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2014 DIGILAW 532 (PAT)

Sunaina Devi v. Prashant Kumar Jha

2014-04-30

NAVIN SINHA, PRABHAT KUMAR JHA

body2014
JUDGMENT : NAVIN SINHA, J.:–The present appeal arises from judgment dated 24.12.2009 by the Principal Judge, Family Court, Saharsa dismissing M.M. [Matrimonial] Case No. 52 of 2005/56 of 2005 instituted by the appellant Sunaina Devi alias Soni under section 9 of the Hindu Marriage Act (hereinafter called ‘the Act’) for restitution of conjugal rights. Dismissing the case, the Court held that the factum of marriage itself had not been established. 2. Learned counsel for the appellant submitted that the parties were married on 16.2.2004 according to Hindu rituals and customs. The traditional ‘Barat’ had been received. The Priest and Barber were also present. All customary hindu rituals of marriage had been duly performed. After marriage the parties also went to what is popularly known as the ‘Kobhar Ghar’. An altercation had taken place on the marriage night itself regarding dowry. The brother of the respondent left along with some of the guests threatening the father of the appellant to falsely implicate him in a case of kidnapping for teaching him a lesson for non-payment of dowry. Despite efforts the mother and brother of the respondent refused to accept the appellant in the matrimonial house. Dowry of Rs.3 Lacs was demanded which the father of the appellant was unable to pay. The family of the respondent further stated that they would get him married elsewhere, which they ultimately did. All attempts at compromise were unsuccessful. An earlier application under Section 9 of the Act, Matrimonial Case No. 16 of 2004 had been dismissed for non-prosecution and not on merits. 3. Learned Senior counsel for the respondent vehemently disputed that any marriage had been performed much less in accordance with Hindu traditions and customs. It was submitted that on the day of the alleged marriage, the respondent, a school teacher, was returning home on a Rickshaw driven by one Tilkeshwar Tanti. He was kidnapped around 4:30 pm on the road at the point of a gun and taken away for marriage in a black Bolero GL X vehicle bearing registration No. SK – 02 – 9658 by four persons one of whom was named as Sanjay Kumar Jha son of Navkant Jha. The brother of the respondent lodged Saharsa P. S. Case 49 of 2004 the same day under Section 365 IPC at 19.15 pm. The brother of the respondent lodged Saharsa P. S. Case 49 of 2004 the same day under Section 365 IPC at 19.15 pm. The respondent was recovered from the house of the appellant around 10.30 the same night of the alleged marriage. The appellant‘s witnesses had deposed that the marriage ceremony started at about 7:30–8:00 pm and concluded by 9–9:30 PM. If it was a marriage duly solemnised voluntarily, and all rituals of a hindu marriage performed, it is not possible that the wedding would be over in such a short duration. The traditional rituals take considerable time and a normal marriage would have continued till late at night. This unusual act itself demonstrates the haste with which the alleged marriage was performed without proper rituals. Charge sheet No. 205 in the police case was submitted by the police against the father of the appellant and others on 16.2.2004. Cognizance was taken on 12.8.2004. The accused evaded appearance all along leading to orders under Section 82 Cr.P.C. where after they appeared and were granted bail by this Court on 19.3.2008. On account of non-cooperation by them in the criminal case, commitment had not been done till 16.8.2010. The mother of the appellant had earlier filed Complaint Case No. 156 of 2004 against the respondent and others on 24.2.2004 under Section 3 and 4 of the Dowry Prohibition Act. The case was dismissed for non-prosecution on 27.7.2013. The appellant herself on 28.4.2004 had also filed a Complaint case under Sections 420, 494 and 120 B IPC along with Section 4 of the Dowry Prohibition Act. It was also dismissed on 30.8.2013 as no prosecution witness appeared after charge. Earlier the appellant had filed Matrimonial Case No. 16 of 2004 under Section 9 of the Act which was dismissed for non-prosecution on 25.2.2005 and attained finality. The fresh application under Section 9 of the Act was then filed again only for harassment. 4. The evidence led on behalf of the appellant talks of guests at the marriage but no independent witness has been examined. PW 1, PW 2, PW 4 and PW 6 have spoken of the marriage rituals having been video graphed and 44 still photographs taken by a Yashica camera. But no such evidence was placed before the Court. The appellant acknowledged that no demand for dowry was made in her presence on the date of marriage. PW 1, PW 2, PW 4 and PW 6 have spoken of the marriage rituals having been video graphed and 44 still photographs taken by a Yashica camera. But no such evidence was placed before the Court. The appellant acknowledged that no demand for dowry was made in her presence on the date of marriage. PW 2 on the suggestion that the respondent was drugged by laced tea denied it. 5. PW 4 the uncle of the appellant states that he did not speak to any of the persons who had come in the Barat along with the respondent, a highly unusual aspect for a traditional hindu wedding. PW 4 claimed to be the priest who solemnised the marriage. He acknowledged that he had never solemnised any marriage prior to the present and that that he was a government employee. He was not trained in recitation of ‘Mantras’ especially those recited during marriage rituals. He acknowledged the arrival of the police and the consequent arrest of the appellant‘s father and brother. The marriage was the first occasion when he had visited the appellant‘s village. The Family Judge did not consider his evidence reliable. The evidence of PW 5, aged about 80 years, uncle of the appellant who is alleged to have performed ‘kanyadan’ was also disbelieved by the Court. 6. The 9 prosecution witnesses examined on behalf of the respondent were all consistent. The Rickshaw puller was examined as OPW 4. A co-villager OPW 6 proved recovery of the respondent from the house of the appellant. OPW 7, another Rickshaw puller proved the abduction on the road. OPW 1, elder brother of the respondent proved lodging of the police case as the informant. The Trial Court rightly expressed surprise that no independent witness of the Village, relatives and guests of the appellant had been examined. No invitation card had been brought on record. If a marriage was being solemnised, and a dispute occurred regarding dowry, the marriage would have been stalled or called off. It is unimaginable that a false case of kidnapping would have been lodged as the barat and the groom could have well left the marriage venue. All of which go to suggest that the respondent was taken away by forceful abduction for marriage. 7. The provisions of the Act relevant for consideration are Section 5 and 9 the Act. 5. It is unimaginable that a false case of kidnapping would have been lodged as the barat and the groom could have well left the marriage venue. All of which go to suggest that the respondent was taken away by forceful abduction for marriage. 7. The provisions of the Act relevant for consideration are Section 5 and 9 the Act. 5. Conditions for a Hindu marriage.—A marriage may solemnized between any two Hindus, if the following conditions are fulfilled, namely :— (ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or 9. Restitution of conjugal rights.—When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. 8. We have considered the submissions on behalf of the parties and the evidence available on record. The appellant was the eldest of 7 sisters whose father was a school teacher. The respondent was also a school teacher. In the traditional society to which the parties belonged in a primarily rural environment, obviously the marriage of the eldest of seven sisters was a burden on the father of the appellant. His limited income as a school teacher compounded his woes. The facts of the case are eloquent with regard to abduction, institution of a police case, submission of charge sheet, recovery of the respondent from the house of the appellant on the night of the alleged marriage itself. In normal circumstances, even if a dispute occurs on the date and time of marriage with regard to dowry, it may lead to an unseemly situation where the Barat may threaten to leave. Alternately the marriage may be solemnised and issues come to the fore thereafter. To us, it appears to be a highly unusual conduct and state of affairs that a police case was lodged with regard to kidnapping at the time of the marriage even while the groom continued to be at the marriage venue voluntarily. Alternately the marriage may be solemnised and issues come to the fore thereafter. To us, it appears to be a highly unusual conduct and state of affairs that a police case was lodged with regard to kidnapping at the time of the marriage even while the groom continued to be at the marriage venue voluntarily. The respondent in his evidence has stated that he was given tea at the residence of the appellant which appeared to be laced as he fell unconscious soon thereafter. The marriage is stated to be have been solemnized in an hour and a half. If he was drugged, it can safely be said that he was in temporary unsoundness of mind unaware of events and to consent. A normal hindu wedding is a prolonged affair over hours with the rituals being complex. Considering the time when the marriage is stated to have started it should well have continued till late at night. No explanation has been given why such a short marriage ceremony took place when otherwise the claim is that the marriage was solemnised in a traditional manner with all necessary rituals. It is not difficult to visualise and appreciate why videography and still pictures of the marriage have not been produced during evidence despite deposition to that effect. The fact that the respondent was not in a normal state due to being drugged would have evidently been revealed in the pictures. The absence of adequate Barat and family members of the parties would have spoken for themselves with regard to the genuineness of a voluntary marriage. The absence of rituals for a traditional hindu wedding would also stand exposed. The number of criminal prosecutions lodged on behalf of the appellant half-heartedly and then abandoned, the reluctance to participate in the criminal prosecution against them, the dismissal of the earlier suit for restitution of conjugal rights in default, all lead to the conclusion that the respondent was taken away by force for the purpose of marriage solemnised without his consent and in a drugged state of mind unable to appreciate and understand the rituals and ceremonies that he was going through. Obviously the respondent was not in a state of mind to give consent for the marriage attracting Section 5(ii) of the Act. If the appellant and the respondent never acquired the status of husband and wife, Section 9 has no application. 9. Obviously the respondent was not in a state of mind to give consent for the marriage attracting Section 5(ii) of the Act. If the appellant and the respondent never acquired the status of husband and wife, Section 9 has no application. 9. The normal rule is that the onus lies on the party in possession of the best evidence to produce it failing which an adverse inference shall be drawn under the Indian Evidence Act. If the marriage ceremony and rituals had been videographed and 44 still photographs taken by a Yashica camera, considered one of the best at the relevant time, by the appellant‘s family, there had to be some explanation for not producing them after deposition in support thereof. 10. In (2012) 8 SCC 148 (Union of India Vs. Ibrahim Uddin) it was observed as follows:— “12. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act…” 11. The order under appeal merits no interference. 12, The appeal is dismissed. PRABHAT KUMARJHA, J.:–I agree. ?