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2015 DIGILAW 470 (GAU)

Jagat Bora v. Bhanu Bora

2015-04-22

SUMAN SHYAM

body2015
Suman Shyam, J. 1. Heard Mr. S.K. Ghosh, learned counsel for the appellant. None appears for the respondent. 2. This Second Appeal has been preferred against the judgment and decree dated 11.08.2003 passed by the learned Civil Judge (Senior Division), Nagaon, in Title Appeal No. 15/2003 dismissing the appeal and affirming the judgment and decree dated 10.02.2003 in Title Suit No. 20/2001. 3. The present appellant as plaintiff had filed Title Suit No. 20/2001 against the respondent as the sole defendant, inter alia, seeking a declaratory decree to the effect that there is no relationship of husband and wife between the plaintiff and the defendant. The plaintiff's version, as narrated in the plaint, is that initially the plaintiff's marriage was settled with the defendant to be solemnized on 03.10.96 in the house of the defendant at village No. 1, Kaki. Accordingly, on 03.10.1996 the plaintiff being accompanied by his friends and relatives went to the house of the defendant for the purpose of solemnization of the marriage. The plaintiff and his party were also received by the defendant's side with lot of warmth and cordiality. However, when the marriage was just about to be solemnized a dispute arose as to the custom and tradition under which the marriage was to be solemnized. On account of serious differences and disagreement between both the sides on the question of the custom that was required to be followed the marriage could not be solemnized. However, keeping in mind the interest of the defendant, the plaintiff had decided to take the defendant along with him and returned back to his place of residence so as to perform the marriage ceremony between the two as per the family tradition. It is the case of the plaintiff that the defendant had accompanied him and had resided in the house of the plaintiff for quite some time before which the defendant left the house of the plaintiff without his consent and started living with her father. Despite requests made by the plaintiff she refused to come back and on the contrary the defendant had instituted a case for maintenance against the plaintiff. The plaintiff stated that there was no valid marriage between them and therefore the suit was instituted for the declaration as mentioned above and for other consequential reliefs. 4. Despite requests made by the plaintiff she refused to come back and on the contrary the defendant had instituted a case for maintenance against the plaintiff. The plaintiff stated that there was no valid marriage between them and therefore the suit was instituted for the declaration as mentioned above and for other consequential reliefs. 4. The defendant contested the suit by filing her written statement wherein she has given a completely different version. The defendant's story is that the plaintiff had married the defendant on 03.10.96 in the house of the defendant as per the Hindu rites by performing horn, jogya and saptapadi whereafter the defendant had gone to the matrimonial house with the plaintiff. However, after a few months of cohabitation as husband and wife the plaintiff started demanding dowry of Rs. 10,000/- from the defendant asking her to bring the amount from her father. The defendant could not bear such illegal demands and the consequent torture unleashed upon her but still somehow continued to live with the plaintiff. After about nine months of the marriage the defendant was eventually driven out by the plaintiff from the matrimonial house warning her not to return without the money demanded. The defendant had also instituted proceedings under Section 498A of the IPC on account of the torture committed her by the plaintiff. 5. Whether there was any valid marriage solemnized by and between the plaintiff and the defendant on 03.10.1996 was the material issue which was framed by the trial Court as Issue No. 3. On consideration of the materials on record, the trial Court dismissed the suit filed by the plaintiff by the judgment and decree dated 10.02.2003 passed in Title Suit No. 20/2001 holding that the plaintiff has not been able to prove his version that there was no valid marriage between the plaintiff and the defendant. On the contrary, the learned trial Court had recorded a finding that there was relationship of husband and wife between the plaintiff and the defendant. 6. The judgment and decree dated 10.02.2003 was carried in an appeal by the plaintiff in the Court of learned Civil Judge (Senior Division), Nagaon in Title Appeal No. 15/2003 which was also dismissed by the judgment and decree dated 11.08.2003 whereby the learned Civil Judge (Senior Division), Nagaon concurred with the finding of facts recorded by the trial Court. 7. The judgment and decree dated 10.02.2003 was carried in an appeal by the plaintiff in the Court of learned Civil Judge (Senior Division), Nagaon in Title Appeal No. 15/2003 which was also dismissed by the judgment and decree dated 11.08.2003 whereby the learned Civil Judge (Senior Division), Nagaon concurred with the finding of facts recorded by the trial Court. 7. Being aggrieved by such concurrent judgment and decree dated 11.08.2003 the plaintiff as appellant has preferred this Second Appeal which had been admitted to be heard on the following substantial question of law:- "Whether there was a legally valid marriage between the appellant and the respondent or not in the facts and circumstances of the case?" 8. Mr. S.K. Ghosh, learned counsel for the appellant, submits that there was enough material evidence on record for the Court below to hold that there was no valid marriage between the plaintiff and the defendant as no marriage ceremony was solemnized within the meaning of Section 7 of the Hindu Marriage Act, 1955. Mr. Ghosh further submits that even the suit filed by the defendant as plaintiff seeking a declaration that there was a valid marriage between the parties had been dismissed and no application for restoration has been filed by her. AS such, there was no scope for the Court below to draw the conclusion as regards the solemnization of marriage between the plaintiff and the defendant. In that view of the matter the impugned judgment and decree passed by the learned Court below is not sustainable in the eye of law. 9. Whether there was any marriage ceremony held between the plaintiff and the defendant or whether the plaintiff and defendant cohabited as husband and wife are all questions of facts which have been concurrently found by both the Courts below against the plaintiff and in favour of the defendant. Such finding of facts have been recorded based on evidence available on record. As such, this Court does not find any justification to disturb such concurrent finding of facts recorded by the Courts below. 10. It is trite law that in a Second Appeal the High Court cannot reappreciate the evidence and record finding of fact contrary to those recorded by the Courts below. As such, this Court does not find any justification to disturb such concurrent finding of facts recorded by the Courts below. 10. It is trite law that in a Second Appeal the High Court cannot reappreciate the evidence and record finding of fact contrary to those recorded by the Courts below. Such being the position, there is no scope for this Court to differ on the finding of facts concurrently recorded by both the Courts below unless such findings are found to be perverse. Once it is held by the Courts below that the plaintiff has failed to prove his case by leading evidence on record and that there was marriage between the parties solemnized and they have lived together as husband and wife for some length of time, the suit filed by the plaintiff cannot be decreed. In that view of the matter, I do not find any infirmity in the judgment and decision rendered by both the Courts below warranting any interference by this Court. 11. Besides the above, from a perusal of Section 7, Explanation (b) of the Family Court Act, 1984, it appears that the suit itself would not lie before the Civil Court since the Civil Court is not conferred with the jurisdiction to try matrimonial issues covered under Section 7 of the said Act. Having regard to the nature of dispute raised in the plaint, it is evident that the case of the plaintiff is covered under Section 7Explanation (b) of the Family Court Act, 1984. In such view of the matter, there is no merit in the Second Appeal and the same stands dismissed. Parties to bear their own cost. Registry to send back the LCR.