Murlidhar, J. - (1.) This is a husbands second appeal arising out of a wifes suit for judicial separation which has been decreed by both the courts below. The courts have also awarded maintenance of Rs. 300/- per month to the wife for herself and her child from the appellant husband.
(2.) The findings of fact recorded by the lower appellate court which have not been questioned in this Court are these: The appellant had married one Tara Devi in 1964. In 1969 there was a separation between him and Tara Devi. Tara Devi gave birth to a child by the appellant on 4-2-1969 and this child died on -7-1970. On 17-7-1970, appellant lodged police report against his in-laws about misbehaviour and assault on his visit to their place to fetch Tara Devi. In Aug. 1971, the appellant filed a declaration before his employer, the Food Corporation of India that he was married and had one wife living. On 16-2-1972 a Hindu marriage was solemnised between the appellant and the respondent. In this background the respondent filed a petition for judicial separation. The appellants defence was that the marriage itself was null and void because he had the earlier spouse Tara Devi living on the date of marriage. The lower appellate court held that there was no satisfactory and reliable evidence to prove that Tara Devi was alive on 16-2-1972 the day of solemnisation of appellants marriage with the respondent.
(3.) The only point canvassed in second appeal is that this finding is erroneous in law because after having found that Tara Devi was alive till August, 1970, the lower appellate court in the absence of any evidence about her death should have held that she was alive on 16-2-72 also and the marriage with the respondent was, therefore, void in accordance with Section 11 of Hindu Marriage Act. Reliance has been placed on Section 107, Evidence Act which runs as follows:- "When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it." Section 108 which is a proviso to Section 107 need not be referred to for it is irrelevant for the purpose of this case. The learned counsel contends that while the overall burden to prove that the marriage was a nullity owing to Tara Devi living on 16-2-1972 the date of marriage, was on the appellant, the burden of leading evidence got shifted to the respondent once Tara Devi was proved to have been alive till August, 1970. I am afraid it is not possible to accept this contention. Proof of the fact that a spouse was alive at the time of marriage in order to invalidate the marriage has to be a strict one, for law leans in favour of legality of marriage. Section 11 declares the marriage to be null and void inter alia if it contravenes the condition prescribed in Section 5 (i) viz. if either party has a spouse living. Therefore, the party seeking declaration has to prove strictly that a spouse was living on the date' of marriage. I do not think such proof can be through the presumption under Section 107 of Evidence Act. For the purpose of Section 11 there has to be proof that the spouse was alive on 16-2-1972 and not merely that she should be taken to be alive under Section 107 as she was alive a few months earlier and there is no evidence of death. The language of Section 107 also leads to the same conclusion. The presumption will apply where the question is whether a person was alive or dead. This is suggestive of a situation where neither the alive character nor death has to be proved strictly and not where the question is merely whether Tara Devi war alive on 16-2-1972.;