>>> Getting
married in front of an idol in a temple, take saath pheras (Saptapadi-round around the sacred fire)
in a temple in front of an idol in a temple, constitutes for legal matrimony?
>>> A physical
relationship coupled with wearing “sindoor”
(vermillion ) and “mangalsutra” does
not constitute for a valid marriage!
>>> Dated: 31-01-2017: "Unless the marriage
is celebrated or performed with proper ceremonies and in due form, it cannot be
said to be solemnized," the bench led by justice BP Dharmadhikari observed………………….
While hearing a petition
involving a 40-year-old businessman and a 38-year-old woman, who said she was
“married” in front of Krishna idol and he applied “sindur” to her forehead and
tied a “mangalsutra” around her neck.
The bench stressed upon the
importance of proper ceremonies and “due form” for a legal union between man
and woman…………and said that:
The marriage couldn’t be
valid under the 1955 Hindu Marriage Act as neither the community of the man nor
the woman – Marwari and Brahmin respectively – recognized the union.
The court ruled that as per
the 1955 Hindu Marriage Act, since neither of their communities
thought the marriage to be valid, it couldn’t be considered
otherwise.
>>> The court
overturned a 2015 family court verdict that ordered the restoring of marriage
rights to the woman, who had two children from a previous marriage.
The bench pointed out
that no one attended the “marriage” and neither friends nor family members
recognized the two as “husband and wife”.
>>> While the
couple claimed to be living-in together, and that such an arrangement has
worked for many in the past.
The HC also refused to
recognize the relationship as a live-in relationship as they never resided
together under one roof.
The court also noted that
the couple had no witnesses of their ‘wedding’ and neither of the families
recognized theirs as a legitimate live-in relationship since they were not
living-in under the same roof.
>>> The judges
also took note of the fact that though the 38-year-old woman was divorced; she
was staying in her matrimonial home along with her husband “for the sake of the
children”.
She approached the family
court for restoring conjugal rights only after the parents of the businessman
fixed his marriage with a woman from their own community.
Besides, the bench noted
that:
“The woman
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/. “
>>> Central Government Act
Hindu Marriage
Act 1955
7: Ceremonies for a
Hindu marriage. —
(1) A Hindu marriage may be solemnized in accordance with the
customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptpadi (that
is, 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. State Amendments Section 7A Pondicherry: After section 7, insert
the following section, namely:—
(a) by each party to the marriage declaring in any language
understood by the parties that each takes the other to be his wife or, as the
case may be, her husband; or
(b) by each party to the marriage garlanding the other or
putting a ring upon any finger of the other; or
(c) by the tying of the thali.
(2) (a) Notwithstanding anything contained in section 7, but
subject to the other provisions of this Act, all marriages to which the section
applies solemnised after the commencement of the Hindu Marriage (Madras
Amendment) Act, 1967, shall be good and valid in law.
(b) Notwithstanding anything contained in section 7 or in any
text, rule or interpretation of Hindu law or any custom or usage as part of
that law in force immediately before the commencement of the Hindu Marriage
(Madras Amendment) Act, 1967, or in any other law in force immediately before
such commencement or in any judgment, decree or order of any court, but subject
to sub-section (3) all marriages to which this section applies solemnised at
any time, before such commencement shall be deemed to have been, with effect on
and from the date of the solemnisation of each such marriage, respectively,
good and valid in law.
(3) Nothing contained in this section shall be deemed to—
(a) render valid any marriage referred to in clause (b) of
sub-section (2), if before the commencement of the Hindu Marriage (Madras
Amendment) Act, 1967,—
(i) such marriage has been dissolved under any custom or law;
or
(ii) the woman who was a party to such marriage has, whether
during or after the life of the other party thereto, lawfully married another;
or
(b) render invalid a marriage between any two Hindus
solemnised at any time before such commencement, if such marriage was valid at
that time; or
(c) render valid a marriage between any two Hindus solemnised
at any time before such commencement, if such marriage was invalid at that time
on any ground other than that it was not solemnised in accordance with the
customary rites and ceremonies of either party thereto:
Provided that nothing
contained in this sub-section shall render any person liable to any punishment
whatsoever by reason of anything done or omitted to be done by him before such
commencement.
(4) Any child of the parties to a marriage referred to in
clause (b) of sub-section (2) born of such marriage shall be deemed to be their
legitimate child: Provided that in a case falling under sub-clause (i) or
sub-clause (ii) of clause (a) of sub-section (3), such child was begotten
before the date of the dissolution of the marriage or, as the case may be,
before the date of the second of the marriages referred to in the said
sub-clause (ii).” [ Vide Tamil Nadu Act 21 of 1967, sec. 2 (w.e.f. 20-1-1968).]
9 : Restitution of
conjugal rights. — 7 [***] When either the husband or the wife has,
without reasonable excuse, withdrawn from the society of the other, the
aggrieved party may apply, by petition to the district court, for restitution
of conjugal rights and the court, on being satisfied of the truth of the
statements made in such petition and that there is no legal ground why the
application should not be granted, may decree restitution of conjugal rights
accordingly. 8 [ Explanation. —Where a question arises whether there
has been reasonable excuse for withdrawal from the society, the burden of
proving reasonable excuse shall be on the person who has withdrawn from the
society.] 9
28: Appeals from
decrees and orders. —
(1) All decrees made by the court in any proceeding under this
Act shall, subject to the provisions of sub-section (3), be appealable as
decrees of the court made in the exercise of its original civil jurisdiction,
and every such appeal shall lie to the court to which appeals ordinarily lie
from the decisions of the court given in exercise of its original civil
jurisdiction.
(2) Orders made by the court in any proceeding under this Act
under section 25 or section 26 shall, subject to the provisions of sub-section
(3), be appealable if they are not interim orders, and every such appeal shall
lie to the court to which appeals ordinarily lie from the decisions of the
court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject
of costs only.
(4) Every appeal under this section shall be preferred within
a 60 [period of ninety days] from the date of the decree or order.]
61 [ 28A
Enforcement of decrees and orders. —All decrees and orders made by the court in
any proceeding under this Act shall be enforced in the like manner as the
decrees and orders of the court made in exercise of its original civil
jurisdiction for the time being are enforced.]
https://indiankanoon.org/doc/590166/
http://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
>>> Central Government Act
The Family Courts Act, 1984
19. Appeal.-
(1) Save as provided in sub-section (2) and notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the
Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal
shall lie from every judgment or order, not being an interlocutory order, of a
Family Court to the High Court both on facts and on law. -(1) Save as provided
in sub-section (2) and notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974)
or in any other law, an appeal shall lie from every judgment or order, not
being an interlocutory order, of a Family Court to the High Court both on facts
and on law."
(2) No appeal shall lie from a decree or order passed by the
Family Court with the consent of the parties 1[or from an order passed under
Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974): Provided that
nothing in this sub-section shall apply to any appeal pending before a High
Court or any order passed under Chapter IX of the Code of Criminal Procedure
1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act,
1991].
(3) Every appeal under this section shall be preferred within
a period of thirty days from the date of the judgment or order of a Family
Court. 1[(4) The High Court may, of its own motion or otherwise, call for and
examine the record of any proceeding in which the Family Court situate within
its jurisdiction passed an order under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the
correctness, legality or propriety of the order, not being an interlocutory
order, and, as to the regularity of such proceeding.] 2[(4) The High Court may,
of its own motion or otherwise, call for and examine the record of any
proceeding in which the Family Court situate within its jurisdiction passed an
order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for
the purpose of satisfying itself as to the correctness, legality or propriety
of the order, not being an interlocutory order, and, as to the regularity of
such proceeding.]" 2[(5)] Except as aforesaid, no appeal or revision shall
lie to any court from any judgment, order or decree of a Family Court. 2[(6)]
An appeal preferred under sub-section (1) shall be heard by a Bench consisting
of two or more Judges. 3[(6)] An appeal preferred under sub-section (1) shall
be heard by a Bench consisting of two or more Judges."
https://indiankanoon.org/doc/373687/
>>> Central
Government Act
The Indian Evidence Act, 1872
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, or 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 section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
Illustrations
(a) The
question is, whether A and B were married. The fact that they were usually
received and treated by their friends as husband and wife, is relevant.
(b) The
question is, whether A was the legitimate son of B. The fact that A was always
treated as such by members of the family, is relevant. Comments Contradiction
in evidence of relationship of witness of triffle nature, not material in a
partition suit; Gowhari Das v. Santilata Singh, AIR 1999 Ori 61.
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.
>>> 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 has 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, …………….
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.
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.
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.
…………..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. ……………………..
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. …………………….
there was no marriage between the parties and, as such, there
is no question of restitution of conjugal right……………
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 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.
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 …………….
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
cross examination, 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.
According to
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. ………………….
The third message is dated 30.8.2013 is at 3.00 p.m. (Exh. 42) …………….
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 above referred 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
2. 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.
In our opinion,
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.
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.
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 behavior as appellant and
respondent in the society.
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.
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
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.
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.
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
he 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR
FAMILY COURT APPEAL NO.57/2015
Shri Nitin s/o Omprakash Agrawal
Aged about 38 years, occu: Business
R/o Apartment No.303, Jagat Apartment
Ravi Nagar, Nagpur. ..PETITIONER
v e r s u s
Smt. Rekha w/o Nitin Agrawal
(falsely claiming so)
Aged about 36 years, occu: Household
R/o Flat No.304, Shri Vinayak apartment,
Gopalnagar, 3rd Bus Stop Nagpur22.
...RESPONDENT
CORAM :
B.P. DHARMADHIKARI &
MRS
. SWAPNA JOSHI, JJ.
DATEOF RESERVING: 19.01.2017
DATE OF PRONOUNCEMENT: 31.01.2017
JUDGMENT: (PER MRS.SWAPNA JOSHI, J.)
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