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2013 DIGILAW 415 (ORI)

Rajani Kanta Acharya v. Jyotshna Rani Tripathy

2013-09-25

B.R.SARANGI, SANJU PANDA

body2013
JUDGMENT S. PANDA, J. - Challenge has been made in MATA No. 89 of 2010 by the legal heirs of one Subhakanta Acharya to the judgment dated 11.11.2010 passed by the learned Judge, Family Court, Ganjam, Berhampur in Civil Proceeding No. 268 of 2010 with a prayer to declare the marriage between Subhakanta and respondent No.1 (hereinafter referred to as "J") as null and void. 2. The aforesaid appellants have also filed MATA No. 90 of 2010 challenging the judgment dated.11.11.2010 so far as Civil Proceeding No. 271 of 2010 is concerned. As both the appeals arise out of common judgment, they were heard together and are being disposed of by this common judgment. 3. The respective pleas of the applicants in the aforesaid civil proceedings are as follows: It is contended by the applicant in Civil Proceeding No. 268 of 2010 that Subhakanta Acharya married to "J" on 6.3.2003 as per Hindu customs. Out of their wedlock, a daughter born. It came to the knowledge of Subhakanta that prior to his marriage, "J" married to respondent No.2 (hereinafter referred to as "N") on 24.12.2002. "J and "N" were married under the Special Marriage Act before the Marriage Officer following the statutory provision. During subsistence of the said marriage and having lived in spouse, "J" again married to him. As such, his marriage with her was a void marriage and to be declared the same as such. During pendency of the aforesaid application, Subhakanta died. After receiving notice, "N" who-was defendant No.2 before the Court below, neither filed any written statement nor contested the case. "J: who was defendant No. 1 before the Court below, filed her written statement contending that "N" is her cousin being son of her mother's sister and he is coming within the prohibited degree of relationship. Therefore, the alleged marriage is voidable. She also contended that "N" fraudulently created the documents which were treated as marriage documents though there was actually no marriage and they never resided as husband and wife. Subhakanta husband demanded dowry for which the dispute arose and he filed a false case. Hence, she prayed for dismissal of the proceeding. 4. In support of their respective pleas, 'J' examined three witnesses including herself •as P.W.1. The parents of Subhakanta examined two witnesses in C.P. No. 271 of 2010. The father of Subhakanta was examined as D.W.2. 5. Subhakanta husband demanded dowry for which the dispute arose and he filed a false case. Hence, she prayed for dismissal of the proceeding. 4. In support of their respective pleas, 'J' examined three witnesses including herself •as P.W.1. The parents of Subhakanta examined two witnesses in C.P. No. 271 of 2010. The father of Subhakanta was examined as D.W.2. 5. "J" filed C.P. No. 271 of 2010 after receiving notice in C.P. No.268 of 2010 and filed her written statement. She contended that "N" being her cousin had access to her family. They were in visiting terms. On 24.12.2002, they went to Bhubaneswar to meet a friend but his friend was absent at Bhubaneswar. "N" brought some forms and at his instance, she signed on those papers in good faith. Practicing fraud, "N" created documents only to harass her. As they were within the prohibited degree of relationship and the alleged marriage was void "J" prayed for declaration of the said marriage as null and void. "J" married to one Subhakanta Acharya on 6.3.2003 and a daughter born out of the said wedlock. She was residing 'with her husband and girl child. "N" by playing mischief, informed Subhakanta that he married "J" earlier for which disturbance was started thereof. She was able to know all these fraudulent acts of "N" after receiving notice on divorce from said Subhakanta. "J" could know that her signatures were utilized by preparing a marriage certificate dated 24.12.2002. Hence, she filed an application to declare the alleged marriage with "N" to be void. 6. "N" filed his written statement in C.P. No. 271 of 2010 contending that the allegations were false and 'J' wanted to marry him. She collected all required papers and produced witnesses before the Marriage Officer for the said purpose. At that time, she was aged about 26 years. She is an educated lady. "N" disclosed her at that time that the papers were marriage papers and he promised not to disclose anyone about her signatures on those papers. "N" further took a stand that till he is unmarried, as 'J' betrayed him. 7. "J" filed documentary evidence, which was marked as Ext.1-A, certified copy of marriage certificate. Defendants filed documentary evidence, which were marked as Ext. "N" further took a stand that till he is unmarried, as 'J' betrayed him. 7. "J" filed documentary evidence, which was marked as Ext.1-A, certified copy of marriage certificate. Defendants filed documentary evidence, which were marked as Ext. 1 to 10, those are application form, money receipt, public notice, declaration with photo script, application filed in the post, order passed, relevant entry in marriage certificate, notice in entry, signature of the party in the application form of marriage and marriage invitation card. The learned Judge, Family Court formulated as many as five issues in C.P. No. 268 of 2010 and eight issues in C.P. No.271 of.2010. The learned Judge, Family Court taking issues of C.P. No.271 of 2010 recorded the findings that there was no fraud. There was a meeting of mind followed by marriage. Parties had in acquaintance terms and the allegation, that the marriage was not consummated, was not believable. "J" and "N" are within the prohibited degree of relationship. Therefore, there cannot be a valid marriage between them as per Section 4 (d) of the Special Marriage Act. There is no pleading regarding any custom to marry a cousin by the parties. As per Section 24 of the Special Marriage Act, the marriage becomes void, since condition of Section 4 (d) is not fulfilled. As there is violation of the provision contained in Section 4 (d), the said marriage is void. Therefore, the marriage between "J" and Subhakanta cannot be held null and void on the ground of her marriage with "N" as the marriage between "J" and "N" is found void. Accordingly, C.P. No. 271 of 2010 was allowed and C.P. No. 268 of 2010 was dismissed. Subhakanta died during pendency of the application. Hence, the learned Judge, Family Court came to the conclusion that since Subhakanta died, the mischief was against him and no other person can question such status without having any special personal interest. 8. Learned counsel for the appellants submitted that since "J" pleaded fraud, however, she failed to prove the said fraud during trial and the Court below also recorded that there was no fraud. Therefore, her application is coming under the purview of Section 25 of the Special Marriage Act. The application is liable to be dismissed as it was filed beyond one year. Hence, the judgment needs to be set aside. Therefore, her application is coming under the purview of Section 25 of the Special Marriage Act. The application is liable to be dismissed as it was filed beyond one year. Hence, the judgment needs to be set aside. He further submitted that since "J" married during subsistence of her earlier marriage with 'N', the Court below should have declared the subsequent marriage of "J" with Subhakanta in the year 2003 as null and void in view of Section 5 (1) read with Section 11 of the Hindu Marriage Act. The aggrieved person, i.e. Subhakanta himself filed the suit. After his death, since his parents were substituted, they had the locus standi to continue the proceeding to protect the status and prestige of their son. "J" being a wrong doer, she could not have taken advantage of her own wrong. 9. Learned counsel for "J", however, supporting the impugned judgment contended that only a marriage certificate was issued in respect of the marriage between "J" and "N". Hence, it cannot conclusively be said that actual marriage took place and they were living as husband and wife. Therefore, the Court below rightly annulled the said marriage certificate and passed the judgment which need not be interfered with. In support of his contention, he has cited a decision of the apex Court in the case of Deoki Panjhiyara v. Shashj Bhushan' Narayan Azad and another reported in 2013 AIR SCW 168. 10. Respondent No.2-No. has appeared through counsel. However, he did not contest at the time of hearing of the appeal. 11. In view of the above pleadings and contentions of the counsels of the parties, this Court has to consider whether the marriage between "J" and "N" was held by practicing fraud and whether the marriage between "J" and Subhakanta is valid? 12. For better appreciation, Section 4(d), 24 and 25 of the Special Marriage Act is quoted below to answer first question: 4. 12. For better appreciation, Section 4(d), 24 and 25 of the Special Marriage Act is quoted below to answer first question: 4. Conditions relating to solemnization of special marriages - Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely: xxx xxx xxx (d) the parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and xxx xxx xxx 24. Void marriages - (1) Any marriage solemnized under this Act shall be null and void [and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if – (i) any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled; or (ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit. (2) Nothing contained in, this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in Clauses (a) to (e) of Section 15 : Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17 and the decision of the District Court has become final." 25. Voidable marriages - Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if (i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or. Voidable marriages - Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if (i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or. (ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or (iii) the consent of either party in the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872; Provided that, in the case specified in Clause (ii), the Court shall not grant a decree unless it is satisfied – (a) that the petitioner was at the time of the marriage ignorant of the facts alleged; (b) that proceedings were instituted within a year from the date of the marriage; and (c) that marital intercourse with the consent of the petitioner has not-taken place since the discovery by the petitioner of the existence of the grounds for a decree; Provided further that in the case specified in Clause (iii), the Court shall not grant a decree if (a) proceedings have not been instituted within one year after the coercion had ceased, or as the case may be, the fraud had been discovered; or (b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered." 13. In view of the above provision of law and as per Section 4 (d) of the Special Marriage Act, in case the parties are not within the degree of prohibited relationship, marriage can be solemnized between two persons. 14. However, the proviso thereof stipulates that where a custom governing at least one of the parties 'permits of a marriage between them, such marriage may be solemnized; notwithstanding that they are within the degrees of prohibited relationship. 15. "In the present case, there is no evidence on record to show the custom governing at least one of the parties allowing such marriage between the prohibited relationship. However, respondent No. 1 has not taken that ground in the application; rather her application was under Section 25 of the Act. The marriage was not consummated and the consent was obtained by fraud. However, respondent No. 1 has not taken that ground in the application; rather her application was under Section 25 of the Act. The marriage was not consummated and the consent was obtained by fraud. The proceeding has not been instituted within one year as provided in the 2nd proviso to Section 25(a) of the Special Marriage Act. 16. For better appreciation, Section 5 (1) and 11 of the Hindu Marriage Act is quoted below: "5: Conditions for a Hindu marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) neither party has a spouse living at the time of the marriage; xxx xxx xxx 11. Void marriages" Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereof, [against the other party], be so declared by a decree of nullity if it contravenes anyone of the conditions specified in Clauses (i), (iv) and (v) of Section 5." 17. So far as C.P. No. 271 of 2010 is concerned, "J" filed the proceeding against "N". In the said proceeding, "N" filed written statement and traversed the allegations made by "J" and contended that "J" wanted to marry him. She collected all required papers and produced witnesses before the Marriage Officer. By that time, she was 26 years old. She is an educated lady. He disclosed before her that the papers were relating to marriage. "N" is still unmarried as "J" has betrayed him. 18. The Court below only considered the evidence adduced by "J" and her witnesses, i.e. father and uncle. Ext. 9, the notice in Entry No. 688102 for marriage under the Special Marriage Act, reveals that the parties did not disclose before the Marriage Officer that they were within the prohibited decree of relationship. The Court below accepted the version of P.Ws. 2 and 3 as they were only competent to speak about the relationship of the parties. However, the Court below did not discuss the evidence of D.Ws. 1 and 2 which were on record. As such, the conclusion reached by the Court below that the parties are in prohibited degree of relation is perverse. 19. D.W.1, the Junior Clerk in the Office of District Sub-Registrar-cum-Marriage Officer, Bhubaneswar, produced the record relating to marriage between 'J' and 'N' and those documents were marked as Exts. 1 and 2 which were on record. As such, the conclusion reached by the Court below that the parties are in prohibited degree of relation is perverse. 19. D.W.1, the Junior Clerk in the Office of District Sub-Registrar-cum-Marriage Officer, Bhubaneswar, produced the record relating to marriage between 'J' and 'N' and those documents were marked as Exts. 1 to 9. D.W.2, father of Subhakanta, specifically in his evidence on affidavit stated that "J's" mother had no sister nor such a person attended the marriage between "J" and-Subhakanta. The story of prohibited degree of relationship was created for the purpose of presenting the case as Subhakanta filed the application to declare marriage as null and void. The said witness was cross-examined and nothing substantial was brought out to discard his evidence. Therefore, the finding of the Court below that 'N' is the cousin of "J" is not sustainable as the said fact for the first time was disclosed after filing of C.P. No. 271 of 2010. 20. So far as C.P. No. 268 of 2010 is concerned, the husband filed the application to declare the marriage as void since during subsistence of the earlier marriage, i.e. married between 'J' and 'N' in the year 2002, "J" married to him in the year 2003. However, during pendency of the said proceeding he died and his parents were substituted in his place. The Court below allowed them to continue the proceeding and none of the parties challenged the said order in the higher forum. The provision of Section 13(2) of the Special Marriage Act, 1954 is clear regarding the marriage certificate issued by the, Marriage Officer and the said certificate shall be deemed to be conclusive evidence of the fact that a marriage under the Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with. Therefore, the marriage certificate dated 24.12.2002 clearly proves that "J" married to "N" and during subsistence of such marriage, she again married to Subhakanta in the year 2003. Therefore, the marriage certificate dated 24.12.2002 clearly proves that "J" married to "N" and during subsistence of such marriage, she again married to Subhakanta in the year 2003. As marriage held in the year 2003 is coming within the purview of Section 5 (i) of the Hindu Marriage Act and in view of Section 11 of the said Act on the application filed by either party thereto against other party the marriage so declared by a decree of nullity if it contravenes any of the conditions specified in Section 5 (i), the same shall be declared as null and void. 21. As the parents are continuing in the proceeding filed by Subhakanta and the Court below did not take into consideration the said settled position of law, the dismissal of the said proceeding by the Court below is liable to be reversed. 22. Section 5(i) of the Act stipulates that for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of marriage. A marriage in contravention of this condition, therefore, in null and void. The plea that the marriage should not be treated as void because such a marriage was earlier recognized in law and custom cannot be accepted. By reason of the overriding effect of the Act as mentioned in Section 4, no aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. Such a marriage cannot also be said to be voidable by reference to Section 12. So far as Section 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnized in violation of Section 5 (i). Section 12(2) puts further restrictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it; the same continues to be effective. The marriages covered by Section 11 are void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at all if and when such a question arises. The marriages covered by Section 11 are void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a Court in a proceeding specifically commenced for the purpose. The provisions of Section 16 also throw light on this aspect. Section 16(3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively by Sections 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. Hence, the marriage of a woman in accordance with Hindu rites with a man having living spouse is complete nullity in the eye as law as held by the apex Court in the case of Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, AIR 1988 SC 644 . 23. Applying the above principle, this Court comes to the conclusion that at the time of marriage of "J" with Subhakanta, she had a living spouse. Subhakanta filed Civil Proceeding No. 268 of 2010 for annulment of the marriage with "J" and that marriage is coming under the purview of Section 5(i) read with Section 11 of the Act. Therefore, the marriage is declared as null and void from the very inception, however, the child is a legitimate child. 24. The apex Court in the case of Deoki Panjhiyara (supra) has held that when the appellant wife has disputed the fact of her first marriage in the absence of any valid decree of nullity or the necessary declaration, the Court will have to proceed on the footing that the relationship between the parties is one of the marriage and not in the nature of marriage. Any determination of the validity of marriage between the parties could be made only by a competent Court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Any determination of the validity of marriage between the parties could be made only by a competent Court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the wife was not sufficient for any of the Courts, no render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance. 25. Hence, the said decision is not applicable to the facts of the present case as the parties in the instant case filed an application to declare earlier marriage as null and void. 'N' filed his written statement admitting the factum of marriage and issuance of marriage certificate under the Special Marriage Act. 26. Accordingly, the findings of the Court below are not sustainable. As such, the same is liable to be reversed. In view of the above findings, we allow both the appeals. C.P. Nos. 268 of 2010 is allowed and 271 of 2010 is dismissed. Dr. B.R. SARANGI, J. I agree. Ordered accordingly.