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2015 DIGILAW 301 (ORI)

Smruti Mishra v. Niranjan Lenka

2015-05-04

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT S.K. SAHOO, J. 1. This appeal under Section 19 of Family Courts Act, 1984 has been filed by appellant Smruti Mishra challenging the judgment and order dated 9.12.2013 passed by the learned Judge, Family Court, Puri in Civil Proceeding No.105 of 2012 in dismissing the petition filed by the appellant for dissolution of the marriage under Section 27 of Special Marriage Act, 1954. 2. The appellant filed the petition with a prayer for passing a decree for dissolution of her marriage with the respondent which was solemnized as per the marriage certificate dated 24.12.2009 issued by Marriage Officer, Khurda at Bhubaneswar. It is the case of the appellant that she was a student of +3 Arts in Ramadevi Womens’ College, Bhubaneswar and she was staying in the college hostel. At that time the respondent was making frequent visits to the hostel to meet some of his relations. During such visit of the respondent, friendship developed between the parties. After a few days, the respondent went to Kolkata and talked with the friends of the appellant over phone. The friends of the appellant persuaded her to receive the telephone calls of the respondent and in good faith the appellant talked with the respondent over telephone. The appellant was then prosecuting her studies at Bhubaneswar in MBA. One day when the respondent gave a proposal for marriage to the appellant, the latter disagreed with such proposal. The respondent tried his best and persuaded the friend of the appellant namely, Elora to convince the appellant. Ultimately the respondent succeeded in his attempt and took the appellant to the office of Sub-Registrar, Bhubaneswar on 24.12.2009 and managed to get her married with him under the provisions of Special Marriage Act, 1954. It is the further case of the appellant that the said marriage was only a paper transaction and there was no conjugal relationship 3 between the parties even for a single day. The appellant was residing with her parents in her village whereas the respondent was residing at his service place after he got a job as Probationary Officer, ICICI Bank. It is further stated that the respondent left his first job and served in Mahindra & Mahindra Company at Bhubaneswar. There was complete desertion between the parties for more than two years from the date of the alleged marriage. It is further stated that the respondent left his first job and served in Mahindra & Mahindra Company at Bhubaneswar. There was complete desertion between the parties for more than two years from the date of the alleged marriage. While the appellant was residing with her parents in her village, the respondent contacted her over telephone and informed her about the marriage which was solemnized between them on 24.12.2009 as per the Marriage Certificate issued by Sub-Registrar-cum-Marriage Officer, Bhubaneswar. The appellant inquired about the alleged marriage through her father and obtained the certified copy of the Marriage Certificate and came to know that the respondent by practising fraud on her has managed to obtain the Marriage Certificate and thereby blackmailing the appellant. Subsequently an agreement was executed between the parties before the Notary Public on 4.1.2012 wherein they have come to the terms and conditions that the registration of marriage dated 24.12.2009 under the Special Marriage Act is not a valid marriage between the parties and the same is only a paper transaction and both parties never consummated their marital life and the said marriage has not created any relationship between the parties and it is null and void and they have further agreed that either parties have a right to marry elsewhere and the alleged Marriage Certificate will not create any legal bar for their marriage elsewhere as per the decision of their respective family members. They have further aggrieved their both the parties shall not claim any relationship between them in future. It is further case of the appellant that as the registered document regarding marriage which was obtained fraudulently by the respondent created disturbance in the life of the appellant, she filed the petition to dissolve her marriage. 3. The petition under Section 27 of Special Marriage Act was filed on 19.06.2012 and notice was issued to the respondent. In spite of valid service of notice on the respondent, since he did not appear to contest the case, on 7.8.2013 the service on the respondent was held to be sufficient and petitioner was directed to be proceeded ex-parte. The appellant filed her evidence affidavit and she also examined herself as P.W.1. In spite of valid service of notice on the respondent, since he did not appear to contest the case, on 7.8.2013 the service on the respondent was held to be sufficient and petitioner was directed to be proceeded ex-parte. The appellant filed her evidence affidavit and she also examined herself as P.W.1. The evidence affidavit of the appellant was marked as Ext.1, the agreement between the parties before Notary Public dated 4.1.2012 was marked as Ext.2 and the Marriage Certificate issued by Marriage Officer, Khurda at Bhubaneswar was marked as Ext.3. 4. The learned Judge, Family Court, Puri vide the impugned judgment and order dated 9.12.2013 dismissed the petition filed by the appellant. 5. Notice was issued in this matrimonial appeal to the respondent on the question of admission and in pursuance to such notice, the respondent entered appearance through his counsels and filed affidavit wherein it is stated, inter alia, that in view of the admission of the appellant that she had not stayed for a single day with the respondent and the marriage has not been consummated, necessary order be passed for dissolving the marriage between the parties in the interest of justice. 6. During argument, the learned counsels for both the parties on taking instruction from their respective clients submitted that the parties are not interested for consummation of their marriage and accordingly the marriage be dissolved after setting aside the impugned judgment and order of the trial Judge. 7. The Special Marriage Act, 1954, as stated in the Preamble, provides a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. The Act provides for solemnization of special marriages, registration thereof, consequences of marriage under the Act, restitution of conjugal rights, judicial separation and nullity of marriage and divorce. It further provides for jurisdiction of Courts and procedure to be followed. As per Section 27 (1) (b) of the Special Marriage Act, 1954, a petition for divorce can be presented either by the husband or the wife, inter alia, on the ground that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. As per Section 27 (1) (b) of the Special Marriage Act, 1954, a petition for divorce can be presented either by the husband or the wife, inter alia, on the ground that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The expression ‘desertion’ as per Section 27 of the Special Marriage Act, 1954 means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage. Thus the ground of desertion is a good ground under Section 27 (1) (b) of the Special Marriage Act, 1954. While dealing with the petition for divorce under Clause (1) (b) of Section 27 of Special Marriage Act, the Court must be satisfied on pleadings and the evidence that the alleged desertion, which is a ground of divorce, has been proved by preponderance of probability, inferable from the proved facts and circumstances of the case. Irretrievable breakdown of marriage, by itself and without more, has not yet been made a ground of divorce and the Court must find one or more of the grounds specified in the Special Marriage Act unless the parties choose to proceed by mutual consent under Section 28 of the concerned Act. The appellant has taken a ground in her divorce petition that there is complete desertion for more than two years from the date of 7 alleged marriage. In the evidence affidavit the appellant has stated that there was no conjugal relationship between them for a single day and that the marriage before the Sub-Registrar-cum-Marriage Officer, Bhubaneswar was only a paper transaction and the appellant was residing with her parents whereas the respondent was residing at his service place. In spite of service of notice, the respondent did not appear before the Family Court and contest the case for which the suit was decreed ex-parte, therefore the pleadings/evidence of the appellant remained uncontroverted. In view of the agreement executed between the parties on 4.1.2012, the affidavits filed before this Court as well as the statements made by the learned counsels for the respective parties on instruction, it is very clear that the parties never consummated their marriage. In view of the agreement executed between the parties on 4.1.2012, the affidavits filed before this Court as well as the statements made by the learned counsels for the respective parties on instruction, it is very clear that the parties never consummated their marriage. In spite of the registration of marriage dated 24.12.2009, the parties have not resided together even for a single day. The parties are also not interested to stay with each other and none of them has any objection to dissolve the marriage between the parties. In view of such submissions made by the respective parties, we are of the view that there was no conjugal relationship between the appellant and respondent even for a single day. The respondent has admitted in his counter affidavit about such aspect. As per the case of the appellant, there has been desertion since 24.12.2009 which is not controverted by the respondent. Since both the parties are not inclined to continue with their so-called marriage and they want dissolution of the marriage, we are of the view that in the peculiar facts and circumstances of the case allowing the marriage to remain for name sake would not be in the interest of the justice rather it would ruin the future of both the parties. Therefore, we set aside the impugned judgment and order dated 9.12.2013 of the learned Judge, Family Court, Puri passed in Civil Proceeding No.105 of 2012 and dissolve the marriage between the appellant and the respondent by decree of divorce. Accordingly, the Matrimonial Appeal is allowed and the marriage between the appellant and the respondent stands dissolved by decree of divorce. We would, however, make no order as to costs.