respondent, it is necessary to go through the contents in the FIR lodged by the
respondent with Ambazari Police Station, Nagpur, being No. 246/2013, on
11.9.2013. In fact, it was the complaint against the appellant u/ss. 376 and
417 of the IPC. The FIR reveals the name of the respondent as Smt. Rekha
Ashok Chandrayan which was her maiden name. She had specifically stated in
the complaint that she was married with Raja Balkrishna Deshpande in the
year 1998. There was a divorce between them in February, 2007. However for
the sake of children, they are residing together, even after divorce. The said
version clarifies that respondent was residing with her exhusband on
11.9.2013, since her marriage that took place some time in 1998. If that was
the case of the respondent, then there was no question of residing with
appellant at Jagat Apartment, after her alleged marriage with him on
16.4.2012. As regards marriage, it is mentioned in the complaint that on one
of the occasions, in the afternoon, the appellant called her on phone on the
third floor to his apartment. Accordingly, she went to 3rd floor of Jagat
Apartment and infront of Lord Krishna, the appellant put Sindoor on her
forehead and also put Mangalsutra on her neck and declared that they were
married. After two days, the respondent was called by the appellant on 6th
floor of Jagat Apartment. The appellant told her to wear red saree while
coming and thereafter physical relationship between the appellant and
respondent were established. Significantly, the respondent deposed before the
Family Court that the clothes were offered to her at the time of marriage and
garland was put on. There is discrepancy in the version of respondent as
regards time of offering the red saree to her. The contents in the FIR make
clear that the respondent was aware that respondent was not married with the
appellant and, therefore, she had mentioned her maiden name in the
complaint. Moreover, the respondent never disclosed her marriage to anyone
in the society, including the neighbours or relatives. No witness is examined
by the respondent on her behalf. These facts establish that there was no
marriage between the parties, on the date of filing the complaint. In the instant case also, the respondent failed to prove that there was
a marriage between the appellant and respondent. There is no proof to
substantiate the case of the respondent in that regard. No one attended the
said marriage. The alleged marriage was not celebrated with proper
ceremonies. In fact, there was no marriage between the appellant and
respondent, as claimed by the respondent; there was no cohabitation between
the parties; they were never recognised as husband and wife by the society.
Even there was no livein relationship between the parties. They never stayed
under the same roof as husband and wife. There is absolutely no iota of
evidence in that regard. On the contrary, evidence on record demonstrates
that the respondent was residing with her exhusband and children at
Gopalnagar, Nagpur. In this view of the matter, it is held that the respondent
has failed to prove that she was a legally wedded wife of appellant. Hence, the
point No.(1) is answered in negative.
34. As regards point No.2, since the respondent failed to prove her
marriage with the appellant, there is no question of granting the prayer for
restitution of conjugal rights. The Appeal is, therefore, allowed and the
judgment and decree passed by the learned Judge of the Family Court is
quashed and set aside.
35. Thus, in view of the fact that no marriage is proved between the parties,
there is no question of granting the prayer for restitution of conjugal rights to
the respondent.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
FAMILY COURT APPEAL NO.57/2015
Shri Nitin s/o Omprakash Agrawal
v
Smt. Rekha w/o Nitin Agrawal
(falsely claiming so)
CORAM : B.P. DHARMADHIKARI &
MRS . SWAPNA JOSHI, JJ.
DATED: 31.01.2017
1. The appellant/husband has preferred the present Appeal under section
19 of the Family Court’s Act,1984 read with Section 28 of the Hindu Marriage
Act 1955, being aggrieved by the judgment and order dated 1.4.2015 passed
by the learned Judge, Family Court No.2, Nagpur, whereby the Petition No.A.
1087/2013 filed by the respondent/wife for restitution of conjugal rights,
under section 9 of the Hindu Marriage Act has been allowed.
2. The brief facts giving rise to the Family Court Appeal are as under :
The respondent was married with one Rajesh Balkrishna Deshpande in
the year 1998. She has begotten two children out of the said wedlock. There
was a divorce between respondent and Rajesh Deshpande on 23.8.2007.
However, in the interest of children, both of them continued to stay together in
the same flat situated at Gopalnagar. In the year 2011, the respondent joined
Manjusha Convent, situated at Dharampeth, Nagpur, as a parttime teacher. In
the same building, on the ground floor, the appellant was running a Tent house
(Bicchayat Kendra). It would not be out of place to mention here that appellant
is from Marwari community, whereas the respondent is Maharashtrian
Brahmin. The respondent came in contact with the appellant. There was love
affair between them which continued for about 6 to 7 months, inasmuch as
they exchanged text messages and met each other very often. The appellant
got married with respondent on 16.4.2012 by putting a Mangalsutra and
applying vermillion on parting of hair, before the idol of Lord Krishna, on 3rd
floor of Jagat Apartment, Ravinagar, Nagpur. Physical relations were
established between the appellant and respondent since then. The appellant
had sexual relations with the respondent on many occasions on the third floor
as well as sixth floor of Jagat Apartment where the parents of appellant used
to reside. The parents of appellant were oblivious about the said relationship
between the appellant and respondent. At the relevant time, they used to stay
sometimes at Hyderabad with their daughter and some time at Dubai with
their son. Parents of the appellant opposed the marriage between appellant
and respondent. They alleged that there was no marriage between appellant
and respondent. In due course, they arranged a marriage of appellant in their
own community, with a girl residing at Raipur {Chhatisgarh}. The engagement
ceremony of the appellant was performed with that girl on 4.8.2013.
3. The respondent lodged a complaint against the appellant at Ambazari
Police Station alleging offence of rape and cheating. It is the allegation of the
respondent that the appellant has committed rape on her, on the allurement
and promise of marriage. The respondent lodged a complaint with the police
on 11.9.2013. The respondent lodged a complaint with the Human Rights
Commission also. As the appellant started avoiding the respondent and did
not keep his promise to marry respondent before the society, she filed a
petition for restitution of conjugal rights, under Section 9 of the Hindu
Marriage Act.
4. It is the case of the appellant that on 7.8.2013, the respondent
demanded an amount of Rs. 10 lakhs threatening to implicate him in a false
case of sexual harassment. The appellant, under duress, paid an amount of Rs.
2 lakhs on 8.8.2013 to the respondent, in order to save himself and his family
members from the false report and tarnishing the reputation in the society. On
the same day, the appellant received a text message from the Mobile Number
of the respondent expressing her happiness over receiving the amount for
which she remained grateful to him. On 9.8.2013 the respondent withdrew all
the allegations against the appellant, by giving in writing on stamp paper of
Rs. 100/.
5. It is alleged that the respondent continued to send SMSs to the
appellant . After about 2/3 days, the respondent visited the shop of appellant
along with her exhusbandRajesh Deshpande and demanded an amount of
Rs. 10 lakhs. She threatened to lodge report with the Police against the
appellant. The appellant realised that the respondent was blackmailing him.
6. The appellant filed his written statement and denied the averments
made in the petition. The appellant contended that the respondent has
wrongly represented herself to be his wife, in the absence of any proof thereof.
The appellant submitted that the respondent has mentioned her name as
‘Rekha Ashok Chandrayan’ in the FIR. The FIR does not disclose that the
appellantNitin is her husband. It is submitted that, in the FIR the respondent
has not mentioned the date of marriage whereas, in the petition for restitution
of conjugal rights, she has mentioned the date of marriage as 16.4.2012.
According to the appellant, as per Section 7 of the Hindu Marriage Act, no
ceremonies prevailing in the community of either of the parties, have been
performed. Therefore, there is no marriage between the appellant and
respondent, in the eyes of law. The appellant further contended that on
7.8.2013 the respondent had demanded Rs. 10 lakhs from the appellant and
when he expressed his inability to hand over the said amount, she got annoyed
and threatened him to implicate in a false case of sexual harassment.
7. The respondent examined herself as well as Nodal Officer on her
behalf. The appellant examined himself.
8. On the basis of aforesaid pleadings, the evidence led by the respective
parties and after hearing both the sides, learned Judge of the Family Court
recorded a finding that the respondent is entitled for decree for restitution of
conjugal rights. The appellant has challenged the said judgment and decree.
9. Mr. Anand Jaiswal, learned senior counsel with Mr. Gadhia, counsel for
the appellant vociferously argued that the learned Judge, Family Court erred
in granting the decree of restitution of conjugal rights in favour of respondent.
He further argued that there was no marital tie between the appellant and
respondent. He invited our attention to the FIR (Exh.50) lodged by respondent
on 11.9.2013 at Ambazari Police Station which does not disclose the date of
marriage although it was an important event in the life of the respondent.
Later on, the respondent came up with the date of marriage as 16.4.2012
almost one month after lodging of the FIR. Mr. Jaiswal, pointed out that the
FIR reveals the name of the respondent as Rekha Chandrayan and father’s
name as Ashok Chandrayan. Likewise, her residential address is mentioned as
Gopalnagar, Vinay Apartment, Flat No. 304. The FIR does not disclose the
name of respondent in marital name i.e. appellant ’s name. He further
submitted that the respondent has not mentioned the customary rites or
religious ceremonies of marriage performed in accordance with either Marwari
community or Brahmin community. According to him, as per Section 7 of the
Hindu Marriage Act, ceremonies are required to be performed like ‘Saptapadi’
or ‘phere’ for marriage and if it is not done, it is no marriage in the eyes of law.
He further submitted that the shop of the appellant was on the ground floor
of the building whereas the respondent used to attend Manjusha Convent on
the above floor. Except that acquaintance there was no relationship between
the parties. He submitted that once the respondent had requested the
appellant for financial help of Rs. 5000/ which was extended by him, on
humanitarian grounds. According to Mr. Jaiswal, on 4.8.2013, engagement of
appellant was performed on which occasion, the respondent congratulated.
However, all of sudden, on 7.8.2013, the respondent demanded an amount
of Rs. 10 lakhs from the appellant, threatening that he should pay the
amount else, she would lodge a report with Police about sexual assault by
him and his proposed marriage would be endangered. Mr. Jaiswal submitted
that therefore in order to save his engagement and reputation in the society,
the appellant agreed to pay an amount of Rs. 2 lakhs to the respondent which
she acknowledged, sending the text message mentioned supra. Thus, according
to Mr. Jaiswal, there was no marriage between the parties and, as such, there
is no question of restitution of conjugal right, as claimed by the respondent.
10. Learned counsel for the respondent, Mr. S.G.Joshi, contended that the
marriage took place between the parties in front of idol of Lord Krishna, on
third floor of Jagat Apartment. It is not at all the case of respondent that the
marriage took place as per the customs of any of the communities to which
the parties belong. According to Mr. Joshi, as there was continuous physical
relationship between the parties, the trial Court rightly came to the conclusion
that marriage was performed between the parties. Mr. Joshi submitted that as
the appellant had admittedly handed over the amount of Rs. 5,000/to the
appellant earlier and thereafter the amount of Rs. 2 lakhs, on demand, the said
fact itself shows that certainly there was existence of relations between the
parties as husband and wife. Mr. Joshi, contended that it was Gandharva
marriage between the parties as the respondent was not aware of Marwari
ceremonies and as she was informed by the appellant that they married as per
the Marwari customs, therefore, the respondent agreed to keep physical
relations with appellant. Mr. Joshi submitted that no doubt on the stamp paper
of Rs.100/ the respondent withdrew the allegations against the appellant.
However, it is not clear as what were the allegations exactly and this fact itself
shows the relationship between the parties. Lastly, he submitted that learned
Family Court has rightly passed the judgment in favour of the respondent .
11. After hearing learned counsel for both the sides and on a perusal of the
original record and proceedings, the following points arise for determination:
(1) Whether the marriage was solemnised between the
parties on 16.4.2012 ? .. .. No.
(2) Whether the appellant is entitled for quashing and
setting aside the order of restitution of conjugal rights passed
by the learned Judge of the Family Court? ..Yes.
(3) What order ? .. Appeal is allowed.
12. Before proceeding with the facts and circumstances of the case, it would
be necessary to go through the admitted facts in the Appeal.
It is fairly admitted that the respondent was married with one Rajesh
Balkrishna Deshpande, in the year 1998. There was a divorce between Rajesh
and respondent on 23.8.2007. It is not disputed that Rajesh and respondent
were residing at Gopalnagar, with their two children and they stayed together
even after divorce till March, 2014. It is not disputed that the respondent was
serving as a Teacher in Manjusha Convent, which is situated in the building
where the appellant was doing the business of Tent house. It is also not in
dispute that the appellant possesses his residential accommodation on the
third and sixth floors of Jagat Apartment. It is also not seriously disputed that
the appellant and respondent were acquainted with each other from 2011
onwards and the respondent had visited the two flats of appellant in Jagat
Apartment, to see the interior work. It is an admitted fact that the respondent
had lodged a complaint against the appellant with Human Rights
Commission, which was subsequently withdrawn. It is also an admitted fact
that there was exchange of text messages between the parties, that too at odd
hours. It is not in dispute that the respondent had acknowledged the receipt of
amount of Rs. 2 lakhs from the appellant and accordingly sent him text
message expressing thanks and gratitude. It is not in dispute that the parents
of the appellant were residing in Jagat Apartment and they used to reside
sometimes at Hyderabad with their daughter and sometimes at Dubai, with
their another son.
13. In the backdrop of the abovereferred facts, we have to examine
whether there was a marriage between appellant and respondent , as per the
provisions of Hindu Marriage Act. As discussed supra, a short point involved
in the present Appeal is, whether there was a valid marriage between
appellant and respondent as alleged, or it was a livein relationship between
them. It is the specific case of the respondent that they got married as per the
customs prevailing, inasmuch as the marriage took place before the idol of
Lord Krishna on 16.4.2012 and as per the Hindu rites and traditions the
marriage was performed at Apartment No.303, Jagat Apartment, Ravinagar,
Nagpur. The appellant put vermillion mark on the forehead of the respondent
and he put on Mangalsutra on her neck. The appellant also offered a garland
to the respondent and as per the usages and convention, offered saree, blouse
and other clothes to her. After marriage, there was a relationship between the
parties as husband and wife for more than oneandahalf years. According to
the respondent, she insisted for registration of marriage with Registrar of
Marriages. However, there was no such registration of marriage for which,
admittedly, the respondent never raised any legitimate grievance. According
to the respondent, nobody was informed about the said marriage, so much
so, even the parents of appellant were not aware of the said marriage as the
appellant did not disclose about the said fact to them. The appellant kept on
saying that as he belongs to Marwari community, huge dowry is required to
be offered in the marriage and furthermore, she being Maharashtrian
Brahmin, could not be accepted by his parents. The appellant, however,
promised her to perform a customary marriage for the sake of society, family
and friends. In her crossexamination, the respondent admitted that she
knows that for solemnization of Hindu marriage, certain rituals are to be
performed, those rituals may be different. She however stated that she does
not know the first rites in Agrawal community is of ‘Dwarchar’ which means
mother of bride performs pooja of groom on his first arrival at the entrance
gate and further does not know whether the bride and groom exchange
garlands which is known as 'Varmala' and certain mantras are chanted and the
bride and groom take round around the sacred fire (Saptapadi). She stated
that she does not know that parents of bride gifts bride which is known as
‘kanyadan’. She however admitted that she had never seen such a marriage in
which only two rites i.e.of Sindur and Mangalsutra are performed. The said
version of the respondent clearly indicates that she was aware of the fact that
in any marriage only two rites i.e. Sindoor and Mangalsutra are not
performed.
14. As against this, the case of the appellant is that in Agrawal community,
marriage procedure is as follows :
1) The marriage function starts from the function known
as Bhauhaath (Ganesh Pujan)
2) Haldad Ban: the function of applying turmeric to the
bride and groom at their respective places.
3) Chakbhat a type of ritual performed for Mama by
groom’s mother.
According to the appellant, there was absolutely no marriage between
him and respondent, as alleged by the respondent .
15. In order to verify the truthfulness or otherwise in the version of the
respondent, it is necessary to go through the contents in the FIR lodged by the
respondent with Ambazari Police Station, Nagpur, being No. 246/2013, on
11.9.2013. In fact, it was the complaint against the appellant u/ss. 376 and
417 of the IPC. The FIR reveals the name of the respondent as Smt. Rekha
Ashok Chandrayan which was her maiden name. She had specifically stated in
the complaint that she was married with Raja Balkrishna Deshpande in the
year 1998. There was a divorce between them in February, 2007. However for
the sake of children, they are residing together, even after divorce. The said
version clarifies that respondent was residing with her exhusband on
11.9.2013, since her marriage that took place some time in 1998. If that was
the case of the respondent, then there was no question of residing with
appellant at Jagat Apartment, after her alleged marriage with him on
16.4.2012. As regards marriage, it is mentioned in the complaint that on one
of the occasions, in the afternoon, the appellant called her on phone on the
third floor to his apartment. Accordingly, she went to 3rd floor of Jagat
Apartment and infront of Lord Krishna, the appellant put Sindoor on her
forehead and also put Mangalsutra on her neck and declared that they were
married. After two days, the respondent was called by the appellant on 6th
floor of Jagat Apartment. The appellant told her to wear red saree while
coming and thereafter physical relationship between the appellant and
respondent were established. Significantly, the respondent deposed before the
Family Court that the clothes were offered to her at the time of marriage and
garland was put on. There is discrepancy in the version of respondent as
regards time of offering the red saree to her. The contents in the FIR make
clear that the respondent was aware that respondent was not married with the
appellant and, therefore, she had mentioned her maiden name in the
complaint. Moreover, the respondent never disclosed her marriage to anyone
in the society, including the neighbours or relatives. No witness is examined
by the respondent on her behalf. These facts establish that there was no
marriage between the parties, on the date of filing the complaint.
16. Thus, after going through the testimony of the respondent as well as
the appellant and on a perusal of the contents of FIR, it is vividly visible that
the respondent being a divorcee who had undergone one marriage and
having two kids, was certainly aware of the customs and rituals of Hindu
marriage. She was no longer a young girl who would have not understood
the sanctity of marriage. It is undigestable that respondent, aged about 36
years, was not aware of the rites and rituals and the ceremonies of Hindu
marriage. The respondent did not succeed in proving the marriage as per the
Brahmin or Marwari community. As per the provisions of Hindu Marriage Act,
the marriage must be performed as per the ceremonies, rites and rituals
recognised by either of the parties. Even importance is given to Saptapadi in
Hindu marriage. Admittedly, no such ceremonies were performed between
the parties.
17. Coming to the other part of the evidence, as far as text messages
exchanged between the parties are concerned, on 20.8.2013, the respondent
sent a message to the appellant, which is at Exh. 89. It reads thus
(Vernaculars omitted)
The next message was on 29.8.2013 at 8.42 a.m.(Exh.49), which reads
thus:
(Vernaculars omitted)
The third message is dated 30.8.2013 is at 3.00 p.m. (Exh. 42) which
reads thus,
(Vernaculars omitted)
On going through all the three text messages, it is crystal clear that
there was no marriage between the parties and, all the while, the respondent
kept on insisting that though the appellant did not marry with her, the
relationship should be maintained between them. All the three text messages
demonstrate that there was no marriage between the parties.
18. The learned Judge of the Family Court has misinterpreted all those
text messages and has come to an erroneous conclusion that all the abovereferred
text messages proved that there was physical relationship between the
parties and there was intimacy between them and, therefore, certainly they
had married with each other and it was a valid marriage. In our opinion,
though there might be physical relationship, however, there was no valid
marriage between the parties as per the provisions of Hindu Marriage Act.
Even there was no livein relationship between them, as claimed by the
respondent, as there is no cogent and convincing evidence on record to show
that the parties resided together at Jagat Apartment.
19. Significantly, in order to prove her case, the respondent has not
examined any witness on her behalf to show that at least the appellant and
respondent stayed together in Jagat Apartment for certain period.
20. Now coming to the text message with regard to the acknowledgment
of the receipt of amount of Rs. 2 lakhs, the said message clearly indicates that
the respondent had received the amount of Rs. 2 lakhs from the appellant .
According to the appellant, the said amount was paid to the respondent
although she was demanding an amount of Rs.10 lakhs, in order to allow
him to marry with the girl with whom he got engaged on 4.8.2013. According
to the appellant, since he was in position to hand over the amount of Rs. 2
lakh only, to save his engagement with the girl and the reputation of his family,
he handed over the said amount to the respondent. The said fact simply
indicates that there was no doubt physical relationship between the parties,
however, there is no evidence to show that the parties were married with each
other.
The text message at Exh.46 reads thus :
(Vernaculars omitted)
All these abovereferred messages speak volumes about the reputation
and character of the respondent. Those messages never shed light on the fact
that the parties were married with each other. The above facts show that
neither there was a marriage between the parties nor their subsequent
conduct in any manner, indicate that they were married with each other.
21. The compact discs (CDs) relied upon by the respondent nowhere
indicate that there was marriage between the parties and, therefore, are not
helpful to the respondent.
Section 7 of the Hindu Marriage Act,1955 reads thus:
“(1) A Hindu marriage may be solemmnized in accordance
with the customary rites and ceremonies of either party
thereto.
(2) Where such rites and ceremonies include the
saptapadi ( that is, the taking of seven steps by the
bridegroom and the bride jointly before the scared fire), the
marriage becomes complete and binding when the
seventh step is taken.”
It is also necessary to go the relevant provisions of Sections 50 and
Section 114 of the Evidence Act, which are couched in the following terms :
Sec. 50: Opinion on relationship, when relevant When
the Court has to form an opinion as to the relationship
of one person to another, the opinion, expressed by
conduct, as to the existence of such relationship, of any
person who, as a member of the family or otherwise, has
special means of knowledge on the subject, is a relevant
fact:
Provided that such opinion shall not be sufficient
to prove a marriage in proceedings under the Indian
Divorce Act,1869 ( 4 of 1869), or in prosecutions under
sections 494, 495, 497 or 498 of the Indian penal Code
(45 of 1860).
Section 114 : Court may presume existence of certain
facts: the Court may presume the existence of any fact
which it thinks likely to have happened, regard being had
to the common course of natural events, human conduct
and public and private business, in their relation to the
facts of the particular case.”
22. On going through the abovesaid provisions, the existence of marriage
between the appellant and respondent is not seen in the present case.
Likewise, it is very difficult to presume in the present case from the conduct
of the parties that there was relationship between the appellant and
respondent as husband and wife.
23. Moreover, where a marriage is alleged to have been performed in
accordance with any modified form of Shastric Hindu Law, it must be pleaded
and proved as a custom. In the absence of a plea as to the custom, no amount
of evidence can be looked into.
24. Learned counsel for the appellantappellant placed reliance upon the
judgment, reported in AIR 1987 BOM 27:(Ningu Bamane and others vs.
Sadashiv Bamane and others) wherein it was held that Pat marriage
between the parties which is recognised and approved form of marriage, it
is held in that case that when a man and woman live together as husband and
wife for sufficiently long time and were treated as husband and wife by
friends, relatives and neighbours, there is always a presumption in favour of
their marriage. The abovesaid case law is not applicable to the facts of the
present case, as it is not the case of the respondent that they were teated as
husband and wife by friends, relatives or neighbours. In fact, there is
absolutely no evidence on record to show that the appellant and respondent
stayed together in Jagat Apartment as husband and wife, apart from bare
words of the respondent .
25. Learned counsel for the appellant placed reliance upon the judgment
reported at (2009) 15 SCC 184: (M.Yogendra and others vs. Leelamma N.
and others) wherein the issue of property was involved. Paragraph 20 of the
same reads thus:
“ .....Before the court, evidence in different forms may be
adduced. Information evidence may be one of them. But for the
purpose of arriving at a conclusion as to whether a valid
marriage has been performed or not. The court would be
entitled to consider the circumstances thereof. There may be a
case where the witnesses to the marriage are not available.
There may also be a case where documentary evidence to prove
marriage is not available. It is in the aforementioned situation,
the information of those persons who had the occasion to see
the conduct of the parties they may testify with regard to the
information (sic opinion) they form probably the conduct of the
persons concerned.”
26. As already discussed, except the bare words of the respondent, there
is absolutely no evidence on record to show that there was a valid marriage
between the parties on 16.4.2012. It is not at all the case of the respondent
that apart from appellant and respondent anybody else was present at the
time of marriage. In these circumstances, it is difficult to rely upon the bare
words of respondent. In fact, there was no occasion to see the conduct of the
parties i.e. their behaviour as appellant and respondent in the society. There
is absolutely no evidence on record to show that the parties stayed together as
husband and wife and their friends and relatives presume them to be husband
and wife. The respondent continued to stay with her exhusband. No evidence
came on record that she stayed for a few days or at night time at Jagat
Apartment. There is no evidence that neighbours treated that the respondent
was the wife of the appellant. On the contrary, it is clear that society continued
to recognise the respondent and Rajesh/(exhusband) as married couple.
The appellant and respondent never cohabited as husband and wife at Jagat
Apartment or anywhere else. The fact, however, remains that the society never
recognised the appellant and respondent as a married couple.
27. In AIR 1965 SC 1564 : (Bhaurao Lokhande vs.State of Maharashtra
and another), it is held by the Hon'ble Apex Court the term "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
therefore follows, therefore, that unless the marriage is celebrated or
performed with proper ceremonies and in due form, it cannot be said to be
solemnized. Thus, the ceremonies as claimed by the respondent were not
prescribed by law or approved by custom and therefore the marriage does not
come within the purview of Section 7 of the Hindu Marriage Act.
28. In Kochan Rani vs. Mathevan Kani reported in 1971(2) SCC 345, the
Hon’ble Apex Court in paragraph no.6 observed thus,
“6.....................It is well established that in the matter of
custom a party has to plead in specific terms as to what is the
custom that he is relying on and he must prove the custom
pleaded by him. He cannot be permitted to prove a custom not
pleaded by him. In Abdul Hussain Khan vs. Bibi Sona Dero AIR
1917 PC 181,the Judicial Committee observed: “It is, therefore,
incumbent upon the plaintiff to allege and prove the custom on
which he relies”. That was also the view taken by this Court in
Thakur Gokalchand v. Parvin Kumari AIR 1952 SC 231. The
reason for this is rule is obvious. Anybody who puts forward a
custom must prove by satisfactory evidence the existence of the
custom pleaded, its continuity and the consistency with which it
was observed. A party against whom a custom is pleaded must
have a notice as to what case he has to meet. The opposite party
apart from rebutting the evidence adduced by the plaintiff may
be able to prove that the custom in question was not invariably
followed. He cannot get ready with that evidence without
knowing the nature of the custom relied upon by the plaintiff.
Therefore all that we have to see in the present case is whether
the respondent has established the custom pleaded by him. ....”
29. The learned Judge of the Family Court has wrongly shifted the burden
upon the appellant. In fact, it was for the respondent to prove that the
marriage was performed as per the customs under Hindu law. She has failed
to prover her cohabitation with the appellant after the alleged marriage, as
husband and wife. There is absolutely no iota of evidence in that regard, of
the neighbours, relatives or friends of the respondent. Surprisingly, the
children of the respondent were also not aware of the so called marriage
between the appellant and respondent. No evidence in that regard is adduced
on behalf of the respondent. The society was not knowing about the divorce
between the respondent and her exhusband as they continued to stay together
as husband and wife, for the sake of their children. It is interesting to note
that if the respondent claimed to be legally wedded wife of the appellant, then
she should have challenged the engagement of the appellant with a girl from
Raipur, however, she kept mum. On the contrary, she accepted the amount of
Rs.2 lacs from the appellant and kept mum. She also withdrew the
allegations against the appellant. The behaviour of the respondent leads to the
conclusion that there was no marriage between the appellant and respondent.
In fact, the onus rests upon the respondent to prove that there was a valid
marriage between the appellant and respondent.
30. It would be useful to refer to the judgment of this Court in case of Mr
Raj Amarsingh Gulale vs. Mrs.Manasi Raj Gulale, reported in 2015 (3) ALL
MR 365, wherein it is held that merely because there was exchange of the calls
between the parties, that does not necessarily mean that the parties were
husband and wife. Those call details did not show that marriage took place
between the parties.
31. In the instant case also, there are numerous phone calls between the
parties. However the said fact does not necessarily indicate that there was a
marriage between the appellant and respondent. Even the CDs which are
relied upon by the respondent, do not show that marriage existed between the
appellant and respondent.
32. In 2011 (15) SCC 531 in case of Pallavi Bharadwaj vs. Pratap Chuhan,
the Hon’ble Apex Court observed that there is no document about marriage
or any acceptable material relating to marriage, hence the Apex Court
restored the judgment of Family Court which had held that since the marriage
was not performed, there is no question of decree for restitution of conjugal
rights.
33. In the instant case also, the respondent failed to prove that there was
a marriage between the appellant and respondent. There is no proof to
substantiate the case of the respondent in that regard. No one attended the
said marriage. The alleged marriage was not celebrated with proper
ceremonies. In fact, there was no marriage between the appellant and
respondent, as claimed by the respondent; there was no cohabitation between
the parties; they were never recognised as husband and wife by the society.
Even there was no livein relationship between the parties. They never stayed
under the same roof as husband and wife. There is absolutely no iota of
evidence in that regard. On the contrary, evidence on record demonstrates
that the respondent was residing with her exhusband and children at
Gopalnagar, Nagpur. In this view of the matter, it is held that the respondent
has failed to prove that she was a legally wedded wife of appellant. Hence, the
point No.(1) is answered in negative.
34. As regards point No.2, since the respondent failed to prove her
marriage with the appellant, there is no question of granting the prayer for
restitution of conjugal rights. The Appeal is, therefore, allowed and the
judgment and decree passed by the learned Judge of the Family Court is
quashed and set aside.
35. Thus, in view of the fact that no marriage is proved between the parties,
there is no question of granting the prayer for restitution of conjugal rights to
the respondent. Hence the following order:
ORDER
1) The Appeal is allowed.
2) The judgment and decree dated 1.4.2015 passed by the learned Judge,
Family Court No.2, Nagpur in Petition No. A1087/2013, is set aside.
No costs.
JUDGE JUDGE
It is settled law that marriage should be performed according to religious and customs or should be registered under relevant Act.
ReplyDeleteTo claim the claim the status of wife marriage should be performed either by following religious ceremony or should be registered under law.
ReplyDelete