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2002 DIGILAW 590 (ORI)

BASANTI MOHANTY ALIAS RAUT v. PARIKHIT ROUT

2002-09-12

BASUDEVA PANIGRAHI, C.K.MISRA

body2002
B. PANIGRAHI, J. ( 1 ) THE appellant who was the petitioner in Criminal Proceeding No. 166 of 1993 under Section 18 of the Hindu Adoptions and Maintenance Act has challenged the validity, propriety and legality of the order passed by the learned Judge, Family Court, Cuttack dated 16-7-1999 whereunder the application filed by the appellant was dismissed. ( 2 ) THE factual matrix leading to this appeal is as follows : that, both the appellant and the respondent are the residents of village Kapaleswar within the district of Kandrapara. Their houses are very close to each other. It has been alleged by the appellant that there was a pre-marital affair between the appellant and the respondent which culminated in marriage on 10/07/1987. Immediately after the marriage both the spouses led a happy conjugal life, but their relationship gradually deteriorated on account of the respondent insisting for more dowry articles from the parents of the appellant. She was subjected to unabated torture and harassment on account of non-fulfilment of dowry demand. The appellant_s father could not satisfy the unsatisfied greed for dowry articles. Ultimately, therefore, the respondent drove his wife from the matrimonial home. Thus the appellant has been staying in her parents_ house. ( 3 ) THE respondent had filed his written statement denying the factum of marriage with the appellant. It is stated that he is still a bachelor and working as a Lecturer in Balia Womens_ College since 1991. It has been very emphatically stated that since the marriage is in dispute, therefore, the appellant cannot take shelter of the Family Court by invoking provisions of Section 18 of the Hindu Adoptions and Maintenance Act. ( 4 ) BOTH parties had led oral evidence and also the respondent filed some documents in support of his plea. The learned Judge, Family Court, however, on consideration of the evidence of both parties had dismissed the application of the appellant. Therefore, being aggrieved by such order, the appellant has filed this appeal. ( 5 ) THE learned counsel appearing for the appellant has invited our attention to the evidence on record and stated that the learned Judge, Family Court, had wrongly appreciated the facts of the case and misread the evidence. Therefore, being aggrieved by such order, the appellant has filed this appeal. ( 5 ) THE learned counsel appearing for the appellant has invited our attention to the evidence on record and stated that the learned Judge, Family Court, had wrongly appreciated the facts of the case and misread the evidence. It is further submitted that although there was ample evidence adduced by the appellant, through her witnesses, in proving the marriage with the respondent, yet the learned trial Court without making slightest endeavour to discuss such evidence at length, abruptly has arrived at the conclusion that there was no valid marriage. It is unrealistic to expect from a party that he/she would remember the date, tithi and also the day of the marriage, even after lapse of considerable time. Even though there are plethora of evidence, yet the learned Judge, Family Court has rejected those evidence on a very flimsy and trifle ground. ( 6 ) THE learned counsel appearing for the respondent argued with vehemence that the appellant has miserably failed to prove the requirements of a valid marriage. It has been further submitted that the learned Judge, Family Court, after a labourious attempt in scanning the evidence has arrived at a conclusion that the marriage as claimed by the appellant was nothing, but a well planned conspiracy at the behest of few persons who are inimically disposed against the respondent. ( 7 ) THE appellant_s application for maintenance was rejected on the ground that she had not stated in the application as to when her marriage was solemnised. But on a closer study of the evidence, we noticed that she stated that her marriage with the respondent was solemnised on 10-7-1987 at 9. 00 to 10. 00 p. m. at the Temple of Belamangala Grama Devati of village Kapaleswar. Prior to such marriage both the spouses had pre-marital relationship and thus love and intimacy between them gradually developed and it crystallised into a marriage. She further stated in her evidence about the persons who are present at the time of marriage. She continued to stay in the house of the respondent from 1987 till 1993, but gradually the situation deteriorated on account of non fulfilment of the respondent_s unsatisfied desire for dowry. The appellant_s father had willy-nilly given Rs. 11000/- to the respondent for marriage expenditure besides meeting the expenses of the marriage itself. She continued to stay in the house of the respondent from 1987 till 1993, but gradually the situation deteriorated on account of non fulfilment of the respondent_s unsatisfied desire for dowry. The appellant_s father had willy-nilly given Rs. 11000/- to the respondent for marriage expenditure besides meeting the expenses of the marriage itself. It is unrealistic to dismiss the application for maintenance only on the ground that the wife could not state the name of the mediator who arranged the marriage. The Court should have looked to the ground reality to the effect that it was not an arranged marriage and such marriage was consummated on account of their past association. From the order it has further transpired that it did not persuade the learned Judge which since the appellant could not utter the name of the priest of the temple who presided over the sacred ceremony, but we found the priest, who performed the marriage, was examined in the Family Court. The evidence of P. Ws. 2 and 3 who attended the marriage is consistent, credible and their testimonies do not per se suffer from any improbability or untrustworthiness. Law does not enjoin the service of a barber and in the absence of which the marriage should be declared invalid. P. W. 4 is a villager who had occasion to know about the relationship of the parties and deposed in Court that both parties used to live as husband and wife. P. W. 5 who is the father of the appellant has also supported the version of his daughter. P. W. 6 acted as a priest. His evidence satisfied about the performance of Saptapadi. ( 8 ) AS against these evidence, the respondent had led only denial evidence suggesting that there was no valid marriage. The learned Judge, Family Court has laid undue emphasis on a certificate granted by the Tahasildar whereunder he has described the names of the family members. First of all, the Tahasildar has not vested with the jurisdiction for granting such a certificate. Secondly, the certificate also does not negate the parties, status as the wife and husband. Ext. B also is a certificate granted by the Sarpanch of Kapaleswar Grama Panchayat. First of all, the Tahasildar has not vested with the jurisdiction for granting such a certificate. Secondly, the certificate also does not negate the parties, status as the wife and husband. Ext. B also is a certificate granted by the Sarpanch of Kapaleswar Grama Panchayat. We are at a loss to understand as to how the Sarpanch could grant a certificate with regard to the status of the parties and if so, under which status he was empower to grant such certificate. Ext. C is the voter_s list of the year 1955. The learned counsel appearing for the respondent contended with vehemence that had the appellant been married to the respondent she could have been described as his wife, but not the daughter of P. W. 5. Since at the time of preparation of voter_s list the appellant was residing in her parental house, she might have been described as the daughter of P. W. 5. But that would not detect her status as the wife of the respondent. Recognition by the society is a strong circumstance to be considered while deciding the status of a person. Marriage being a personal right of the spouses, they are entitled to live together, after marriage, openly to the knowledge of all members of the community or locality in which they live and by such living they acquire married status. In this regard, we wish to rely upon a judgment reported in AIR 1996 SC 1011 , in the case of Mr. Valsammaa Paul v. Cochin University in which the Hon_ble Supreme Court held as follows : the immediate question arises whether recognition of the community is a pre-condition? Though it was consistently held that recognition is a circumstance to be taken into consideration, marriage being personal right of the spouses they are entitled to live, after marriage, openly to the knowledge of all the members of the community or locality in which they live and by such living they acquire married status. In the light the constitutional philosophy of social integrity and national unity, right to equality assured by the human rights and the Constitution of India, on marriage by man and woman, they become members of the family and entitled to the social status as married couple, recognition per se is not a pre condition, but entitled to be considered, when evidence is available. It is common knowledge that with education or advance of economic status, young men and women marry against the wishes of parents and in many a case consent or recognition would scarcely be given by either or both of the parties or parents of both spouses. Recognition by family or community is not a pre condition for married status. " (Underline supplied for Emphasis) ( 9 ) WHERE the evidence is that a man and woman have been living and are being treated as husband and wife for a number of years and in the absence of any material to the contrary, a presumption might be drawn that they have been lawfully married. From the statements of other witnesses it is crystal clear that the appellant and respondent are known as husband and wife in the locality not only by the members of family of both the spouses but also by the villagers. In this case, P. W. 1, the appellant, answered to a question put by the Court that even neighbours of the respondent are aware that she has been living in his house for last 5 years. From our experience, we gather that usually where both the bride and bridegroom decide to marry themselves, the parents of either spouses may not give consent to it. Mere absence of the consent will not render the marriage invalid if such marriage is performed in accordance with Section 5 of the Hindu Marriage Act. Recognition by family or community is not a pre-condition for married status. Relations and friends of the appellant had been examined and they deposed before the learned Judge, Family Court that such a marriage was performed in the temple of Belegmangala Grama Devati of village Kapaleswar. It is true that there might be minor discrepancies as regards the time of marriage, tithi and other inconsequential contradictions, but it would be unrealistic if we over-look the evidence of the witnesses on account of such minor contradictions. It is true that there might be minor discrepancies as regards the time of marriage, tithi and other inconsequential contradictions, but it would be unrealistic if we over-look the evidence of the witnesses on account of such minor contradictions. ( 10 ) IN the decision of the Supreme Court in the case of Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni, reported in AIR 1996 SC 1290 , held by Hon_ble G. B. Patnaik, J. as follows : in view of the rival stand of the parties the first question that arises for consideration is whether merely because the factum of marriage has not been established, was it open for the lower appellate Court as well as the High Court to set aside the finding of the trial Judge, which finding was based on not only arising out of the legality of a presumption from the fact of living together as husband and wife but also the admission of defendant No. 1 that Shevantabai was residing with Pundit in the Wada in village for long years and the plaintiff No. 1 is son of Shevantabai ? It is no doubt true that a finding arrived at on a question of fact by the lower appellate Court or the High Court is not ordinarily interfered with by this Court under Art. 136 of the Constitution. But if such finding is recorded by non consideration of some vital piece of evidence or admission of the adversary, then this Court will be fully justified in interfering with the finding in question. In the case in hand, the consistent evidence being that Panditrao and Shevantabai were living together for long years as husband and wife and plaintiff No. 1 is their son and the defendant also admitted the aforesaid fact but contended that there had been no valid marriage between Panditrao and Shevantabai, a legal presumption does arise, though the presumption is rebuttable and this presumption has not been rebutted by the defendant. " the Hon_ble Supreme Court while coming to such conclusion had also relied upon its earlier judgment reported in (1994) 1 SCC 460 in the case of S. P. S. Balasubramanyam v. Suruttavan, holding that : if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two, but the presumption is rebuttable. The High Court, committed an error of law in recording a finding that the presumption would arise only if the factum of marriage is proved. We are afraid, if factum of marriage, is proved, the question of raising presumption does not arise. The lower appellate Court on the other hand has merely entered into the arena of conjectures and surmises while interfering with the finding of the trial Judge without considering the relevant and material evidence on the point. In this view of the matter the findings arrived at by the lower appellate Court as well as by the High Court on the question of relationship of Panditrao and Shevantabai cannot be sustained in law. In our considered opinion a legal presumption arises on the admitted fact that they were living together as husband and wife and the said presumption has not been rebutted. We would accordingly set aside the findings of the High Court as well as the findings of the Additional District Judge on this score and restore the finding of the trial Judge on this score and hold that Shevantabai was the wife of Panditrao and plaintiffs having been begotten by Shevantabai from Panditrao are the legal heirs over the property of Panditrao and would succeed to the said property. " ( 11 ) THE learned counsel appearing for the husband has contended with strong emphasis that merely because the appellant came up claiming her marriage with the respondent, it could not be presumed that there was a valid marriage, inasmuch as many ladies in the society who are of questionable character can pose a wife of another. We summarily dismiss such a contention since the respondent had not stated in his evidence that the claim of the appellant was baseless or she was of loose moral. Only ground that has been stated in written statement is that because of enmity with the respondent_s family, the P. Ws. who are the villagers, they had set up the appellant to lay a false claim. But that becomes too far to assume that the appellant has false by claimed her status as the wife of the respondent. Only ground that has been stated in written statement is that because of enmity with the respondent_s family, the P. Ws. who are the villagers, they had set up the appellant to lay a false claim. But that becomes too far to assume that the appellant has false by claimed her status as the wife of the respondent. ( 12 ) CONSIDERING the evidence, submissions and also the counter submissions advanced by the learned counsel appearing for both parties and on perusal of the impugned judgment we find that the learned Judge, Family Court, unreasonably dismissed the appellant_s prayer for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act. Accordingly, we direct the respondent to pay an amount of Rs. 500/- (Five hundred) per month towards monthly maintenance payable from the date of application before the learned Judge, Family Court. ( 13 ) IN the result, the appeal succeeds, the impugned judgment dated 16-7-1999 is hereby set aside. ( 14 ) P. K. MISRA, J. CH. I agree. Appeal allowed.