31 August 2020

Where a party to the suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct

The fact remains that there is no evidence on record to hold that defendant No.1 Dashmat Bai admittedly, firstly married Kunjilal, but there is no evidence on record to hold that whether he or she divorced each other and marriage between Kunjilal and Dashmat Bai had ever been validly dissolved. Similarly, it is the further admitted position on record that Dashmat Bai entered into marriage with Latel, but there is no evidence that divorce ever took place between them and thirdly, the alleged third marriage of Dashmat Bai with Sukhdev i.e. she has lastly married Sukhdev in Chudi form. Father of defendant No.1 Dashmat Bai namely, Jaitram (DW-1) has categorically stated that he was not present at the time when Dashmat Bai allegedly entered into marriage in Chudi form with Sukhdev. It is quite unnatural that father will not remain present at the time of such an important ceremony i.e. marriage of his daughter with a person namely Sukhdev. Similarly, Dashmat Bai herself could have entered into the witness-box and offered herself for cross-examination in absence of which adverse inference could be drawn against her.[Para No.20]

Where a party to the suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct
   The Supreme Court in Vidhyadhar (supra) has clearly held that where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. This decision has further been followed by their Lordships of the Supreme Court in Man Kaur (supra).[Para No.21]

    Thus, in view of the aforesaid fact it is quite evident that the fact of divorce by Dashmat Bai with her first husband Kunjilal and thereafter, with Latel - her second husband, is not proved. Similarly, the fact of marriage of Dashmat Bai with Sukhdev in Chudi form is also not at all established. There is no iota of evidence of marriage having been taken place between Dashmat Bai and Sukhdev in view of the testimony of her father Jaitram (DW-1) and other witness Jagdish Prasad (DW-2), as they were not present in the said alleged marriage and in view of the fact that defendant No.1 Dashmat Bai did not offer herself for cross-examination, adverse inference against her has to be drawn. Statement of Bisahu (DW-4), office-bearer of the Samaj, that he was present in the marriage that took place between Dashmat Bai and Sukhdev in Chudi form, cannot be accepted.[Para No.22]

Chattisgarh High Court

Anirudh Prasad Kamal Sen
Vs.
Dashmat Bai Suryavanshi

Decided on 28/08/2020





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