notice issued by him to the respondent to resume cohabitation.
To the said notice the respondent replied that no marriage had
ever taken place and hence there is no question of her resuming
the company of the petitioner. Thereafter, reliance was placed by
the appellant upon an application under the Right to Information
Act asking for mobile phone call details about calls allegedly
made by the respondent and the appellant to each other. Even if
call details show that they had made calls to each other, these call
details would not show that any marriage ever took place
between the parties. It is true that details of marriage ceremonies
is matter of evidence but at the same time petition should prima
facie disclose that some form of marriage took place between the
parties and there should be some prima facie evidence of
marriage in the form of marriage like marriage invitation card,
photographs of marriage, certificate of marriage or details as to
which persons were present in the marriage or details in relation
to marriage ceremonies. Annexing such documents to the petition
was necessary in this case because the respondent had in reply to
the notice of the appellant to resume his company specifically
denied that any marriage had ever taken place. As observed
12)
filed by the appellant.
earlier, all these details are conspicuously lacking in the petition
In view of the above discussion, we find no merit in
this appeal.
APPELLATE SIDE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FAMILY COURT APPEAL No. 37 of 2014.
Mr Raj Amarsingh Gulale (Singhania)
Versus
Mrs Mansi Raj Gulale(Singhania)
CORAM :- SMT. V.K. TAHILRAMANI AND
A.R. JOSHI, JJ.
DATED :- 29th September, 2014.
Citation; 2015(3) ALLMR365
Heard the learned counsel for the appellant and the learned
counsel for the respondent. By consent, matter is taken up for
final hearing at the stage of admission.
2)
The appellant has preferred this appeal against the order
dated 26th February,2013 passed by the Family Court, Mumbai
below Exhibit-1 in Petition No. A 1717 of 2011. In the said
petition, the appellant had prayed for a decree of restitution of
conjugal rights. In the said petition an application was preferred
by the respondent regarding maintainability of the petition. In the
application it was prayed by the respondent that the Court be
pleased to frame a preliminary issue of maintainability as to
whether marriage was solemnized between the petitioner and the
respondent. By an order dated 26th February,2013 the Family
Court answered the preliminary issue in the negative that is no
marriage ever took place between the parties. It is this order
3)
which has been assailed before us.
The learned counsel for the petitioner stated that the
Family Court on 26th February,2013 should not have disposed of
the application for framing preliminary issue because on 22nd
February,2013 application has been preferred by the appellant for
adjournment on the ground that the petitioner seeks to file review
petition before the Supreme Court.
4)
In order to appreciate the controversy involved, it would be
necessary to state few facts:
The facts as stated earlier are that the respondent moved
the Family Court with the prayer for framing the preliminary
issue as to whether any marriage has taken place between her and
the petitioner on 17th August, 2009 as claimed by the
appellant/petitioner. The Family Court rejected the said
application. Hence, the said order came to be challenged before
the High Court. This Court directed the Family Court to frame
the preliminary issue. This order was challenged by the appellant
before the Supreme Court. The Supreme Court upheld the order
of this Court and dismissed the SLP by order dated 5.7.2012.
under.
Then the Family Court framed the preliminary issue which is as
"Does the petitioner prove that he was
married to the respondent on 17th August,
2009 or on any other date?"
This preliminary issue was answered in the negative
on 26th February,2013 wherein it was held that no marriage took
place between the parties on 17th August, 2009 or on any other
date.
5)
The learned counsel for the appellant submitted that
when the said order was passed on 26 th February, 2013 an
application had been made by the appellant before the Family
Court on 22nd February,2013 seeking adjournment as the
appellant wished to move review petition before the Supreme
Court in respect of the order dated 5th July,2012 passed by the
Supreme Court upholding the order of the High Court. His
grievance is that on 26th February,2013 the Family Court without
granting any adjournment disposed of the application relating to
the preliminary issue. His further contention is that when the
matter was pending before the Supreme Court no order could
have been passed by the Family Court.
As far as above grievance is concerned, it is seen
6)
that SLP was dismissed on 5th July,2012. The limitation for
filing a review would be 30 days. The appellant moved an
application before the Family Court on 22nd February,2013
stating that he "wishes" to file a review petition before the
Supreme Court. By that date no review petition had been filed
before the Supreme Court. The limitation for filing the review
petition had long expired. It is also seen that no review petition
has been filed on the day when the order was passed by the
Family Court. In this view of the matter, the Family Court is not
expected to wait indefinitely till the review petition is moved by
the appellant before the Supreme Court. As stated earlier, time
for filing the review petition had long expired. It is observed that
the appellant was only adopting delaying tactics. Thus, we find
no merit in this contention.
7)
The second grievance of the appellant is that he was
not heard when the order dated 26th February,2013 was passed.
As far as this aspect is concerned, the preliminary issue was
framed by the Family Court on 9 th January, 2013. The
preliminary issue which was framed is already reflected above in
paragraph 4. On 26th February, 2013 the petitioner and his
advocate were absent. So also it is seen that on earlier dates i.e.
on 4th February,2013 and 13th February, 2013 the petitioner and
his advocate were absent.
8)
The learned counsel for the appellant again
submitted that he was not present when the order was passed and
the matter ought to be remanded back and he ought to be heard
before the order is passed. As far as this contention is concerned,
it is seen that in the present appeal, no ground has been made out
by the petitioner for not remaining present before the Family
Court on many occasions and specially on the date when the
impugned order came to be passed. Had the appellant made out
any good ground for not remaining present before the Family
Court on the date when the order was passed we may have been
inclined to remand the matter. However, no good ground is
shown for remaining absent before the Family Court especially
when he knew that the preliminary issue had been framed on 9th
We have perused the petition filed by the petitioner
9)
January, 2013. Thus, we find no merit in this contention.
before the Family Court. It merely states that marriage took place
on 17th August, 2009 as per the Hindu rites and customs at
Bandra, Mumbai. No details of the marriage as to the time and
place of the marriage are given in the petition. It may also be
noted that recitals about marriage taking place “at Bandra
Mumbai” are added afterwards in writing that is it is
subsequently added. In the petition before the Family Court, it is
clearly stated that after marriage the parties were not residing
together. Thus, it is clear from the petition itself that after the
alleged marriage the parties did not cohabit together which would
not be the case if the parties were really married.
10)
Thus, except the bare statement of the appellant that
he and the respondent were married on 17th August, 2009 no
details of the marriage are given. No documentary evidence such
as invitation card of the marriage, photographs of marriage have
been filed by the appellant. It was necessary to file such
documents because the appellant knew even prior to filing his
petition before the Family Court that the stand of the respondent
was no marriage ever took place. This is clear from the reply that
the respondent sent in answer to his notice to resume
cohabitation. In such case the onus of establishing that there was
a valid marriage between the parties squarely rests upon the
appellant and the respondent is not supposed to prove that no
marriage took place between the parties and there was no
matrimonial relationship between the parties. In this connection,
we would like to refer to the decision of the Supreme Court in
Pallavi Bhardwaj Vs. Pratap Chauhan, reported in 2011 (15)
SCC 531 = 2011 (8) JT 159. In the said case it was observed by
the Supreme Court that there is no document about the marriage
nor is there any acceptable material relating to marriage.
Observing thus, the Supreme Court restored the judgment of the
Family Court which had held that as there was no marriage there
is no question of restitution of conjugal rights. In the present case no document is filed as prima facie proof of the marriage. It was
thus urged by the learned counsel for the respondent that the
Family Court was right in holding that the petition does not
disclose the cause of action and, therefore, it should be dismissed
at the threshold.
The appellant has merely relied upon the copy of the
11)
notice issued by him to the respondent to resume cohabitation.
To the said notice the respondent replied that no marriage had
ever taken place and hence there is no question of her resuming
the company of the petitioner. Thereafter, reliance was placed by
the appellant upon an application under the Right to Information
Act asking for mobile phone call details about calls allegedly
made by the respondent and the appellant to each other. Even if
call details show that they had made calls to each other, these call
details
would not show that any marriage ever took place
between the parties. It is true that details of marriage ceremonies
is matter of evidence but at the same time petition should prima
facie disclose that some form of marriage took place between the
parties and there should be some prima facie evidence of
marriage in the form of marriage like marriage invitation card,
photographs of marriage, certificate of marriage or details as to
which persons were present in the marriage or details in relation
to marriage ceremonies. Annexing such documents to the petition
was necessary in this case because the respondent had in reply to
the notice of the appellant to resume his company specifically
denied that any marriage had ever taken place. As observed
12)
filed by the appellant.
earlier, all these details are conspicuously lacking in the petition
In view of the above discussion, we find no merit in
this appeal. The appeal is dismissed. No order as to costs.
(SMT. V.K. TAHILRAMANI,J)
(A.R. JOSHI, J)
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