Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 4611 (MAD)

Ms. G. Sijala v. M. Prabhu

2011-11-23

G.M.AKBAR ALI, K.MOHAN RAM

body2011
Judgment :- G.M. AKBAR ALI,J., 1. A.S.No.11 of 2009 is filed under Sec.96 C.P.C against the judgment and decree, dated 24.05.2007 passed in O.S.No.7 of 2005 by the learned Additional District Judge, Fast Track Court No.1, Coimbatore, while C.M.A.No.2428 of 2009 under Section 19 of the Family Court as against the order passed by the learned Judge of the Family Court, dated 24.5.2007, in HMOP No. 83 of 2006. 2. Since both the matters are interconnected and the issues stemming therefrom require joint consideration, they are heard together and disposed of by this common judgment. 3. The appellant filed a suit in O.S.No.7 of 2005 against the respondent before the learned Additional District Judge, Fast Track Court No.1, Coimbatore, for a declaration that no marriage, between herself and the 1st respondent, took place on 16.9.2004 and for a consequential permanent injunction restraining the first respondent from projecting himself as her husband on the strength of the Marriage Registration Certificate dated 27.9.2004 issued by the 2nd respondent and also for a mandatory injunction to direct the 2nd defendant/Registrar of Marriage to cancel the marriage registration. The 1st respondent has filed HMOP No.83 of 2006 under Sec.9 of the Hindu Marriage Act 1955 for restitution of conjugal rights. 4. The facts, which led to repudiation of the alleged marriage by the appellant and filing of the petition by the 1st respondent/husband are detailed below: 5. The appellant, after completing her M.B.A, was employed as a Receptionist in CMS college of Science and Commerce at Coimbatore. She is the only daughter of her parents and the parents are affectionate towards her. 6. The respondent, a Civil Engineer, was also employed in the same Institution. He was steadily and progressively projecting himself to the appellant as a person of virtues. Over the passage of time, the appellant and the respondent became friends. The respondent induced the appellant and proposed that they should get married as they had many things in common and that they could lead a very happy life as husband and wife. 7. The appellant belong to Kerala Nayar community and her mother tongue is Malayalam and the defendant belonged to different community. The appellant being dutiful to her parents, never had any intention to go against the wishes of her parents. The respondent, on many occasions, had requested the appellant to run away from the family, but the, appellant always refused. 7. The appellant belong to Kerala Nayar community and her mother tongue is Malayalam and the defendant belonged to different community. The appellant being dutiful to her parents, never had any intention to go against the wishes of her parents. The respondent, on many occasions, had requested the appellant to run away from the family, but the, appellant always refused. 8. That being so, two months prior to the filing of the suit, a lady came to the house of the appellant and introduced herself as the sister of the respondent and showed a marriage certificate, dated 27.9.2004, issued by the 2nd respondent/ Sub Registrar, reflecting as of a marriage between the appellant and the respondent as if took place on 16.9.2004 in the house of the respondent and the same was solemnized in accordance with the customary manner by one S.P. Chandrasekar of Coimbatore. 9. As far as the appellant is concerned, there was no such marriage ever took place and she has never been to the respondent’s house, nor participated in any marriage ceremony by exchanging the garlands, tying of thali and walking around sacred fire. The respondent induced the appellant and asked her to come and sign before the Notary Public to swear under the pretext that they would not get married without the permission of the parents of both sides. 10. In September 2004, one day, the respondent took the appellant to the Sub Registrar office under the pretext that she is supposed to be a witness for a marriage. Thus, the respondent is clearly seemed to have manipulated the affidavits, marriage certificates etc., by misrepresentation and therefore, the alleged marriage is non-est, null and void and consequently the marriage registration has no sanctity in the eye of law. 11. The respondent filed a habeas Corpus Petition before this court as if the appellant is in illegal custody, thereby, the appellant was much harassed. The petition was dismissed on repudiation of any marriage. The alleged marriage is nothing but an incident created by the respondent and therefore, the suit was filed to declare that the alleged marriage said have taken place on 16.9.2004, was not a marriage at all and also, for consequential reliefs. 12. The petition was dismissed on repudiation of any marriage. The alleged marriage is nothing but an incident created by the respondent and therefore, the suit was filed to declare that the alleged marriage said have taken place on 16.9.2004, was not a marriage at all and also, for consequential reliefs. 12. Denying the allegations made in the plaint, the respondent filed a written statement stating as follows: The friendship between the appellant and the respondent developed day by day and they started loving each other. Often, they used to go to public places like temple, hotel etc., The appellant expressed her desire to marry the respondent since she fell in love with the respondent, who also readily agreed to marry her after getting the consent of his parents. Consequently, in July 2004, the appellant informed the respondent that her parents started searching for alliance and requested him to come and meet her parents and ask their permission to get married. However, the respondent did not get any chance to meet her parents. 13. In the 1st week of September 2004, the appellant informed the respondent that her parents were to confirm her marriage with a bridegroom, who is in abroad, and urged the respondent to marry her immediately. 14. During the 2nd week of September 2004, when the parents of the respondent were off to Melmaruvathur temple, the appellant requested the respondent to marry her before their return from temple. 15. Only in this back ground, ultimately, on 16.9.2004, the appellant and the respondent got married as per Hindu Rites and Rituals in the presence of their friends and relatives and one S.P. Chandrasekar, who is an advocate and Notary Public. Subsequently, they have also executed a marriage agreement in the office of the said Advocate Notary Public . The father of the appellant is a police officer and therefore, the appellant requested the respondent to have the marriage registered on 27.9.2004 because her father would not be available on that day. Only at the request of the appellant, the marriage was registered at the Sub Registrars Office, Gandhipuram on 27.9.2004 in the presence of friends and relatives. After the marriage, they went to several places as husband and wife. 16. Thereafter, the appellant stayed with her parents assuming that she would convince her parents. Only at the request of the appellant, the marriage was registered at the Sub Registrars Office, Gandhipuram on 27.9.2004 in the presence of friends and relatives. After the marriage, they went to several places as husband and wife. 16. Thereafter, the appellant stayed with her parents assuming that she would convince her parents. However in the 1st week of April 2005, the appellant stopped going to the office and the respondent came to know that her parents were not agreeable for the marriage and also making attempts to take her to Kerala. Therefore, the respondent informed his elder sister who went to the appellant’s house and informed the parents of the appellant about the marriage. 17. From their words and action, it became clear that they are not agreeable for the marriage. Only due to their pressure exerted on the appellant, she is repudiating the marriage otherwise she has no intention of denying the marriage. Therefore the suit itself is not maintainable. 18. On the above grounds, the respondent had also filed a petition under Sec.9 of the Hindu Marriages Act 1955 for restitution of conjugal rights. The appellant has filed a counter denying all the allegations and reiterated that there was no marriage. 19. To prove his case, the respondent examined himself besides 6 witnesses including the said Advocate cum Notary Public and marked several documents. On the other side, the appellant alone was examined to repudiate the marriage. 20. On the basis of the respondent’s evidence and on placing reliance of the extract of Hindu Marriage Register and also from the evidence of the respondent that the ceremonies to complete the Hindu marriage had taken place, the Family Court Judge held that it is a valid marriage and cannot be declared as non-est or null and void. It was also found that the appellant has no justifiable cause to leave the company of the respondent and therefore, dismissed the suit and allowed the application for restitution of conjugal rights. Aggrieved by which, the plaintiff/appellant is before this Court. 21. The points that arise for consideration is whether the alleged marriage dated 16.9.2004 is a valid marriage and whether the appellant is entitled to repudiate the marriage. 22. Aggrieved by which, the plaintiff/appellant is before this Court. 21. The points that arise for consideration is whether the alleged marriage dated 16.9.2004 is a valid marriage and whether the appellant is entitled to repudiate the marriage. 22. Mr.P.K. Rajagopal, the learned counsel for the appellant in both the appeals traversed extensively into the evidence of the respondent and pointed out various discrepancies and contradictions relating to the factum of marriage. The learned counsel pointed out that the extract from the marriage Registrar alone is not a substantial evidence to prove the marriage. 23. According to him, if the marriage had taken place in accordance with Hindu Rites, Customs and Ceremonies, then it is incumbent on the respondent to prove the said rites, customs and ceremonies that had followed. He points out that in order to complete a marriage under the Hindu Rites and Customs, performing of Saptapati (that is taking of seven steps of bridegroom and the bride jointly before the sacred fire) is mandatary and none of the witnesses would state that under which custom the marriage took place and who solemnized the marriage. 24. Further the Priest (Gurukkal) was not examined to speak about the performance of various rites and rituals including Saptapadi. 25. Moreover, the marriage agreement is also not a conclusive proof of marriage and P.W.3 the advocate is not a competent person either to perform or to register the marriage. At any rate, since it is the case of the appellant that she has neither agreed for any marriage nor participated in the performance of the marriage and that she was taken to the Registrar’s office only under the pretext of signing as a witness to some other marriage, such version must be acted upon to grant the relief sought for. 26. On the contrary, Ms.Elizebeth Ravi the learned counsel for the respondent would submit that the factum of marriage and its registration are clearly proved by the respondent. She would point out that the appellant, who insisted upon the respondent to marry her let put the respondent landing in various troubles and now, on the advise and influence of the parents, she is repudiating the marriage itself. 27. We have carefully considered the rival contentions put forth on either side and perused the materials available on record. 28. She would point out that the appellant, who insisted upon the respondent to marry her let put the respondent landing in various troubles and now, on the advise and influence of the parents, she is repudiating the marriage itself. 27. We have carefully considered the rival contentions put forth on either side and perused the materials available on record. 28. According to the respondent, both the appellant and respondent fell in love and only at the insistence of the appellant, the marriage was performed. To prove such marriage, the extract of the Hindu Marriage Register of Gandhi Nagar was produced. 29. The respondent has also produced a marriage agreement said to have been executed in front of an advocate cum Notary Public. Since the fact of marriage is denied it is necessary to refer to the evidence let in to prove the marriage. 30. The respondent, no doubt, had stated about the relationship between himself and the appellant and the various developments which led to the performance of marriage. In his cross examination on 19.5.2005, he would state that "TAMIL" 31. D.W.3, an Advocate/Notary in his chief examination would state "TAMIL" 32. In his cross examination he would state that, "TAMIL" 33. D.W.4 is a photographer and therefore his evidence is not much useful. 34. D.W.5 is an Inspector of Police to speak about examination of the parties on a complaint. Therefore, his evidence is also not useful. 35. D.W.6 is a staff from the College where the appellant and the respondent worked and his evidence is also not necessary. 36. D.W.7 would speak about the relationship of the appellant and the respondent and about the marriage. He would state in the chief examination as follows: 37. In his cross examination, he would state as follows: "TAMIL" 38. Ex.A.1 is an extract of Hindu Marriage Register and Ex.B.11 is the application for registration of marriage. Ex.B.12 is the marriage agreement alleged to have been executed before D.W.3. 39. In terms of the rigor of the evidence highlighted above, at the outset, we are of the considered view that Ex.B.12 the alleged marriage agreement executed before D.W.3 which is also annexed with certificate of marriage issued by D.W.3, has no evidentiary value and liable to be rejected in limi ne. 40. 39. In terms of the rigor of the evidence highlighted above, at the outset, we are of the considered view that Ex.B.12 the alleged marriage agreement executed before D.W.3 which is also annexed with certificate of marriage issued by D.W.3, has no evidentiary value and liable to be rejected in limi ne. 40. Sec.7 of the Hindu Marriages Act (herein after referred to as Act) deals with ceremonies for a Hindu Marriage which reads as follows: 7. Ceremonies for a Hindu Marriage:(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. "TAMIL"(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. 41. Sec.7(A) of the Act deals with Suya Mariyathi and Seerthirutha marriage which reads as follows: 7-A. Special Provision regarding Suyamariyathai and Seerthiruththa marriages: (1) This section shall apply to any marriage between any two Hindus,whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnized in the presence of relatives, friends or other persons - (a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or (b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or by the tying of the thali (2) (a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which this section applies solemnized after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, shall be good and valid in law. (b) Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to sub section (3), all marriages to which this section applies solemnized at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnization of each such marriage, respectively, good and valid in law. (3) Nothing contained in this section shall be deemed to – (a) render valid any marriage referred to in clause (b) of sub-section (2), it before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967 (i) such marriage has been dissolved under any custom or law; or (ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another; or (b) render invalid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time; or (c) render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was invalid at that time on any ground other than that it was not solemnized in accordance with the customary rites and ceremonies of either party thereto: Provided that nothing contained in this sub-section shall render any person liable to anypunishment whatsoever by reason of anything done or omitted to be done by him before such commencement. (4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) born of such marriage shall be deemed to be their legitimate child: Provided that in a case falling under sub-clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub -clause (ii) (Tamil Nadu Act 21 of 1967, S.2 w.e.f.20.1.1968) 42. Sec.8 of the Act deals with registration of Hindu Marriages which reads as follows: 8. Sec.8 of the Act deals with registration of Hindu Marriages which reads as follows: 8. Registration of Hindu Marriages: (1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose. (2) Notwithstanding anything contained in sub-section (1),the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees. (3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made. (4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee. (5) Notwithstanding anything contained in this section, the validity of any Hindu Marriage shall in no way be affected by the omission to make the entry. 43. Since the alleged marriage is solemnized with the customary rites and ceremonies of either party to the marriage, the burden is upon the respondent to prove what are all the customs and ceremonies that were performed and more particularly, whether, to complete the marriage, the essential rite called Saptapati was performed. 44. Admittedly, the Priest (Gurukkal) who is said to have performed the marriage, was not examined. D.W.3 would claim that he being the elder person, the respondent requested him to conduct the marriage and he gave the mangalsutra to the bridegroom and the respondent tied the thali. Such performance relates to a ceremony coming under Sec.7-A of the Act (Suyamarithai or Seerthirutha Kalyanam). But he would also state that the Priest lit ‘Oma Gundam’ the sacred fire and made the bride and bridegroom to perform Saptapati. Such performance relates to a ceremony coming under Sec.7-A of the Act (Suyamarithai or Seerthirutha Kalyanam). But he would also state that the Priest lit ‘Oma Gundam’ the sacred fire and made the bride and bridegroom to perform Saptapati. Unfortunately, such version is not corroborated by D.W.7. 45. The evidence of the respondent seems to be that both the ceremonies under Secs.7 and 7-A were performed. In any event, to prove the marriage, solemnized under the Hindu Rites and Customs, it is mandatory to prove that Saptapati was performed. 46. The failure to examine the Priest to perform the Rites would show that the marriage was not performed under Sec.7 of the Act. 47. The evidence of the appellant and the respondent would show that an infatuated girl has been taken through some form of marriage. The appellant alleges that the respondent had induced to come along with him and sign some documents and she denies the performance of the marriage. 48. On the other hand, the respondent would allege that the appellant had insisted for a marriage and they underwent the customary marriage which is also registered. In any event, the appellant now wants to avoid the marriage stating that there is no marriage. 49. If a fraud had been played on her, either to obtain her consent or by suppressing certain material facts, the marriage would have come under voidable marriage under Sec.12(1)(c) of Hind Marriage Act 1955. However, the very factum of marriage itself is denied and therefore, the burden is only on the respondent to prove the factum of marriage as he is the person who wants this court to believe the fact of marriage. 50. As stated earlier, the extract of Hindu Marriage register is not a substantial evidence to prove the marriage when one of the parties to the document repudiates the same. It may be a proof for all other purposes concerning the third parties to the marriage. But once one of the parties to the extract repudiates then it is for the other party to prove the very fact of marriage either conducted under sec.7 or 7-A of the Act. Added to that, the customary and essential rite of Saptapati is not established to have been performed to sustain the marriage, the alleged marriage is not valid in the eye of law. The respondent miserably failed to prove the marriage. 51. Added to that, the customary and essential rite of Saptapati is not established to have been performed to sustain the marriage, the alleged marriage is not valid in the eye of law. The respondent miserably failed to prove the marriage. 51. For the reasons stated above, we are of the considered view that the fact of marriage is not proved and therefore, the alleged marriage as evidenced by the extract of marriage register is not a valid marriage and the appellant is entitled to repudiate the same and the trial court is wrong in holding that the marriage has been proved. 52. In the result, (a) A.S.No.11 of 2009 is allowed and decree and judgement made in O.S.No.7 of 2005 dated 24.5.2007 on the file of the learned Family Court, Coimbatore are set aside and the suit is decreed as prayed for with cost throughout. (b) C.M.A No.2428 of 2009 is allowed and order passed by the learned Judge of the Family Court dated 24.5.2007 made in H.M.O.P No.83 of 2006 are set aside and the petition filed for restitution of conjugal right is dismissed with cost throughout. Consequentially, connected MP is closed. No costs.