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2011 DIGILAW 185 (AP)

Potnuru Sugunavani v. Potnuru Krupanandam

2011-03-04

B.CHANDRA KUMAR, N.V.RAMANA

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Judgment B. Chandra Kumar, J. This Appeal Is Directed Against The Order And Decree Dated 09.03.2009 Made In O.P. No. 510 Of 1999 On The File Of The Judge, Family Court, At Visakhapatnam, Whereby And Whereunder The Petition Filed By The Respondent Herein Seeking Divorce Under Sections 18 And 19(4) Of The Indian Divorce Act (For Short ‘The Act’) Was Allowed Declaring The Marriage Of The Appellant And The Respondent Herein As Null And Void. The Appellant Herein Is The Respondent Before The Family Court And Wife Of The Respondent Herein. The Parties Hereinafter Will Be Referred To As They Are Arrayed Before The Family Court For The Sake Of Convenience. The Petitioner Filed The Petition Under Sections 18 And 19 (4) Of The Act And His Case Is As Follows. The Petitioner Initially Married One Mercy Shela Prasanna Vani In The Year 1986. They Were Blessed With Two Children. But, Subsequently, He Filed OP No.136 Of 1996 On The File Of The District Court, Visakhapatnam And Obtained Divorce From Her In The Year 1996. Subsequently, He Married The Respondent On 10.11.1997 As Per Christian Customs And Rites At Subbarami Reddy Kalyana Mandapam, S. Kota Mandal, Vizianagaram District. They Are Blessed With A Male Child Who Is Named As Ajay, Aged About 1 ½ Years. The Further Case Of The Petitioner Is That Recently He Came To Know That The Respondent Had Married One Kanithi Jacob On 09.05.1990 At RCM Church, Balanki Village, Vepada Mandal, Vizianagaram District And That She Had Not Obtained Divorce From The Said Kanithi Jacob. It Is Also His Case That The Respondent Had Suppressed About Her Earlier Marriage And The Mediator L. Malleswara Rao Also Did Not Inform Him That The Respondent Had Already Married K. Jacob. It Is Also His Case That The Respondent Lodged A Complaint Against Him Under Section 498-A Of The IPC And That She Has Voluntarily Left His Company On 04.08.1999 And Since Then Living At S. Kota. It Is Also His Case That He Had Reliably Learnt That The Respondent Has Been Living With Her Former Husband. Thus, The Main Contention Of The Petitioner Is That Since The Marriage Of The Respondent With K. Jacob Was Subsisting On The Date Of His Marriage With The Respondent, The Same Is Void. It Is Also His Case That He Had Reliably Learnt That The Respondent Has Been Living With Her Former Husband. Thus, The Main Contention Of The Petitioner Is That Since The Marriage Of The Respondent With K. Jacob Was Subsisting On The Date Of His Marriage With The Respondent, The Same Is Void. He Sought A Declaration That His Marriage With The Respondent Is Null And Void And Also A Decree Of Divorce On That Ground. The Respondent Filed A Counter Denying The Allegations Made By The Petitioner. Her Case Is That At The Time Of Marriage Her Parents Presented An Amount Of Rs.25,000/-, Wrist Watch And Gold Ring To The Petitioner Towards Dowry And That Subsequently He Ill-Treated Her Demanding Additional Dowry Of Rs.25,000/- And That Even After She Gave Birth To A Male Child On 06.08.1998 The Petitioner Continued To Harass Her And That Ultimately The Petitioner Necked Her Out Of His House On 04.08.1999 And In The Above Circumstances She Lodged A Complaint To The Station House Officer, Steel Plant Police Station, Visakhapatnam, And A Case In Crime No.48 Of 1999 Under Section 498-A IPC Was Registered Against The Petitioner. It Is Also Her Case That Her Marriage With One Jacob Was Performed At His House And Subsequently The Same Was Dissolved As Per Their Caste Custom Before Their Caste Elders And That A Divorce Deed Was Also Executed. It Is Also Her Case That The Said Jacob Again Married One Ramanamma And Who Gave Birth To A Female Child Namely Shailaja. She Has Denied The Allegation That She Has Been Living With Her Former Husband Kanithi Jacob. Thus, She Has Specifically Denied That Her Earlier Marriage With Jacob Was Solemnized As Per Christian Rites And Customs At RCM Church, Balanki Village On 09.05.1990 As Alleged By The Petitioner. The Following Point Was Formulated By The Lower Court For Consideration. “Whether There Are Any Grounds To Declare The Marriage Of The Petitioner And Respondent As Null And Void?” On Behalf Of The Petitioner, The Petitioner Himself Was Examined As PW.1 And Pws.2 And 3 Were Examined And Exs.A1 To A7 Were Marked. On Behalf Of The Respondent, The Respondent Herself Was Examined As RW.1 And Rws.2 To 4 Were Examined And Ex.B1 Was Marked. The Summoned Documents Were Marked As Exs.X1 To X6. On Behalf Of The Respondent, The Respondent Herself Was Examined As RW.1 And Rws.2 To 4 Were Examined And Ex.B1 Was Marked. The Summoned Documents Were Marked As Exs.X1 To X6. The Learned Judge, Family Court, On Appreciation Of Evidence, Came To The Conclusion That The Respondent Had Not Obtained Divorce From Her Former Husband Namely K. Jacob (PW.2) And That She Had Married The Petitioner Suppressing Her Earlier Marriage With K. Jacob - PW.2 And That Since Her Earlier Marriage Was Subsisting On The Date Of Her Marriage With The Petitioner The Same Is Null And Void. The Main Contention Of The Learned Counsel For The Respondent/Appellant Herein Is That Though The Respondent Married The Petitioner As Per The Rites And Customs Of The Christian Community, But She Had Taken To Baptism Just Prior To Her Marriage With The Petitioner And Prior To That She Was A Hindu. It Is Also His Specific Contention That PW.2 – K. Jacob Was Also A Hindu And That The Marriage Of The Respondent And Jacob Was Solemnized As Per The Hindu Rites And Customs And As Both Of Them Belonged To Scheduled Caste Community, And That The Customary Divorce Has Been Prevailing In Their Community. It Is Also His Submission That The Respondent And Her Former Husband I.E., K. Jacob Had Taken Divorce In Their Caste Panchayat Before Their Caste Elders And Ex.B1 Was Executed By The Said Jacob Which Proves The Divorce Between The Respondent And The Said Jacob. It Is Also His Main Submission That The Respondent And PW.2 Were Not Christians And There Was No Church At Balanki During The Relevant Period And That The Marriage Certificate And Extract Of The Marriage Register Produced By The Petitioner Do Not Relate To The Respondent And PW.2. It Is Also Vehemently Argued That Unless The Petitioner Proved That The Respondent And PW.2 Were Christians And Their Marriage Was Solemnized As Per The Rites And Customs Of The Christian Community The Provisions Of Indian Divorce Act Do Not Apply To Them. His Further Submission Is That The Lower Court Failed To Consider That The Petitioner Has Failed To Prove That The Respondent And PW.2 Were Christians During The Relevant Period. His Further Submission Is That The Lower Court Failed To Consider That The Petitioner Has Failed To Prove That The Respondent And PW.2 Were Christians During The Relevant Period. Learned Counsel For The Petitioner/Respondent Herein Submitted That The Petitioner Produced Ex.X5 The Marriage Certificate And Ex.X6 Extract Of The Marriage Register Which Proved That The Marriage Of The Respondent And PW.2 Was Solemnized In A Church As Per The Rites And Customs Prevailing In The Christian Community. It Is Also His Submission That The Petitioner Has Examined PW.2 Who Is No Other Than The Former Husband Of The Respondent And PW.3 A Priest From The Church And Their Evidence Corroborate The Version Of The Petitioner. It Is Also His Submission That A Christian Marriage Cannot Be Dissolved Except By Way Of A Decree Granted By The Competent Court As Per Sections 18 And 19 Of The Indian Divorce Act. The Points That Arise For Consideration Are; (1) Whether The Evidence On Record Proves That The Marriage Of The Respondent And PW.2 Was Solemnized As Per Christian Rites In RCM Church At Balanki? And (2) Whether It Was Subsisting On The Date Of The Marriage Of The Petitioner And The Respondent. According To PW.1, The Respondent Married One Kanithi Jacob As Per The Christian Rites In RCM Church, Balanki. Admittedly, He Had Not Attended The Said Marriage. It Has To Be Seen That The Petitioner Alleged That The Respondent Continued Her Relationship With Her Former Husband Kanithi Jacob. But, Surprisingly He Has Examined The Said K. Jacob As PW.2 To Support His Case. However, PW.2 Has Not Supported The Case Of The Petitioner. PW.2 Has Categorically Deposed That He Is A Member Of Scheduled Caste. According To Him, He Married The Respondent In May 1990 And Subsequently Divorced Her As Per The Custom And Usage Prevailing In Their Community. It Is Also His Specific Case That The Respondent Was Studying 6th Or 7th Class At The Time Of His Marriage. According To Him, There Was No Church In Balanki During Those Days And That His Marriage With The Respondent Was Never Registered In That Church. According To Him, Ex.B1 Is The Divorce Deed Executed In The Presence Of His Caste Elders. The Petitioner Has Also Examined PW.3, Who Is Working As A Catholic Priest In Vepada Church. According To Him, There Was No Church In Balanki During Those Days And That His Marriage With The Respondent Was Never Registered In That Church. According To Him, Ex.B1 Is The Divorce Deed Executed In The Presence Of His Caste Elders. The Petitioner Has Also Examined PW.3, Who Is Working As A Catholic Priest In Vepada Church. According To PW.3, The Entries At Sl.No.246 In The Marriage Register Maintained By Catholic Church, Vepada, Discloses That The Marriage Of Kanithi Jacob, S/O Thomas And Annamma Was Performed With Suragala Mary @ Suguna Vani, Daughter Of Prakasam And Sarojini On 09.05.1991. According To PW.3, Father G. Mariya Had Performed The Marriage As Per The Entries In The Said Register And That The Said Father G. Mariya Is No More. He Further Deposed That As Per The Entries In The Marriage Register He Has Prepared The Marriage Certificate In Ex.X5. He Further Deposed That He Does Not Know Whether Both Parties Are Christians By The Time Of Their Marriage. He Further Categorically Deposed That Exs.X5 And X6 Do Not Relate To Suragala Sugunavani, D/O Pydithalli And Kanithi Jacob, S/O Appalaswamy, Resident Of S. Kota And Ballanki Respectively. According To PW.2, His Name Is Kanithi Nagamaiah Jacob And His Father’s Name Is Pedda Appalaswamy And His Mother’s Name Is K. Parijamma. The Recitals Of Exs.X5 And X6 Reveal That The Name Of The Bridegroom Is Jacob Kanithi. The Father’s Name Of The Bridegroom Is Shown As Thomas And Mother’s Name Is Shown As Annamma. So, Admittedly, The Names Of The Parents Of PW.2 And The Names Of The Parents Of Bridegroom Shown In Exs.X5 And X6 Are Different. Therefore, It Cannot Be Definitely Said That The Entries In Exs.X5 And X6 As Far As The Bridegroom Are Concerned They Pertain To PW.2. Similarly, There Is Discrepancy Between The Names Of The Parents’ Of The Bride Shown In Exs.X5 And X6 And The Parents’ Names Of The Respondent. In Exs.X5 And X6 The Father’s Name Of Bride Is Shown As Prakasam And Mother’s Name Is Shown As Sarojini. Of Course, Surname Is Shown As Suragala. But The Father’s Name Of The Respondent Is Suragala Pydithalli. The Mother’s Name Of The Respondent Is Not Brought On Record. Therefore, It Cannot Be Definitely Said That The Bride Referred In Exs.X5 And X6 Suragala Mary Sugunavani Is No Other Than The Respondent Herein. Of Course, Surname Is Shown As Suragala. But The Father’s Name Of The Respondent Is Suragala Pydithalli. The Mother’s Name Of The Respondent Is Not Brought On Record. Therefore, It Cannot Be Definitely Said That The Bride Referred In Exs.X5 And X6 Suragala Mary Sugunavani Is No Other Than The Respondent Herein. There Is Another Discrepancy In Exs.X5 And X6, The Age Of The Bride Is Shown As 19 Years. Of Course, There Is Some Correction In The Figure Showing Her Age And Also At The Place Of Noting The Year. The Last Figure In ‘1991’ Seems To Have Been Altered. The Age Of The Respondent Is Shown As 22 Years As On The Date Of Giving Her Evidence On 25.10.2000. Therefore, Her Age Must Be Around 13 Years In The Year 1991. But, Admittedly, The Age Of The Bride Is Shown As 19 Years In Exs.X5 And X6. The Lower Court Failed To Consider These Discrepancies Which Are Apparent On The Face Of The Record. It Has To Be Seen That PW.3 Himself Has Categorically Deposed That Exs.X5 And X6 Do Not Relate To Suragala Sugunavani, D/O Pydithalli And Kanithi Jacob, S/O Appalaswamy. When The Respondent Had Taken A Specific Stand That She Was Not A Christian At The Time Of Her Marriage With PW.2 And That Their Marriage Was Not Solemnized As Per The Christian Rites And Customs, The Petitioner Ought To Have Produced Cogent Evidence In Support Of His Contention. Once The Evidence On Record Does Not Prove That The Marriage Of The Respondent And PW.2 - Jacob Was Solemnized As Per The Rites Of The Christian Community, The Question Of Applying The Provisions Of Divorce Act For Dissolving Their Marriage Does Not Arise. In View Of The Same, The Judgment Relied On By The Learned Counsel For The Petitioner/Respondent Herein In George Sebastian @ Joy. V. Molly Joseph @ Nish AIR 1995 Kerala 16, Is Clearly Not Applicable To The Facts Of The Present Case. In That Case, Admittedly, The Parties Were Christians And Their Marriage Was Annulled By The Order Of The Ecclesiastical Tribunal (Or Church Court As It Is Referred To At Times) And It Was Held That A Christian Marriage Can Be Declared Null And Void Only By A Decree Of Court As Per Sections 18 And 19 Of The Divorce Act. In That Case, Admittedly, The Parties Were Christians And Their Marriage Was Annulled By The Order Of The Ecclesiastical Tribunal (Or Church Court As It Is Referred To At Times) And It Was Held That A Christian Marriage Can Be Declared Null And Void Only By A Decree Of Court As Per Sections 18 And 19 Of The Divorce Act. Now Coming To The Next Aspect Whether The Marriage Of The Respondent And PW.2 Was Dissolved Before The Elders Of Their Caste, According To PW.2, He Himself And The Respondent Belonged To Scheduled Caste And Customary Divorce Has Been Prevailing In Their Community. The Respondent Has Examined RW.4 L. Malleswara Rao. He Has Categorically Deposed That He And The Respondent Belonged To Scheduled Caste Community And That Customary Divorce Has Been Prevailing Since Time Immemorial In Their Caste And That Remarriages Are Also Accepted And Recognized In Their Community. During The Course Of Arguments, It Is Not Disputed That The Customary Divorce Is Prevailing In The Scheduled Caste Communities In Andhra Pradesh. The Respondent Has Also Examined RW.3. RW.3 Is The Grand Father Of The Respondent. He Is Also Related To PW.2 Kanithi Jacob. Rw.3 Has Categorically Deposed That PW.2 Obtained Divorce From The Respondent And That He Has Also Signed As A Witness In The Divorce Deed In Ex.B1. He Denied The Suggestion That Ex.B1 Is A Fabricated Document. Thus, The Evidence On Record Proves That The Respondent Had Obtained Divorce From Her Former Husband PW.2 Before The Elders Of Their Community And The Customary Divorce Is Prevailing In Their Community. The Version Of The Petitioner That He Came To Know About The Earlier Marriage Of The Respondent With Kanithi Jacob Just Before Filing The Petition For Divorce Also Appears To Be Not Correct. Admittedly, The Marriage Of The Petitioner And The Respondent Was Solemnized On 10.11.1997. Admittedly, The Petition For Divorce Was Filed In The Year 1999, And It Appears To Be Most Unnatural And Improbable To Say That The Petitioner Could Not Come To Know About The Earlier Marriage Of The Respondent With Kanithi Jacob For About Two Years. We Have Gone Through The Judgment Of The Learned Judge, Family Court. It Is Unfortunate To Note That The Learned Judge, Family Court, Had Simply Extracted The Evidence Of All The Witnesses One After Another And Then Gave His Conclusions Which Are Not Supported By Any Reason. We Have Gone Through The Judgment Of The Learned Judge, Family Court. It Is Unfortunate To Note That The Learned Judge, Family Court, Had Simply Extracted The Evidence Of All The Witnesses One After Another And Then Gave His Conclusions Which Are Not Supported By Any Reason. It Is The Primary Duty Of The Court To Examine The Entire Evidence In Proper Perspective And Then Analyze The Same. Mere Extracting The Evidence Of Witnesses One After Another And Then Simply Saying That The Evidence Proves The Case Of One Party Cannot Be Said To Be The Proper Method Of Appreciating The Evidence. It Is The Duty Of The Court To Apply Its Mind And To Draw Just And Reasonable Conclusions From The Evidence. The Court Must Examine Whether The Version Of A Witness Is Truthful Or Probable And Whether The Same Is In Conformity With The Normal Human Conduct And Acceptable. The Court Must Examine Whether The Version Of A Party Is Consistent With Other Oral And Documentary Evidence, Whether A Witness Stood The Test Of Cross-Examination. When The Court Examines The Contradictions, It Must Ascertain Whether The Contradictions Go To The Root Of The Matter And Whether The Evidence Is Shaken In Cross-Examination And Whether Those Contradictions Make The Version Of A Witness Unacceptable And The Witness Unreliable And Untrustworthy. Thus, A Great Responsibility Lies On The Presiding Officer Of A Court To Analyze The Evidence. The Learned Judge, Family Court, Gave His Findings Without Assigning Any Valid Reasons For His Conclusions. All The Conclusions Must Be Arrived On Evidence And For Arriving To Such Conclusions Valid Reasons Have To Be Assigned. Any Order Which Is Not Supported By Reasons On The Face Of It Would Become Perverse Order. In View Of The Above, It Is Clear That The Impugned Order Passed By The Lower Court Cannot Stand To Scrutiny And The Same Is Liable To Be Set Aside. Accordingly, The Same Is Set Aside. In The Result, The Appeal Is Allowed With Costs.