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Jharkhand High Court · body

2018 DIGILAW 1628 (JHR)

Samu Tirkey v. Chandrakala Tirkey

2018-07-25

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
JUDGMENT : 1. Heard learned counsel for the parties. 2. Appellant is aggrieved by the dismissal of Original Suit (M.T.S. No. 21 of 2007) by the judgment dated 4.1.2016 passed by the learned Principal Judge, Family Court, Ranchi, whereunder the Suit for declaration of his marriage with respondent No. 1 as valid and further to declare his alleged relationship with respondent No. 2 as void ab initio, has been dismissed. 3. Plaintiff/appellant pleaded before the learned family court that petitioner and both the respondents are members of the Scheduled Tribe community and they are governed by Oraon Customary Law. They are also governed by Hindu customary Law for the purposes of marriage and other social meets. Marriage with respondent no. 1 was solemnized on 8.2.1992 as per Hindu rites and customs, out of which, five children named therein have been born. The name of respondent no. 1 is entered, as nominee, in his service record under the Life Insurance Corporation. His marriage with respondent no. 1 was registered on 24.5.2006 vide Certificate No. 44 of 2006. He alleges that suddenly he received a notice of Maintenance Case no. 77 of 1992 filed by respondent no. 2, u/s 125 Cr.P.C. claiming herself to be his wife. She claimed her marriage with him in the year 1986 and birth of a female child on 11.10.1992. Petitioner denied the claim but learned judicial magistrate, Ranchi by order dated 3.9.1997 allowed the maintenance case. Criminal revision preferred by him was dismissed with modification of quantum of maintenance by the 5th Additional Judicial Commissioner, Ranchi. He stated that in Oraon community, marriage is not solemnized at the age of 8 years for the girl and 14 years for the boy. As per respondent no. 2’s statement, she was only 8 years of age at the time of the marriage. He denied the marriage or birth of the child out of any wedlock with her. He further pleaded that on the application of respondent no. 2, the learned Family Court has attached his salary and directed the employer to deduct Rs. 5,000/- per month. He filed W.P. (C) No. 5407 of 2006 before this Court, which was dismissed as withdrawn on 5.12.2006. He pleaded that respondent no. 1 is his legally married wife and there is no relationship with respondent no. 2. 2, the learned Family Court has attached his salary and directed the employer to deduct Rs. 5,000/- per month. He filed W.P. (C) No. 5407 of 2006 before this Court, which was dismissed as withdrawn on 5.12.2006. He pleaded that respondent no. 1 is his legally married wife and there is no relationship with respondent no. 2. As such he sought declaration that there is no relationship between him and respondent no. 2 and that it is void ab initio. 4. Respondent no. 1 appeared on notice but did not contest the case and neither filed any written statement. Respondent no. 2, however, filed a detailed written statement. She pleaded that Suit is not maintainable and suffers from non-joinder of necessary parties. She further pleaded that she was married with petitioner and a girl child namely Hira Tirkey was born out of the wedlock. In Maintenance Case no. 77 of 1992 u/s 125 of the Cr.P.C. the learned magistrate allowed Rs. 750/- as maintenance. The criminal revision preferred by the petitioner was dismissed with modification of the quantum to Rs. 650/- per month. She denied marriage of petitioner with respondent no. 1. She further stated that the present suit is filed in the year 2007, though the maintenance was filed by her in 1992 wherein maintenance was allowed against him. All documents pertaining to marriage of respondent no. 1 are manufactured and frivolous. She denied that the petitioner was blessed with five children out of the marriage with respondent no. 1. If he had done so, he is liable for the offence u/s 494 IPC. She further stated that if the petitioner claims to have solemnized marriage with respondent no. 1 on 8.2.1992 he has got it registered in the year 2006 only. In the proceedings u/s 125 of the Cr.P.C. he never averred that he had solemnized marriage with the respondent no. 1 on 8.2.1992. Respondent no. 1 also never appeared as witness to support his case in the said proceeding. She prayed that petitioner may be directed to undergo DNA Test to determine the paternity of the girl child of respondent no. 2. As such she sought dismissal of the suit. 5. Based on the rival pleadings of the parties, the following issues were framed on recast for adjudication. “(i) Whether the suit is maintainable in its present form? She prayed that petitioner may be directed to undergo DNA Test to determine the paternity of the girl child of respondent no. 2. As such she sought dismissal of the suit. 5. Based on the rival pleadings of the parties, the following issues were framed on recast for adjudication. “(i) Whether the suit is maintainable in its present form? (ii) Whether the petitioner has valid cause of action for the suit? (iii) Whether the respondent no. 1 is married wife of the petitioner? (iv) Whether the marriage of the petitioner with respondent no. 2 is void ab-initio? (v) To what relief or reliefs the petitioner is entitled for?” 6. During course of trial petitioner examined two witnesses Sunil Singh PW-1 and Phuldeo Kachhap, PW-2. Though affidavit in chief of another witness Bharat Bhushan Daraon and that of the petitioner were filed but they were not produced for cross-examination. The other witness was not produced for cross-examination. Since petitioner also did not appear for cross-examination after filing his examination-in-chief on affidavit, his evidence was expunged vide order dated 7.10.2009. No witness was examined by respondent no. 1 but certain documents were filed on her behalf. Respondent no. 2 examined three witnesses RW-1 Suren Surin, RW-2 Ambu Tirkey, herself and RW-3 Phulen Lakra. 7. Petitioner exhibited the following documents:- (i) Marriage Card of the petitioner dated 8.2.1992 Ext.1 (ii) Gratuity Nomination of LIC dated 22.7.1993 Ext.2 (iii) P.F. Nomination of LIC, dated 22.7.1993 Ext.3 (iv) Appointment of Beneficiary under GSLI Scheme dated 22.7.1993 Ext.4 (v) Marriage Certificate dated 24.5.2006 Ext.5 (vi) Photocopy of Plaint of Misc. 77/1992 Ext.6 (vii) Photocopy of order dated 30.4.2001 passed in Cr. Revision No. 127/1998 Ext.7 (viii) Photocopy of deposition of O.P. No. 2 in Maintenance Case no. 77/1992 Ext.8 (ix) Photocopy of order dated 7.1.2006 passed in Misc. Case no. 97/2005 Ext.9 (x) Photocopy of Hon’ble high Court order passed in W.P. (C) No. 5407/2006 Ext.10 8. 77/1992 Ext.6 (vii) Photocopy of order dated 30.4.2001 passed in Cr. Revision No. 127/1998 Ext.7 (viii) Photocopy of deposition of O.P. No. 2 in Maintenance Case no. 77/1992 Ext.8 (ix) Photocopy of order dated 7.1.2006 passed in Misc. Case no. 97/2005 Ext.9 (x) Photocopy of Hon’ble high Court order passed in W.P. (C) No. 5407/2006 Ext.10 8. Respondent No. 1 exhibited the following documents:- (i) Photocopy of Marriage Card Ext.A (ii) Xerox copy of Voter ID Card Ext.B (iii) Xerox copy of Certificate of Marriage dated 24.5.2006 Ext.C (iv) Xerox copy of Birth Certificate Ext.D (v) Xerox copy of vaccination card Ext.E & E/1 (vi) Xerox copy of Vaccination record of Mundu Nursing home Ext.F (vii) Xerox copy of birth certificate of birth certificate of Mundu Nursing Home Ext.G (viii) Xerox copy of LIC for nomination Ext.H (ix) Xerox copy of LIC for PF Nomination Ext.I (x) Xerox copy of LIC for GSLI Scheme Ext.J. 9. Learned Family court analyzed the evidence of the parties and proceeded to take up issue no. III, first for adjudication. The documentary evidence adduced by the petitioner such as Marriage Card Ext.1, Gratuity Nominee Ext.2, P.F. Nominee Ext.3, appointment of beneficiary under GSLI scheme Ext.4, marriage certificate Ext.5 etc. were considered. Respondent No. 1 had also filed Xerox copy of marriage card, Xerox Copy of Voter I card, birth certificate of Pranjal Tirkey, vaccination card of her children, vaccination card of Mundu Nursing Home, Xerox copy of LIC nomination which were taken into account. Learned Family court came to the opinion that these documents clearly indicated that respondent no. 1 is the wife of the petitioner but whether she is the first wife or second wife, the court is not in a position to render any finding on that. 10. Issue no. IV was then taken up on the question that whether the marriage of the petitioner with respondent no. 2 is void ab-initio. The petitioner had instituted the suit for a declaration that his marriage with respondent no. 2 is void ab-initio. However, his pleadings showed that he had refused that respondent no. 2 is his wife and he had no concern with her. He refused to acknowledge the female child of respondent no. 2, as his daughter. Nowhere did he admit of his marriage with respondent no. 2. He also did not admit having lived with respondent no. However, his pleadings showed that he had refused that respondent no. 2 is his wife and he had no concern with her. He refused to acknowledge the female child of respondent no. 2, as his daughter. Nowhere did he admit of his marriage with respondent no. 2. He also did not admit having lived with respondent no. 2 as husband and wife. The learned court was of the opinion that if the petitioner had throughout denied any marital relationship with the respondent no. 2, there is no reason to seek a declaration that it was void ab-initio. Further respondent no. 2, if had stated that at the time of marriage she was aged about 8 years and he was 14 years, then it may not be a valid marriage rather a void marriage. In such circumstances, relief sought for could have been entertained but the petitioner denied any marriage with respondent no. 2 while praying for a declaration that his marriage with respondent no. 2 is void ab-initio. From the evidence of respondent no. 2 in Maintenance. case no. 77 of 1992 at the time of marriage, she was 8 years old and the petitioner was 14 years old, which has been hammered by the petitioner. Since respondent no. 2 is a rustic lady, her statement in the maintenance was not treated as gospel truth. In the present case she had clearly stated that she is aged about 42 years and her marriage with the petitioner was solemnized 19 years back. It meant that she had attained the age of marriage in the relevant year. The other two witnesses on behalf of respondent no. 2 had supported the factum of marriage of respondent no. 2 with the petitioner and they had not been cross examined by the petitioner. Petitioner had not examined himself as witness before the court. Non-appearance of the petitioner denied the respondent no. 2 to cross examine him to test his veracity. Based on these circumstances and evidence on record, the learned family court observed that the petitioner was in a confused state whether to admit the relationship with respondent no. 2 or deny it. As such this issue was decided against him. 11. Issue no. II on the question whether there was a valid cause of action for the suit was taken up next. 2 or deny it. As such this issue was decided against him. 11. Issue no. II on the question whether there was a valid cause of action for the suit was taken up next. Evidence on record were dealt with and the learned family court came to the opinion that the maintenance case was filed by respondent no. 2 in the year 1992 where the petitioner had appeared and contested it. It was decided against him and he also filed a revision before Sessions Court. Thereafter, he approached the High Court in W.P. (C) No. 5407 of 2006 but could not get any relief. The Suit has been brought in the year 2007 seeking a declaration that the relationship with respondent no. 2 as void ab-initio. As such the petitioner had got no valid cause of action and the issue was decided against him. The rest of the two issues were also decided against the petitioner. 12. Assailing the findings of learned family court, learned counsel for the appellant has taken us to the evidence of the respondent no. 2 herself. She states that there is apparent contradiction in her deposition made in the present case compared with that of in the maintenance case on the point of her age and other evidence in relation to the marriage. She further submits that as per the case of the respondent no. 2, she was less than the marriageable age of 16 years in the light of the Customary Law of Oraons. She has referred to Section 5 of Customary Law whereunder the age of marriage is 16 years and 19 years respectively for a female and a male. Even as per Section 5 of the Hindu Marriage Act, the age for marriage is 18 and 21 years respectively for the two genders. She submits that issue no. IV has been wrongly decided as the respondent no. 2 as per her own admission was of 8 years at the time of marriage. She submits that the valid conditions to establish marriage are necessary which are completely lacking in the instant case. As such the so called marriage with respondent no. 2 should have declared as void ab initio. Reliance is placed upon a judgment passed in the case of Katari Subba Rao Vs. Katari Seetha Mahalakshmi, AIR (1994) AP 364 Placitum-(C) and on the case of Sushil Kumar Yadav Vs. As such the so called marriage with respondent no. 2 should have declared as void ab initio. Reliance is placed upon a judgment passed in the case of Katari Subba Rao Vs. Katari Seetha Mahalakshmi, AIR (1994) AP 364 Placitum-(C) and on the case of Sushil Kumar Yadav Vs. Smt. Indu Devi, AIR 2017 Jharkhand 156. Learned counsel submits that the relevant material evidence on record has not been considered in proper perspective. Therefore the findings of the learned family court are erroneous and deserves to be set-aside. The suit be decreed. 13. Learned counsel for the respondent no. 2 submits that as per the case of the petitioner himself, he belongs to the Oraon community which is a Scheduled Tribe. As per section 2 (2) of the Hindu Marriage Act, 1955 the Act does not apply to the scheduled tribes. The whole case has been setup under the Hindu Marriage Act though the petitioner had failed to establish that he was guided by Hindu rituals and not by customary law. He has submitted that essential rituals, as narrated by the appellant, relating to Pahan Puja etc. are not part of the marriage ceremony. As such, no reliance can be placed on any such assertion. He further submitted that petitioner himself did not appear for cross-examination and his evidence was expunged. Petitioner pleaded that he was married with respondent no. 1 in the year 1992 but for inexplicable reasons, the marriage is shown to have been registered in the year 2006. Petitioner further has never asserted his marriage with respondent no. 1 during the proceedings of the maintenance case or in criminal revision. These proceedings were initiated in the year 1992 and ended in 2006 after dismissal of the writ petition. Thereafter such a plea has been raised by the petitioner. Learned counsel has placed the evidence of R.W.2 and R.W. 3, both of whom, who on suggestions made by respondent no. 1, admitted the factum of marriage between petitioner and respondent no. 2. However, for inexplicable reasons petitioner failed to cross-examine them. Therefore, their statements have to be accepted and adverse inference has to be drawn against the petitioner. As such, the suit was not maintainable. The findings of the learned family court are well considered. The suit has been rightly dismissed. Therefore, no interference be accorded in appeal. 14. 2. However, for inexplicable reasons petitioner failed to cross-examine them. Therefore, their statements have to be accepted and adverse inference has to be drawn against the petitioner. As such, the suit was not maintainable. The findings of the learned family court are well considered. The suit has been rightly dismissed. Therefore, no interference be accorded in appeal. 14. We have considered the submission of the counsel for the parties at length, gone through the impugned judgment and the relevant material evidence relied upon by them. We have also gone through the judgments cited at the bar in support of the case of the rival parties. 15. At the outset it needs to be observed that though the petitioner pleaded that he belongs to Oraon community which is a scheduled tribe but asserted that they are governed by Hindu Customary Law for the purposes of marriage or other social meets. However, no evidence was laid by the petitioner on this point that despite being a member of scheduled Tribe, they were guided by the Hindu Law for the purposes of marriage and other social meets. Evidence on this point is completely lacking. On the other hand, petitioner throughout denied any relationship with respondent no. 2 but pleaded for a declaration that marriage with respondent no. 2 may be declared void ab-initio by the learned Family Court. Learned family court discussed the entire evidence on record and answered each of these issues against the petitioner. We have analyzed the reasons rendered by the learned family court and do not find that they suffer from any error of law or on facts which requires interference in appeal. The petitioner-appellant was facing a Maintenance Case instituted by respondent no. 2 since 1992 in which maintenance was allowed against him. He contested it in criminal revision which was dismissed by the Additional Judicial Commissioner, Ranchi with only a modification in the quantum. Throughout this proceedings, he failed to contest the case of the respondent no. 2 that he had been married with respondent no. 1. Suddenly in 2006, he has got registration of his marriage with respondent no. 1 though he pleaded that he was married to her in the year 1992. The suit has been filed in 2007 after contesting the maintenance proceedings for over fifteen years. This conduct of the appellant is inexplicable. 2 that he had been married with respondent no. 1. Suddenly in 2006, he has got registration of his marriage with respondent no. 1 though he pleaded that he was married to her in the year 1992. The suit has been filed in 2007 after contesting the maintenance proceedings for over fifteen years. This conduct of the appellant is inexplicable. On the other hand, petitioner has not appeared in the trial for cross-examination on certain vital points relating to the factum of marriage or its denial. On the contrary, defence witness nos. 2 and 3 on being subjected to cross-examination by Respondent No. 1 have deposed in favour of the marriage between petitioner and respondent no. 2. The statements of the defendant witnesses was not subjected to cross-examination on this point. As such it remained un-rebutted. 16. The learned family court has dealt with the issue relating to age of the respondent no. 2 as well and found that in the present proceeding, she had admitted that she was 42 years of age. She appeared to be a rustic lady and therefore, her statement that she was of eight years of age at the time of marriage could not be treated as gospel truth. But, even otherwise petitioner did not make a claim that there was a marriage between the parties below the marriageable age which needs to be declared as void. His case was of total denial of marriage. In such a situation there was no occasion for the petitioner to seek a declaration that his relationship with respondent no. 2 is void. Considered on all counts, we do not find any reason to disturb the findings of the learned family court. 17. The appeal is without merit and is accordingly dismissed. Appeal dismissed.