This Hon'ble Court also in the case of Krishna Pal v. Asoke Kumar Pal, (1982) 2 Cal LJ 366, has also held inter alia, that after the enactment of the Hindu Marriage Act, 1955, although, the Hindu Marriage has ceased to be wholly sacramental. Section 7 of the said Act still provides that Hindu marriage shall be solemnised in accordance with the customary rites and ceremonies of either party thereto. Sub-section (2) of Section 7 further prescribes that where such rites and ceremonies include the 'Saptapadi', the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. Thus, Section 7 of the Hindu Marriage Act has retained and has provided for continuance of the performance of the customary rites and make the same binding.
Calcutta High Court
Joyita Saha vs Rajesh Kumar Pandey on 5 February, 1999
Equivalent citations: AIR 1999 Cal 109
1. This appeal has been preferred by an unfortunate girl who, though was born with a golden spoon in her mouth because of her own follies, not only suffered herself, but also lowered down the prestige of her family in the society to a great extent.
2. The appellant filed a suit in the City Civil Court at Calcutta for declaration that no marriage between her and the respondent was performed according to the Hindu rites or otherwise at any place and also for a declaration that the registration of the alleged marriage between her and the respondent and the certificate granted by the marriage officer on 1st January, 1993 under Section 16 of the Special Marriage Act was void and inoperative and also for permanent injunction. The said suit, however, was registered as Matrimonial Suit No. 121 of 1994.
3. The case as made out by the plaintiff-girl in the plaint inter alia, was that she was born on or about 6th November, 1971 in an affluent family, is the only child of her parents. She, after passing the High Secondary Examination from the Loreto House School in 1990, took admission in B.Com. Part-I course and in 1991 joined a tuition centre near Richi Road, Calcutta to receive tuition and there she met the respondent-boy, who also joined the same tuition centre while reading in B.Com. Part-I course in the St. Xaviers College and friendship grew between them.
4. The girl's further case was, that the boy gave out that he had a brilliant academic carrier and he too belonged to a rich family and was a partner in his family business and she was also introduced by the boy to his parents. Subsequently, towards the middle of 1992, the boy told her that he loved her and was ready to sacrifice everything including his life for her and wanted to marry her, but the girl refused as she considered the boy just as a friend and nothing else and she had no intention to marry him. The girl also tried to gradually dis-associate herself from the boy.
5. Subsequently, on or about 1st January, 1993, the boy enticed the girl to accompany him to an unknown place and took out some photographs of him and the girl in a pre-arranged setting and then took her to an office close to the Coffee House in College Street and obtained her signatures on some forms without disclosing the contents thereof and also took certain photographs of the girl in the said office and then declared that both had become husband and wife, but asked the girl to keep everything secret.
6. By that time, the girl had joined a Chartered Accountancy Firm to undergo accountancy course and she was to go out Calcutta with the partners of the said firm in the middle of May, 1993, in connection with audit works, when the boy asked her to be ready to remain absent from her house for a day to undo the aforesaid forms and papers and the alleged marriage. As she was in great mental agony, she agreed to act according to the boy's dictates to get her released of her mental agony. The boy then on 15th May, 1993 took her at his small and conjested flat at 25, Ratan Sarkar Garden Street, Calcutta, where she was greeted by the parents and relations of the boy who told her that since her marriage was complete, she would not leave the house without performing the ceremonies according to their family custom, and she was thus compelled to stay there till 2nd June, 1993.
7. During her stay, the boy and his parents exercised pressure upon the girl to bring about Rs. 15 lacs from her parents for the purpose of purchasing a suitable flat for their living, but as she flatly refused, they tried to ill treat her and compelled her to do all household .works including washing of utensils much against her will.
8. During her said stay at 25, Ratan Sarkar Garden Street, she had also to yield to the pressure of the boy to allow him to have sex with her in the night of 15th May, 1993 and as she resisted his similar attempts on the 2nd and 3rd June, 1993, she was beaten by the boy, as a result of which she started bleeding. She was taken to a nursing home on 3rd June, 1993 where she was admitted and was taken to the operation theatre and by giving anaesthesia was treated surgically. On the following day, she was taken home by her parents who had come to the nursing home on getting intimation from the boy and thereafter she never returned to the boy.
9. After recovery from her said illness when the girl again started to get private tuition in some other place, the boy started following her and even threatened her to kidnap her forcibly and ruin her life by any means even by throwing acid on her unless she agreed to act according to his dictates and also returned to him. The girl being apprehensive lodged a diary with the police and also filed criminal case being Case No.C527 of 1993 in the Court of the learned Chief Metropolitan Magistrate, Calcutta against the boy and his parents and relations,
10. The suit was contested by the respondent by filing written statement, wherein it was stated inter alia, that the petitioner had married the respondent on or about 14th October, 1992 at the Arya Mandir at Elgeen Road according to the Hindu Rites and it was duly solemnised, and after the marriage, the petitioner and the respondent lived together as husband and wife at P-4, New Howrah Bridge Approach Road, Calcutta-1 and marriage was duly registered under the Special Marriage Act on 1st Janu-ary,1993 and on and from 15th May, 1993, the respondent and the appellant lived in their matrimonial home at 25, Ratan Sarkar Garden Street, Calcutta-7, till 2nd June, 1993 and during her stay at their matrimonial home, the petitioner was treated cordially by the images of the house and no ill-treatment was made to her and all of sudden on 3rd June, 1993, the petitioner left her matrimonial home with her mother and thereafter the respondent received a telephonic call from the mother of the petitioner asking him to come to Lake View Nursing Home at Calcutta on the same date but she did not disclose the reason. At that time, the petitioner, however, was pregnant. The petitioner then had an abortion and the respondent was forced to give consent for the same and he was also compelled to pay the doctor's fee and other expenses.
11. Thereafter, on 4th of June, 1993 the girl's mother took her to her father's residence at 238A, A.J.C. Bose Road, Calcutta-20 and since then, she had been illegally confined there under duress. The respondent accordingly, filed Matrimonial Suit being No. 170 of 1994 for restitution of conjugal rights.
12. In the appellant's above suit, the plaint was amended and an extra prayer namely, consent of the appellant to the alleged marriage if any, was obtained by coercion and threat was added.
13. After the family Court was established, both the aforesaid suits were transferred to the family Court and were heard together. So far as the suit filed by the petitioner was concerned, the following three Issues were framed.
"(i) Is the Mat. Suit No. 121 of 1994 maintainable in its present form ?
(ii) Was a marriage between Rajesh Kumar Pandey and Joyita Pandey solemnised at Arya Mandir at Elgin Road according to Hindu rites and custom on 14th October, 1992 ?
(iiij Did Rajesh Kumar Pandey and Joyita Pandey live together as husband and wife prior to registration of their marriage on 1st January, 1993 under Special Marriage Act, 1954 ?"
14. During trial, four witnesses were examined on behalf of the appellant-girl including the appellant herself, while five witnesses were examined on behalf of the respondent-boy including the respondent himself.
15. The learned Judge, Family Court, Calcutta by his judgement dated 10th January, 1997 dismissed the Mat. Suit No. 121 of 1994 filed by the appellant as not maintainable and further observed that the marriage between parties was solemnized on 14th October, 1992 at Arya Istri Swamaj, Bhawanipore and not at Arya Mandir, Elgin Road, Calcutta and the petitioner and the respondent lived together as husband and wife till 3rd June, 1993. However, the learned judge by his said judgement also dismissed Mat. Suit No. 170 of 1994 filed by the respondent praying for restitution of conjugal rights.
16. Against the said dismissal order, the petitioner in Mat. Suit No. 121 of 1994 has preferred the present appeal in this Hon'ble Court. No appeal, however, was or has been preferred by the respondent against the dismissal of Mat. Suit No. 170 of 1994.
16A. It has been contended by Mr. Roy Chowdhury, learned Senior Counsel appearing on behalf of the appellant that no marriage was solemnized between her and the respondent according to the Hindu rites, and in support of his contention, the learned Counsel for the appellant referred to Exhibits '1' and '2'. Exhibit T is the true copy of the petition for registration of marriage under Section 15 of the Special Marriage Act, 1954, alleged to have been made on 20th November, 1992. From the said Exhibit it is quite clear that the parties declared that their present dwelling place was P-245, C.I.T. Scheme, VII(M), Calcutta-54 and it was also declared therein by the parties that a ceremony of marriage was performed between them on 14th of October, 1992 at 238A, Acharya Jagadish Chandra Bose Road, Calcutta-20. Exhibit No. '2' is a true copy of certificate of marriage dated 1st January, 1993 issued by the Marriage Officer under the Special Marriage Act. Looking at the said Exhibit it would appear that the marriage officer had given a certificate that both the appellant and the respondent had appeared before him on 1st January, 1993 and they in his presence and in presence of their witness signed therein, that a ceremony of marriage had been performed between the respondent and the appellant and they had been living together as husband and wife since marriage registered under the Special Marriage Act, the same was registered on 1st January, 1993 under the said Act with effect from 14th October, 1992.
17. According to the learned Counsel for the appellant it is therefore to be seen whether any marriage was solemnized on 14th October, 1992, as alleged in the said Exhibit No. 2 and referred to the evidence of the D.W. 1 namely, the respondent, who in his exami-nation-in-chief had categorically stated that he married the appellant according to Hindu rites and customs on 14th October, 1992, at Arya Istri Swamaj, 2D, Madhab Lane, Calcutta-20 and after marriage they began to live as husband and wife at P-4, New Howrah Bridge Approach Road, Calcutta. In exami-nation-in-chief, however, he admitted that the entry made against the column No. 6 in Exhibit '1' as made by him was not correct because no marriage was performed at 238A, A.J.C. Bose Road. Calcutta-20 on 14th October, 1992, but as the parties' sole motive was to get married, such entry was made in column No. 6 after consulting the Registering authority. He also admitted that the entry made by him against column No. 4 was also not correct as, he and the appellant never lived at P-248, C.I.T. Scheme-VII, Calcutta-54 as husband and wife. He, however, sought to explain the reason for giving such fictitious address stating that the same was given on the advice of the appellant.
18. The learned Advocated for the appellant then referred in para 5(a) of the written statement filed by the respondent, wherein it was categorically stated inter alia, that the respondent married the appellant on 14th October, 1992 at the Arya Mandir at Elgin Road according to the Hindu rites and ceremony and the learned Counsel further referred to the deposition of D.W.-1 where in examination-in-chief he categorically admitted, that there was no place like Arya Mandir at Elgin Road which he had disclosed in para 5(a) of his written statement.
19. The learned Counsel also referred to a further lacuna in the evidence of D.W. 1, inasmuch as, in examination-in-chief though he had stated that after the alleged marriage with the appellant at Arjya Istri Samaj according to Hindu rites on 14th October, 1992 they started to live together as husband and wife at P-245, C.I.T. Scheme-VII(M), Calcutta-54, in the alleged Joint application having Exhibit '1', the respondent gave out their present address as P-245, C.I.T. Scheme-VII(M), Calcutta-54 which fact was admitted by the respondent in his evidence as not correct and he also admitted that they never lived at that place as husband and wife. He also argued referring to the statement made by the respondent in his deposition that though in his examination-in-chief he had categorically stated that a large number of photographs were taken at the time of marriage with the appellant at Arya Istri Samaj on 14-10-92 and also at the office of the Marriage Registrar on 20-11-92, yet none of the said photographs was made any exhibit in Matrimonial Suit No. 121 of 1994 and since the negatives of the said photographs were not filed in the suit and since the photographer was also not examined as a witness in the said suit, the trial Court should not have placed any reliance upon the same as those were not duly proved.
20. The learned Counsel for the appellant also referred to Exhibit No. A filed by the respondent and argued that since that was an undated document and since that was also not sent to the police authority at all as admitted by the respondent in his cross-examination, the same was not be relied upon by the trial Court at all. The learned Counsel placed stress upon the evidence laid by Deb Narayan Tewari as D.W. 2 who in his examination-in-chief categorically admitted that the marriage between the respondent and the appellant was not performed according to the Hindu rites and customs as there was nobody to perform Kanyadan and the Saptapadi was not performed and he rushed through the marriage ceremonies within 45 minutes on the advice of the respondent though about two and half hours would be required to perform the full marriage ceremony and Exhibit No. D was issued by him about eight or ten months back at the instance of the respondent and his father. Exhibit No. D also did not bear the correct date of 15-10-92 which was put in at the instance of the respondent herself.
21. The learned Counsel for the appellant thus submitted that the patent false statements regarding the place of the alleged marriage and the address of the parties as admitted by the respondent himself in his evidence as well as the categorical statement made by the priest (D.W. 2) in his evidence that Saptapadi was not performed, conclusively proved that there was no marriage between the parties to this appeal according to the Hindu rites and customs and the findings of the learned trial Judge were, therefore, perverse and in support of his contentions referred to a number of decisions namely, (1901) ILR 28 Calcutta 37; (1950) 54 Cal WN 186; ; AIR 1971 SC 1153; (sic); ; ;
and .
22. Lastly, Mr. Roy Chowdhury also referred to Exhibit No. 6 which was a letter written by the respondent's father Amar Nath Pandey to the Deputy Commissioner of Police, Detective Department, Lal Bazar dated 17th of April, 1990 wherein the father of the respondent admitted that the respondent developed some relations with one Nabita Jain daughter of one Makhanlal Jain residing at 2A, Jadulal Mullik Road and it was further stated therein that he was called with his son named the respondent to see the Inspector on 16th April, 1990 and he was advised to tackle (on) his own so that bitterness between his family and the family of Makhanlal Jain, the father of the said girl Nabita Jain, did not extend any further and he admitted to tackle his son and according to Mr. Roy Chowdhury the said letter would prove that the respondent was donjuan who used to have relationship with many girls and that shows really speaking that he had no love for the appellant in his mind.
23. Mr. Palit, learned Advocate appearing on behalf of the respondent, however, submitted that the evidence of D.W.2, should not be discarded altogether, inasmuch as, though in his evidence at one place he said that no Kanyadan was performed, but later on he himself had stated in his evidence that Kanyadan was done by somebody. Moreover, the said witness further had stated that he had performed marriage ceremony of the respondent with the appellant and a 'horna' was performed and he had no impression that any force was applied in the marriage which accordingly to him was a love marriage.
24. Mr. Palit thus contended that when from the evidence of DW-1 and DW-2 it was clear that a ceremony of marriage was held between the respondent and the appellant, which would also be evident from the photo-graphs being exhibit 'E' series. It must be presumed that all the necessary ceremonies of Hindu marriage were duly performed and since there was no corroborative evidence given by anybody on behalf of the appellant, accept the appellant's own evidence, that evidence should not be believed at all.
25. Secondly, Mr. Palit contended that though there are some discrepancies in the evidence of DW-2, that evidence should not be discarded altogether, inasmuch as, the principle of 'falsus in uno falsus in omnibus' does not apply to the Indian witness.
26. Thirdly, the photographs namely, Exhibit 'E' series if are taken into account would clearly show that there was a marriage solemnised under the Hindu Law between the respondent and the appellant and the appellant was a willing party to the same. However, as the negatives of Exhibit 'E' series were not filed in the trial Court, Mr. Palit filed an application under Order 41, Rule 27 of the Code of Civil Procedure for accepting the said negatives as additional evidence,
27. Mr. Palit in support of his contention also referred to a number of decisions namely, ; ; AIR 1952 SC
231; ; ; ;
; and .
28. We have gone through the findings arrived at by the trial Court while dismissing Mat. Suit No. 121 of 1994 and also have gone through the pleadings and the evidence on record.
29. It follows, therefore, that unless the marriage is celebrated or performed with proper ceremonies and due from, it cannot be said to be 'solemnized'. Merely going through certain ceremonies with the inten-tion that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established customs, as has been held by the Apex Court of the country in the case of Bhaurao Shankar Lokhande v. State of Maharashtra, .
30. Marriage, according to the Hindu Law, is a holy union for the performance of religious duties. It is not a contract. Marriage is a Sanskara or Sacrament. It is the last of the ten sacraments enjoined by the Hindu religion for purifying the body from inherited taint. The ancient Hindu Law recognized eight forms of marriage, of which four were approved forms, and four unapproved. The approved forms were 'Brahma', 'Daiva', 'Arsha' and 'Prajapatya'. The unapproved forms were 'Asura', 'Gandharva' 'Rakshasa' and 'Paishacha'. The only forms of marriage now recognized are -
(i) the Brahma form, which is one of the approved forms; and
(ii) the Asura form, which is one of the unapproved forms.
Where father or other guardian of the bride gives the bride in marriage without receiving any consideration from the bridegroom for giving the girl in marriage the marriage is called 'Brahma'. But where he receives such consideration, which is technically called 'Shulka' or bride's price, the marriage is called 'Asura', even though it may have been performed according to the rites prescribed for the Brahma form. Hindus belonging to any class may marry either in the 'Brahma' form or the 'Asura' form.
31. There are two ceremonies essential to the validity of a marriage, whether the marriage be in the 'Brahma' form or the 'Asura' form namely-
(1) invocation before the sacred fire, and
(2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire.
32. The marriage becomes completed when the seventh step is taken; till then it is imperfect and revocable as has been held by this Hon'ble Court in the case of Brindaban v. Chundra (1886) ILR 12 Cal 140. Consummation is not necessary to make a marriage complete and binding. A marriage may be completed by the performance of ceremonies other than those referred to above, where it is allowed by the custom of the caste to which the parties belong.
33. It is provided by the Special Marriage Act, 1954 (which repeals the Special Marriage Act, 1872) that a marriage may be celebrated before a Registrar between any two persons.
34. The word 'solemnize' means, in this connection to celebrate the marriage with proper ceremonies and in due form.
35-36. The Supreme Court in the case of Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh AIR1971 SC 1153, which was a decision on Section 494 of the Indian Penal Code, bigamy, also held, that even an admission of marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery. The witnesses have not proved that the essential ceremonies had been performed.
37. In the present case the DW-2, the priest himself in his evidence had categorically stated that he had performed marriage ceremony of the respondent with the appellant but not as prescribed according to the Hindu rites and customs. The bride and bridegroom sat together and 'Homa' was performed but the ceremonies were not performed properly. Saptapadi was not performed. He also admitted that it would take about two and half hours to perform the full marriage ceremonies, but on the advice of the respondent he rushed through the marriage ceremony with fortyfive minutes.
38. The DW-2 was not declared as a hostile witness. The respondent, however, did not pray before the Court below for declaring the DW-2 as a hostile witness. The Court below merely observed that the DW-2 had not deposed the truth if he said that Saptapadi was not performed. The marriage ceremony was performed according to the Vedic rites and customs and the respondent had given ample proofs not only by producing the witnesses but by producing photographs as Exhibit 'E' series.
39. However, if we go through the evidence of DW-2 namely, the priest who had performed the marriage, we will find that DW-2 had made categorical statements that all the ceremonies performed for the marriage of a Hindu were not performed, specially Saptapadi was not performed and so also Kanyadan. He further stated that he had rushed through the marriage ceremony on the advice of the respondent and the Exhibit 'D' issued by him was issued at the instance of the respondent and his father. As we have already observed that since the DW-2 was not declared as a hostile witness, we find no reason to disbelieve his statement. Mainly upon relying the photographs being Exibit 'E' series, whose negatives were not on record, the Court below should not have held that the alleged marriage between the appellant and the respondent was performed according to the Vedic rites and customs, moreso, when such photographs were inadmissible in evidence
40. This Hon'ble Court also in the case of Krishna Pal v. Asoke Kumar Pal, (1982) 2 Cal LJ 366, has also held inter alia, that after the enactment of the Hindu Marriage Act, 1955, although, the Hindu Marriage has ceased to be wholly sacramental. Section 7 of the said Act still provides that Hindu marriage shall be solemnised in accordance with the customary rites and ceremonies of either party thereto. Sub-section (2) of Section 7 further prescribes that where such rites and ceremonies include the 'Saptapadi', the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. Thus, Section 7 of the Hindu Marriage Act has retained and has provided for continuance of the performance of the customary rites and make the same binding.
41. The Allahabad High Court in the case of Ram Awadh v. Krishna Nand Lal, , has further held that even in case of a Arya Saniaj marriage, Saptapadi is a must.
42. The Apex Court In the case of Gopal Lal v. State of Rajasthan, , while defining the word 'solemnize' in connection with a marriage under the Hindu Marriage Act, held inter alia, that that word 'solemnize' means in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form' according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is celebrated or performed with proper ceremonies and in due form it cannot be said to be 'solemnized'.
43. Thus from the above decision it is quite clear that unless a Hindu marriage is celebrated with proper ceremonies and in due form, the marriage cannot be declared to have solemnized. The judgement of the Privy Council as cited by Mr. Palit in the case of Gokal Chand v. Parvin Kumari AIR 1952 SC 231, where it has been held that continuous cohabitation of a man and woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, and has also held in the said judgment that such presumption is rebuttable and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them. In the present case there was no long cohabitation of the respondent and the appellant as husband and wife for years together. At best, it could be said that they lived together from 15th of May, 1993 till the appellant was transferred to the Nursing Home on 3rd of June, 1993 and in cross-examination also she could not be shakened as she stated in cross-examination that she had physical relationship with the respondent only on 15th May, 1993 and did not have any relation as husband and wife from 1st January, 1993. On the contrary in cross-examination she made it clear that sometime the respondent used to stay in the same room but they did not share the bed and as such, the said judgment of the Apex Court, in our view, is of no help to the respondent. Amongst the other decisions cited by Mr. Palit namely, ; ; ;
; all speak about presumption of marriage but as we have already held hereinbefore that such presumption is rebuttable and in the present case that presumption has been rebutted by the appellant. So far as the Full Bench decision of the Andhra Pradesh High Court as is concerned, that does not
speak about Section 7 of the Hindu Marriage Act and as such, is quite distinguishable on fact and so also the judgment of the Supreme Court , which was a case of marriage in 'Asura'
form and not in 'Brahma' form. Moreover, the Division Bench Judgment of this Hon'ble Court in the case of Smt. Lagna Bhattacharjee v. Shyamal Bhattacharjee, , has held in clear terms that as per Section 18 of the Special Marriage Act, 1954 it is only for the purpose of sanctioning legitimacy to certain class of children that a marriage celebrated in other form and registered under the Special Marriage Act shall be deemed to be a marriage solemnized under the said Act. Section 24 again makes clear distinction between a marriage solemnized under this Act and a marriage deemed to be solemnized under this Act within the meaning of Section 18. Section 24 or any other Section of the said Act even though the marriage celebrated in other form. As such, the notification issued under Section 15 of the Special Marriage Act and the certificate issued under Section 16 of the same Act cannot be said to be a conclusive proof of a marriage solemnized under the Hindu Marriage Act. Under the Hindu marriage Act a Marriage can only be solemnized if the ceremony of the marriage as per Section 7 of the Act are strictly performed.
44. No doubt, the letters and the greeting cards being Exhibit 10 and 'B' series prove that only the appellant and respondent were deeply attracted to each other and might be they were in love too, which fact would also be apparent from first blush of the photographs being Exhibit 'E' series though the same were not admissible in evidence without the negatives, and though the Photographs would also suggest that there was some sort of marriage between them, but the evidence on record mainly that of the DW-2 would clearly prove that no Hindu marriage was solemnized between the respondent and the appellant as essential ceremony of a Hindu marriage were not performed at all. Moreover, Exhibit '9' leads us to a presumption that the respondent was in the habit of playing with girls to suit his purpose. Further, in the cross-examination the PW-3 also had categorically stated that she never resided (in) the night with the respondent at P-4, New Howrah Bridge Approach Road, Calcutta-1 and in cross-examination she specifically denied that she was not married on 14th of October, 1992, and that Exhibit 'A' was written by her under coercion. Moreover, she further denied in cross-examination that Exhibit '6' and Exhibit '10' were one letter and not two separate letters. No counter-proof could be produced by the respondent except the letters and greeting cards as mentioned above which under the facts and circumstances of the case can only lead to a conclusion that the appellant was infactuated with the respondent. Further as discussed above the false statement made by the respondent in Exhibits '1' and '2' which were also admitted by him in his deposition speak of the character and nature of the respondent that by hook or by crook he was determined to have the appellant under his clutches and he did not love the appellant from his heart.
45. Lastly, one glaring fact of the respondent in his suit for the restitution of conjugal rights against the appellant was also dismissed and no appeal has been preferred against the said decree of dismissal which shows that the appellant was not treated properly and lovingly during her stay at the respondent's residence. It really speak (that) there was a valid marriage between the parties and they really love each other why on earth, position would be such that appellant had to leave the house of the respondent in such a condition that the Court would refuse to grant the prayer for restitution for conjugal rights as made by the respondent. This fact also proves that the respondent did not love the appellant at all, and it was his sole object to get the appellant under his clutches to fulfil his evil design to get considerable amount of money from the appellant's parents.
46. So far as the question regarding maintainability of the suit as filed by the appellant in the lower Court as raised by the respondent's lawyer is concerned, we are of the view that since the marriage itself was denied and the prayer was made in the suit for a declaration that there was no marriage between the parties, the suit as framed was quite maintainable in law. We get support on this point from the judgment of this Hon'ble Court as reported in (1982) 2 Cal LJ 366, as referred to above.
47. Regarding the application for acceptance of additional evidence as filed by Mr. Palit's client is concerned the said grounds taken in the said application, in our view do not fall within the scope and ambit of Order 41, Rule 27 of the Code of Civil Procedure and the same is also rejected.
48. In view of the reasons as aforesaid, we, accordingly hold that no marriage between the appellant and the respondent was solemnized according to the Hindu rites or otherwise at any place and no marriage can be deemed to have been solemnized under the 'Special Marriage Act' between the parties to this appeal also.
49. The appeal accordingly succeeds. The judgment passes in Matrimdmal Suit No. 121 of 1994 by the Family Court, Calcutta which is the judgment under challenge in this appeal, stands set aside.
50. There would, however, be no order as to costs.
51. Prayer for leave to appeal to the Hon'ble Supreme Court as made by Mr. Palit, learned advocate for the respondent is refused and so also a stay of operation of this order.
52. Office is directed to supply the certified copy of this judgment to the applicant at an early date, if applied for.
Y.R. Meena, J.
53. I agree.
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