Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 4112 (MAD)

S. Meenakshi v. S. Gopinath

2018-11-02

C.SARAVANAN, R.SUBBIAH

body2018
JUDGMENT : R. Subbiah, J. 1. This appeal is filed by the appellant, aggrieved by the Order dated 17.11.2016 passed in HMOP No. 162 of 2014 on the file of Family Court, Erode. By the said order dated 17.11.2016, the Family Court allowed HMOP No. 162 of 2014 filed by the respondent herein under Section 9 of The Hindu Marriage Act for restitution of conjugal rights. 2. According to the respondent, his marriage with the appellant was solemnised on 18.01.2013 at Marudeswaran Temple, Kodumudi as per Hindu rites and customs and thereafter, a marriage reception was commemorated on 23.01.2013 at his house situated in Pudhukallivalasu, Nadar Medu, Erode District. It is the contention of the respondent that even prior to the marriage, the respondent and appellant loved each other and with the consent and permission of the parents of both sides, their marriage was held on 18.01.2013. According to the respondent, the marriage life was blissful and happier for two months and due to the wedlock, the appellant become pregnant. While so, on 06.03.2013, due to a trivial matrimonial dispute, a wordy quarrel erupted between him and the appellant. This dispute was precipitated by the appellant by informing her mother over mobile phone and she in turn, along with her relatives, gave a complaint on 07.03.2013 to the All Women Police Station, Erode, which was registered under CSR No. 68 of 2013. On the basis of such complaint, the respondent and the appellant were called upon for an enquiry and after concluding the enquiry, the police officials advised the appellant to live with the respondent peacefully. Notwithstanding such advise given by the police officials, the appellant had untied the sacred thali and thrown it away and also informed that she will abort the pregnancy. By saying so, the appellant accompanied her parents and went to her parent's house. Thereafter, the respondent went to the parents house of the appellant, met her and attempted to pacify her, but she was reluctant to join the matrimonial company of the respondent. According to the respondent, even the parents of the appellant were not inclined to give any advise to their daughter to send her to the matrimonial home. It is in those circumstances, the respondent has filed the instant Original Petition for restitution of conjugal rights. 3. According to the respondent, even the parents of the appellant were not inclined to give any advise to their daughter to send her to the matrimonial home. It is in those circumstances, the respondent has filed the instant Original Petition for restitution of conjugal rights. 3. Repudiating the averments made in the Original Petition in HMOP No. 97 of 2013 filed by the respondent, the appellant has filed a counter statement, contending inter alia that she never fell in love with the respondent, there was no solemnisation of marriage between her and the respondent on 18.01.2013, as alleged. Similarly, the allegation that the marriage was followed by a reception on 23.01.2013 at the house of the respondent was also false and no such marriage reception had taken place. According to the appellant, at the time of the so-called marriage, she was only 19 years old and taking advantage of her young age, the respondent had created some records to make it appear as if he married the appellant. The father of the respondent is working as Superintendent in Tamil Nadu Health Services and her mother is working as Head Clerk in Judicial Department. The father and mother of the respondent would attend their respective work and would return home only in the night. Taking advantage of the loneliness of the appellant, the respondent lured her and created some records to make it appear as if he married the appellant. When the appellant was alone in her home, the respondent threatened her to accompany him and if she failed to do so, he threatened that he will throw acid on her face. There was no tying of thali or there was exchange of garlands. No marriage had taken place as recognised by law and the alleged marriage reception did not take place. The appellant, during the relevant period, was pursuing her B.E., degree in Vivekanandha Engineering College Tiruchengode. The allegation that the appellant was pregnant due to the wedlock with the respondent is an utter false. There was no cohabitation between her and the respondent, as alleged. The appellant and the respondent never lived as husband and wife in the house of the respondent. The respondent had never given any complaint to the police authorities on 07.03.2013 on account of the wordy quarrel said to have emanated between her and the respondent during the alleged matrimonial relationship. The appellant and the respondent never lived as husband and wife in the house of the respondent. The respondent had never given any complaint to the police authorities on 07.03.2013 on account of the wordy quarrel said to have emanated between her and the respondent during the alleged matrimonial relationship. The allegation that the appellant untied the sacred thali and had thrown it away and also threatened to abort the pregnancy is nothing but a falsehood. The respondent is a stranger to the appellant and her family. The respondent came to the house of the appellant when she was alone and asked her to accompany him and on her refusal threatened to murder her. Further, he had also threatened that he will commit suicide and would throw the blame on her. Therefore, only by threat, coercion and misrepresentation, the appellant was made to accompany the respondent. In effect, the appellant totally denied having married the respondent and that there was no relationship of wife and husband between them. The appellant therefore prayed for dismissal of the Original Petition for restitution of conjugal rights. 4. In order to prove the averments made in the Original Petition, the respondent herein examined himself as PW1 besides examining two other witnesses as PWs 2 and 3 and Exs. P1 to P5 were marked. On behalf of the appellant, she examined herself as RW1 but no document was marked. The Family Court, on considering the oral and documentary evidence, particularly Ex.P2 and P5, series of photographs concluded that there was a marriage held between the appellant and the respondent during which the respondent had tied thali around the neck of the appellant. The Family Court also, on the basis of certain photographs, in which the appellant and the respondent were seen with garlands, concluded that the respondent married the appellant. The Family Court brushed aside the arguments advanced on behalf of the appellant that the photographs were morphed and concluded that it is not possible to do so for more than 50 photographs filed by the respondent. The Family Court also, taking note of the deposition of PW2, mother of the respondent and PW3, who had taken photographs during the marriage, concluded that the averments of the respondent that there was a marriage between him and the appellant has to be accepted. The Family Court also, taking note of the deposition of PW2, mother of the respondent and PW3, who had taken photographs during the marriage, concluded that the averments of the respondent that there was a marriage between him and the appellant has to be accepted. Resultantly, the Family Court allowed the Original Petition filed by the respondent and directed the appellant to join him the respondent in the matrimonial home. Aggrieved by the same, the present Civil Miscarriage Appeal is filed by the appellant. 5. The learned counsel for the appellant would vehemently contend that the Family Court failed to take note of the fact that the respondent has not produced any document to show that a marriage was in fact solemnised between him and the appellant herein. In order to prove the so-called marriage, the respondent examined his mother as PW2, who, in her evidence, has admitted that the appellant and the respondent came to their house after getting married. Therefore, even PW2 was not a witness to the marriage, as alleged by the respondent. Further, PW3, a neighbour of the respondent was examined. According to the respondent, PW3 was the one who photographed and video graphed the marriage. However, in his cross-examination, he admitted that he is not a professional photographer or videgrapher. Even PW3 also was present in some photographs and it casts a doubt as to whether he had really photographed the marriage, as alleged. Above all, PW3 admitted that he was not aware of the printing studio where the photographs were printed. However, the Family Court was carried away by the series of photographs produced by the respondent to conclude that there was a valid marriage and pursuant to which the appellant and the respondent have lived as husband and wife. In this context, the learned counsel for the appellant relied on the decision of the Division Bench of the Calcutta High Court in the case of (Mousumi Chakraborty vs. Subrata Guha Roy) reported in ((1991) II DMC 74 wherein it was held that when the factum of marriage is disputed and the essential ceremonies, which are precedent to a marriage are not proved, such marriage cannot be merely presumed or recognised. When the essential ceremonies were not performed preceding the marriage, as contemplated under Section 7 of The Hindu Marriage Act, such marriage cannot be recognised as a valid marriage. When the essential ceremonies were not performed preceding the marriage, as contemplated under Section 7 of The Hindu Marriage Act, such marriage cannot be recognised as a valid marriage. By relying on the aforesaid decision, the learned counsel for the appellant would contend that the ceremonies contemplated under Section 7 of the Hindu Marriage Act have not been performed in the present case and therefore, the Court below ought not to have concluded that there was a marriage solemnised between the appellant and the respondent and that the appellant and the respondent lived as husband and wife. The learned counsel for the appellant therefore prayed for setting aside the order passed by the Family Court and to allow this appeal. 6. Per contra, the learned counsel for the respondent would vehemently contend that during the trial in the Original Petition, in order to substantiate the averments made in the Original Petition, the respondent examined himself as PW1 besides two other witnesses as PWs 2 and 3. Among the two witnesses, PW2 is none other than the mother of the respondent and PW3 was the neighbour who took photographs of the marriage which was solemnised on18.01.2013. As far as the plea of the appellant that no receipt issued by the temple authorities was produced to prove the factum of marriage, the Family Court correctly rendered a specific finding that if the marriage was solemnised inside the temple, such a receipt would be issued and if it is solemnised outside or in the vicinity of the temple, no such receipt would normally issued. Even though the appellant argued before the Family Court that the photographs were morphed, it was rejected by the Court below that it is not possible to cause morphing of more than 59 photographs produced by the respondent. Furthermore, if the appellant disputes the genuineness of the photographs or it was her assertion that they were morphed, nothing prevented her from filing an application under Section 45 of The Indian Evidence Act to send those photographs to an expert for opinion, but it was not done in this case. Furthermore, PW2, mother of the respondent, has categorically deposed that soon after the marriage, she had given a warm welcome to the appellant and the respondent who were garlanded by then. Furthermore, PW2, mother of the respondent, has categorically deposed that soon after the marriage, she had given a warm welcome to the appellant and the respondent who were garlanded by then. The Family Court has also rejected the argument of the appellant that the respondent has created certain records by threatening her on the ground that if really the respondent threatened her, she could have given a police complaint especially when her mother was working as Head Clerk in the Judicial Department. The Family Court further rendered a finding that even in the complaint dated 07.03.2013 given by the mother of the appellant before the All Women Police Station, it was stated that the appellant and the respondent are residing together for a period of more than two months and there was a matrimonial dispute. Having regard to the above material evidence made available, the Family Court has rightly allowed the Original Petition filed by the respondent and it does not call for any interference by this Court. 7. In the light of the submissions of counsel for both sides, we have gone through the materials placed on record. It is the case of the respondent that he and the appellant loved each other and with the consent of the parents of both sides, he married the appellant on 18.01.2013. It is also his case that pursuant to such marriage, a reception was held in his house on 23.01.2013 and he and the appellant lived as husband and wife in his house. While so, on 06.03.2013, for a trivial matrimonial dispute, the appellant, at the behest of her mother, had given a complaint dated 07.03.2013 to the All Women Police Station, Erode and on the basis of which an enquiry was conducted. Even though the police officials advised the appellant to accompany the respondent and lead a happy married life, she preferred to go along with her parents. According to the respondent, inspite of repeated demands, the appellant failed and neglected to join him in the matrimonial home, therefore, he has filed the Original Petition for restitution of conjugal rights. 8. On the contrary, the appellant would contend that she never married the respondent and he is not her husband, as alleged. The appellant and the respondent never lived as husband and wife. 8. On the contrary, the appellant would contend that she never married the respondent and he is not her husband, as alleged. The appellant and the respondent never lived as husband and wife. If really the respondent married her in a temple, he ought to have produced some records, in the form of receipt issued by the temple, to prove that there was a marriage between him and the appellant. As the appellant did not substantiate the factum of marriage or the ceremonies preceded the marriage, as required under Section 7 of The Hindu Marriage Act, the Family Court ought not to have concluded that there was a valid marriage and directing the appellant to live with the respondent. 9. On perusal of the photographs produced by the respondent, it could be seen that marriage was solemnised by a priest. It is also seen from the photographs that the appellant and the respondent were sitting garlanded in front of the sacred fire. There were also photographs which shows the respondent tying the thali around the neck of the appellant. Some other photographs reveal that the friends of the appellant and the respondent were standing in front of a Van. Some other photographs taken in the house of the respondent were also produced to show that they lived together as husband and wife. Above all, the respondent has also marked Ex.A1, invitation for the reception between him and the appellant. On perusal of Ex.A1, it is seen that it was an invitation to friends and relatives for the proposed marriage reception between the respondent and the appellant. Above all, PW2 was the mother of the respondent. Admittedly, she did not witness the marriage solemnised between her son, the respondent and the appellant. However, she has deposed that soon after the marriage, her son, the respondent, along with the appellant came to their house garlanded and she received them. As rightly pointed out by the counsel for the respondent, if really the photographs produced by the appellant are morphed, as alleged, the respondent ought to have filed an application under Section 45 of The Indian Evidence Act and obtained the expert report as to the genuineness or otherwise of the photographs. For the reasons best known, the respondent did not resort to such a course of action. For the reasons best known, the respondent did not resort to such a course of action. Further, PW3 who photographed the marriage was examined, who in his deposition has stated that the marriage between the appellant and the respondent was a love marriage and it was solemnised on 18.01.2013 at Magudeswarar Temple, Kodumudi, Erode and during the said commemoration, he had taken photographs. Therefore, these evidences adduced on the side of the respondent would make it clear that there was a marriage solemnised between the appellant and the respondent. The Family Court has analysed the entire evidence made available and has rightly allowed the Original Petition filed by the respondent for restitution of conjugal rights. We see no reason to interfere with such a well considered order passed by the Family Court. 10. In the result, we confirm the Order dated 17.11.2016 passed in HMOP No. 162 of 2014 on the file of Family Court, Erode and consequently, the Civil Miscellaneous Appeal is dismissed. No costs.