident of
Mohalla Gillat Bazar, Varanasi, came to
the respondent's house on 28.04.1995 and
told him as well as the respondent's father
and mother that prior to marriage of the
respondent with the appellant, the appellant
had
married
him
on
17.05.1990
in
accordance with Hindu rites and rituals.
Shri Gupta told him (respondent) that
subsequently, the appellant developed illicit
relationship with another man and as such
she was not ready to come back to him.
Consequently, his marriage with the
appellant was dissolved in accordance with
mutual understanding for which written
agreement was also entered between them
on 16.08.1992, which bears signature of the
appellant and her father, and, thumb
impression of her mother.
8 All. Smt. Kajal Kiran Gupta @ Guddi Vs. Raj Kumar @ Golu
475

II. On verification, respondent
found these facts to be correct. On being
confronted, as per the respondent/plaintiff,
the appellant/ defendant accepted these
facts and also that they were concealed by
her from the respondent/husband. This led
to the filing of the Original Suit No. 256 of
1995 by the respondent under Section 12 of
the Act, 1955 in the District Court on
11.07.1995.

III. The case of the plaintiff was
that the defendant has committed a fraud on
him by concealing the factum of her earlier
marriage and alleged divorce from him,
which was a material fact/circumstance
regarding her marital status, therefore, he is
entitled to relief as prayed on the ground of
Section 12 (1) (c) of the Act, 1955.
Defendant of the case denied these
allegations and stated that these facts were
disclosed to the plaintiff and his family
members, who were well aware of the
same, before marriage, but a cooked up
story has been putforth only because the
demand of dowry of the plaintiff etc. could
not be met by the defendant and her family
members.

IV. In the said suit, the Judge
(Small Causes Court), Faizabad passed an
order
of
interim
maintenance
on
22/24.01.1996. This order was put to
challenge by the plaintiff by filing Civil
Revision No. 23 of 1996, wherein an
interim order was passed by the District
Judge, Faizabad, staying the order of trial
Court dated 22/24.01.1996. Ultimately, the
revision was allowed on 05.12.1997, with
the prima facie observation that divorce of
the defendant from the first husband Shri
Gupta was not proved, therefore, prima
facie, she does not appear to be the wife of
revisionist/plaintiff. Thereafter, the Family
Court was constituted at Faizabad and on
the file being transferred to it, the suit was
renumbered as Original Suit No. 44 of
1997.

V. On the basis of the pleadings
in the suit, the Family Court framed four
issues as under :-

1. D;k izfrokfnuh o mlds ifjokjhtu us
izfrokfnuh dh r`rh;&i{k jktsUnz ls LkEiUu gqbZ 'kknh
ds RkF; ls oknh o mlds ifjokjhtuksa ls fNik dj o
izfrokfnuh dks dqaokjh crkdj izfrokfnuh dh 'kknh]
oknh ds lkFk dj nh] tSlk fd okn&i= esa dgk x;k
gS] ;fn gkW rks izHkko \

2. D;k izfrokfnuh us fdlh vU; O;fDr
ds lkFk voS/k 'kkjhfjd lEcU/k dk;e fd;k] tSlk fd
okn&i= esa dgk x;k gS \

3. D;k oknh] izfrokfnuh ls ngst dh ekWx
djrk gS vkSj mlds vnk u djus ds dkj.k gh mldk
ifjR;kx dj j[kk gS] tSlk fd izfrokn&i= esa dgk
x;k gS \

4. vuqrks"kA

VI. Parties led evidence before
the trial Court on the issues framed.
 VII. In support of his case,
respondent/husband
recorded
his
own
deposition
as P.W.1
and
also
filed
documents viz. (i) affidavit sworn by the
respondent/husband (marked as paper no.
174 Ga 2); and (ii) affidavit sworn by one
Brijesh Kumar Singh (marked as paper no.
175 Ga 2).

VIII.
Apart
from
it,
the
respondent/husband had also filed other
documentary evidences i.e. (i) vide List 6Ga-1, a photocopy of documents pertaining
to marriage of the appellant with Rajendra
Kumar
Gupta,
a
photocopy
of
the
agreement
of
dissolution
of
marriage/divorce between the defendant/
appellant and Rajendra Kumar Gupta, a
copy of Registry notice sent by Raj Kumar
(respondent) dated 17.06.1995; (ii) vide
List-Ga-2, a copy of the certificate issued
by
Labour
Inspector
indicating
the
registration of shop dated 24.08.1981; (iii)
vide List 32-Ga-2, an envelop of the
marriage card of the plaintiff/ respondent
and the defendant/appellant; (iv) vide List
476 INDIAN LAW REPORTS ALLAHABAD SERIES
176 Ga-1, 04 CDs (in seal cover) and 10
photographs; and (v) vide List 211-Ga-2, a
copy of the order dated 22.10.2010 passed
in Writ Petition No. 36 of 1998 by High
Court of Judicature at Allahabad, Lucknow.
 IX. On the other hand, the
appellant/wife recorded her own deposition
as D.W.1 and also filed one documentary
evidence
viz.
original
document
for
dissolution of marriage dated 16.08.1991
(marked as List-36 Ga 1).
 X. The Family Court, after
appraising the pleadings and evidence on
record, decided issue no.1, as mentioned
above, in affirmative in favour of the
respondent/husband by recording a finding
that
there
is
no
evidence
either
documentary or oral that prior to marriage
of
the
appellant/defendant
with
the
respondent/plaintiff,
respondent
had
knowledge about earlier marriage of the
appellant with Rajendra Kumar Gupta and
the appellant/defendant has admitted the
fact that earlier her marriage had been
solemnized with Rajendra Kumar Gupta on
15.05.1990 and her marriage was thereafter
dissolved as per local customs.

XI. So far as issue no.2, regarding
illicit relationship of the appellant/wife is
concerned, the Family Court has recorded a
finding that though the respondent/husband
had alleged that erstwhile husband of his
wife (appellant) told him about her illicit
relationship with some other person, but the
respondent/husband did not produce the
said Rajendra Kumar Gupta in the witness
box, therefore, the respondent could not
prove
his
allegation
about
illicit
relationship of his wife and accordingly,
issue no.2 was decided in the negative and
in favour of appellant/defendant.
 XII. So far as issue no.3 with
regard to allegation of the appellant/wife
about demand of dowry by her husband and
that on account of non-fulfillment of the
demand of dowry, her husband had
abandoned her, is concerned, the Family
Court found that letters available on record
and marked as 33Ga 1/1 and 33 Ga 1/2,
which were admitted by the appellant as
written by her, did not mention the demand
of dowry, therefore, allegations of appellant
with regard to demand of dowry by the
husband from her were found to be
unreliable, as such, issue no.3 was decided
in the negative, against the appellant/
defendant on the ground that there is no
evidence regarding demand of dowry.

XIII. Based on its findings on the
aforesaid three issues, the Family Court has
proceeded to decide issue no.4 pertaining to
relief
and
has
opined
that
as
the
appellant/defendant has failed to prove that
prior
to
her
marriage
with
the
respondent/plaintiff, she had disclosed to
her husband/respondent about her earlier
marriage with Rajendra Kumar Gupta and
its dissolution, as such, issue no. 4 was
decided in favour of the respondent/
husband. Consequently, the Family Court
decreed
the
suit
in
favour
of
the
respondent/husband and declared marriage
of the appellant with the respondent void
and ineffective by virtue of the impugned
judgment/decree dated 31.07.2012.

XIV.
It
is
the
aforesaid
judgment/decree dated 31.07.2012, which
has been challenged in the present appeal
by the appellant/wife.

Points of Determination

(4) Based upon the pleadings,
evidence on record and the impugned
judgment passed by the Trial Court, the
following points for determination arise
before us in this appeal:-

1.
Whether
the
appellantdefendant has concealed the factum of her
first marriage and alleged Divorce from the
8 All. Smt. Kajal Kiran Gupta @ Guddi Vs. Raj Kumar @ Golu
477
respondent-plaintiff, thereby committing a
fraud as to a material fact/circumstance
relating to her marital status, thereby
entitling him to declaration under Section
12 (1) (c) of the Act, 1955 ?

2. Whether the Family court has
erred on facts and law by passing the
impugned
judgment
and
decree
by
recording perverse and illegal findings?

Discussion & Analysis

(5) We have heard Smt. Bhavna
Gupta and Shri Devraj Singh holding brief
of Shri U.S. Sahai, learned Counsel
representing the appellant/wife and Shri
Vinod Kumar Srivastava holding brief of
Shri Madan Gopal Mishra, learned Counsel
representing the respondent and perused the
records and the impugned judgment and
decree.

(6)

The
main
plank
of
the
submissions made by the learned Counsel
for the appellant/wife was that the only
basis upon which the suit filed by the
respondent-plaintiff was decreed is the
statement of the respondent-plaintiff to the
effect that the appellant had earlier married
Rajendra Kumar Gupta but she did not
disclose
her
marital
status
to
the
respondent-plaintiff prior to marriage and
even thereafter, which were factually
incorrect. It was contended by the learned
Counsel for the appellant that prior to
marriage
of
the
appellant
with
the
respondent,
mother
of
the
appellant/defendant gave full information
regarding
the
first
marriage
of
the
appellant/ defendant as well as about
dissolution of the said marriage by way of
agreement dated 26.04.1995 and in order to
satisfy
themselves
fully,
the
respondent/plaintiff and some of his
relatives came to her house for seeing the
appellant/defendant and thereafter they all
met her family members and had stayed
overnight and thereafter, on the next day,
they had also made inquiries in the village
and thereafter when they were fully
satisfied, only then they had fixed the dates
for tilak and marriage ceremony. Thus, his
submission was that none of the grounds
put forth by the respondent/plaintiff in the
suit constitute a ground to declare the
marriage of the appellant/defendant with
the
respondent/plaintiff
as
void
and
ineffective in terms of Section 12 (1) (c) of
the Act, 1955 and even the suit filed by the
respondent/plaintiff under Section 12 of the
Act, 1955 is not maintainable since none of
the pre-conditions were satisfied.

(7) Replying to the aforesaid
contentions raised by the appellant, learned
Counsel for the respondent argued that the
evidence led by the respondent/plaintiff
clearly establishes that prior to her
marriage with the respondent/plaintiff, the
appellant/defendant had never informed
him regarding her previous marriage with
Rajendra
Kumar
Gupta
nor
their
dissolution of marriage through agreement.
Learned Counsel taking us through the
deposition of the respondent/plaintiff and
the documents placed in the suit as well as
testimony of the respondent/plaintiff, has
contended that respondent/plaintiff was
extensively cross-examined but on the
point of knowledge of the previous
marriage of the appellant with Rajendra
Kumar Gupta, respondent/plaintiff was not
cross-examined nor any attempt was made
on her behalf to cross-examine further
during pendency of the plaint, which,
according to him, itself proves the fact that
prior to marriage, appellant had not
informed the respondent about the factum
of her previous marriage with Rajendra
Kumar Gupta. Moreso, burden of proof lay
478 INDIAN LAW REPORTS ALLAHABAD SERIES
on the appellant/defendant to prove the fact
that she had informed about her previous
marriage to the plaintiff. Thus, the findings
recorded by the learned Family Court are
just and proper.

(8) To consider the rival arguments
and in order to answer the aforesaid point
for determination, it will be apposite to
mention herein that Section 12 of the Act,
1955 speaks about voidable marriage,
which reads as under :-

"Section
12.
Voidable
Marriage.- (1) Any marriage solemnised,
whether before or after the commencement
of this Act, shall be voidable and may be
annulled by a decree of nullity on any of
the following grounds, namely:

(a) that the marriage has not been
consummated owing to the impotence of
the respondent; or

(b) that the marriage is in
contravention of the condition specified in
clause (ii) of section 5; or

(c) that the consent of the
petitioner, or where the consent of the
guardian in marriage of the petitioner
was required under section 5 as it stood
immediately before the commencement
of
the
Child
Marriage
Restraint
(Amendment) Act, 1978 (2 of 1978), the
consent of such guardian was obtained
by force or by fraud as to the nature of
the ceremony or as to any material fact
or
circumstance
concerning
the
respondent; or

(d) that the respondent was at the
time of the marriage pregnant by some
person other than the petitioner."

(9) A specific averment has been
made in various paragraph of the plaint
especially
para-7
regarding
the
appellant/defendant not having disclosed to
the respondent/plaintiff about her marriage.
In paragraph-6, plaintiff has pleaded that
before her bidai, the respondent/plaintiff
inquired from the appellant about the
factum of previous marriage, whereupon
she firstly denied it but when the document
relating to dissolution of her first marriage
was shown to her, then, she admitted it and
also stated that the said fact was concealed
from him (plaintiff) so that her marriage
could be solemnized.

(10) The defendants no. 1 to 3 in the
suit that is the appellant/wife, her mother
and father filed a joint written statement,
wherein they admitted the factum of earlier
marriage of the appellant with Rajendra
Kumar Gupta but said Shri Gupta and his
family members used to demand dowry,
which could not be fulfilled, therefore, the
marriage was dissolved on 16.08.1992.
Most important, they have averred in para18 that these facts were known to the
respondent/plaintiff
and
his
family
members. They had inquired from villagers
and
only
thereafter
marriage
was
solemnized.

(11) Since, the respondent/husband
had premised the present petition before the
learned Family Court on the basis of fraud
played on him concerning the appellant's
previous marriage, it would be apt to
understand the meaning and import of
'fraud' used in Section 12 (1) (c) of the
Act, 1955.

(12) The term "Fraud" in the context
of Section 12(1)(c) of the Act, 1955 was
interpreted by the Hon'ble Bombay High
Court in the case of Raghunath Gopal
Daftardar vs Vijaya Raghunatha Gopal
Daftarda : 1971 SCC OnLine Bom 52. It
culled out a distinction between the term
"fraud‟ as appearing in Section 17 of the
8 All. Smt. Kajal Kiran Gupta @ Guddi Vs. Raj Kumar @ Golu
479
Indian Contract Act, 1872 and in Section
12 of Act, 1955 by observing that marriage
under Hindu Law is treated as a 'Sanskara'
or a sacrament and not a mere civil
contract. The term "fraud" as used in the
Act, 1955 is not a "fraud" in any general
way and that every misrepresentation or
concealment would not be fraudulent. If the
consent given by parties is a real consent to
the solemnization of marriage, then the
same cannot be circumvented by alleging
fraud. Similarly, in the case of Harbhajan
Singh vs Shrimati Brij Balab : 1963 SCC
OnLine Punj 139, it was observed that
'fraud' as a ground for annulment of
marriage under the Hindu law is limited to
those cases where the consent for marriage
was obtained by some deception. Thus,
under
the
Hindu
Law,
not
every
misrepresentation or concealment of a fact
shall amount to "fraud" as envisaged under
Section 12(1)(c) for annulment of a
marriage. The fraud must be material as to
the nature of ceremony or to any material
fact
or
circumstance
concerning
the
respondent and thus, at this point it is
pertinent
to
consider
what
would
tantamount to a material fact. The meaning
of
"material
fact"
or
"circumstance
concerning the respondent" is difficult to
define with certainty. However, it would be
reasonable to say that fact or circumstance
which is of such a nature that it would be
material or relevant to the consent for
marriage would be a material fact or
circumstance in terms of Section 12 (1) (c)
of the Act, 1955. A fact, which if disclosed,
would result in either of the parties not
consenting to the marriage, would be a
material fact. Such a material fact must be
in respect of the person or the character of
the person.

(13) A bare perusal of Section 12 of
the Act, 1955 reveals that any marriage
solemnized, whether before or after the
commencement of this Act, shall be
voidable and may be annulled by a decree
of nullity inter alia on the ground, if, (i) the
consent of the petitioner is obtained by
"force" or by "fraud"; (ii) such "force" or
"fraud" must be as to the "nature of the
ceremony" or as to "any material fact or
circumstance" concerning the respondent.

(14) To prove his case, apart from the
evidence led by respondent/plaintiff as
P.W.1, he has also filed documents viz. (i)
affidavit sworn by the respondent/husband
(marked as paper no. 174 Ga 2); and (ii)
affidavit sworn by one Brijesh Kumar
Singh (marked as paper no. 175 Ga 2).
Apart from it, the respondent/husband has
also filed other documentary evidences i.e.
(i) vide List 6-Ga-1, a photocopy of
documents pertaining to marriage of the
appellant with Rajendra Kumar Gupta, a
photocopy of the agreement of dissolution
of marriage/divorce between the defendant/
appellant and Rajendra Kumar Gupta, a
copy of Registry notice sent by Raj Kumar
(respondent) dated 17.06.1995; (ii) vide
List-Ga-2, a copy of the certificate issued
by
Labour
Inspector
indicating
the
registration of shop dated 24.08.1981; (iii)
vide List 32-Ga-2, an envelop of the
marriage card of the plaintiff/ respondent
and the defendant/appellant; (iv) vide List
176 Ga-1, 04 CDs (in seal cover) and 10
photographs; and (v) vide List 211-Ga-2, a
copy of the order dated 22.10.2010 passed
in Writ Petition No. 36 of 1998 by High
Court of Judicature at Allahabad, Lucknow.

(15) In his lengthy statement,
respondent/plaintiff (P.W.1) has explained
all the details including the fact that how
the appellant/defendant and her family
members played fraud against him (P.W.1)
and solemnized his marriage with the
480 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant. In his deposition, he (P.W.1) has
stated that prior to his marriage with the
appellant, he had no knowledge about
previous marriage of the appellant with
Rajendra
Kumar
Gupta
nor
anyone
informed him in this regard. He came to
know about it only on 28.04.1995. P.W.1
was extensively cross-examined by the
appellant/defendant, however, on the point
of having knowledge of previous marriage
with Rajendra Kumar Gupta prior to his
marriage with the appellant, P.W.1 was not
cross-examined. The deposition of P.W.1
on this point has not been dislodged in his
cross-examination
by
the
appellant/
defendant.

(16) As it is the appellant/defendant
who had asserted that they had disclosed
the previous marriage, therefore, the burden
lay on her to prove this assertion.

(17) The appellant/defendant was
examined
as
D.W.1,
wherein
she
admitted her marriage with Rajendra
Kumar Gupta in the year 1990. She has
stated that after marriage, she went along
with Rajendra to his house at Varanasi
and lived therein for two days along with
him. She came back to her parents' house
from the house of Rajendra after two
days of the marriage and did not go back.
She admitted the document/agreement
relating to dissolution of marriage,
however she has stated that these facts
have been disclosed to the respondent and
his family members prior to marriage and
the agreement dissolving the marriage as
per local customs had been given by her
brother, who had arranged her marriage.
She has also stated that she has disclosed
the fact in detail when asked by
respondent. She has also stated that no
divorce had taken place with Rajendra
Kumar Gupta through Court. She had not
lived with Raj Kumar (respondent) since
1995.

(18) However, appellant did not
produce her brother who could have
proved as to whether he had handed over
the
agreement
dated
16.08.1992
to
respondent or his family members prior
to marriage of his sister, if so, when. She
has also not produced her father and
mother for examination. Moreover, in
cross-examination of P.W.1, no specific
question or suggestion was given on her
behalf that he had prior knowledge of
appellant's first marriage or that the
appellant and his family members had
informed him about it. A cursory
suggestion appears to have been given
towards end of cross-examination that no
fraud has been committed with him, but
this is not sufficient.

(19) From the aforesaid testimonies of
P.W.1 and D.W.1, two facts are clear;
firstly the factum of previous marriage of
the appellant was not in the knowledge of
the
respondent/plaintiff
prior
to
his
marriage nor anyone informed him or his
family members in this regard; secondly,
the factum of previous marriage of the
appellant for the first time came to the
notice of the respondent when previous
husband of respondent, namely, Rajendra
Kumar Gupta, came to the house of the
plaintiff on 28.04.1995. Further, appellant
has failed to prove her assertion that the
factum of previous marriage was disclosed
to the respondent/plaintiff and his family
members and only thereafter marriage of
the appellant was solemnized with the
respondent. She has failed to discharge her
burden in this regard. No evidence has been
led on behalf of the appellant nor appellant
has produced her mother or brother or
father in the witness box to prove the said
8 All. Mahavir Prasad Vs. Balveer Singh & Anr.
481
fact, though, it was she who asserted that
her
mother
had
informed
the
respondent/plaintiff regarding the first
marriage with Rajendra Kumar Gupta.
Having not done so, the learned Family
Court has rightly drawn an adverse
inference of the same. On this count, we
hold that the appellant has failed to prove
that prior to her marriage with the
respondent/plaintiff, her mother or her
family member or she herself informed the
factum of previous marriage with Rajendra
Kumar Gupta to the respondent.

(20) In the facts of the present
case, it is decipherable that the factum of
previous marriage of the appellant with
Rajendra Kumar Gupta was a material fact
concerning the wife (respondent) relating to
her marital status, which was never
disclosed to the husband (plaintiff), as
such, the consent of the respondent for
marriage with the appellant was obtained
by fraud and deceipt thereby attracting
Section 12 (1) (c) of the Act, 1955,
therefore, he is entitled to a declaration as
granted by the Family Court. Point No. 1 is
answered accordingly.

(21) There is another aspect of the
matter. The appellant/defendant has not
been able to prove that there was any
custom in her caste or locality for
dissolution of marriage by a written
agreement. No evidence has been led by
her in this regard. She admits to her first
marriage. There is no decree of divorce by
any Court pertaining to her first marriage.
If this reasoning is taken further, then, it
will lead to the conclusion that the alleged
second marriage apart from being violative
of Section 12 (1) (c) is also a nullity during
subsistence of the first marriage in view of
Section 5 (i) of the Act, 1955, but we do
not proceed on this line as the suit was
under Section 12 of the Act, 1955 and not
Section 11.

(22) The trial Court has considered
all the evidence to which we have made a
reference and has correctly arrived at its
finding with regard to issues no. 1, 2, 3 and
4 and has rightly declared the marriage of
the respondent/plaintiff with appellant/
defendant as null and void. There is no
perversity in the judgment of the trial
Court. The point no.2 for determination
referred earlier is answered accordingly.

(23) The appeal is dismissed. No
order as to costs.
----------
(2024) 8 ILRA 481
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 540 of 2024

Mahavir Prasad ...Appellant
Versus
Balveer Singh & Anr. ...Respondents

Counsel for the Appellant:
Prem Prakash Chaudhary

Counsel for the Respondents:
Abhishek Gupta, Chandra Bhan Gupta

CIVIL LAW -Civil Procedure Code, 1908-
Section - 100 - Order - II, Rule 2, -
Specific Relief Act, - Sections 22, 22(1)(a)
& 22(2) - Registration Act, 1908 - Sections
58, 59 & 60 - Evidence Act, 1872 -
Sections 91 & 92--Second Appeal filed by
Defendant-Appellant - Plaintiff-respondent filed
Original Suit - for specific performance of a
registered agreement for sale - decreed - Civil
Appeal filed against which was dismissed -
present appeal - a plea was taken that the