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2018 DIGILAW 108 (MP)

Sneha Alias Neha v. Virendra Kumar Saini

2018-01-25

ANURAG SHRIVASTAVA, S.K.GANGELE

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JUDGMENT : Anurag Shrivastava, J. This appeal under Section 28 of Hindu Marriage Act, 1955 has been preferred by the appellant against the judgment and decree dated 24.08.2012, passed by II Additional District Judge, Khandwa (M.P.) in Civil Suit No. 05-A/2012, whereby the petition under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights preferred by respondent has been allowed. 2. The respondent filed an application under Section 9 of Hindu Marriage Act, 1955 stating that his marriage with appellant was solemnized by Hindu rites and religion on 19.07.2010 and both the parties have executed affidavits before the Notary in confirmation of their marriage. After marriage the parties resided at Indore for a month thereafter the appellant went to her parents house. On 31.01.2011 the respondent met her and then he came to know that the parents of appellant are against her marriage with respondent and they want to marry her with some other person. Therefore, respondent moved the application for restitution of conjugal rights. 3. In her reply appellant denied the factum of marriage with respondent. She has averred that she is unmarried girl and had not performed marriage with the respondent. It is further pleaded that the respondent had obtained her signatures on affidavit by playing fraud. It is prayed that she is not the married wife of respondent, therefore, application under Section 9 of Hindu Marriage Act is liable to be dismissed. 4. The trial Court on the basis of pleadings of the parties framed the issues and allowed them to adduce evidence in their support. The trial Court by passing the impugned order held that the appellant is married wife of respondent and she is living separately without any cause. In view of this the trial Court allowed the application and passed the decree of restitution of conjugal rights in favour of respondent. 5. In appeal it is contended by learned counsel for the appellant that there is no reliable evidence available on record to prove the valid marriage between the parties, therefore, the prayer for restitution of conjugal rights cannot be granted. Appellant has categorically stated that the affidavit was signed under influence of medicine given by the respondent to her. Therefore, this document is binding on her. The trial Court had committed illegality on holding the appellant as legally married wife of respondent. 6. Heard argument and perused the record. 7. Appellant has categorically stated that the affidavit was signed under influence of medicine given by the respondent to her. Therefore, this document is binding on her. The trial Court had committed illegality on holding the appellant as legally married wife of respondent. 6. Heard argument and perused the record. 7. The burden of prove of valid marriage lies on the respondent. He has to prove that the appellant is his legally married wife than only he can claim the decree of restitution of conjugal rights. He has to prove that the marriage was duly performed in accordance with religious rites applicable to the form of marriage gone through. Hon'ble Apex Court in case law Bhaurao Shankak Lokhande and another v. State of Maharashtra and another, AIR 1965 SC 1564 observed that unless a marriage is celebrated or performed with proper ceremonies and due form, it cannot be said to be solemnized. There are two ceremonies essential to the validity of marriage, namely:- (1) invocation before the sacred fire, and (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. It is further observed that a marriage may be completed by the performance of ceremonies other than those referred to above, where it is allowed by the custom of the caste to which the parties belongs. This is also followed in case law Naresh Soni v. State of M.P. 2017 (1) MPLJ 372 . 8. In the present case the respondent has relied upon the affidavit said to have executed by the appellant in support of marriage, but this does full-fill the requirement of essential ceremonies and due form of marriage. Respondent Virendra Saini in his affidavit deposed that on 19.07.2010 after execution of the affidavit before Notary appellant went to Omkareshwar with him and before the God Omkareshwar, in the temple she performed marriage with him as per Hindu rites and rituals. Pandit Tulsi had performed marriage ceremonies. 9. In support of respondent Pandit Gopal Mandloi (AW-2) deposed in his affidavit that on 19.07.2010 at Omkareshwar he had performed marriage ceremonies of appellant and respondent before God Omkareshwar in the temple. He also deposed about ceremonies like invocation of sacred fire and satpadi by the parties. 10. The appellant in her affidavit deposed that she had never gone to Omkareshwar and did perform marriage ceremonies. He also deposed about ceremonies like invocation of sacred fire and satpadi by the parties. 10. The appellant in her affidavit deposed that she had never gone to Omkareshwar and did perform marriage ceremonies. Thus, she had rebutted the testimony of respondent and his witness. 11. On careful examination of evidence led by both the parties, it is found that respondent Virendra Kumar in cross-examination para-10 has categorically deposed that the affidavits (Ex.P/1 and P/2) have been executed before the Notary around 11:00 O' clock at Khandwa and thereafter he went to Omkareshwar along with appellant. This shows that the marriage ceremonies have been performed at Omkareshwar after 11:00 O' clock on 19.07.2010. Whereas, Pandit Gopal Mandloi (AW-2) deposed that in para-4 of cross-examination and he had performed the marriage around 09:30 am. The respondent met him around 08:30 am in the morning. This contradicts the statement of respondent. 12. If the respondent was at Khandwa till 11:00 O' clock in the morning than how can his marriage be performed at Omkareshwar between 08:30 to 10:30 am on the same day. This creates doubt on testimony of respondent and his witness. There is no reliable evidence to show that the witness Gopal Mandloi is also known as Tulsi Maharaj. This witness is a Pandit well versed with Hindu Rites and Rituals is also not proved. Respondent has not produced any photographs of the marriage. No other witness is produced in support of marriage. In view of aforesaid fact, it is not believable that the respondent has performed the marriage with appellant as per Hindu Rites and Rituals as enumerated above. The trial Court on erroneous appreciation of evidence has wrongly recorded the findings that the appellant is legally married wife of respondent. It is not proved that appellant is wife of respondent. 13. Consequently, the appeal is allowed. The impugned judgment and decree of restitution of conjugal rights passed by II Additional District Judge, Khandwa, dated 24.08.2012 is hereby set-aside.