The photographs in my view and as also held by the learned District Judge, are not sufficient to prove the factum of marriage, especially when the same are not exhibited and proved on record in accordance with the Evidence Act. The appellant has taken no steps to lead secondary evidence in order to prove the said photographs. The photographs are not per se admissible. A Division Bench of the Bombay High Court in the case of Laxman Ganpati Khot and others Vs. Anusuyabai and another, AIR 1976 Bombay 264I, held as follows:-
"It is only when the person who takes a photographs and develops it into a negative himself comes into the box and deposes to both these facts,that a negative become admissible in evidence. As far as the enlarged print is concerned, the position is still worse for no print or enlargement can be admitted in evidence without its negative being produced and proved in the manner indicated above."
Therefore, the photographs are not to be read in evidence.
Punjab-Haryana High Court
Ramesh Kumar vs Sharda Devi @ Asha Devi on 4 November, 2009
This is an application under section 151 of the Code of Civil FAO No.284-M of 2004 2 Procedure for conducing DNA test of the children. It is averred in the application that the respondent is not the wife of the appellant nor the children have any concern with the appellant, but in view of the impugned judgment and decree he is being harassed. It is prayed that that in order to establish the paternity of the children DNA test be got conducted. Application is opposed.
The respondent/wife had filed a petition under section 9 of the restitution of conjugal rights which stands allowed. The applicant had an opportunity to ask for DNA, test but he chose not to do so. No reasons have been given as to why the relief claimed could not have been asked for in the learned matrimonial court. The application deserves to be rejected in view of the law laid down by Hon'ble Supreme Court in the case of Smt.Kamti Devi and another Vs. Poshi Ram AIR 2001 SC 2226 and AIR 1993 SC 229. In view of the authoritative pronouncement referred to above there is no merit in the application.
Dismissed.
FAO No.284-M of 2004
This is husband's appeal against the judgment and decree dated 20.4.2004 passed by the learned the learned Additional District Judge, (Ad-hoc), Faridabad on a petition filed by respondent/wife under section 9 of the Hindu Marriage Act, 1955 (for short the Act). The respondent/wife filed a petition under section 9 of the Act on the pleadings that she was married with the appellant Ramesh Kumar about 17 years back at Delhi according to Hindu rites and ceremonies. After FAO No.284-M of 2004 3 the marriage the parties lived together at Faridabad as husband and wife and 2 children namely Sanjay Kumar aged 15 years and Kumari Reena aged about 10 years were born out of the wedlock. It was the case of the respondent/wife, that the appellant never gave her love and affection and treated her with cruelty, but in spite of this, she always discharged her duties like a good and faithful wife. Request of the respondent/wife to mend his ways also did not meet with positive result. On 21.8.2000 the respondent lodged a complaint with Mahila Sangharsh Samiti, Mela Maharajpur, Faridabad, where the appellant was summoned where he gave an undertaking to file reply to the complaint on 27.8.2000. In the reply submitted he denied having married the respondent and claimed that she was living with him as a keep. It was also the case of the respondent that the appellant gave her severe beating on several occasions and compelled her to leave the matrimonial home. She was finally turned out of the house about 6 months prior to the filing of the petition. Since then she along with her children was residing in the house of her parents. It was also the pleaded case of the respondent that she was willing to join the company of the appellant, whereas the appellant had withdrawn from the society without reasonable excuse. It was also pleaded that the efforts for reconciliation failed as the appellant finally refused on 15.10.2000 to take her back to the matrimonial home. The petition was contested by the appellant by taking preliminary objections that this petition under section 9 of the Act was not maintainable because the ceremony of Sapatpadi had not been performed in front of sacred fire. Locus standi of the respondent to file the petition was FAO No.284-M of 2004 4 also challenged. It was also pleaded that the respondent had not come to the court with clean hands and had concealed and supressed the material and true facts.
On merit, the stand of the appellant was that he was residing with his father Maha Singh at House No.10/339 Dakshinpuri Extension, New Delhi ever since the year 1996. The respondent along with her son Sanjay and one daughter named Reena came to her father and took a portion of the above said house on rent. At the time of taking the house on rent she had stated her husband's name as Ramesh belonging to Himachal Pradesh. It was also stated by her that he was living in Himachal Pradesh to look after his ailing mother and would join her and children later on. It was out of pity that the house was given to her by the father of the appellant. The respondent lived in the house of his father up to March, 1997 but did not pay any rent, nor her husband namely Ramesh Kumar came from Himachal Pradesh to ask about her welfare. On inquiry the respondent revealed that originally she was married with a person who was living in Bihar. She had left the matrimonial home to stay with one Kapil Rai at Varis Nagar, District Samastipur. It was out of said wedlock, that she gave birth to a daughter namely Julli who was about 22 years of age and son namely Sanjay who was of 16 years of age. She further disclosed that she left Kamal Rai and also her daughter Julli and absconded with her another paramour namely Hossildar of Khanpur, Delhi, along with her son Sanjay. She lived with Hossildar for about 2 years and out of this relation one daughter named Reena was born. After 2 years of courtship even Hossildar left her and she came in contact with Ramesh a taxi driver FAO No.284-M of 2004 5 of Khanpur. He is also said to have left her when she came to stay in the house of the father of the appellant. Father of the appellant sold that house in March, 1998 and thereafter they came to Faridabad at House No.997, Sector-37 as tenant in the house of one Shri A.D.Ahuja. It was pleaded that the respondent was neither married to him nor she ever cohabited with him. It was also pleaded that there existed no matrimonial alliance between him and the respondent. It was further the case of the appellant that taking advantage of similarity of names, the respondent had come up with a false story. It was further pleaded case of the appellant that the respondent never lived with the appellant in his house No.1099 Sector 46, Faridabad and thast he had purchased the said plot in December, 1999. The house was still under construction. A plea was also taken that he was lawfully married with one Kanta daughter of Malkhan Singh resident of Mohalla Bariwala, Aligargh, Uttar Pradesh on 7.7.1984 and said marriage was dissolved by a decree of divorce on 24.8.1987. The plea, thus, raised was that the respondent was not a legally wedded wife of the appellant and therefore, the petition deserved to be dismissed.
Other allegations made in the petition were also denied. In the replication, averments made in the petition were denied and that of the petition were reiterated. Even decree of divorce was said to be a collusive to misguide the court, to plead that there was no valid marriage between the respondent and appellant.
On the pleadings of the parties, the learned matrimonial court framed the following issues:-
1. Whether the petitioner is the legally wedded wife of the FAO No.284-M of 2004 6 respondent, if so, its effect? OPP
2. If issue No.1 is proved, whether the respondent treated the petitioner with cruelty and compelled her to leave the matrimonial home for reasonable cause? OPP
3. Whether the petition is not maintainable? OPR
4. Whether the petitioner has got no locus standi and cause of action to file the present petition? OPR
5. Relief.
In order to prove her case, the respondent examined 7 witnesses namely PW 1 Avtar Singh, PW 2 Rajesh Kumar, PW 3 Prabhu Singh Bhati, PW 4 Laxmi wife of Roop Ram, PW 5 P.K.Seth, PW 6 Ashwani Kumar Sharma and she herself appeared as PW 7; whereas the appellant examined three witnesses i.e. RW 1 Brahma Devi, RW 2 Tek Chand and he himself appeared as RW 3.
Learned matrimonial court decided issue No.1 in favour of the respondent by relying upon Ex.P.4, photo copy of certificate issued in favour of Reena Singh daughter of Ramesh Kumar of Modern Convent School Faridabad for having been declared successful in 5th Class examination held in March, 2001. Reliance was also placed on P.12, photo copy of certificate issued by Central Board of Secondary Education Delhi whereby Sanjay Kumar son of Ramesh Kumar and Asha Devi was declared successful in Secondary School Examination held in the year 2000. The learned matrimonial court also took note of photograph mark-A which was photograph of the parties which was said to have been taken at the time when they had gone to Vaishno Devi. The learned matrimonial court also took note of the record of leave travel concession during the year 1992-93 FAO No.284-M of 2004 7 and the evidence of PW 6 Ashwani Kumar Sharma, Assistant Manager Punjab National Bank who proved the fact that the appellant had availed LTC in the year 1992 and had shown the name of Sharda Devi as his wife. Voter list was also taken note of. The learned matrimonial court also accepted the evidence of RW 3 who proved the proceedings Ex.P.6 and Ex.P.7 conducted on the complaint of the respondent. Notice of compromise before the police was also taken. Evidence of PW 4 Laxmi who is Pradhan of Mahila Sangharsh Samiti was also considered wherein she has stated that she knew the parties and that their marriage was performed at Kalkaji Mandir, Delhi about 20 years back. She claimed to have attended the marriage.
It may also be noticed that Ex.P.1 i.e. the application form submitted by the appellant for ration card was produced on record besides ration card Ex.P.2 which showed the appellant, her father and mother as well as the respondent and and children as family members. In view of the evidence referred to above the learned matrimonial court held that the marriage was proved. In view of the finding on issue No.1, and in view of the specific stand taken by the respondent in the petition other issues were also decided in favour of the respondent, and decree for restitution of conjugal rights was passed.
Mr.Rajiv Sharma, learned counsel for the appellant challenged the judgment and decree by contending that the respondent is not the wife of the appellant nor the children are his. The learned court was not justified in passing the decree of restitution of conjugal rights. The contention of the learned counsel for the appellant was that no evidence was led by the FAO No.284-M of 2004 8 respondent to prove the valid Hindu marriage as there was no proof of Sapatpadi or exchange of Jaimala, therefore, the marriage could not be said to be a valid marriage. In support of this contention learned counsel for the appellant placed reliance on the judgment of this court in the case of Vinit Kumar Behl Vs. Smt.Ruchi 2003 (2) RCR (Civil) 272, wherein this court was pleased to lay down as under:-
"22. It is evident from the above rule laid down in Kunta Devi's case (supra) that no presumption can be drawn that essential ceremonies were performed and there must be proof of Panigarh and Saptapati to constitute a valid marriage. In other words there has to be some material and cogent evidence on record from which an inference can be drawn that the ceremony of saptapadi for constituting a valid marriage was performed. The same cannot be deduced from the mere surrounding and attending circumstances. However, it is to be kept in mind that the standard of proof of such a marriage for the purpose of proceedings under the Act is not as strict as is required for trial for an offence of bigamy under section 494 of the Indian Penal Code. The Court can draw inference and decide the factum of marriage on the basis of preponderance of probabilities as in civil cases and not beyond a reasonable doubt as in criminal cases.
23. In the case in hand as already referred above, the appellant has primarily adverted to the statement of the respondent where she resiled from her earlier statement. FAO No.284-M of 2004 9 Besides, he has placed strong reliance on the photographs Mark A1 to A8 and stated that the respondent had admitted these photographs. In one of the photographs, it is shown that the parties are garlanding each other and in another photograph it is shown that they are sitting in front of the sacred fire and in another photograph they are standing in a manner as they were to go round the fire. The photographs in my view and as also held by the learned District Judge, are not sufficient to prove the factum of marriage, especially when the same are not exhibited and proved on record in accordance with the Evidence Act. The appellant has taken no steps to lead secondary evidence in order to prove the said photographs. The photographs are not per se admissible. A Division Bench of the Bombay High Court in the case of Laxman Ganpati Khot and others Vs. Anusuyabai and another, AIR 1976 Bombay 264I, held as follows:-
"It is only when the person who takes a photographs and develops it into a negative himself comes into the box and deposes to both these facts,that a negative become admissible in evidence. As far as the enlarged print is concerned, the position is still worse for no print or enlargement can be admitted in evidence without its negative being produced and proved in the manner indicated above."
Therefore, the photographs are not to be read in evidence. The FAO No.284-M of 2004 10 respondent appeared as RW 1 and stated that she had been depicted in the photographs with either the appellant or with other persons. However, she denies that such marriage ever took place. She states that the photographs were taken to put pressure on her parents to agree to the cancellation of her proposed marriage with Sanjay Jain. Therefore, the photographs in any case do not amount to proof of marriage. The so called admission can in no circumstances be constructed to be conclusive as to the factum of marriage. The photographs at the most are only a piece of evidence and the weight to be attached to them is dependent on the circumstances under which they were taken. They can be shown to be erroneous or untrue. In my view, even if there has been an admission of the photographs, the same in the circumstances noted above, do not amount of proof of marriage between the parties. There is only the statement of the appellant who appeared as PW 1 that he was married to the respondent at the house of his maternal uncle according to Hindu rites and ceremonies. His mere bald statement without any other evidence is not sufficient to hold that a marriage was solemnized between the parties. As held by this Court in Kunta Devi's case (supra) that where the marriage is disputed it is not enough to find that the marriage took place leaving it to be presumed that the rites and ceremonies necessary to constitute a legal marriage in the particular case were FAO No.284-M of 2004 11 performed. 'therefore, in the absence of cogent evidence in this regard,it is difficult to hold that the Sapapadi ceremony of marriage as contended by the appellant was performed so as to constitute a valid marriage between the parties." On consideration of matter, I find no force in this contention raised by the learned counsel for the petitioner. It is not a case where there is no proof of marriage. Rather PW 3 deposed about the performance of marriage in her presence. Furthermore, in the present case there is documentary evidence showing the relationship of the respondent with the appellant i.e. Ex.P.1 application form submitted for ration card which has the photographs of not only the appellant and the respondent but also other family members. Form is signed by the appellant himself though the appellant had denied his signatures but when the signatures on the form are compared with his signatures on the power of attorney, it leaves no manner of doubt that the form was signed by the appellant. Not only this student diary of daughter Reena placed on record also bears the signatures of the appellant. This document coupled with the record of leave travel concession produced from the office leaves no manner of doubt that the marriage between the parties stood proved. Merely because no averments were made regarding performance of Sapatpadi cannot be aground to hold that there was no valid marriage in the presence of documentary and oral evidence. It is well settled law that long cohabitation between a man and woman and when said union is accepted by the neighbourhood a presumption of marriage can be drawn. In the present case besides oral FAO No.284-M of 2004 12 evidence as already observed, documentary evidence on record proved the factum of marriage. The contention of the learned counsel for the appellant that there was no valid marriage for want of Sapatpadi, therefore, deserves to be noticed to be rejected.
The Hon'ble Supreme Court in the case of Challamma Vs. Tilaga & Ors. 2009 (3) RCR (Civil) 944 has been pleased to lay down as under:-
"10. It is beyond any cavil of doubt tht in determining the question of valid marriage, the conduct of the deceased in a case of this nature would be of some relevant. If on the aforementioned premise, the learned trial judge has arrived at a finding that the deceased Subramanya had marriued the first respondent, no exception thereto can be taken. A long cohabitation and acceptance of the society of a man and woman as husband and wife goes a long way in establishing a valid marriage.
In Tulsa Vs. Durghatiya, 2008 (1) RCR (Civil) 814: 2008(1) RAJ 316: (2008) 4 SCC 520, this court held:
"11. At this juncture reference may be made to the Section 114 of the Indian Evidence Act, 1872 (in short the "Evidence Act"). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be FAO No.284-M of 2004 13 presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.
12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. A. Dinohamy v. W.L. Blahamy their Lordships of the Privy Council laid down the general proposition that:
"Where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage.
13. In Mohabhat Ali v. Md. Ibrahim Khan their Lordships of the Privy Council once again laid down that:
" The law presumes in favour of marriage and against concubinage when a man and woman have cohabited
continuously for number of years."
14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act."
It is also well settled that a presumption of a valid marriage although is a rebuttable one, it is for the other party to establish the same, (See Ranganath Parmeshwar Panditrao Modi Vs. Eknath Gajanan Kulkarni (1996) 7 SCC 681 and Sobha FAO No.284-M of 2004 14 Hymavathi Devi Vs. Setti Gangadhara Swamy, 2005 (1) RCR (Civil) 799: (2005) 2 SCC 244.
Such a presumption an be validly raised having regard to Section 50 of the Indian Evidence Act (See Tulsa (supra). A heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place."
The learned matrimonial court, therefore, rightly held that marriage between the parties stood proved.
Learned counsel for the appellant thereafter vehemently contended that the evidence was brought on record to prove that the appellant was already married on 7.7.1984 and the said marriage was dissolved by a decree of divorce on 24.8.1987. The contention of the learned counsel for the appellant was that in view of the subsisting marriage there could be no valid marriage between the parties, therefore, the finding of the learned matrimonial court on issue No.1 cannot be sustained. This plea of the learned counsel for the appellant also cannot be accepted. The appellant had not taken a stand that the marriage was void because of subsisting marriage, rather the plea was of total denial which was found to be false. Even otherwise, it was not the case of the appellant that the marriage between the parties was null and void.
Except for placing on record the decree of divorce which was rightly stated to be an attempt to create evidence by the respondent, no other evidence was led about the marriage of Kanta Devi. Even if the said evidence is taken into consideration the respondent cannot be non-suited on this ground as the appellant had failed to show the date of marriage with the FAO No.284-M of 2004 15 respondent. Rather the plea was of total denial which was found to be false. This plea of the learned counsel for the appellant also deserves to be rejected.
Learned counsel for the appellant thereafter argued that Brahma Devi RW 1 had proved the factum of previous marriage of the respondent and therefore, there could be no valid marriage between the parties. This plea again is misconceived. Dates of birth of children given by Brahma Devi in her statement stand belied from the documentary evidence on record i.e. the school certificate regarding children. Furthermore, she was unable to explain the relationship of the parties though the appellant had signed the diary of the school as father of the child and was otherwise also recorded in the certificate as such. Learned matrimonial court therefore, rightly rejected the evidence of RW 1 especially when she was found to be tutored witness.
The findings recorded by the learned matrimonial court, therefore, cannot be faulted with.
For the reasons stated above, I find no force in this appeal. The appeal is accordingly ordered to be dismissed but with no order as to costs. (Vinod K.Sharma)
4.11.2009 Judge rp
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