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2000 DIGILAW 389 (CAL)

Sunita Gupta v. Sanjeeb Nandan

2000-08-04

H.Banerji, S.B.Sinha

body2000
Judgment S.B. Sinha, J. Family Courts constituted under the Family Courts Act, 1980 have solemn duties to perform. A Family Court Judge holds greater responsibilities as he does not get the assistance of the learned lawyers. Hapless women approach the Family Courts for ventilating their grievances. Not only the Family Courts are obliged to take the assistance of the Family Counselors but they have a duty which is statutory in nature to guide the litigating parties and to help them to arrive at a settlement, if possible. 2. The case at hand depicts how perfunctorily a case is conducted by a Family Court. 3. The appellant herein, inter alia, filed the suit against the respondent for a decree declaring their marriage to be nullity. The said marriage allegedly was solemnised before the Marriage Registrar on 4.11.1996. Before the marriage, the relationship of the parties was teacher/tutor and pupil. The appellant had failed in the Madhyamik Examination held in March, 1997. The respondent was appointed as her tutor from September, 1996. Allegedly before the purported marriage the respondent represented to the appellant that he was owner of a Turmeric Factory which is a profitable concern. It was alleged: "That on 4.11.1996 when the petitioner went to a neighbouring stationery shop for purchase of Khatas all on a sudden the respondent appeared there in a taxi alongwith three other associates of whom two happened to be ladies and at the bidding of the respondent the petitioner had to board the taxi on his representation that the petitioner would be required to be personally present at the Board Office for verification of the form already submitted and instead of taking the petitioner to Board Office the respondent took straight to the marriage registrar under the Special Marriage Act and forced the petitioner to put her signature on certain forms which the petitioner did without having understood the content and purport of the form and thereupon the respondent took the petitioner in a taxi to her residence and left her there with threats of murder of her parents in the event of disclosure of the incident to them and the petitioner accordingly did not didulge the same to her parents." 4. She allegedly was hyptonised by the words of the respondent to such an extent that she was not aware of her purported marriage and the respondent taking undue advantage of such situation forcibly took her to a relation's residence. According to the appellant, the respondent is of criminal character. Forcibly she was again taken to his own house on 14.12.1996. 5. A First Information Report was lodged by her father. The respondent allegedly forced her to write some letters to her parents. She was ultimately rescued from Bhadreswar. 6. The respondent in his written statement denied the said allegations and contended that they were in love with each other and married voluntarily. 7. Before the learned trial Judge the appellant examined herself. She in her examination-in-chief stated in detail the acts of the respondent and his family members. Except one or two statements, the cross-examination was taken down as if only suggestions had been given to her which had been denied. 8. PW2 Parameswar Jaiswal is an acquintance of appellant's family. He was one of the members who rescued the appellant from Bhadreswar. In his deposition he stated; "At about 7/7.30 P.M. we again went to the above address in search of the petitioner. But the respondent was not found available, but the father of the respondent was found available. We narrated the incident to the father of the respondent. Firstly he denied the incident. We then created pressure on the father of the respondent. The neighbours of the respondent also created pressure on the father of the respondent. The father of the respondent then disclosed that his son alongwith the father of the respondent went to Bhadreswar. On going to Bhadreswar, we found the petitioner in a house. We found the petitioner was roped and her face was closed with a tape. We found 2/3 women present there. We untied the petitioner. The petitioner then came running and got up the car and we drove for Calcutta." (Emphasis supplied) 9. No cross-examination of the said witness worth the name was made on behalf of the respondent. In his cross-examination he stated ;- "The father of the petitioner who took us to Balaram Dey Street, Calcutta in search of his daughter. The neighbourers of the respondent who identified the father of the respondent on going to Bhadreswar, I found the petitioner was roped. In his cross-examination he stated ;- "The father of the petitioner who took us to Balaram Dey Street, Calcutta in search of his daughter. The neighbourers of the respondent who identified the father of the respondent on going to Bhadreswar, I found the petitioner was roped. The father of the petitioner unroped the petitioner. Besides the father of the respondent, we 3/4 persons accompanied the father of the petitioner to Bhadreswar." 10. P.W. 3 Hiralal Jaiswal again was one of the witnesses who had rescued the appellant. In his deposition he stated:- "We enquired the possible whereabouts of the respondent from the relatives of the respondents and also the neighbours. We searched for the respondent at the addresses as were made available from the relatives of the respondent. We again at about 7/7.30 P.M. went to Balaram Dey Street and we found the father of the respondent who was identified as the father of the respondent by the local people. On interrogation, the father of the respondent disclosed that his son went to Bhadreswar along with the petitioner. We left for Bhadreswar along with the father of the respondent. On going there, we found the petitioner was roped. The father of the petitioner unroped her and she hurriedly got up on the car and we left for Calcutta. The petitioner was found trembling out of fear." 11. Yet again cross-examination of the said witness was cryptic and no suggestion had even been given that the statement, made by him are not correct. The cross-examination of the said witness is to the effect:- "I reached the house of the petitioner within 15 minutes after the telephone call. We also went to Tollygunge in search of the respondent. At about 10.30 P.M. we reached Bhadreswar. On going to Bhadreswar, we did not find the respondent present. Other women, however, were found present in the house where the petitioner was found confined. At about 7/7.30 P.M. we reached Balaram Dey Street, Calcutta for the second time. I cannot tell the number of persons present at Balaram Dey Street, Calcutta. We went to Bhadreswar by two cars. We were not stopped at the level crossing on our way to Bhadreswar." 12. In A.E.G. Carapiet vs. A.Y. Dorderiam, reported in AIR 1961 Cal 359 , this Court held:- "The law is clear on the subject. I cannot tell the number of persons present at Balaram Dey Street, Calcutta. We went to Bhadreswar by two cars. We were not stopped at the level crossing on our way to Bhadreswar." 12. In A.E.G. Carapiet vs. A.Y. Dorderiam, reported in AIR 1961 Cal 359 , this Court held:- "The law is clear on the subject. Whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiffs account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he had finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated." 13. The respondent examined himself in support of his case. He asserted "once I have married the petitioner". If his version is to be believed, parents of the appellant negotiated with his parents for the said marriage where after the same took place. Yet again except a few sentences the entire cross-examination shows that the questions and answers were in the form of suggestions which cannot be countenanced. He admitted that there was no physical relationship with the appellant even after the registration of the alleged marriage. He even denied that the appellant used to respect him as a teacher. Yet again except a few sentences the entire cross-examination shows that the questions and answers were in the form of suggestions which cannot be countenanced. He admitted that there was no physical relationship with the appellant even after the registration of the alleged marriage. He even denied that the appellant used to respect him as a teacher. He admitted that there had been criminal cases between the parties. 14. As regard the contention that the appellant was roped and her mouth was pasted by sticker at Bhadreswar, his statement is:- "I do not know if the petitioner was roped with a rope at Bhadreswar, not a fact that I do not know if her mouth was pasted with a sticker at Bhadreswar. Not a fact that I was also present at Bhadreswar when she was assaulted there and was roped. I have no document to show that I took the petitioner to a hotel at Birati. It was at 9.00 A.M. on the day of Navami I took the petitioner to a hotel. Not a fact that I am not a gentleman." 15. To a Court question as regard the solemnisation of the marriage, he stated :- "Q : Are you Hindu? A: Yes. Q : Is the petitioner a Hindu? A: Yes. Q : How the marriage was solemnised ? A : It was only by way of registration and nothing else. Q : Was there any religious performance for the purpose of solemnisation of the marriage, i.e. according to Hindu rites and religion? A: No." 16. D.W. 2 Smt. Bina Nandan, is the mother of the respondent. The allegations made in the written statement was improved by her in her deposition and it was stated that the appellant had gone to their house and expressed that she was in love with her son. Even such statement had not been made by the respondent himself. According to her:- "One month after the marriage the petitioner came to our house. I alongwith the petitioner went to Bhadreswar. The father of the petitioner alongwith others went to Bhadreswar and wherefrom they lifted the petitioner." 17. Again in the cross-examination only suggestions had been recorded. The lady, however, states:- "Before 4th November, 1996 we had to talk with the father of the petitioner in regard to the negotiation of marriage of the petitioner. The father of the petitioner alongwith others went to Bhadreswar and wherefrom they lifted the petitioner." 17. Again in the cross-examination only suggestions had been recorded. The lady, however, states:- "Before 4th November, 1996 we had to talk with the father of the petitioner in regard to the negotiation of marriage of the petitioner. My son acts as a private tutor and besides that he carries on spices business. My son has got licence for carrying on business. My son is not in any service." No such licence was produced. She further stated:- "In between 4th November, and 14th November my son did not inform about the registration to the parents of the petitioner. The witness volunteers by saying that the petitioner asked not to disclose the registration to her parents." 18. D.W.3 Smt. Kamala Ash is said to be a neighbour. From her deposition it appears that she is not a trustworthy witness. This witness improved the story by saying that after the registration of marriage, they had gone to a cake shop on the Vivekananda Road where they were entertained. 19. Her evidence goes to show that there were some ladies who, according to the appellant, together with their male counterparts encircled her at the time of registration. In her deposition, she although claimed herself to be a neighbour, yet could not state the number of stories of the office buildings of the Marriage Registrar. If she was a genuine witness and if the story made out by her in her examination-in-chief would have been true, she could not have stated:- "I cannot tell the names of the other witnesses who figured as witnesses. I cannot tell their names and addresses. I did not see them before hand. Not a fact that none on behalf of the petitioner was not present at the time of registration." 20. Admittedly, none on behalf of the appellant was present at the time of registration but she even denied that fact. She admitted that she had been called to depose by the respondent. 21. D.W. 4 Shri Rahul Lundia is a child witness. No precaution had been taken by the learned Judge before D.WA was permitted to depose. Yet again D.W. 4 made out a story which was not even the case of the respondent that he used to call the appellant in his house over telephone. 21. D.W. 4 Shri Rahul Lundia is a child witness. No precaution had been taken by the learned Judge before D.WA was permitted to depose. Yet again D.W. 4 made out a story which was not even the case of the respondent that he used to call the appellant in his house over telephone. Allegedly, they saw each other only in a Mehendi class. It does not appear to any reason as to why the respondent would inform the little boy about his marriage nor does there appear any reason as to how he would see the parties at different places. In his cross-examination he stated :- "I cannot tell the date on which I attended Mehendi School. I attended the Mehendi School in 1996. I cannot tell the month in which I attended the Mehendi School. I do not know if the petitioner left the Mehendi School in June, 1996. I cannot tell when the respondent was appointed as private tutor of the petitioner. I cannot tell if the respondent was appointed as a private tutor of the petitioner in September, 1996." 22. The father of the respondent, Sri Mahadev Nandan was examined as D.W.5. In his examination-in-chief he stated:- "About 3/4 years then says three years ago on the day of Astami, the petitioner came to my house. My son then was present in the house. Petitioner took her meal in our house. The respondent disclosed my identity to the petitioner when the petitioner bowed me. The petitioner had a mobile phone with her at that time and she made a phone call to her house by the mobile phone. The petitioner then on that day told me that she will either stay in my house or will commit suicide. I then finding no other alternative sent the petitioner to the house of my sister-in-law at Bhadreswar." 23. No such case even had been made out by the respondent. He further asserted the following as regard the rescue of the appellant by her father:- "My brother-in-law Haripada Banik came out. The persons present entered in the house in search of the petitioner. The persons present assaulted the petitioner. The persons who went to Bhadreswar by many cars returned to Calcutta along with the petitioner. The petitioner was lifted from Bhadreswar in the midnight." 24. No such case even was made out by his wife, D.W.2. The persons present entered in the house in search of the petitioner. The persons present assaulted the petitioner. The persons who went to Bhadreswar by many cars returned to Calcutta along with the petitioner. The petitioner was lifted from Bhadreswar in the midnight." 24. No such case even was made out by his wife, D.W.2. He did not say with reference to date and month or year in which the appellant had gone to her house and took her meal. As regard the story of rescue of the petitioner, he further stated:- "I cannot tell the nature of relationship in between the petitioner and Dharmendar. Dharmendar has got a shop in front of Haryana Bhawan. He has got a grocery shop. Not a fact that I disclosed the whereabouts of the petitioner after I was put on pressure. I informed Jorasanko Police about threat and pressure created on me. Not a fact that the petitioner was not taken out from Bhadreswar house by her relatives after putting her under pressure." 25. Despite the facts that D.W.2. stated that they had all along the knowledge about the alleged love between the parties and the registration of their marriage, the said witness said that he had no knowledge about the registration before the said date of registration and he could know of the said incident upon seeing vermilion on the forehead of the appellant. No such case was made out that vermilion was put on the forehead of the appellant by any of the witnesses examined on behalf of the respondent. He admitted that the parties had not lived together as husband and wife. Although according to D.W.2, the parents of the appellant came to negotiate the marriage, this witness did not know the father of the appellant and knew him only from the date of institution of the Suit. He pleaded his ignorance about the status of the father of the appellant. 26. The Order Sheet dated 3.3.99 makes an interesting reading which reads thus :- "Today the respondent produces a photograph of the petitioner and claims that such photograph was delivered to him by the petitioner and the petitioner although admits such photo is of her but such photo was stolen by the respondent. The photo is marked exbt. Al. The respondent also produces a carbon copy of the letter dtd. The photo is marked exbt. Al. The respondent also produces a carbon copy of the letter dtd. 14.12.1996 and claims that such letter was written by the petitioner under her handwriting to her mother and the original is left with her mother. The petitioner claims that original is also with the respondent. She also claims that such letter was written although under her handwriting but it was written by her under coercion. The said letter is marked exbt. B. The respondent also produces a birth certificate of the petitioner which is issued by Shyamnagar Nursing Home. Such document is marked exbt. C on admission of the petitioner. The petitioner claims that the respondent stole such certificate of marriage which bears the signature also of the petitioner. The petitioner also admits her signature but states that it was taken under coercion. The same is marked exbt. D. The respondent also produces a certificate copy of the notice of intended marriage and the same is marked exbt. E. The respondent also produces a diary page and claims that the petitioner under her handwriting gave such paper to him disclosing her address, telephone No. etc. The petitioner admits that the same was her handwriting but it was stolen by the respondent from her diary. The same is marked exbt. F. Heard the parties also in person again. Fix 31.3.99 for judgment." 27. The said documents were marked exhibits, although they had not been put to the witness despite the explanation made by the appellant with regard thereto, the learned Judge in the judgment under appeal had placed strong reliance thereupon. The manner in which, the case had been conducted leaves much to be desired. Neither the proper procedure had been followed nor the principal questions which require consideration were posed for arriving at a correct finding of fact. The court did not take into consideration the pre-varication of the case from stage to stage by the respondent. If the version of the respondent that the marriage took place with the consent of the appellant's parents is correct, there was no reason as to why the marriage would not be solemnised according to Hindu Rites and Customs. There was further no reason as to why even the father of the respondent would not know their whereabouts. If the version of the respondent that the marriage took place with the consent of the appellant's parents is correct, there was no reason as to why the marriage would not be solemnised according to Hindu Rites and Customs. There was further no reason as to why even the father of the respondent would not know their whereabouts. There was absolutely no reason as to why the parents of the parties were not present at the time of marriage. There was no reason as to why the registration of the marriage would be kept a closely guarded secret. There was also absolutely no reason as to why despite alleged intimacy and. love between the parties there would not be any physical relationship. To crown it all, there does not appear to be any reason as to why the appellant would have been rescued from the house of the respondent roped and mouth plastered with a sticker, particularly in view of the statements made by D.W.2 that the appellant came to their house of her own accord. 28. As indicated hereinbefore, P.Ws.2 and 3 had not been cross-examined at all. The court, therefore, must draw a presumption that the statements made by the said witnesses are absolutely correct. For coming to the finding that the contents of the documents have been proved, three aspects of the matter are required to be considered by the Court, viz. (i) the proof of execution of the document, (ii) proof of contents of the documents, and (iii) the evidentary value of a document as a whole. 29. It is true that registration of marriage carries with it a presumption. Such a presumption, however, is a rebuttable one. The learned Judge in passing the impugned judgment has clearly failed to consider the explanation offered by the appellant as regard the documentary evidences. The matter ought to have been considered having regard to the character of the respondent and upon analysing the entire materials on records. 30. A marriage must be solemnised upon consent. If a consent has been obtained by coercion, fraud or misrepresentation, the contract would be voidable. Admission of signature coupled with explanations as regard the circumstances leading thereto without knowing its contents cannot be said to be knowledge of execution of any document. 30. A marriage must be solemnised upon consent. If a consent has been obtained by coercion, fraud or misrepresentation, the contract would be voidable. Admission of signature coupled with explanations as regard the circumstances leading thereto without knowing its contents cannot be said to be knowledge of execution of any document. In a case of this nature not only the conduct of the parties but also the attending circumstances both prior to and after the alleged contract of marriage should be considered and looked into. The first misrepresentation made by the respondent is to the effect that he was owner of a Turmeric Factory has been proved. It has been admitted that he was even not in service. The materials on records clearly show that the father of the appellant is a moneyed man whereas; the respondent's family is not. They did not either voluntarily or by reason of their poverty even pay the rent/occupation charges in respect of the premises in which they were living. They live only in one room. 31. For reasons best known to the respondents, except D.W.3, no other witness to the marriage has been examined. D.W.3 is not a trustworthy witness. An adverse inference should be drawn for non-examination of other witnesses to the marriage. 32. The above analysis of evidence imp ell us to arrive at a conclusion that the learned Judge, Family Court, ought to have granted a decree to the effect that the marriage which took place between the appellant and respondent on 4.11.1996 before the Marriage Registrar was a nullity. 33. The fact that the marriage allegedly took place on 4.11.1996 and the Suit had been filed on 2.1.1997 is also an important factor. 34. Knowledge is a sine qua non for grant of consent. See Brij Mohan Bokshi vs. Amar Nath Bokshi, reported in AIR 1980 J&K 54 . In Evans vs. Dell, reported in 1937 (1) A.E.L.R. 309, it was held that as the defendant was unaware of the use of the vehicle to which it was being put, he was not guilty of the offence charged. 35. For the reasons aforementioned, the appeal is allowed. In the facts and circumstances of this case there will be no order as to costs. H. Banerji, J. : I agree. Appeal allowed.