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2005 DIGILAW 433 (ORI)

SATYABHAMA PRADHAN v. SIDHARTHA SAHOO

2005-07-20

A.K.PARICHHA, P.K.TRIPATHY

body2005
A. K. PARICHHA, J. ( 1 ) BOTH the appeals having arisen out of an analogous judgment and decree passed by the Judge, Family court, Cuttack are taken together for disposal of this common order. ( 2 ) THE appellant claiming herself to be the wife of the respondent filed Civil proceeding No. 472 of 2000 against the respondent before the Judge, Family Court, cuttack under Section 9 of the Hindu Marriage act, 1955 (in short, "the Act") demanding restitution of conjugal rights. The plea of the appellant is that she and the respondent were married at Ram Mandir, bhubaneswar on 7th February, 2000 and lived as husband arid wife thereafter at cuttack for some months but thereafter the respondent withdrew from society without any reasonable excuse. The respondent entered appearance and filed written statement denying his marriage with the appellant and contending inter alia that the story of marriage depicted by the appellant is an imaginary one and has been designed simply to blackmail him and his family. The respondent also filed Civil Proceeding No. 156 of 2001 before the Judge, Family Judge, cuttack seeking a declaration that the appellant is not his married wife. In that proceeding the appellant filed a petition under order 7, Rule 11, C. P. C. to reject the plaint on the ground that the Family Court, cuttack does not have the jurisdiction to give negative declaration about the marital status of the appellant. ( 3 ) LEARNED Judge, Family Court, Cuttack felt that the facts and issues involved in Civil proceeding Nos. 472 of 2000 and 156 of 2001 are one and same and therefore recorded one set of evidence and disposed of both the proceedings by the impugned judgment dated 8-12-2003. In that judgment the family Court declared that appellant is not the married wife of the respondent and decreed Civil Proceeding No. 156 of 2001. Consequently learned Judge rejected the prayer of the appellant for restitution of conjugal rights and dismissed Civil Proceeding No. 471 of 2000. Aggrieved by the said order appellant has filed the present appeals. ( 4 ) MR. D. P. Sarangi, learned counsel for the appellant submitted that the Family court committed gross illegality by disposing of Civil Proceeding No. 156 of 2001 without giving appellant an opportunity of filing written statement or adducing evidence. Aggrieved by the said order appellant has filed the present appeals. ( 4 ) MR. D. P. Sarangi, learned counsel for the appellant submitted that the Family court committed gross illegality by disposing of Civil Proceeding No. 156 of 2001 without giving appellant an opportunity of filing written statement or adducing evidence. He also submitted that evidence adduced by appellant clearly establish a valid marriage between the parties, but learned Judge, family Court, Cuttack without properly appreciating the evidence on record erroneously held that there was no valid marriage. According to him evidence of the P. Ws. should have been believed and no reliance should have been placed on the statement of the O. P. Ws. whose evidences were improbable and unreliable in nature. ( 5 ) MR. S. P. Mishra, learned counsel for the respondent, on the other hand, argued that the facts and issue involved in both the civil Proceeding being one and the same, there was no scope for a separate trial and the learned Judge, Family Court, Cuttack was legally justified in recording one set of evidence and disposing of both the proceedings analogously by a common order. He submitted that the plea and evidence of the appellant are contradictory and unreliable and was rightly rejected by the Court below. He further submits that Section 7, Explanation (b) of the Family Court Act empowers a Judge, Family Court to declare the marital status of a party and therefore, there was no scope of rejecting the plaint of Civil proceeding No. 156 of 2001. According to him, when evidence on record clearly establishes that plea of marriage between the parties is imaginary one, it was proper on the part of the trial Court to declare that appellant is not the married wife of the respondent and she is not entitled to a decree for restitution of conjugal rights. ( 6 ) IN Civil Proceeding No. 472 of 2000 the appellant approached the Court under section 9 of the Act for restitution of conjugal rights. ( 6 ) IN Civil Proceeding No. 472 of 2000 the appellant approached the Court under section 9 of the Act for restitution of conjugal rights. Section 9 states that where either husband or wife has withdrawn from the society of the other without reasonable excuse, the aggrieved party may apply to the district Court for restitution of the conjugal rights and the Court on being satisfied of the truth of the statement made in such petition and that there is no legal ground why the application should not be granted may decree restitution of conjugal rights. These conditions are in addition to the condition that there was a valid subsisting marriage between the parties on the date of the petition. So the remedy under Section 9 of the Act pre-supposes a valid and subsisting marriage between the appellant and respondent on the date of the application. In other words if a valid marriage between them is not established then prayer for restitution of conjugal rights cannot be granted. ( 7 ) APPELLANT claims that her marriage with the respondent was performed at Ram mandir Temple situated at Unit-I, bhubaneswar on 7-2-2000 and thereafter she lived with the respondent in his joint family house at Ranihat for sometime, but because the father of the respondent demanded dowry of rupees three lakhs and tension developed on that issue, she and the respondent shifted to a rented house nearby. The appellant also claims that before her marriage the respondent had emotional attachment with her and because of such relationship, she had contributed a sum of rupees one lakh to the respondent when he purchased one EEG Machine. To establish this assertion, appellant examined himself and three witnesses. P. W. 1 is the father of the respondent, who speaks about the marriage between appellant and the respondent at Ram Mandir Temple, Bhubaneswar on 7-2-2000. P. W. 2 is a person who claims that appellant and the respondent resided in his house as a tenant for three months and that they were living as husband and wife for sometime. P. W. 3, who is a priest, claims to have performed the marriage ceremony between the parties at Ram Mandir on 7-2-2000. P. W. 4 is the appellant herself. P. W. 3, who is a priest, claims to have performed the marriage ceremony between the parties at Ram Mandir on 7-2-2000. P. W. 4 is the appellant herself. The respondent on the other hand claims that he had never married the appellant and that the appellant has created a false plea of marriage in order to extract money from him and his family. According to him appellant had approached him and his father for employment in their Abha Diagnostic and the research Private Limited and when not so employed, she became vindictive and created false cases against them. To substantiate this plea, respondent examined himself as O. P. W. 7 and six other witnesses. O. P. W. 1 is a neighbouring shopkeeper who says that there was never any marriage between the appellant and the respondent and that the appellant never stayed in the house of the respondent. O. P. W. 2 is the Joint secretary-cum-Tresurer of Ram Charit manasha Mandali, Unit-I, Bhubaneswar-9 who says that no marriage ceremony is allowed to be performed in Ram Mandir, Unit-1, Bhubaneswar and no outside priest is also permitted to perform any ceremony there. O. P. W. 3 is the priest of Ram Mandir, Unit-1, Bhubaneswar who says that he is the only priest of the temple and that no outside priest is allowed to perform Puja in the temple. O. P. W. 8 also says that no marriage was performed in the Ram Mandir temple on 7-2-2000. O. P. W. 4 is a neighbour of P. W. 2, Krushna Chandra Mohapatra who says that appellant was all along staying alone and she never stayed with the respondent in the house of P. W. 2. P. W. 5 is a resident of Ranihat, who says that the appellant and respondent never married and never resided at Ranihat as husband and wife and that appellant was staying alone in a rented house all along. O. P. W. 6 is the father of the respondent and Managing Director of Abha diagnostic Centre, Ranihat. He claims that the respondent and appellant were never married and never resided in his house at any point of time and that the allegation of demand of dowry made by the appellant is imaginary one. This witness also clarifies that the Ultrasound Machine and EEG machine etc. were purchased by him and that payments were made through Bank. He claims that the respondent and appellant were never married and never resided in his house at any point of time and that the allegation of demand of dowry made by the appellant is imaginary one. This witness also clarifies that the Ultrasound Machine and EEG machine etc. were purchased by him and that payments were made through Bank. O. P. W. 7, the respondent denies any marriage between him and the appellant and receipt of rupees one lakh from the appellant at any point of time. He also proved the documents marked Exts. C and D regarding payment for the EEG Machine and Ultrasound Machine. ( 8 ) WHEN a person claims existence of a valid marriage, onus lies on him/her to establish the factum of marriage by cogent evidence because the person denying a marriage can only adduce negative evidence. In the present case appellant has not produced any document or evidence in support of her love affair, though she has claimed that she had intimacy with the respondent for some years. She has not been able to produce a single letter or photograph showing that such emotional relationship was there between the parties. Although, she admitted in her statement that photographs were taken at the time of their marriage at Ram mandir, Bhubaneswar, no such photograph has been produced. Similarly, no receipt granted by the temple authorities and no register containing any entry about the marriage has been filed. On the contrary as already noted the priest and the office bearer of the temple have denied about performance of any marriage in the temple on 7-2-2000. Appellant claims that she gave rupees one lakh to the respondent when the latter purchased one EEG Machine, but she has not produced any receipt of Bank records in support of such payment. She has also not specifically stated about the mode and date of such payment. The only evidence which has been produced by the appellant is the oral evidence of P. Ws. 1 to 3, which are neither specific nor pinpointed. Not a single neighbour or relative of the respondent was examined by her to prove that she resided in the house of the respondent for some time. The plaint of Civil Proceeding No. 472 of 2000 Shows that name of the temple where the alleged marriage took place has been corrected and changed. Not a single neighbour or relative of the respondent was examined by her to prove that she resided in the house of the respondent for some time. The plaint of Civil Proceeding No. 472 of 2000 Shows that name of the temple where the alleged marriage took place has been corrected and changed. This castes a doubt on the truth of the claim of marriage at Ram Mandir Temple, Unit-I, Bhubaneswar. In a Civil Proceeding evidence is to be approached and weighed in the scale of preponderance of probabilities. On consideration of all the above factors, evidence adduced by the appellant and the denial evidence and the documents produced by the respondent, it does not appear that appellant has been able to prove her marriage with the respondent. Learned Judge, Family court, Cuttack, therefore, did not commit any error in recording the finding that valid marriage between the appellant and the respondent has not been established. ( 9 ) SUBSISTENCE of a valid marriage is a foremost condition for grant of restitution of conjugal rights. Since the appellant has failed to establish her marriage with the respondent, the learned Judge, Family Court, cuttack was, justified in rejecting her prayer for restitution of conjugal rights and dismissing civil Proceeding No. 472 of 2000. ( 10 ) IT is submitted by learned counsel for the appellant that disposal of Civil Proceeding No. 156 of 2001 before rejecting the prayer of the appellant under Order 7, Rule 11, C. P. C. or giving her an opportunity of filing written statement, was illegal. Section 7, Explanation (b) of the Family Courts Act, 1984 clearly says that Family Court has the jurisdiction to entertain a suit or proceeding for declaration regarding the validity of a marriage or as to the matrimonial status of a person. In such legal backdrop, there was no scope for the learned Judge, Family court, Cuttack to reject the plaint of Civil proceeding No. 156 of 2001. The Judge, family Court, Cuttack has indicated that aspect and legal position in Para-8 of the impugned judgment. ( 11 ) IN Civil Proceeding No. 472 of 2000 appellant claimed restitution of conjugal rights against the respondent. So, in that proceeding existence of a valid marriage between the parties was the main issue. In civil Proceeding No. 156 of 2001 the respondent prayed for a declaration that the appellant is not his married wife. ( 11 ) IN Civil Proceeding No. 472 of 2000 appellant claimed restitution of conjugal rights against the respondent. So, in that proceeding existence of a valid marriage between the parties was the main issue. In civil Proceeding No. 156 of 2001 the respondent prayed for a declaration that the appellant is not his married wife. So in that proceeding also the only issue was existence or non-existence of a valid marriage between the parties. When the facts and issue in both the proceedings were one and the same, learned Judge, Family Court, Cuttack was legally duty bound to take up both the proceedings together and record one set of evidence. In that situation, filing of written statement by the appellant in Civil Proceeding No. 156 of 2001 was not essential and non-filing of the same did not cause any prejudice to the appellant. Moreover, the record shows that opportunity was given to the appellant for filing of written statement. ( 12 ) FOR the reasons stated above, both the appeals are found to be without any merit and are accordingly dismissed. Considering the fact that the litigation relates to matrimonial issue, the parties are directed to bear respective costs of litigation all throughout. Appeals dismissed. .