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2017 DIGILAW 2593 (ALL)

KALAWATI DEVI v. STATE OF U. P.

2017-11-09

A.P.SAHI, SARAL SRIVASTAVA

body2017
JUDGMENT By the Court.—Heard Sri Sanjay Kumar Pandey, learned counsel for the petitioner and learned Standing Counsel for the State. 2. This is a peculiar writ petition where the Sub-Divisional Magistrate, Naugarh, District Siddharth Nagar, on the basis of the report of the Naib-Tehsildar has proceeded to disbelieve the marriage of the petitioner with Sri Manoj Kumar, her husband, and having expressed doubt about the marriage has cancelled the residence/domicile certificate issued to the petitioner for the purpose of seeking appointment as a Shiksha Mitra. 3. This exercise had been undertaken on the strength of some letter dispatched by the District Basic Education Officer on 21st April, 2006 wherein, it was alleged that there are contradictory reports about the marriage of the petitioner and also that it had not taken place as on the date when the certificate was issued to the petitioner. 4. The Naib-Tehsildar entered into a detail enquiry about the status of marriage of the petitioner and submitted a report on the basis whereof, the Sub-Divisional Officer has passed the impugned order dated 10th August, 2006 to the effect that the certificate has been obtained by manipulation, as the marriage does not appear to have been proved to have been solemnized upto the date when the certificate was issued. 5. The impugned order has been challenged contending that there was no jurisdiction with the Sub-Divisional Magistrate to have entered into the dispute raised about the alleged performance of marriage, inasmuch as, the marriage was performed according to customs and ample evidence in the shape of affidavits including that of the husband of the petitioner, the present Vishambhar Nath Tiwari who performed the marriage, had been filed to demonstrate that the marriage had actually taken place prior to the issuance of the certificate. 6. The Naib Tehsildar who conducted the alleged enquiry appears to have taken the statement of several persons and finding them to be sufficient to doubt the marriage, submitted his report adverse to the petitioner. 7. We have perused the entire impugned order and inspite of time having been granted way back in the year 2006, no counter-affidavit has been filed on behalf of the respondents. 8. After having prima facie found the order to be not in conformity with law, a Division Bench of this Court passed the following interim order on 6.9.2006 which is extracted hereinunder : “Issue notice. 8. After having prima facie found the order to be not in conformity with law, a Division Bench of this Court passed the following interim order on 6.9.2006 which is extracted hereinunder : “Issue notice. Notice on behalf of respondents has been accepted by the Standing Counsel. He prays for and is granted one month’s time for filing a counter-affidavit and three weeks thereafter for rejoinder-affidavit. List for admission thereafter. Till further order of the Court, the operation of the impugned order dated 10.8.2006 shall remain stayed.” 9. We have heard learned Standing Counsel who has supported the impugned order by contending that the evidence which was collected during the enquiry did not substantiate the factum of the performance of the marriage as on 7th March, 2006 which is the date alleged to be that of the marriage of the petitioner with Sri Manoj Kumar. For this, learned Standing Counsel has invited the attention of the Court to the statement of the photographer and the driver of the vehicle as recorded in the impugned order who are stated to have professionally participated in the said marriage. 10. One Sri Ram Shankar had also deposed who had stated that after the solemnization of the marriage her second arrival at her in-laws place were also solemnized after three days, whereafter she went back to her parents place. The Sub-Divisional Magistrate who has passed the impugned order has according to the learned Standing Counsel, clearly recorded that in these circumstances the marriage was doubtful (Sandigdh). 11. We have considered the submissions raised and what we find is that the Sub-Divisional Magistrate has completely exceeded in authority to have sat in judgment over the factum of marriage which is a sacrament under the provision of the Hindu Marriage Act, 1956. The validity of such marriage cannot be doubted except as provided under law, that too even in the appropriate forum. It is also seen that the Sub-Divisional Magistrate has expressed a doubt on the reasoning, that the manner of performance of the marriage as set up by the petitioner appears to be that of a love marriage, which was not the case before the authority. He has also failed to appreciate the distinction between a voidable and void marriage, which even otherwise was beyond his competence in a summary proceeding. He has also failed to appreciate the distinction between a voidable and void marriage, which even otherwise was beyond his competence in a summary proceeding. We are constrained to observe that the Sub-Divisional Magistrate has entered into the fact of a solemn relationship which is admitted between the petitioner and her husband. There is no dispute between the parties who have entered into the solemnization of marriage that they are married. 12. The statement of a third party being taken, as if evidence in a Civil Court was totally beyond the authority of the Sub-Divisional Magistrate in a summary procedure of enquiry when once the factum of marriage was substantiated by the petitioner to have taken place on 7th March, 2006. The Sub-Divisional Magistrate could not have recorded a finding that too even on the strength of such flimsy material and inferences that falls within the category of surmises and conjectures. He has stepped into an area of enquiry to record findings that are not within the permissible limits of a summary enquiry as involved herein. 13. The impugned order dated 10th August, 2006 therefore, is unsustainable and is hereby quashed. The writ petition is allowed. 14. We may however put on record that our findings are not final findings with regard to the factum of marriage as we are not sitting in appeal or deciding any original issue relating to the actual mode of marriage. This judgment will, therefore, not be of any avail in the event a Court of competent jurisdiction decides otherwise.