Kumari Ravi Kanta Devi v. Ashok Kumar Jain — 1974 DIGILAW 329 (ALL)

JUDGMENT : G.C. Mathur, J. These are two appeals u/s 39 of the Special Marriage Act, 1954. Admittedly, Ashok Kumar Jain and Smt. Ravi Kanta Devi were married on September 16, 1969. Smt. Ravi Kanta Devi filed, in the court of the District Judge, Meerut, a petition u/s 25 of the Special Marriage Act for annulling the marriage by a decree of nullity. Sometime thereafter Ashok Kumar Jain filed a petition u/s 22 of the Act for restitution of conjugal rights. The two petitions were tried together and evidence was recorded in the wife's petition u/s 25. By a judgment dated March 24, 1972, the Additional District Judge, Meerut, dismissed the wife's petition for annulment of the marriage. By another judgment of the same date he decreed the husband's petition for restitution of conjugal rights. Against the judgments in these two cases the wife has preferred these two appeals, F.A. F.O. No. 232 of 1972 is against the judgment dismissing the wife's petition and F.A.F.O. No. 233 of 1972 is against the judgment in the husband's petition. Since most of the facts are common, it will be convenient to dispose of both the appeals by one judgment. 2. Ashok Kumar Jain and Ravi Kanta were both students of the same College at Baraut in 1967. They, apparently, fell in love with each other and they started exchanging love letters. Ravi Kanta's father, Padam Prasad, was negotiating for the marriage of Ravi Kanta elsewhere. On the morning of September 16, 1969, Ravi Kanta in the company of Ashok Kumar Jain, Mangal Sen Jain and Adish Kumar Jain went in a taxi to Meerut. There they went to the house of Sri Atma Saran Rastogi, Marriage Officer. He took them to his law chambers and there solemnised the marriage under the Special Marriage Act. After sometime Ravi Kanta came back to Baraut to her father's house and has remained there since then. She filed her petition on September 14, 1970, almost a year after the marriage. The grounds on which she sought annunlment of the marriage are contained in paragraphs 2, 3, and 4 of her petition, which read as follow: 2. That the Respondent exercising correction and fraud upon the Petitioner got the alleged marriage solemnised u/s 12 of the Special Marriage Act en 16-9-1969 at Meerut. 3. The grounds on which she sought annunlment of the marriage are contained in paragraphs 2, 3, and 4 of her petition, which read as follow: 2. That the Respondent exercising correction and fraud upon the Petitioner got the alleged marriage solemnised u/s 12 of the Special Marriage Act en 16-9-1969 at Meerut. 3. That the said marriage has not been consummated owing to the wilful refusal of the Petitioner to consummate the marriage and as such the said marriage is voidable. 4. That the formalities that have been observed to perform the alleged marriage, were done under the fear of death and as such consent of the party was not available to the Respondent in the eye of law. The ground mentioned in paragraph 3 is misconceived. Under Clause (i) of Section 25 a marriage may be annulled, if it is not consummated owing to wilful refusal of the Respondent to consummate it. In the present case in paragraph 3 it was not asserted that the marriage was not consummated owing to the wilful refusal of the Respondent but it was asserted that it was not consummated owing to her own wilful refusal. Paragraph 3, therefore, did not make out any ground of annulment. The only ground that remain is coercion and fraud. The petition gives absolutely no particulars of coercion and fraud, nor states the facts which constituted coercion: and fraud. In the written statement the husband complained that the particulars and details of the fraud and coercion had not been given in the petition. Inspite of this no particulars were supplied either by way of application or amendment of the petition. The Additional District Judge examined Ravi Kanta under Order 10 Rule 2 to elicit the particulars of coercion and fraud. She stated that she and Ashok Kumar were studying in the same College, that they developed intimacy, that she wrote one or two love letters to him, that Ashok Kumar threatened to ruin the political life of her father, who was Municipal Commissioner, by publishing those love letters, if she did not marry him and that because of these threats she was forced to get the marriage solemnised. At the trial Ravi Kanta examined only herself on the question of coercion and fraud. At the trial Ravi Kanta examined only herself on the question of coercion and fraud. On the other hand Ashok Kumar examined himself, Sri Atma Saran Rastogi, Marriage Officer and Dhram Pal Singh an Advocate, who identified Ashok Kumar and Ravi Kanta before the Marriage Officer. Ashok Kumar also produced a large number of love letters written by Ravi Kanta to him. Some of, these letters were written after the marriage. Upon a consideration of the evidence the District Judge came to the conclusion that the Appellant had miserably failed to prove her case of coercion and fraud. 3. Having heard learned Counsel for the parties and having gone through the relevant evidence, I am in agreement with the Additional District Judge for the reasons given by him, that the Appellant has not, at all, been able to establish her case of coercion and fraud. The love letters which she wrote after the marriage completely shatter her case of coercion and fraud. It may be mentioned here that in this Court the Appellant made an application under Order 6 Rule 17 CPC for permission to amend the petition. By this amendment it was sought to introduce particulars of the alleged coercion and fraud. It was urged by the learned Counsel for the Appellant that even if this application is allowed, it would not be necessary to take further evidence, as all the evidence in support of the allegations now sought to be added is already on the record. The application for amendment cannot be allowed. When the Respondent complained about the lack of particulars in his written statement, the Appellant should have supplied the particulars either by the amendment of the petition or by a replication. Again, when she was examined by the Additional District Judge under Order 10 Rule 2 she could have given all the particulars which are now sought to be added. Having twice had the opportunity of giving the particulars of coercion and fraud alleged by her, she is not entitled to a third opportunity. Even if the amendment is allowed it would not help the Appellant, for the evidence produced by her falls far short of establishing coercion and fraud. I have accordingly, rejected the application for amendment. The Appellant has failed to establish any ground for the annulment of the marriage u/s 25. The appeal No. 232 of 1972 is, liable to be dismissed. I have accordingly, rejected the application for amendment. The Appellant has failed to establish any ground for the annulment of the marriage u/s 25. The appeal No. 232 of 1972 is, liable to be dismissed. 4. Ashok Kumar Jain's petition for restitution of conjugal rights was based on the ground that the wife had, without reasonable excuse, withdrawn from his society. He further alleged that the wife's father Padam Prasad Jain, who was made a party to the petition, was detaining his wife and not allowing her to come to him. This petition was resisted by Ravi Kanta on the ground that the marriage was brought about by coercion and fraud. She further alleged that the formalities required under the Special Marriage Act were not fulfilled and, therefore, the marriage was not complete and binding upon the parties. As already observed in the other appeal, Ravi Kanta failed to establish her case of coercion and fraud. In her written statement as he did not specify the formalities required by the Act which were not fulfilled. Even in her statement under Order 10 Rule 2 CPC she did not give any indication of what those formalities were which were not fulfilled. Before the Additional District Judge it was urged that of the three witnesses who signed the declaration u/s 11 one, namely, Qabool Singh, was not present at the time of the marriage and that his signatures were obtained subsequently. It was urged that on account of this fact the marriage was not a valid marriage and on the basis of such an invalid marriage a decree for restitution of conjugal rights could, not be passed. The Additional District Judge did not accept Ravi Kanta's case and held that Qabool Singh was present at the time of the signing of the declaration u/s 11 and that all formalities had been duly performed and that the marriage was a valid marriage. It may be mentioned that in this appeal also an application has been filed by the Appellant under Order 6 Rule 17, for amendment of the petition filed by her for annulling, the marriage. Since this appeal arises out of the husband's petition for restitution of conjugal rights, I am unable to see how an application for amendment of the petition in the other case can lie in this appeal. The application is incompetent. Since this appeal arises out of the husband's petition for restitution of conjugal rights, I am unable to see how an application for amendment of the petition in the other case can lie in this appeal. The application is incompetent. Otherwise also it is without merits, as the Appellant has had ample opportunity before the court below to supply particulars and details but did not avail of the same. The application is rejected. 5. In order to appreciate the contention of the Appellant, it is necessary to refer to some of the relevant provisions of the Act. Section 4 prescribes certain conditions which are required to be fulfilled before a marriage can be solemnized under the Act. These are: (a) that neither party has a spouse living ; (b) that neither party is idiot or a lunatic; (c) that the male has completed the age of twenty-one years and the female the age of eighteen years; and (d) that the parties are not within the degrees of prohibited relationship. Section 5 prescribes the giving of notice of the intended marriage. Sections 7 - 10 deal with the objections to the marriage and their disposal. Sections 11 and 12 which are material for this appeal, read thus: 11. "Before the marriage is solemnized, the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersinged by the Marriage Officer." 12. (1) "The marriage may be solmenized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed. (2) The marriage may be solemnized in any form which the parties may chose to adopt. Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,- I, (A) take thee, (B), to be my lawful wife (or husband). Section 13 provides for the entering of a certificate of marriage in the Marriage Certificate Book by the Marriage Officer. 6. A copy of this Certificate of Marriage is on the record. Section 13 provides for the entering of a certificate of marriage in the Marriage Certificate Book by the Marriage Officer. 6. A copy of this Certificate of Marriage is on the record. At the top of this certificate, it is stated that the marriage was solemnized at 54, Law Chamber Buildings, Meerut. Thereafter follows the certificate by the Marriage Officer in the following words: I, Atma Saran Rastogi, hereby certify that on the 16th day of the month of September of 1969, Sri Ashok Kumar Jain, s/o Sri Babu Lal Jain, Baraut (Meerut) and Km. Ravi Kanta Devi, d/o Sri Padam Sen Jain, Baraut (Meerut) appeared before me and that each of them, in my presence and in the presence of three witnesses who have signed hereunder made the declarations required by Section 11 and that a marriage under this Act was solemnized between them in my presence. After this Certificate follows the signatures of Sri Atma Saran Rastogi, Smt. Ravi Kanta Devi and Sri Ashok Kumar Jain. Thereafter there is an endorsement "Identified the parties and the witnesses" and this is signed by Sri Dharam Pal Singh, Advocate. After this the signatures of the three witnesses, Mangal Sain Jain, Adish Kumar Jain and Qabool Singh appear. The declaration u/s 11 is not on the record. 7. The grounds on which the Appellant has attacked the validity of the marriage are (1) that the declaration was made and the marriage was solemnized at the residence of Sri Atma Saran Rastogi, where neither Dharam Pal Singh, Advocate, nor Qabool Singh were present and, as such, the declaration u/s 11 was not made by three witnesses and (2) that the parties did not utter the words mentioned in the proviso to Sub-section (2) of Section 12 in the presence of the three witnesses. 8. Before considering these contentions on merit, it must be pointed out that these alleged infirmities in the performance of the marriage were not stated in the written statement filed by the Appellant. Even in the examination of the Appellant under Order X Rule 2 of the Code of Civil Procedure, these infirmities were not disclosed. The husband was, therefore, completely in the dark as to the actual ground on which the validity of the marriage was being challenged. The Appellant examined five witnesses. The first two witnesses said nothing about these infirmities. Even in the examination of the Appellant under Order X Rule 2 of the Code of Civil Procedure, these infirmities were not disclosed. The husband was, therefore, completely in the dark as to the actual ground on which the validity of the marriage was being challenged. The Appellant examined five witnesses. The first two witnesses said nothing about these infirmities. When the Appellant entered the witness box as PW 3 she said nothing in her examination-in-chief about the infirmities. Learned Counsel for the Appellant has pointed out that in her cross examination, the Appellant had stated that in the morning of September 16, 1969, she went to the house of Sri Atma Saran Rastogi, that the marriage was solemnized there and that she did not go to his Chamber. Even here she did not state that Qabool Singh was not present at the time of the marriage. Qabool Singh was himself examined as PW 5, the last witness for the Appellant. No summonses were taken out for the production of this witness. He came (of) his own accord at the instance of the father of the Appellant. Qabool Singh admitted his signatures but stated that his signatures were obtained sometimes in the afternoon and that neither Ashok Kumar nor Ravi Kanta nor Mangal Sain nor Adish Kumar signed in his presence. It is thus obvious that the Respondent must have been taken completely by surprise by the case disclosed for the first time by Qabool Singh that he had subsequently appended his signatures to the declaration and to the marriage certificate. The Respondent examined Sri Dharam Pal Singh, Advocate, who had identified the parties and the witnesses before the Marriage Officer, He has clearly stated that the parties and, the three witnesses had signed the declaration as well as the certificate in his presence. He also proved his own endorsement on the Marriage Certificate. He further stated on cross-examination that before signing the Marriage Register, Ashok Kumar stated three times that he took Ravi Kanta to be his lawful wife and that Ravi Kanta repeated three times that she took Ashok Kumar to be her lawful husband. He also proved his own endorsement on the Marriage Certificate. He further stated on cross-examination that before signing the Marriage Register, Ashok Kumar stated three times that he took Ravi Kanta to be his lawful wife and that Ravi Kanta repeated three times that she took Ashok Kumar to be her lawful husband. He has further stated in his cross-examination that all the proceedings took place in Law Chamber No. 54 of Sri Atma Saran Rastogi, between 10 and 11 A.M. The Respondent also examined himself as DW 2 and Sri Atma Saran Rastogi, Advocate, the Marriage Officer, as DW 3. Sri Rastogi has categorically stated that Qabool Singh was present at the time of the marriage and that he signed the declaration and the Marriage Register in the presence of the parties and the other witnesses. He has further stated that the statement of Qabool Singh that he had made his signatures between 2 and 3 P.M., was incorrect. He has also stated that the declaration was duly signed by Ashok Kumar, Ravi Kanta and the three witnesses and that Ashok Kumar and Ravi Kanta repeated the necessary words in the presence of the three witnesses. This witness was not cross-examined on the question whether the marriage was performed at his residence or in his Chamber. The Respondent Ashok Kumar has also stated about the presence of Qabool Singh and about his signing the documents in the presence of the parties and the other witness. He has further stated that in the morning he had gone to the house of the Marriage Officer, that the Marriage Officer questioned both of them and thereafter took them to his Law Chambers where the marriage was solemnized. 9. In view of the fact that the Law Chambers of Sri Rastogi are mentioned in the heading of the Marriage Certificate as the place where the marriage was solemnized and in view of the categorical statement of Sri Atma Saran Rastogi, the Marriage Officer, and Sri Dharam Pal Singh, Advocate, there cannot be any doubt that the marriage was, in fact solemnized in the Law Chambers and not at the residence of Sri Rastogi. In fact, the Appellant never set up a case before the lower Court that the marriage was solemnized at the residence of Sri Rastogi and not in the Law Chambers. In fact, the Appellant never set up a case before the lower Court that the marriage was solemnized at the residence of Sri Rastogi and not in the Law Chambers. The learned Counsel for the Appellant has urged that in his statement under Order X, Rule 2, Respondent Ashok Kumar had stated that the marriage was solemnized at the residence of Sri Atma Saran Rastogi and that the Appellant has also in her statement said that the marriage was solemnized at the residence of Sri Rastogi and, therefore, there being no dispute about the fact, the Court must accept it. As already stated above, the Appellant did not disclose her case till her last witness entered the witness box. On the date of the issue, when Ashok Kumar was examined under Order X, Rule 2, nobody could have realized the implications of the place where the marriage was solemnized. Since the Marriage Officer had questioned the parties and must have asked each one of them whether he or she was willing to marry the other, Ashok Kumar may well have thought that the formalities or ceremonies started at the residence of the Marriage Officer. His statement under Order X, Rule 2 cannot be treated as a categorical statement that the marriage took place at the residence of Sri Rastogi and not in his Chambers. Ashok Kumar has given an explanation for the statement which has been accepted by the court below, In the circumstances of this case, Ashok Kumar cannot be pinned down to this statement. Considering all the material on record, there can be little doubt that the marriage was actually solemnized in the Chamber of Sri Atma Saran Rastogi. 10. Now coming to the statement of Qabool Singh it is obvious that for some reason he has been prevailed upon to make a false statement. There is no reason whatever to doubt the statement of Sri Atma Saran Rastogi and Sri Dharam Pal Singh Advocate. The evidence conclusively proves that Qabool Singh was present at the time of the solemnization of the marriage and that he signed the declaration as well as the Marriage Register in the presence of the Marriage Officer, the parties and the other witnesses. 11. The evidence conclusively proves that Qabool Singh was present at the time of the solemnization of the marriage and that he signed the declaration as well as the Marriage Register in the presence of the Marriage Officer, the parties and the other witnesses. 11. Even if the Appellant's case were accepted that Qabool Singh was not present at the time of the solemnization of marriage, it will not affect the validity or binding nature of the marriage. The declaration u/s 11 is for the purpose of satisfying the Marriage Officer that the conditions laid down in Section 4 are fulfilled. It is nobody's case that any of the conditions was not fulfilled in the present case. Therefore, even if there was some defect in the declaration, it will not affect the validity or binding nature of the marriage. The declaration regarding the existence of the conditions is made by the bride and the bridegroom. The declaration which the witnesses are required to sign, reads thus: Signed in our presence by the above named A.B. and C.D. So far as we are aware there is no lawful impediment to the marriage. In the present case there can be no doubt about the correctness of either part of this declaration. Neither Ashok Kumar nor Ravi Kanta have denied their signatures on the declaration. As already observed, it is nobody's case that there was any lawful impediment to the marriage. Therefore, even if the declaration was not signed by three witnesses and was signed by only two witnesses, it would be a mere irregularity which would not affect the validity of the marriage. 12, Again even if the Appellant's case that Qabool Singh was not present at the time of the solemnization of the marriage, is accepted, the requirements of the proviso to Sub-section (2) of Section 12, are fully complied with. It is not disputed that the requisite words were repeated by the bride and the bridegroom in the presence of the Marriage Officer and of Mangal Sain Jain and Adish Kumar. Sri Dharam Pal Singh Advocate has stated in his cross-examination that the parties had three times repeated the necessary words in his presence before they singed the Marriage Register. Therefore, in addition to Mangal Sain Jain and Adish Kumar, the requisite words were repeated in the presence of Dharam Pal Singh also. Sri Dharam Pal Singh Advocate has stated in his cross-examination that the parties had three times repeated the necessary words in his presence before they singed the Marriage Register. Therefore, in addition to Mangal Sain Jain and Adish Kumar, the requisite words were repeated in the presence of Dharam Pal Singh also. There were thus three witnesses in whose presence, the words required by the proviso were uttered by the parties. The requirements of this proviso were thus fully satisfied. The Appellant has failed to show that there were any infirmities in the marriage or that any essential formalities were not fulfilled. 13. It was lastly urged on behalf of the Appellant that since the husband and wife have never lived together singe the solemnization of the marriage and have now lived apart from each other for five years, this Court should not exercise its discretion in favour of confirming the decree for restitution of conjugal rights. In my opinion, this is not a case in which the Court can refuse to grant the decree for restitution of conjugal rights. There is no doubt that shortly after the solemnization of this marriage, Ravi Kanta went away to her father's house and has remained there since then. But it is obvious from the letters which she sent to Ashok Kumar after the marriage that she wanted to live with him and that she was being prevented by her father from doing so. One of the letters suggests that the petition for annulment of the marriage was also got signed against her wishes and that on account of the fear for her father she will have to support the petition in Court. These letters are admittedly in the handwriting of Ravi Kanta. Her explanation that she merely copied out letters sent to her by Ashok Kumar in her own handwriting and then sent them back to Ashok Kumar, has been rightly rejected by the Additional District Judge. In view of these letters, it is clear that even after the marriage and till the date of the filing of the petition, Ravi Kanta still wanted to live with her husband. It is apparent that the father of Ravi Kanta is standing in the way. No good ground has been made out why the decree for restitution of conjugal rights should not be passed. 14. Both the appeals are accordingly dismissed with costs. It is apparent that the father of Ravi Kanta is standing in the way. No good ground has been made out why the decree for restitution of conjugal rights should not be passed. 14. Both the appeals are accordingly dismissed with costs. The stay order is vacated.