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2016 DIGILAW 81 (MAN)

Khomdram Suranjit Singh, S/o Kh. Chaoba Singh v. Thoudam Ashakiran Devi, D/o Th. Chandramani Singh

2016-06-16

R.R.PRASAD, SONGKHUPCHUNG SERTO

body2016
JUDGMENT AND ORDER : Heard Mr. Kh. Mani Singh, learned Sr. counsel appearing for the petitioner/appellant as well as Ms. I. Lenibala, learned counsel for the respondents. 2. This appeal is directed against the judgment and order dated 31.3.2016 passed in Judl.Misc.(Injunction) Case No. 346 of 2015 arising out of Mat.(Injunction) Suit No. 5 of 2015 by Principal Judge, Family Court, Manipur whereby and whereunder exparte injunction granted on 19.12.2015 restraining the defendant no.1/appellant from performing marriage with defendant no.2, was made absolute. 3. Before adverting to the submissions advanced on behalf of the parties, facts of the case needs to be taken notice of which are as follows: The plaintiff/respondent was having love affairs with defendant/appellant, Kh. Suranjit Singh, an employee of HDFC Bank. Since they were having love affairs since long they decided to flee from home. As per the plan, while the plaintiff/respondent was standing in front of the gate of her aunt at about at about 2.30 PM on 10.12.2014, defendant/appellant came with a Maruti Car and made plaintiff/respondent to sit in the Car forcibly and by closing the mouth the appellant drove away the car and brought to Khuman-Eco-Park. There the defendant kept the plaintiff inside the quarter and forcibly raped her without her consent and threatened not to disclose to any one. The defendant did establish physical relationship with the intention to live as husband and wife. Further case is that in the intervening night of 10.12.2014/11.12.2014, in order to observe Nupi Thinba (part of the customary marriage) the defendant and family members took the plaintiff to the parental home where both parents of the defendant as well as plaintiff agreed to have marriage in between them. Thereafter, in order to have Mangol Kaba, the mother of the defendant no.1 as well as their family members came to the house of the plaintiff on 2.2.2015 where the mother of the defendant proposed to the father of the plaintiff to give plaintiff in marriage. The father of the plaintiff accepted the proposal. Thereafter they decided to have marriage ceremony in the month of March, 2016. The final date of the marriage was proposed to be fixed by the middle of December, 2015. Meanwhile on 9.12.2015 plaintiff received information that the defendant/appellant has eloped another girl (defendant no.2) with the intention to marry her. The father of the plaintiff accepted the proposal. Thereafter they decided to have marriage ceremony in the month of March, 2016. The final date of the marriage was proposed to be fixed by the middle of December, 2015. Meanwhile on 9.12.2015 plaintiff received information that the defendant/appellant has eloped another girl (defendant no.2) with the intention to marry her. On getting such information, the plaintiff/respondent lodged a case with the Women Police Station, Imphal West and expressed her apprehension that the defendant no.1 has done that to solemnize marriage with her. Apart from lodging the criminal case, the plaintiff/respondent filed an injunction suit bearing Mat.(Injunction) Suit No.5 of 2015 wherein following reliefs were sought for: (a) A decree declaring that the plaintiff is entitled to marry with the defendant no.1 at her option; (b) A decree for permanent injunction restraining the defendant no.1 from performing marriage with the defendantno.2 without the consent of the plaintiff; (c) Any other reliefs as to this Hon’ble Court may deem fit and proper and cost for the Suit. 4. Subsequently, a separate application was filed for grant of temporary injunction, which was registered as Jud. Misc.(Injunction) Case No.346 of 2015. On such application, interim injunction was granted on 19.12.2015 whereby defendant no.1/appellant was restrained from marrying defendant no.2. At the same time, notice was issued to the defendant. Pursuant to the notice issued to the defendant, the defendant did appear and filed an application for vacating the said order. While the said matter was pending adjudication, the defendant/appellant approached to this court by filing Matrimonial application No.3 of 2016 praying therein to set aside the order granting temporary injunction on the plea that order granting interim injunction is without jurisdiction. However, the said appeal was disposed of by this Court directing the defendant/appellant to press the application filed before the Principal Judge wherein prayer had been made to vacate the order of interim injunction. 5. On such application, learned court after hearing the parties passed an order on 31.3.2016 whereby the learned court, after finding all the three necessary ingredients required to be there for grant of injunction being there in favour of the plaintiff/respondent, made the ex-parte injunction order dated 19.12.2015 absolute. 6. Being aggrieved with that order, this application has been filed. 7. Mr. Kh. Mani Singh, learned Sr. 6. Being aggrieved with that order, this application has been filed. 7. Mr. Kh. Mani Singh, learned Sr. counsel appearing for the petitioner in order to assail the impugned order submitted with all vehemence that the learned Judge committed a gross illegality in granting injunction in favour of the plaintiff/respondent and in fact the court should not have even entertained the application of injunction. In this regard, it was submitted that the Family Court gets jurisdiction in terms of Section 7 of the Family Court Act on the matter as enumerated under clauses (a) to (g) of sub-section 1 of Section 7. Further, it was pointed out that the plaintiff may have brought the Suit before the Family Court presuming the jurisdiction of the Family Court being there by virtue of explanation (b) of sub-section (1) of Section 7, which reads as follows: (b) A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person. 8. Mr. Kh. Mani Singh, learned Senior counsel by putting emphasis upon the clause “Matrimonial Status” submitted that accepting the case of the plaintiff for the argument sake to be true that the defendant after eloping the plaintiff had had sex with the plaintiff it will never create matrimonial status in between the parties and thereby in absence of such matrimonial status being there in between the parties, the suit for injunction can not be maintained before the Family Court. In this regard it was submitted that when one can have a marital relationship it has been spelt out by the Hon’ble Supreme Court in the case of Pinakin Mahipatray Rawal -Vs- State of Gujarat, reported in (2013) 10 SCC 48 wherein it has been held that marital relationship means the legally protected marital interest of one spouse to another which includes marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on. But here in the case as has been made out by the plaintiff it can never be said and even if it is assumed that there was physical relationship in between the parties, that they had legally protected marital status as it is the case of the plaintiff itself that she on being eloped were subjected to rape. In such event no one even in dream can think of having establishing marital relationship and thus in absence of any relationship of marital status the court should not have entertained the application. 9. Further it was submitted that the court should not have held that prima facie case was there in favour of the plaintiff as on one hand the case which has been made out is that plaintiff on being eloped had developed physical relationship but on the other hand it is also the case that the plaintiff was kidnapped forcibly and was brought to a lonely place where the plaintiff was subjected to rape and as such both the facts cannot go hand to hand together rather, it is inconsistent to each other thereby the court should not have held that prima facie case is there in favour of the plaintiff. Under the circumstances the impugned order is fit to be quashed. 10. As against this, Ms. I. Lenibala, submitted that the submissions which have been advanced on behalf of the plaintiff is presumably is based on the assumption that no ceremony ever took place for performance of the marriage other than the ‘Gandharva Form’ of marriage. In this regard it was submitted that under the custom of Hindu Manipuri, there are four kinds of marriage: (1) Brahma Form or Luhongba; (2) Asura Form or Luhongba of akind, (3) Prajapatya Form or Kanya Katpa and (4) Gandharva Form or Chenba. Learned counsel by producing a book on Customs of Manipur Hindus submits that so far Gandharva Form of marriage or Chenba is concerned no religious right or ceremony requires to be there as in the aforesaid form of marriage, usually the girl elopes with the lover and after that the consent of the father or the guardian of the girl is obtained without which such marriage are not recognized by the society. That the primary requirement of the marriage is to have sanction of the father or the guardian of the girl after elopement. 11. That the primary requirement of the marriage is to have sanction of the father or the guardian of the girl after elopement. 11. Thus it was submitted that it is the case of the plaintiff that plaintiff and defendant were having love affairs since long and thereby they planned to be eloped with each other in the afternoon of 10.12.2014 when the defendant came and eloped the plaintiff while she was standing in front of gate of her aunt and brought to a lonely place where they had had sex with each other and then in the intervening night of 10.12.2014/11.12.2014 the defendant and his family members brought the plaintiff to her house, where parents of both the parties agreed to have marriage between them. Subsequently, on 2.2.2015 essential elements of the Gandharva Form of Marriage was also observed whereby the mother of the defendant came to the house of the plaintiff on 2.2.2015 and made request to the father of the plaintiff to give the plaintiff in marriage to which father of the plaintiff agreed and thereby marriage got accomplished and in such event one would certainly say that there was marital relationship in between the parties particularly when they as husband and wife had had sexual relationship with each other and thereby it cannot be said that there was no marital relationship and as such application as filed by the plaintiff before the Family Court was quite maintainable in terms of Section 7 Sub-section (1) explanation (b) of the Family Court Act and accordingly the court did not commit any wrong in granting interim injunction and then making it absolute after hearing the parties. 12. Further submissions which was advanced on behalf of the respondent is that there may be some inconsistency in the pleadings but what emerges out of the case of the plaintiff is that there was love affairs in between the plaintiff and defendant as such they eloped with each other with consent and then other elements as explained above being there for accomplishment of the marriage. However, at the same time the story of rape is also there but that had been made on account of the fact that the defendant in spite of solemnizing marriage in Gandharva Form with plaintiff eloped another girl with a view to marry and in order to teach lesson a case was lodged making a case of rape but that is for other purpose but so far matter relating to the injunction is concerned it is evidently clear that all the necessary elements required to be had for performance of Gandharva Form of Marriage are there and thereby court was absolutely justified in passing the impugned order which needs no interference. 13. Having heard counsel for the parties, it does, appear that the stand, which has been taken on behalf of the appellant/defendant, is that since there had been no formal marriage in between the plaintiff and the defendant, there cannot be marital status in between them and when there does not happen to be marital relationship in between the parties, the Family Court will have no jurisdiction to entertain the Suit for injunction in terms of the provisions as contained in explanation (b) to sub-section (1) of Section 7 of the Family Court Act. On the other hand, the stand which has been taken on behalf of the respondent/plaintiff is that said marital relationship was there when there had been Gandharva Form of marriage in between the parties. Gandharva Form of Marriage appears to be one of the recognized custom of the Hindu Manipuris. In such form of marriage as it appears from a book named as “Customs of Manipuri Hindus” though it cannot be said to be authentic, mutual consent is the essence of this form of marriage. Usually, the girl elopes with her lover and after that the consent of the father or the guardian of the girl is obtained. Without it, such marriages are not recognized by the society. Such sanction of the father or the guardian of the girl is necessary after elopement. The aforesaid custom seems to have been recognized by the Court of Law, which would be evident from the decision rendered in the case of Kshetrimayum Raghu Singh & Anr. Without it, such marriages are not recognized by the society. Such sanction of the father or the guardian of the girl is necessary after elopement. The aforesaid custom seems to have been recognized by the Court of Law, which would be evident from the decision rendered in the case of Kshetrimayum Raghu Singh & Anr. -vs- The Union of Territory of Manipur reported in 1968 Cri.L.J. 690(2) (Vol.74, C.N.190) wherein when such question fell incidentally for consideration, it was observed as follows: “…………………………………………… Firstly, Gahdharba form of marriage is recognized in Manipur as a valid marriage under certain circumstance. Vide cl.(d) page 5 of Manipuri Customs (codified by the Codification Committee) and printed by the Government Press Manipur Administration in 1960. Mutual consent is the essence of Gandharba form of marriage. Usually the girl elopes with her lover and, after that, consent of the father or the guardian is obtained. Without such consent the marriage is not recognized by the Society. So, sanction of the father or the guardian of the girl is necessary after elopement. No doubt, in extreme cases Gandharba form of marriage is recognized even without the consent of the father or the guardian. But, such cases are rare. The Courts have recognized the Manipur Customs codified by the Codification Committee - vide Puvam Liklai Singh Bhabando Singh v. Moirangthem Maipak Singh, AIR 1956 Manipur 18 and Gosaimayum Ongbi Ketuki Devi v. Jayantakumar Goswami, AIR 1964 Manipur 14 .” 14. Thus, there has been no doubt about it that Gandharba Form of Marriage has been recognized by the Court as custom of the Manipuri Hindus. In the instant case, the plaintiff/respondent has come up with the case that the plaintiff was in love with the defendant/appellant and as such they planned that the boy would elope the girl. After elopement they came to a place where they had had sex and then in the intervening night of 10.12.2014/11.12.2014, the defendant and family members came to the house of the plaintiff where parents of both parties agreed for marriage between them. Further, case is that in order to have ‘Mangol Kaba’, the mother of the defendant no.1 as well as their family members came to the house of the plaintiff on 2.2.2015 where on giving proposal by the mother of the defendant for taking the girl in marriage, the father of the girl agreed to that. Further, case is that in order to have ‘Mangol Kaba’, the mother of the defendant no.1 as well as their family members came to the house of the plaintiff on 2.2.2015 where on giving proposal by the mother of the defendant for taking the girl in marriage, the father of the girl agreed to that. The factum of the mother of the defendant coming to the house of the plaintiff seems to have been accepted by the defendant in his written statement at para-8, which reads as follows: 8. That, with reference to para no.8 of the plaint, the answering defendant no.1 humbly submits that on 02.02.2015, mother of the defendant no.1, namely Khomdram Meipakpi Devi accompanied by Khomdram Binao Devi and Khomdram Ningol Santi Devi went to the parental house of the plaintiff and they proposed the parents of the plaintiff that defendant no.1 would like to marry the plaintiff. However, parents of the plaintiff had not accepted the said proposal and thereafter, the mother of the defendant no.1 namely Khomdram Meipakpi Devi, Khomdram Binao Devi and Khomdram Ningol Santi Devi came back their respective home without any hope. Thereafter, no communications between the parents of the plaintiff and defendant no.1 were made.” 15. It, thus, appears that it has been admitted by the defendant that the mother of the defendant no.1 accompanied by others had come to the house of the plaintiff to give proposal to the parents of the plaintiff that the defendant intends to marry the plaintiff. However, it is the case of the defendant that the parents of the plaintiff did not agree for the marriage though it is the case of the plaintiff that the parents of the plaintiff did agree to the proposal and therefore, both the parties did propose that final date of the marriage would be fixed by the middle of December, 2015. It is also the case of the plaintiff that before that date, the plaintiff came to know that the boy has eloped another girl and in that event according to the plaintiff FIR was lodged wherein allegation of her being raped by the defendant has been leveled. In such a situation, submission was advanced that there has been inconsistency in the case of the plaintiff and as such the court should not have held that prima facie case is there in favour of the plaintiff/respondent. In such a situation, submission was advanced that there has been inconsistency in the case of the plaintiff and as such the court should not have held that prima facie case is there in favour of the plaintiff/respondent. The said inconsistency as per the counsel appearing for the plaintiff/respondent is on account of the fact that the plaintiff after coming to know that the defendant has eloped another girl got angry and filed an FIR alleging therein that defendant has committed rape upon the plaintiff/respondent. The said explanation in the facts and circumstances is acceptable. Consequently, the case of the plaintiff of elopement and then parents agreeing to have marriage in between them prima facie gets proved particularly when it has been admitted by the defendant that the mother of the defendant had come to the place of the plaintiff on 02.02.2015 to give proposal for having marriage in between the plaintiff and the defendant. In such event, keeping in view the custom of marriage prevailing and being recognized by the Court, under which there was solemnization of marriage in between the plaintiff and the defendant, one can easily come to the conclusion that the marital relationship was there in between the plaintiff and the defendant. In that event, the Suit filed by the plaintiff/respondent before the Family Court was quite maintainable. 16. Under the circumstances, we do not find any merit in this appeal, hence, it is dismissed. 17. Before parting with the order, it be stated that any observation made for the purpose of disposal of this case shall not be prejudicial to the parties.