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2012 DIGILAW 1498 (BOM)

Naresh Mehune v. Sangeeta Gendlal Kambhale

2012-08-08

A.B.CHAUDHARI, VASANTI A.NAIK

body2012
Judgment : (Smt.Vasanti A. Naik, J.) By this appeal, the appellant challenges the judgment passed by the Principal Judge, Family Court, Nagpur on 15/09/2011, dismissing a petition filed by the appellant under Section 25 of the Special Marriage Act, 1954 for grant of a decree of nullity of marriage. Few facts giving rise to the appeal are stated thus- The appellant filed a petition against the respondent under Section 25 of the Special Marriage Act, 1954 for grant of a decree of nullity of marriage. It was pleaded by the appellant in the petition that he was an agricultural labourer residing with his father, who owned 5 acres of land in village Patgowari. It was pleaded that the respondent is also a resident of the same village and her father is a known criminal and is also facing trials. With a view to extract money, the father of the respondent had played fraud on several villagers of Patgowari and with a view to dupe the appellant, the father of the respondent brought the appellant to Nagpur on 30/01/2009 on the pretext that he had to sign as a witness on certain documents. However, the appellant later on realised that the signatures of the appellant were obtained for the marriage registration by playing fraud on the appellant. It was pleaded that at no point of time, the appellant had married the respondent. It was further pleaded that the alleged marriage with the respondent was never consummated. According to the appellant, one of the friends of the appellant's father made an enquiry about the marriage of the appellant with the respondent on 03/06/2009 and it is only then that the appellant became aware that fraud had been played on him and instead of getting his signatures on the documents as a witness, his signatures were obtained for the registration of his marriage. The appellant pleaded that with a view to legalise the marriage, the father of the respondent namely Gendlal lodged a false complaint in the Police Station, Ramtek alleging that the appellant had failed to attend a reception hosted by Gendlal after the solemnization of the marriage because a demand of rupees two lakhs made by him was not fulfilled by Gendlal. In the aforesaid background, the appellant sought a decree of nullity of marriage. The respondent filed the written statement and resisted the claim of the appellant. In the aforesaid background, the appellant sought a decree of nullity of marriage. The respondent filed the written statement and resisted the claim of the appellant. It was admitted that the parties resided in the same village. It was specifically denied that the father of the respondent was a known criminal and was facing trials. According to the respondent, the marriage was not registered at Ramtek as the appellant desired to get it registered at Nagpur, as his family members did not desire that the parties should get married and had opposed the marriage of the appellant with the respondent. It was pleaded that after their marriage, the parties resided together in the house of her father for some time. The marriage was consummated. It was pleaded that the appellant declined to lead the marital life with the respondent only because of the opposition from his family members. The respondent sought for the dismissal of the petition. On the aforesaid pleadings of the parties, the Family Court framed the issues and on a consideration of the evidence tendered by the parties, by the judgment dated 15/09/2011, dismissed the petition filed by the appellant. Being aggrieved by the dismissal of the petition for grant of a decree of nullity of marriage, the appellant has preferred the present first appeal. Shri A.S. Chandurkar, the learned counsel for the appellant, submitted that the Family Court was not justified in dismissing the petition filed by the appellant without considering whether the marriage was solemnized as required under the provisions of the Special Marriage Act, 1954. It is submitted on behalf of the appellant that the provisions of Section 12 of the Special Marriage Act, 1954 are mandatory and the marriage shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and three witnesses that he or she takes the other to be the lawful wife or husband. According to the learned counsel for the appellant, since this was not done in the instant case, the so called marriage allegedly performed on 30/01/2009 was not complete and binding on the parties. It is submitted that the Family Court failed to consider the material omissions and contradictions in the documents at Exhibits-40 and 41. According to the learned counsel for the appellant, since this was not done in the instant case, the so called marriage allegedly performed on 30/01/2009 was not complete and binding on the parties. It is submitted that the Family Court failed to consider the material omissions and contradictions in the documents at Exhibits-40 and 41. According to the learned counsel, in Exhibit-40, it is mentioned by the respondent that the marriage took place in the presence of family members of the appellant, whereas in Exhibit-41 there is an omission in regard to this material fact. It is then submitted on behalf of the appellant that the Family Court failed to consider that the appellant had not signed on the certificate of marriage or the notice of intended marriage as one of the signatures was in Marathi whereas the other signature was in English. According to the learned counsel, it is because of Gendlal that the respondent being thrust on the petitioner as his legally wedded wife though the appellant was never married to the respondent. The learned counsel relied on the judgment in the case of Nirmal Dass Bose v. Km. Mamta Gulati reported in AIR 1997 Allahabad 401 to substantiate his submission that the provisions of Section 12 of the Special Marriage Act, 1954 are mandatory and if the parties do not state that they take each other as their lawful husband or wife, the marriage would be null and void. Shri Gaikwad, the learned counsel for the respondent, supported the judgment passed by the Family Court and submitted that the Family Court had rightly considered the documentary evidence on record as also the admissions of the appellant in his crossexamination to hold that the appellant had not proved his case that the signatures of the appellant were fraudulently obtained on the marriage registration forms though the appellant was made to understand that he was to sign as a witness on certain deeds. It is submitted that since the appellant and the respondent were in love with each other and since the parents of the appellant were opposed to their marriage, at the behest of the appellant, the marriage was registered at Nagpur. It is submitted that since the appellant and the respondent were in love with each other and since the parents of the appellant were opposed to their marriage, at the behest of the appellant, the marriage was registered at Nagpur. It is submitted that the Family Court has rightly considered the admission of the appellant in his crossexamination that he had not filed any complaint in the Police Station and/or had not taken any action against the respondent for fraudulently obtaining his signatures on the documents for registration of the marriage. According to the learned counsel, the respondent had examined a clerk from the SubRegistrar's office to prove the marriage and on the basis of the documents proved by him, the Family Court rightly believed the case of the respondent that the appellant and the respondent were legally married on 30/01/2009. According to the learned counsel, the Family Court has rightly appreciated the material evidence on record to hold that the appellant was not entitled to a decree of nullity of marriage and hence the first appeal is liable to be dismissed. On hearing the learned counsel for the parties and on a perusal of the original record, it appears that the following points arise for determination in this first appeal. 1) Whether the Family Court was justified in dismissing the petition for grant of a decree of nullity of marriage ? 2) What order ? To answer the aforesaid points for determination, it would be necessary to peruse the evidence on record. The appellant had examined himself and the respondent examined herself and the clerk from the office of the SubRegistrar, where the marriage was registered. The appellant has reiterated the facts pleaded in the petition in his evidence on affidavit and has stated that he had not married the respondent on 30/01/2009 and hissignatures were obtained fraudulently for marriage registration. It is stated that the appellant was brought to Nagpur by Gendlalthe father of the respondent on the pretext that his signatures were required as a witness on certain documents. It is also stated that since the father of the appellant owned substantial properties, the respondent's father had a plan to get one of his three daughters married to the appellant. He stated that he had no knowledge that he had performed the marriage with the respondent by signing on the documents in the office of the SubRegistrar. It is also stated that since the father of the appellant owned substantial properties, the respondent's father had a plan to get one of his three daughters married to the appellant. He stated that he had no knowledge that he had performed the marriage with the respondent by signing on the documents in the office of the SubRegistrar. The appellant admitted in his crossexamination that he was educated up to the 10th Standard and that he used to sign on documents only after reading and understanding them. He further admitted that he did not know that he had signed on the notice of intended marriage on 23/12/2008. He also admitted that on 30/01/2009 he was taken to the office of the Registrar of Marriages at Nagpur. The appellant admitted that he did not know that the father of the respondent arranged the reception for celebrating the marriage in Shree Gayatri Shaktipeeth at Nagpur on 03/06/2009. The appellant then admitted that he had not reported to any Police Station after 30/01/2009 that his signatures were forcibly obtained by the respondent and her parents for marriage registration. Till date, according to the appellant, he had not reported to any Police Station and he had also not issued any legal notice to the respondent on the ground that the marriage was performed by committing fraud on the appellant. The appellant, however, denied the suggestion that the photograph of the appellant and the respondent as husband and wife was photographed at Rajni Studio. He further denied the suggestion that at the instance of his parents, he tried to avoid the marriage. The respondent entered into the witness box and stated about the performance of the marriage on 30/01/2009. She stated that her father had spent huge amount for hosting the marriage reception on 03/06/2009 but the appellant did not attend the same due to the opposition from his family members. It was stated that the appellant had demanded an amount of rupees two lakhs as a condition precedent for attending the reception and since that amount could not be paid by the respondent's father, the appellant failed to attend the reception and a false petition was filed. She admitted in her crossexamination that the parents of the appellant were not present at the time of marriage. Nothing was brought out from the crossexamination of the respondent to disbelieve her case in the examination-in-chief. She admitted in her crossexamination that the parents of the appellant were not present at the time of marriage. Nothing was brought out from the crossexamination of the respondent to disbelieve her case in the examination-in-chief. Apart from examining herself, the respondent also examined a clerk from the office of the SubRegistrar. He stated that the marriage of the appellant and the respondent was solemnized on 30/01/2009. He produced the original register containing the certificate of marriage in the Court. The marriage registration certificate as well as the notice of the intended marriage dated 31/12/2008 were proved by this witness. There was nothing in the crossexamination of this witness to falsify his case in the examination-in-chief. On a consideration of the oral evidence of the parties and the documents placed by the respondent on record, the Family Court came to the conclusion that the appellant and the respondent were married on 30/01/2009. The Family Court held that the appellant had failed to prove that the signatures of the appellant were fraudulently obtained on the marriage registration certificate. On a reading of the evidence of the parties, it appears that the parties were married to each other on 30/01/2009 and the marriage was registered at Nagpur as the parties were in love and the parents of the appellant were opposed to the marriage. The Family Court held that the respondent was successful in proving that the appellant had suppressed the fact of performance of marriage from his family members and hence, the marriage was registered at Nagpur. The Family Court held and rightly so that it was not possible to believe the case of the appellant that his signatures were fraudulently obtained on the marriage registration certificate and the notice of intended marriage as had it been so the appellant would have surely lodged a complaint in the Police Station to that effect or at least issued a notice to the respondent immediately after 30/01/2009. It is necessary to note that the appellant is an educated person and had also admitted that he used to sign documents only after reading and perusing them. It is, therefore, most unlikely that he would have signed on the marriage registration certificate without knowing the contents of the documents. It is necessary to note that the appellant is an educated person and had also admitted that he used to sign documents only after reading and perusing them. It is, therefore, most unlikely that he would have signed on the marriage registration certificate without knowing the contents of the documents. The appellant cannot deny his signature on the marriage registration certificate on a flimsy ground that the signature of the appellant on that certificate is in English whereas on the notice of intended marriage the signature appears to be in Marathi. We have perused both the documents. Both the documents bear the photographs of the appellant. The appellant has signed both the documents. The signatures of the appellant as well as the respondent on one of the documents are in English and on the other document both of them have signed in Marathi. This cannot be a ground for holding that the appellant has not signed on the marriage registration certificate. The Family Court has rightly considered the evidence of the clerk from the Sub-Registrar's office, examined on behalf of the respondent that on 30/01/2009 the appellant and the respondent were married to each other in the office of the Sub-Registrar. We find nothing in the crossexamination of either the respondent or the clerk from the office of the Sub-Registrar to falsify the case of the respondent. In fact, the admissions of the appellant in his crossexamination falsifies his case that fraud was played on him by the father of the respondent. The admission of the appellant that he was taken to the office of the Registrar of Marriages for signing the documents, his admission that he was educated up to 10th Standard and he did not sign on any documents without reading and understanding them and his further admission that he had never lodged any report or initiated any action against the father of the respondent for the fraud practiced on him falsifies his case that fraud was played on him by the father of the respondent. The submission made on behalf of the appellant that there is non compliance of the mandatory provisions of Section 12 of the Special Marriage Act, 1954 and, therefore, the marriage, if any, is liable to be declared as null and void is liable to be rejected for the simple reason that the appellant has not raised a plea in this regard in the petition. It is not pleaded by the appellant that the marriage, if any, was null and void as the parties to the marriage had not said that they took each other as their lawful wife and husband. Since the issue sought to be raised on behalf of the appellant is not a pure issue of law and is a mixed issue of law and facts, the same cannot be considered for the first time in the first appeal. In any case, the respondent did not have notice about the aforesaid submission which is sought to be made for the first time in the first appeal. So also, we find that there is no material contradiction in the documents at Exhibits-40 and 41 as canvassed on behalf of the appellant. Even if there is any omission, it is so insignificant and irrelevant that it would have no bearing on the issues involved in the case. The judgment in the case of Nirmal Dass Bose v. Km. Mamta Gulati reported on AIR 1997 Allahabad 401 and relied on by the learned counsel for the appellant cannot be made applicable to the facts of this case in the absence of any pleadings in regard the non compliance of the mandatory provisions of Section 12 of the Special Marriage Act, 1954. We find that the Family Court has considered the evidence in a just and reasonable manner and the approach of the Family Court deciding the Hindu marriage petition is absolutely just. There is no reason to interfere with the judgment of the Family Court in this first appeal. In the result, the first appeal is dismissed with no order as to costs.