A.K. Awasthy, J.
1. Appellant/non-applicant has filed this appeal under Section 28 of the Hindu Marriage Act against the finding of judgment dated 30th June, 1993 passed by the IVth Additional Judge to the Court of District Judge. Jabalpur in Civil Suit No. 15-A/86 which is regarding the solemnisation of marriage between the appellant and respondent.
2. The admitted facts of the case are that the appellant is working in the Police Department in M.P. and he is permanent resident of Gram Mongra, Badshahpur, Distt. Jaunpur (UP). It is also a common ground that in the year 1984 the appellant has got married with one Maya Devi.
3. Respondent/petitioner has filed the petition under Section 9 of the Hindu Marriage Act for the restitution of conjugal rights against the defendant alleging that the marriage between the appellant and respondent was performed in the year 1975 at village Serawan Atrampur, P.S. Nawabganj, Distt. Allahabad according to Hindu rites and customs and the petitioner led for about 5 years the matrimonial life with the appellant. That in the year 1982 appellant has joined the Police Department as a constable and he was posted at Jabalpur. That the appellant had stopped from 1982 of coming to village to meet the petitioner. That father of the petitioner went to persuade the appellant at Jabalpur and there he had learnt that the respondent in the year 1984 has performed the second marriage with one Maya Upadhyay. The petitioner has prayed that order be passed against the respondent under Section 9 of the Hindu Marriage Act for the restitution of conjugal rights.
4. The appellant/non-applicant has stated in his reply that he has no knowledge of the marriage performed by him at the time when he was minor. He has denied that he got married with the petitioner and the petitioner lived with him as his wife. The respondent has alleged that Smt. Maya Upadhyay is his first wife. The appellant has resisted the prayer of the petitioner for restoration of conjugal rights.
5. Learned Trial Court has examined Ramautar Shukla (A.W. 1), Smt. Prema @ Preemwati (A.W. 2) and Shodilal Ojha (A.W. 3) and from the other side the appellant as NAW 1 along with Ramabhilash Ojha (NAW 2). Learned Trial Court has held that the petitioner is married wife of the appellant. The Trial Court has rejected the prayer of the petitioner for restitution of conjugal rights on the ground that the appellant is living with second wife Maya Upadhyay.
6. The appellant has assailed the finding of the learned Trial Court on the ground that the evidence was not properly appreciated or assessed to hold that the respondent is legally married wife of the appellant.
7. Learned Counsel for the respondent has not assailed the judgment and decree of the learned Trial Court and it was submitted by him that the finding of the learned Trial Court that the respondent is legally married wife of the appellant is just and proper.
8. Smt. Prema as A.W. 2 has stated that when she was of the age of about 11 years then her marriage was performed with the appellant Laxmikant and the ceremony of 'Bhanwar' took place during the marriage. Smt. Prema (A.W. 2) has further stated that she lived with her husband for about five years and her husband got the service at Jabalpur and thereafter he had stopped coming to the village and left her. Smt. Prema has testified that her husband has performed the Court marriage with one Mayadevi who was the constable in the Police Department. The statment of Smt. Prema (A.W. 2) is assailed on the ground that she has failed to tell about the Samvat of her marriage and the year of her birth. The age of Smt. Prema (A.W. 2) at the time of her marriage with the appellant was about 11 years and she hails from a small village. Consequently, the fact that she is incapable of stating about the year of her birth and marriage is not enough to discredit her statement on oath which otherwise appears to be trustworthy and blameless.
9. Ramautar (A.W. 1) has stated that Premwati is his daughter and about 10 years back i.e. 1975 the marriage of Premwati with appellant Laxmikant was solemnised in accordance with Hindu customs. Ramautar (A.W. 1) stated that Premwati lived in her matrimonial house till the year 1984 and her husband Laxmikant got the service in the Police department at Jabalpur. Ramautar (A.W. 1) has deposed in his statment that the appellant got married with one Mayawati and the appellant assured that he will provide all the expenses and other facilities to her daughter Premwati. In the cross-examination of Ramautar (A.W. 1) not an iota of evidence appeared to doubt the veracity of his statement. Soudhilal Ojha (A.W. 3) has stated that about 17 years back, the marriage of the appellant and respondent was performed and in the marriage ceremony Bhanwar took place. Soudilal Ojha (A.W. 3) is a teacher in the Primary School. The statement of Soudilal Ojha (A.W. 3) is assailed by the learned Counsel for the appellant on the ground that he does not remember the year of the marriage and name of the Pandit who had performed the marriage between the appellant and respondent. The marriage between the appellant and the respondent was performed in the year 1976 and Soudilal Ojha (A.W. 3) was examined in the year 1993 and as such it is not unnatural to forget the Samvat of the marriage or the name of the Pandit who has performed the marriage. From the perusal of the statement of Ojha (A.W. 3), it is clear that his statement is natural and trustworthy.
10. Learned Counsel for the appellant has alleged that the respondent has not produced voter list of the village to show that she is a married wife of the appellant. The respondent is a lady hailding from rural area and her father has also expired. In view of the statement of the respondent and her father Ramautar Shukla (A.W. 1), Soudilal Ojha (A.W. 3) it will not be proper to draw adverse inference due to the failure of petitioner in filing voter list to show that the appellant is her husband.
11. There is difference between the burden of proof and burden of adducing evidence. The burden of establishing remains through the entire case exectly where the pleadings originally place it. It never shift. The burden or onus of proof in the sense of introducing the evidence may shift constantly as evidence is introduced by one side or other as the one scale or other preponderates. The appellant is police official and it was easy for him to produce the voter list to show that the respondent was not shown in the voter list as his wife. The appellant has not produced any document to show that the respondent is not his legally married wife.
12. Learned Counsel for the appellant has argued that the respondent has not led any evidence to show that ceremony of Saptapadi took place at the time of marriage. From the statement of Ramautar (A.W. 1) and Soudilal Ojha (A.W. 3) it is clear that the rites of 'Bhanwar' was performed in the marriage. The factum of marriage between the appellant and the respondent is proved and as such the presumption would be drawn that all the required ceremony of the marriage were performed. The policy of law is to lean in favour of the validity of the marriage. The Trial Court has rightly observed that in this regard the gullible reply of the appellant in his written statement is worth considering. The appellant in paragraph 1 of his reply which was relating to the factum of his marriage with the respondent has pleaded :
'xxx xxx xxx'
13. Consequently, from the statement of Ramautar Shukla (A.W. 1), =Premwati (A.W. 2) and Soudilal Ojha (A.W. 3) and the aforementioned pleading and the circumstances, it is proved that the respondent is validly married wife of the appellant. The findings of the learned Trial Court that the respondent is legally married wife of the appellant is hereby confirmed.
14. The appeal is without merit and it is hereby dismissed.