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2014 DIGILAW 36 (TRI)

Chandan Debnath v. Suniti Nath, M. P. W. (F)

2014-01-28

DEEPAK GUPTA, S.TALAPATRA

body2014
JUDGMENT Deepak Gupta, C.J.:- This appeal is directed against the order dated 25.09.2012 passed in T.S.(Div) No. 11/2011 by the learned Additional District Judge, North Tripura, Kamalpur, whereby he held that the petition filed by the petitioner (appellant herein) under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 was not maintainable. The following interesting question of law arises in this appeal: Whether a decree for divorce under the Hindu Marriage Act, 1955 can be granted in case two adults are living together in a live in relationship where no marriage was solemnised between the parties? 2. Since the question of maintainability has been decided at the preliminary stage before recording of evidence we proceed to decide the matter only on the basis of the pleadings of the appellant who claims to be the husband of the respondent. 3. Briefly stated facts of the case as set out in the appeal filed by Sri Chandan Debnath who claims to be the husband (hereinafter referred to as the appellant) are that the respondent Smt. Suniti Nath was earlier married to one Ratan Debnath and a child was born out of her first marriage. Thereafter, divorce proceedings were initiated by Ratan Debnath against the respondent and the marriage between them was dissolved by a decree of divorce. 4. According to the appellant, after the respondent was divorced he and the respondent started living together as husband and wife and he has prayed that the marriage status between the appellant and the respondent is required to be dissolved by a decree of divorce. Since the main issue is whether the petition under Section 13(1)(i-a) of the Hindu Marriage Act is maintainable or not, the relevant portions of the petition filed by the appellant in the trial court are quoted hereinafter: 4. That, from 10.4.2002 till 22.7.2011 the parties had been residing as husband and wife and each other accepted themselves as husband and wife and they were introduced in their respective society as husband and wife. Thus, the parties enjoyed conjugal life as husband and wife for the said period. 5................................................... 6................................................... The petitioner stated before the Commission that the Respondent has been living with him as husband and wife for last 10 years approximately though no format marriage was solemnized between them. ................................................... Ultimately, under compelling circumstances the Petitioner took the Respondent with him and started to live as husband and wife. 5................................................... 6................................................... The petitioner stated before the Commission that the Respondent has been living with him as husband and wife for last 10 years approximately though no format marriage was solemnized between them. ................................................... Ultimately, under compelling circumstances the Petitioner took the Respondent with him and started to live as husband and wife. Thus, the parties accepted each other as husband and wife and introduced themselves in the society respectively and their respective society accepted as such. ................................................... 7................................................... 8................................................... 9. That, the marriage status between the Petitioner and the Respondent is required to be dissolved by a decree of divorce for the ends of justice. 10. That, since the Petitioner and the Respondent lived together as husband and wife for about 10 years and the petition being presented after 10 years of their living as husband and wife, there is no impediment to entertain the petition and pass appropriate decree of divorce as prayed for. 5. Mr. R.G. Chakraborty, learned counsel appearing for the appellant has urged before us that the allegations made in the petition clearly prove that the appellant and the respondent were living together as husband and wife and he therefore prays that in terms of Section 114 of the Indian Evidence of Act, 1872, a presumption of marriage must be drawn. He has placed strong reliance on the judgment delivered by a learned Single Judge of the Madras High Court in Aysha v. Qzir Hassan, decided on 17.06.2013 in Crl. R.C. No. 674/2007. On the basis of the said judgment, Mr. Chakraborty, learned counsel submits that since there were sexual relations between the appellant and the respondent, the existence of marriage is established and therefore a decree of divorce is required to be passed to dissolve the relationship. He has also drawn our attention to certain documents wherein the respondent is referred to as the wife of the appellant. 6. On the other hand, Mr. Samarjit Bhattacharjee, learned counsel for the respondent submits that from the pleadings it is not shown that any formal ceremony of marriage took place between the parties. It is also contended that the respondent has denied that she ever had sexual relationship with the appellant though it is admitted that the appellant and the respondent were living together. 7. To decide these questions, it would be relevant to refer to certain provisions of the Hindu Marriage Act. It is also contended that the respondent has denied that she ever had sexual relationship with the appellant though it is admitted that the appellant and the respondent were living together. 7. To decide these questions, it would be relevant to refer to certain provisions of the Hindu Marriage Act. Section 5 of the Hindu Marriage Act lays down the conditions for a Hindu marriage and prohibits marriage between certain persons who fall within the degree of prohibited relationship or are sapindas to each other, unless custom or usage permits such marriage. Section 7 of the Hindu Marriage Act 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. (2) Where such rites and ceremonies include the saptpadi (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. 8. A Hindu marriage has to be solemnised in accordance with customary rites and ceremonies of either party to the marriage. In case saptpadi is one of the ceremonies included in the marital rites and ceremonies then the marriage is completed only after the seventh step is taken. It is thus apparent that for a marriage to be formalised in accordance with the Hindu Marriage Act it must be solemnised in accordance with the customary rites and if saptpadi be one of the rites to be performed then the marriage is complete only after the seventh step is taken. Section 11 of the Hindu Marriage Act provides that any marriage can be declared to be a nullity if it contravenes clauses (i), (iv) and (v) of Section 5 of the Act. Opening part of Section 13 of the Hindu Marriage Act reads as follows: 13. Divorce.--(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-... 9. We are not going into the 'grounds' since the issue is what marriage can be dissolved by grant of a decree of divorce. Section 13 of the Hindu Marriage Act starts with the phrase "Any marriage solemnised". 9. We are not going into the 'grounds' since the issue is what marriage can be dissolved by grant of a decree of divorce. Section 13 of the Hindu Marriage Act starts with the phrase "Any marriage solemnised". The word "solemnised" has to be read in conjunction with Section 7 of the Hindu Marriage Act and, therefore, it is only a marriage which is solemnised in terms of Section 7 of the Act, which can be dissolved under Section 13 of the Act. We are of the view that a marriage which is not in accordance with Section 7 of the Act will not attract the provisions of the Hindu Marriage Act and divorce cannot be granted in terms of the Hindu Marriage Act. 10. It would also be pertinent here to make reference to Section 114 of the Indian Evidence Act, which reads as follows: 114. Court may presume existence of certain facts- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. 11. The apex court in a large number of judgments has held that there would be a presumption in favour of wedlock if the partners lived together for long spell as husband and wife, but this is a rebuttable presumption though a heavy burden lies on the person who seeks to deprive the relationship of its legality to prove that no marriage took place. Reference in this behalf may be made to the judgment of the Apex Court in S. P.S. Balasubramanyam v. Suruttayan @ Andali Padayachi & Ors. : AIR 1992 SC 756 . 12. The apex court in Sobha Hymavathi Devi v. Setti Gangadhara Swamy & Ors. : AIR 2005 SC 800 , was dealing with a case in which the issue was whether the elected candidate belonged to the Scheduled Tribe or not. The apex court in Sobha's case held that the father and mother of the elected candidate had cohabited for a long period together, begot children and were recognised as husband and wife by the community. The apex court went on to hold that since six children were born it would not be possible to hold that there was only a status of concubinage and not marriage. The apex court went on to hold that since six children were born it would not be possible to hold that there was only a status of concubinage and not marriage. The court further held that the marriage between the father and mother of the elected candidate was proved and it was strengthened by the presumption available under Section 114 of the Indian Evidence Act. The apex court however also held that such a presumption is a rebuttable presumption. 13. In Tulsa & Ors. v. Durghatiya & Ors. : (2008) 4 SCC 520 , the Apex Court after referring to Section 114 of the Evidence Act held as follows: 11. At this juncture reference may be made to Section 114 of the Evidence Act, 1872 (in short 'the Evidence Act'). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case. 12................................................... 13................................................... 14................................................... 15. Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy. 14. In all these cases the presumption was raised when the legitimacy of the marriage was challenged by a third party. We are dealing here with a case where one of the partners to the relationship is denying that there is any marriage between the two partners. There may be two categories of cases. First, where the long drawn cohabitation between two adults raises a presumption of marriage and this presumption is sought to be rebutted by third parties and second, those cases where one of the partners is disputing the very factum of marriage. Both the categories stand on totally different footing. If a man and a woman live together for a long time and have children then the court will always lean towards legitimising such a relationship. Both the categories stand on totally different footing. If a man and a woman live together for a long time and have children then the court will always lean towards legitimising such a relationship. Where the question of legitimacy of children is also involved the court always frowns at declaring children to be illegitimate. In such a case if some other relatives of the partners to the marriage or any third party disputes the existence of marriage this very strong presumption must be rebutted by leading proper evidence. 15. Even in those cases where a presumption of marriage can be raised due to reason of long cohabitation, if it is proved that the second marriage would be a void marriage in terms of clauses (i), (iii) and (v) of Section 5 of the Hindu Marriage Act, we are doubtful whether a declaration declaring the relationship to be a valid marriage could be issued. The court, despite its sympathy cannot make something which is inherently illegal and void, valid and legal on the basis of a presumption. We are not going into that aspect of the matter in detail since that is not the issue raised before us. 16. We have quoted the relevant portions of the petition in detail and from the quoted portions of the petition, it is apparent that the appellant himself before the trial court had not claimed that any marriage was solemnised between the parties. The entire tenor of the petitioner was that the appellant and the respondent cohabited and lived together as husband and wife and therefore a relationship akin to that of marriage had arisen between them. On this basis it is urged that by raising the presumption under Section114 of the Evidence Act the marriage be presumed and a decree of divorce be granted to dissolve the marriage. 17. At this stage, we are not even looking at the written statement filed by the respondent, but proceed on the assumption that every fact stated in the petition is the gospel truth. The first issue which troubles us is why does the appellant wants a decree of divorce? If he only wants to live separately then the respondent in her written statement, by denying that there was any relationship of marriage has given him a sufficient escape route to live separately. The first issue which troubles us is why does the appellant wants a decree of divorce? If he only wants to live separately then the respondent in her written statement, by denying that there was any relationship of marriage has given him a sufficient escape route to live separately. It appears that the appellant wants something more than a mere decree of divorce. We need not say anything more. In case the appellant had made an allegation that a marriage had been solemnised between the parties according to Hindu rites, then even if the respondent had disputed that allegation the long cohabitation would have raised a presumption of marriage and the matter would have to be decided on the basis of evidence. In the present case, however, the appellant in this appeal has not even whispered that any marriage was solemnised between the parties. Therefore, at best there was a live in relationship between the parties and live in relationships are to be dealt with in accordance with the Protection of Women from Domestic Violence Act, 2005 and not under the Hindu Marriage Act. 18. If two adults decide to live together and cohabit with each other without formalising their relationship under the personal laws applicable to them or the Special Marriage Act, then they cannot fall back on the personal or other marriage laws to claim alimony or maintenance from each other under the personal laws. If there is right to get such relief under any other law they can do so. The appellant having entered into a relationship not in accordance with the Hindu Marriage Act, cannot in our view now claim that his marriage should be dissolved in accordance with the Hindu Marriage Act and he be granted alimony. 19. Strong reliance has been placed by learned counsel for the appellant on the judgment of the Madras High Court in Aysha's case (supra). We have carefully gone through the judgment and are totally unable to persuade ourselves to agree with the said judgment 20. The learned Single Judge of the Madras High Court was dealing with the case where the petitioner had alleged that she had been married to the respondent in accordance with Muslim customs and laws. The decision should have been confined to those laws. The learned Single Judge of the Madras High Court was dealing with the case where the petitioner had alleged that she had been married to the respondent in accordance with Muslim customs and laws. The decision should have been confined to those laws. However, the learned Single Judge of the Madras High Court went on to hold that marriage solemnisation is only a customary right and obligation, but not a mandatory one. We are totally unable to agree with this extremely wide proposition of law laid down by the learned Single Judge of the Madras High Court. A legal marriage in our opinion, has to be solemnised in accordance with law. 21. In this country, we follow the Rule of law and if the Rule of law is to prevail, then any marriage to be legal or valid, should be performed in accordance with law. The presumptions which can be raised under Section 114 of the Indian Evidence Act are only in those cases where a marriage could be lawfully entered into between the two adults. But, by no stretch of argument can it be said that the solemnisation of marriage is not a mandatory obligation. 22. The learned Single Judge of the Madras High Court held as follows: Marriage solemnization is only a customary right and obligation, but not a mandatory one. Hence, this Court treats the petitioner and the respondent as spouses in normal life with a typical identity of their own. It is not disputed that the petitioner has been a spinster before she gave birth and that the respondent was a bachelor before developing sexual relationship with the petitioner. Both of them led their marital life under the same shelter and begot two children. Therefore, the petitioner's rank has been elevated as the 'wife' of the respondent and likewise the respondent's rank had been elevated as the 'husband' of the petitioner. Therefore, the children born to them are 'legitimate' children and the petitioner is the 'legitimate' wife of the respondent. This Court is of the view that if a woman aged 18 or above has a sexual relationship with a man, aged 21 or above, and during the course of such relationship, if the woman becomes pregnant, she would henceforth be treated as the 'wife' and the man would be treated as the 'husband'. 23. We are totally unable to agree with this proposition of law. 23. We are totally unable to agree with this proposition of law. The Constitution of India guarantees freedom to any adult to lead his or her life in accordance with his or her choice. The citizens, as long as they do not break the law are not bound to follow the standards of morality which society may prescribe. Live in relationships are now a well recognised part of our social system. They have been given statutory recognition under the Protection of Women from Domestic Violence Act 24. It is not for the courts to decide whether such live in relationships are moral or immoral. When a Judge sitting in a court performs his duty, he has to shed his religion, his personal views and predilections. The duty of the Judge is to decide the case in accordance with law. We take an oath to uphold the Constitution and the laws. That is the foremost duty of a Judge and we cannot start imposing what are our personal views on society. Any act can be held to be legal or illegal only in the context of legal provisions and not in the context of the personal perceptions of a Judge. We are also not at all in agreement with the findings of the learned Single Judge of the Madras High Court that Rafter such a sexual relationship the man and woman decide to separate due to difference of opinion, the husband cannot marry without getting a decree of divorce from the court of law against the wife. For the reasons which we have stated above, this proposition of law in our view is totally untenable and cannot be accepted to be the correct interpretation of the law. When there is no marriage between the parties how can a decree of divorce be granted. If two adults decide to live together in a live in relationship they cannot claim that this live in relationship has the same status as marriage. 25. We are also not in agreement with the learned, Single Judge of the Madras High Court that if any man above the age of 21 years and any woman above 18 years choose to consummate their sexual cravings then that act becomes a total commitment with adherence to all consequences that may follow and would amount to marriage. 25. We are also not in agreement with the learned, Single Judge of the Madras High Court that if any man above the age of 21 years and any woman above 18 years choose to consummate their sexual cravings then that act becomes a total commitment with adherence to all consequences that may follow and would amount to marriage. With due respect, we feel that the learned Single Judge of the Madras High Court has erred in equating sex with marriage. Sex can be a mere physical act whereas marriage is an emotional bond between two persons. Sex and marriage can never be equated. We cannot shut our eyes to the hard reality, that in society pre-marital and extramarital sex does take place. If sex is exalted to the status of marriage then it would create havoc in society. Therefore, we do not agree with the judgment of the learned Single Judge of the Madras High Court. 26. In the present case, even if we assume for the sake of appreciating the submission of the appellant that there was sexual intercourse between the appellant and the respondent, we are clearly of me view that this would not raise the status of the relationship to that of marriage. We find it even more surprising that the learned Single Judge of the Madras High Court went on to hold that if the marriage between a bachelor and a spinster takes place in accordance with their religion but the same is not sexually consummated then such marriage is deemed to be a failure and an invalid marriage. In the context of the Hindu Marriage Act with which we are concerned, non-consummation of a marriage is a ground to hold the marriage void in terms of Section 12 of the Hindu Marriage Act Even such marriage can be declared to be void only when the marriage has not been consummated owing to the impotence of the respondent Mere non-consummation of marriage is not aground to declare the marriage to be void. We are of the considered view that it is not our duty to frame laws and especially so when the legislature has performed its duty and framed the law. We can interpret the laws, but cannot substitute what we believe is right in place of the law. 27. We are of the considered view that it is not our duty to frame laws and especially so when the legislature has performed its duty and framed the law. We can interpret the laws, but cannot substitute what we believe is right in place of the law. 27. The learned Single Judge of the Madras High Court also went on to hold that legal rights applicable to the normal wedded couples will also be applicable to couples who have had sexual relationships which are established. This in our opinion is stretching the matter too far. If any rights are available under law to such persons who have sexual relationship with each other they may claim those rights, but they cannot be treated to be a wedded couple. If the judgment of the learned Single Judge of the Madras High Court is accepted then even one casual act of sex between a young boy and girl would mean that they are married for all intents and purposes. This, in our opinion is not the law. Any adult in this country has the fundamental right of freedom of choice. He or she can voluntarily engage in consensual sex with any other adult This sexual relationship may be a casual relationship or a long relationship, but if the parties have no intention of living together as husband and wife neither the court nor the law can force them to be treated as married. For the reasons given above, we totally disagree with the judgment of the Madras High Court As held by us earlier, when two persons cohabit with each other for a long time this will give rise to a presumption that they have entered into a valid marriage. This is however are but table presumption. The presumption is not so sacrosanct that it cannot be disproved. The presumption would be stronger when the long drawn out relationship is challenged by third parties. The presumption would be much less stronger if one of the parties to the marriage itself is disputing the validity of the marriage. There can be no presumption raised when both the partners clearly state that no marriage was solemnised and they were only living together as man and woman. The presumption would be much less stronger if one of the parties to the marriage itself is disputing the validity of the marriage. There can be no presumption raised when both the partners clearly state that no marriage was solemnised and they were only living together as man and woman. If they live together as man and woman and even if in some documents they were described as husband and wife that will not raise their status to that of a married couple. There is no question of a decree of divorce being granted to dissolve such relationship. What is contemplated under Section 13 of the Hindu Marriage Act is the dissolution of a marriage and not a relationship. Once there is no marriage there can be no divorce and, therefore, we are of the considered view that the learned trial court was justified in holding that the petition under Section 13(1)(i-a) was not maintainable. We therefore reject the appeal. No order as to costs.