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Gauhati High Court · body

1998 DIGILAW 222 (GAU)

Jhuma Das v. Biresh Das

1998-07-31

H.K.SEMA, P.C.PHUKAN

body1998
Judgement H. K. SEMA, J. :- This appeal is directed against the judgment and order dated 31-10-97 passed by the Principal Judge, Family Court, Kamrup, Guwahati in FC (Civil) No. 30/96, rejecting the complaint filed under Section 5 of the Special Marriage Act 1954 (hereinafter the Act) to nullify the marriage solemnised between the appellant and the respondent on 9-1-95 before the Registrar of Marriage under the Act. 2. The story as revealed by the counsel of both sides leading to the filing of the present appeal is quite otherwise pathetic. A boy of 30 years old (respondent herein) and a girl of 21 years old (appellant) fell in love and exchanging love letters, culminating in the marriage solemnised before the Registrar of Marriage on 9-1-95 preceded by a notice. It would appear that the mariage of the appellant was not known by the parents of the appellant and when the proposed second marriage was to be solemnised in 22-2-96, the respondent herein produced a marriage certificate granted on 9-1-95 by the Registrar of Marriage to the bridegroom family. Consequent upon the complaint filed by the respondent herein the marriage could not be solemnised on 22-2-96. An application under Section 5 of the Marriage Act has been filed for nullity of marriage solemnised on 9-1-95. The Principal Judge, Family Court heard the parties and after perusing evidence and examining the documents exhibited before him came to the finding that the marriage was solemnised between the parties on 9-1-95 is valid. Being aggrieved the present appeal has been filed. 3. The sole contention of Mr. A. Roy, learned counsel for the appellant assisted by Mr. Abhijit Roy are that the signature of the appellant has been obtained by fraud and coercion. 4. There is no dispute that at the time of marriage the appellant was 21 years old and she was a student of first year T.D.C. There is also no dispute that the marriage has been solemnised before the Registrar on 9-1-95, preceded by a notice on 8-12-94. The marriage officer has been examined as D. W. 2 and Court witness No. 1. She was an educated lady of major age. She never complained that her signature was obtained by fraud or by coercion. The marriage officer has been examined as D. W. 2 and Court witness No. 1. She was an educated lady of major age. She never complained that her signature was obtained by fraud or by coercion. D. W. 2 and Court witness No. 1 has been subjected to cross-examination, however, their statement in chief could not be impeached with regard to the solemnisation of the marriage between the appellant and the respondent on 9-1-95. Moreso, in instant case, the appellant is an educated lady being first yeat T.D.C. student at the time of marriage on 9-1-95 and she was of major age. We are unable to accept the contention that the signature of the appellant in the marriage certificate has been obtained by fraud because in normal circumstance it would be impossible to practice fraud on a educated lady of first year T.D.C. and of major age. 5. This apart, under Section 13(2) of the Act where a dispute has arisen with regard to the validity of marriage, a certificate of marriage is a conclusive proof of valid marriage. In the instant case the certificate of marriage granted by the Registrar of Marriage were exhibited as Ext. Kha, and Ext. Ga, produced by D. W. 2 and Court witness No. 1. Although the learned counsel for the appellant questioned the genuineness of the signature of the appellant appearing in the Ext. Kha and Ga, the appellant did not deny that it was her signature. The only case of the appellant as discussed above was that the signature was obtained by fraud. There is yet another difficulty to accept the plea of the appellant that her signature in Ext. Ka and Ga has been obtained by fraud. As already said that the marriage was solemnised on 9-1-95. For the first time the appellant has raised the plea of obtaining the signature of the appellant by fraud after 2nd arranged marriage to be held on 22-2-96 has been frustrated. From 9-1-95 till 22-2-96 no dispute was raised, that the appellants signature was obtained by fraud with regard to the solemnisation of marriage on 9-1-95. The appellant has not raised any dispute for more than a year about obtaining the signature of the appellant by fraud and she raised the dispute only after the proposed second marriage has been frustrated by the respondent party. The appellant has not raised any dispute for more than a year about obtaining the signature of the appellant by fraud and she raised the dispute only after the proposed second marriage has been frustrated by the respondent party. This would also indicate that the plea of obtaining her signature by fraud is well an after thought. 6. In the facts and circumstances of the case, we are of the view that there is no infirmity in the judgment and order passed by the learned Family Court. The appeal accordingly fails. 7. Despite of the dismissal of the appeal we are constrained to make some observation in the interest of both the parties. Both the parties are still young and within the marriageable age. It is stated by the learned counsel of both sides that the marriage has not been consummated. If that is so, the marriage has not been given its own meaning. In other words the marriage itself has become meaningless. At one point of time we thought of discharging a conciliatory role in exercise of inherent power and in this view we requested the learned counsel of both sides to appear before us with their clients today. The appellant accordingly appeared. The respondent failed to appear. It is stated that due to paucity of time. However, submission has been made by the counsel of both sides that this court on earlier occasion has made an endeavour to settle the dispute by conciliation, without any result. In this view it will be futile exercise of power again. Statement has been made by Mr. M. Bhuyan, learned counsel for the respondent that in the facts and circumstances of the case even the respondent is not keen to pursue for consummation of marriage. If that is so, the marriage itself has become a nullity by operation of law. It is also submitted by Mr. M. Bhuyan that the respondent is not even interested to file an application before the family court for restitution of conjugal right because even such a decree is passed the appellant would not come to the house of the respondent and the decree would remain a paper decree without execution. It is also submitted by Mr. M. Bhuyan that the respondent is not even interested to file an application before the family court for restitution of conjugal right because even such a decree is passed the appellant would not come to the house of the respondent and the decree would remain a paper decree without execution. In this situation as stated above we are of the view that the parties are at liberty to file consensus divorce application for dissolution of the marriage as provided under the Act before the Family Court and on such application being filed the Family Court shall examine the application and pass order as deemed fit and proper in the interest of justice, equity and fair play. 8. Delay will cause irreparable damage to both the parties as they would become over aged for marriage and in this view the parties are directed to file an application for dissolution of marriage before the Family Court, if so advised, within one month from today and thereafter the Family Court shall dispose of such application within a month. Since the parties has expressed their desire before this Court, the statutory period mentioned under Section 28 (2) may not come on the way. Subject to the aforesaid observation this appeal is dismissed. Appeal dismissed.