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2018 DIGILAW 536 (CHH)

Kanchan Gupta @ Alka Gupta v. Niraj Kumar Gupta

2018-08-28

GAUTAM CHOURDIYA, MANINDRA MOHAN SHRIVASTAVA

body2018
ORDER : MANINDRA MOHAN SHRIVASTAVA, J. 1. This appeal is directed against impugned judgment dated 26.4.2017 passed by Family Court Baikunthpur, District Koriya in Civil Suit No.10- A/2014, by which, the appellant’s/plaintiff suit has been dismissed. 2. Appellant/plaintiff filed a suit seeking a decree of restitution of conjugal rights on the pleadings inter alia that marriage between the parties was performed on 24.03.2012 in Aarya Samaj Mandir, Harit Vihar Delhi according to vaidik rituals and after marriage the plaintiff and defendant both were residing at Junapara, Baikunthpur in a rented accommodation discharging their marital obligations. The Plaintiff’s case was that the marriage of the plaintiff with defendant was not acceptable to the defendant’s parents and they provoked the defendant to desert the appellant. It was further pleaded that the plaintiff conceived twice but defendant got the pregnancy aborted. After defendant got employment in C.G. Vidyut Mandal, Korba in 2013, his father pressurised and provoked him to disown marriage. Plaintiff was threatened to sign on blank papers which the plaintiff refused. Though, she continued to reside in Junapara house, the respondent deserted her company, therefore, suit for restitution of conjugal rights was filed. 3. The Defendant, in his written statement, completely denied the very existence of marital relationship by stating that no marriage was ever solemnized between the plaintiff and the defendant. It was pleaded that the plaintiff is a divorcee having three children and her marriage has been dissolved on 18.10.2011. The Plaintiff was next door neighbour of defendant’s father and during the course of her dispute with her first husband, defendant’s father had acted as mediator but taking undue advantage of compassion and help, the defendant has come out with a false case of marriage. 4. On the basis of the pleadings, learned trial Court framed following issues: (i) Whether the plaintiff is the wife of the defendant ? (ii) Whether the defendant deserted his wife without any reasonable cause ? 5. The learned trial Court held that the plaintiff has failed to prove that there was marriage solemnized in accordance with the rites and rituals of performance of marriage between the parties, who are governed by Hindu Law and therefore, the plaintiff is not entitled of any decree of restitution of conjugal rights. 6. 5. The learned trial Court held that the plaintiff has failed to prove that there was marriage solemnized in accordance with the rites and rituals of performance of marriage between the parties, who are governed by Hindu Law and therefore, the plaintiff is not entitled of any decree of restitution of conjugal rights. 6. Assailing correctness and validity of impugned judgment and decree, learned counsel for the appellant argues that the plaintiff has not only specifically pleaded solemnization of marriage on 24.03.2012 but also led cogent, reliable oral evidence of the witnesses of marriage namely- Ganesh Chandravanshi (PW-1) and Shekhar Chandra (PW-2). They emphatically deposed before the trial Court that in their presence, marriage was solemnized and they also countersigned the certificate of marriage vide Ex. P/1. Learned counsel for the appellant further argues that the plaintiff herself appeared as witness PW-3 and has categorically stated regarding solemnisation of her marriage. The certificate of marriage, affidavit, application and various other documents relied upon by the plaintiff and the witnesses namely Ganesh Chandravanshi (PW1), Shekhar Chandra (PW2) and Kanchan Gupta (PW-3) (Plaintiff herself) have fully established the plaintiff’s case. The factum of marriage having been proved, a presumption was required to be drawn with regard to validity of marriage and in the absence of there being any evidence to prove that the marriage was in violation of the conditions under Section 5 of the Hindu Marriage Act, the learned trial Court ought to have held that marriage was validly performed between the parties and therefore, plaintiff is entitled to seek restitution of conjugal rights. 7. On the other hand, learned counsel for the respondent argues that the plaintiff’s case of there being a marriage between the parties is a false and fabricated story. The defendant never married the plaintiff. The oral evidence of Ganesh Chandravanshi (PW1), Shekhar Chandra (PW2) and plaintiff (PW3) regarding solemnization of marriage are liable to be disbelieved as neither the Purohit who issued certificate (Ex.P/1) has been examined nor the original records maintained by so called Arya Samaj Mandir, Harit Vihar, Delhi where marriage is said to have been performed, are produced. The oral evidence of Ganesh Chandravanshi (PW1), Shekhar Chandra (PW2) and plaintiff (PW3) regarding solemnization of marriage are liable to be disbelieved as neither the Purohit who issued certificate (Ex.P/1) has been examined nor the original records maintained by so called Arya Samaj Mandir, Harit Vihar, Delhi where marriage is said to have been performed, are produced. Further submission is that the very legal existence of that society is doubtful because the plaintiff has failed to prove by producing proper registration certificate and documents and the documents produced by the defendant which were obtained under the Right to Information Act proved that so called Arya Samaj Mandir, Harit Vihar, Delhi is not registered with any institution or authority, therefore, the plaintiff’s case has rightly been disbelieved. Learned counsel further argues that no relation or blood relation of the parties have been examined to lend credence to the pleadings of solemnization of marriage. Further submission is that the plaintiff, herself in her cross-examination, has admitted that the marriage was not solemnized by following the same ceremony of Panigrahan and saptpadi as was done in the ceremony of marriage at the time of her first marriage. It is further argued that the plaintiff’s witness Ganesh Chandravanshi (PW1) and Shekhar Chandra (PW2) have stated regarding performance of marriage only in one day which, apart from being doubtful, also shows that the marriage ceremony of the parties was not in accordance with the rites and rituals with regard to solemnization of marriage in Hindus. Learned counsel for the respondent also argues that the plaintiff/defendant led oral as well as documentary evidence that the plaintiff continued to reside with her first husband Shri Rajesh Gupta as deposed by DW-3- Ramnarayan Dubey and DW-4- Sabbir Ali. According to learned counsel for the respondent, the defendant witness Mohit Kumar (DW-2), who is the authorized representative of Delhi Arya Samaj Pratinidhi, has deposed that the mandir, where marriage is said to have been performed, is not affiliated with them and he has also deposed that for issuance of marriage certificate, signature of office bearer including Mantri Pradhan Purohit is necessary. Thus, the plaintiff has failed to prove both formalities as well as validity of the marriage, therefore, the suit has rightly been dismissed. 8. We have heard learned counsel for the parties and perused the records. 9. Thus, the plaintiff has failed to prove both formalities as well as validity of the marriage, therefore, the suit has rightly been dismissed. 8. We have heard learned counsel for the parties and perused the records. 9. The main issue which arises for consideration is whether the marriage was solemnized between the parties, as pleaded by the plaintiff. In the present case, the defendant has completely denied the very factum of marriage and has taken the stand that the certificate of marriage (Ex. P/1) issued by the same institution is a false and fabricated document. 10. In para 1 of the plaint, plaintiff has pleaded that marriage between the plaintiff and defendant was solemnized on 24.03.2012 according to vaidik ritual in Arya Samaj Mandir, Harit Vihar Delhi. She has examined herself as PW-3 and in her testimony, she has deposed that marriage was solemnized on 24.03.2012 in Arya Samaj Mandir at Delhi and at the time of marriage, Ganesh Chandravanshi and Shekher Chandra were also present. Ganesh Chandravanshi is the friend of defendant whereas Shekhar Chandra is the husband of her friend. She has produced Photocopy of certificate vide ExP/2, which is said to be issued by the Arya Samaj Mandir, Harit Vihar Delhi. We find that the original certificate itself has been filed by the plaintiff, with which, she has also produced affidavit, driving licence vide Ex. P/4, application for marriage as Ex. P/5, affidavit filed by her in Arya Samaj Mandir is Ex.P/6 and Ex. P/7, Pass Book is Ex.P/8, application submitted by her and appellant, Ex. P/9, voter ID of Shekhar Ex. P/10 and voter ID of Ganesh Chandra Ex.P/11. In the cross-examination, she has admitted that earlier she had married Rajesh Gupta and she has also admitted the suggestion that earlier she used to reside along with her first husband Rajesh Gupta in-front of the house of defendant's father. She admits that her husband had bitter relation and they used to frequently quarrel. She further states that she is not Arya- Samajee and does not know what are the vaidik rituals. In her cross-examination, it has also been elicited that before going to Delhi, she did not inform her relations or any member of her parental house. She stated that entire ceremony was performed in one day. She further states that she is not Arya- Samajee and does not know what are the vaidik rituals. In her cross-examination, it has also been elicited that before going to Delhi, she did not inform her relations or any member of her parental house. She stated that entire ceremony was performed in one day. In para 16 of the cross-examination of the plaintiff, she deposed that in the marriage function, Pandit and Nai remained present but she does not know the name of those persons, by whom, marriage ceremony was performed but their name is mentioned in the documents. According to her, all the ceremony were performed in a hall but any other ceremony of Barat Aagman, maitripooja kuldevi pooja etc. was not performed, no dwarchar was performed and she admits that the ceremony of Saptpadi and Panigrahan was not performed in the same manner as it was done earlier at the time of her first marriage but then she says that her marriage was performed according to Hindus rituals. The suggestion that no marriage was performed has been denied. The suggestion that the certificate was false and fabricated has also been denied and the suggestion that she is still maintaining relationship with her husband -Rajesh Gupta has been denied. 11. In order to support her case of solemnization of marriage, the plaintiff has examined Ganesh Chandrawanshi (PW-1), who has deposed that he is the friend of respondent- Neeraj Kumar Gupta, they studied together and had passed B.E. course from M. P. Christian College Bhilai. He further states that he had gone to Delhi for coaching of Indian Engineer Services at Delhi and in that connection, he resided there from the year of 2011 till June 2012. This witness deposed that while residing at Delhi, Neeraj -defendant told him that he is willing to marry and he is coming to Delhi. Thereafter, Neeraj and Alka came to Delhi and this witness was asked to attend the marriage as witness in Arya Samaj Mandir, Harit Vihar. This witness went to the place of marriage where the marriage between the parties was solemnized according to Hindu rituals, they had taken 7 steps and Kanyadan ritual was performed by him after solemnization of marriage. His signatures were obtained on the certificate which he has signed. He has proved in Ex. P/1, the original certificate. This witness went to the place of marriage where the marriage between the parties was solemnized according to Hindu rituals, they had taken 7 steps and Kanyadan ritual was performed by him after solemnization of marriage. His signatures were obtained on the certificate which he has signed. He has proved in Ex. P/1, the original certificate. He was also informed that one more witness namely-Shekhar Chandra, being the husband of plaintiff's friend was also called and in the certificate, Plaintiff- Alka, defendant Neeraj and Shekher Chandra also signed and proved the signature of Neeraj in certificate vide Ex. P/1. He further states that in that certificate, the Purohit of Aarya Samaj Mandir had signed and put seal on it. In his cross-examination, suggestions were given to him with regard to the procedure which is normally followed for performance of marriage and deposed that he is the friend of Neeraj and the plaintiff treated like her brother, therefore, he performed Kanyadan and further that the entire ceremony was completed in one day. A suggestion was given that he is not the friend of Neeraj which has been denied. He also stated that at the time of marriage, relatives of the parties were not present. Shekhar Chandra (PW-2) the other witnesses has deposed that the marriage was performed on 24.03.2012 in Aarya Samaj Mandir at Delhi where he was called by the plaintiff to be a witness of the marriage. The ceremony was performed under the instruction of priest of the Aarya Samaj Mandir and at that time, the defendant/respondent smeared vermilion on the forehead and also gave mangalsutra and a Ring (Bhichhiya). The priest had chanted mantras and thereafter plaintiff and defendant had taken 7 steps of sacred fire. At that time, the plaintiff, defendant, priest and Ganesh Chandrawanshi were also present. Ganesh Chandrawanshi performed the rituals of Kanyadan and after that, marriage certificate Ex. P/1 was issued in which he had signed. He further deposed that in that certificate, purohit also signed and he also proved signature of Neeraj in the certificate. In his cross-examination, he states that plaintiff is the friend of his wife. He further deposed that he reached Aarya Samaj Mandir at about 11.12 am in the morning. He further states that entire ceremony of marriage was performed in one day. In his cross-examination, he states that plaintiff is the friend of his wife. He further deposed that he reached Aarya Samaj Mandir at about 11.12 am in the morning. He further states that entire ceremony of marriage was performed in one day. He denied the suggestion that Neeraj did not go to Delhi and marriage was not solemnized between the parties. He also denied that various rituals like smearing vermilion, giving mangalsutra and ring as also other ceremony were not performed. However, he does not know the name of the priest or his address. He has denied the suggestion that forged marriage certificate was prepared and marriage certificate Ex. P/1 does not contain signature of defendant -Neeraj. 12. From the oral evidence of the plaintiff herself, and two witnesses of the entire ceremony, it is proved that Neeraj and plaintiff- Alka both had gone to Delhi and at the request of Neeraj, Ganesh Chandrawanshi (PW1) and at the request of Alka, Shekher Chandra (PW-2) had attended the marriage as their witnesses. Both of them have emphatically deposed regarding solemnization of marriage and also performance of Saptpadi (7 steps) performed by the plaintiff and defendant. In addition, some other rituals like smearing of vermilion on the forehead, giving mangalsutra have also been performed. Kanyadan is said to have been performed by Ganesh Chandrawanshi (PW-1). The certificate of marriage Ex.P-1 has been proved by all the three witnesses, who have stated that each of them had signed the document and in their presence, Neeraj signed the said certificate. The evidence of Ganesh Chandrawanshi (PW-1) that he is the friend of defendant and both studied together and passed B.E. from M.P. Christian College, Bhilai has remained un-controverted in his cross examination. A bare suggestion that defendant is not the friend of this witness, has been emphatically denied. This witness was the friend and class-mate of Neeraj and there is no reason to disbelieve the testimony, being witness to performance of marriage between the parties and his evidence regarding performance of rites and ceremony including Saptpadi does not appear to be improbable. Similarly Shekher Chandra (PW-2) is also reliable as he appears to be the witness from the side of the plaintiff and has fully supported the performance of marriage between the parties wherein various rituals were also performed. The evidence of these two witnesses is natural and probable. Similarly Shekher Chandra (PW-2) is also reliable as he appears to be the witness from the side of the plaintiff and has fully supported the performance of marriage between the parties wherein various rituals were also performed. The evidence of these two witnesses is natural and probable. The oral testimony of these two witness of marriage, who have signed the document Ex.P/1 and proved their signature fully lends credence to the plaintiff's case of marriage between the plaintiff and defendant. 13. Learned counsel for the respondent submits that plaintiff PW-3 herself has admitted in para 16 of her cross-examination that rites and rituals were not performed is liable to be rejected because at the first place, she does not altogether deny performance of any rituals in the marriage ceremony and she maintained that the marriage was held as per rites and rituals of Hindus. She says that it was not done exactly in the same manner as was done at the time of her marriage at the first occasion. The solemnization of marriage and performance of various rites and rituals including Saptpadi having been proved from the reliable evidence of two independent witness of the marriage, who have signed the certificate Ex. P/1, also clears doubt, if any, with regard to solemnization of marriage and the performance of ceremonies of marriage. The deposition of PW-3, as contained in para 16 of her cross-examination read as a whole, only means that the marriage with defendant Neeraj was not as ceremonious as it was at the time of first marriage. This can not be taken to mean that she admits that no ceremony was performed. All that it could mean is it was not done in a very ceremonious manner. 14. In the evidence, it is neither stated by the defendant nor any evidence led by him to prove that the solemnization of marriage between the parties was in contravention of conditions contained in Section 5 of the Hindu Marriage Act so as to prove contravention of conditions No. i to iv and establish that the marriage if at all solemnized, was void. Section 7 of the Hindu Marriage Act reads as below: “(1) Ceremonies for a Hindu Marriage.-(1) A hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. Section 7 of the Hindu Marriage Act reads as below: “(1) Ceremonies for a Hindu Marriage.-(1) A hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.” 15. As per the aforesaid provisions, a marriage may be solemnized in accordance with the customary rites and the ceremonies of either party thereto. The plaintiff has pleaded that the marriage was performed by Vaidik rituals of Saptpadi and this fact of saptapadi having been performed along with other rituals as stated by Ganesh Chandrawanshi (PW1) and Shekhar Chandra (PW-2) is also proved. Defendant's case is completely based on denial of factum of marriage. 16. In view of the pleadings of the parties, the rights and ceremonies including Saptpadi i.e. taking 7 steps by the bride and groom jointly before the sacred fire, according to sub-section 2 of Section 7 of the Hindu Marriage Act, in such cases, marriage becomes complete and binding when the seventh steps is taken. The overwhelming evidence of Ganesh Chandrwanshi (PW1), Shekhar Chandra (PW-2) and PW3 plaintiff herself proves solemnization of marriage by performance of Saptpadi and therefore, the plaintiff has succeeded in proving that marriage was solemnized between the parties. 17. Reliance has been placed on the evidence of Mohit Kumar (DW-2) that the Aarya mandir, where marriage and other rituals and ceremonies were performed is not registered anywhere nor affiliated or recognised by them. The marriage becomes binding once saptpadi is complete. Merely because rites, rituals and ceremonies as a matter of practices were performed in Aarya samaj institution, it cannot be said that there was no marriage at all or that it was not binding. 18. In the present case, the defendant has only disputed the factum of marriage. Once the solemnization of marriage is proved from the evidence of witnesses, it was for the defendant to come out with clinching evidence backed by appropriate pleadings, which we did not find in the present case. 19. 18. In the present case, the defendant has only disputed the factum of marriage. Once the solemnization of marriage is proved from the evidence of witnesses, it was for the defendant to come out with clinching evidence backed by appropriate pleadings, which we did not find in the present case. 19. The argument of learned counsel for the respondent that as there is evidence of plaintiff residing with her earlier husband, even after 24.03.2012, therefore, a conclusion ought to be drawn that no marriage was solemnized between the plaintiff and defendant Neeraj Kumar Gupta, which cannot be accepted. Learned trial Court itself has disbelieved the testimony of Ramnarayan (DW-3) and Sabbir Ali (DW-4). Reference to voter list Ex. D/1 is of no consequence because the defendant has filed a copy of judgment and decree dated 18.10.2011 by which a decree of divorce was granted in favour of plaintiff- Kanchan Gupta @ Alka Gupta against her earlier husband Rajesh Gupta. 20. The objection to the admissibility of various documents produced by the plaintiff on the ground that they are photocopies and they could not be exhibited is liable to be rejected as no such objection was taken at the time when those documents were being exhibited as evidence. Even otherwise, Ex.P/1 is the original certificate which contains signature of plaintiff PW-3 and witnesses Ganesh Chandrwanshi (PW1) and Shekhar Chandra (PW2). All of them, in their evidence, have stated that they have signed the certificate and have proved not only their own signature but have also stated that defendant-Neeraj signed in that certificate. If the defendant disputed about his signature, he could have asked for examination of questioned document by handwriting expert, which he has not done. Therefore, even if other photocopies are not taken into consideration, otherwise also, from the oral evidence and marriage certificate Ex. P/1 the plaintiff's case is proved that marriage was solemnized on 24.03.2012. The learned trial Court has dismissed the plaintiff’s suit by recording the finding that various ceremonies, as stated in para 16 of the cross-examination of PW-3, have not been performed and it can not be said to be valid marriage therefore, not liable to be recognized as valid marriage under Aarya Samaj Marriage Validation Act, 1937. Learned trial Court has held certificate Ex. Learned trial Court has held certificate Ex. P/1 as not been proved by relying upon the evidence of Mohit Kumar (DW-2) and finding that the certificate was not properly issued. Learned trial Court has also recorded the finding that plaintiff has failed to prove that the said institution where the marriage was performed was not registered. As we have already considered herein above, once solemnization of marriage is proved by other cogent evidence, the fact that institution where marriage was solemnized was not registered or that the marriage was not solemnized in accordance with the evidence of Mohit Kumar (DW-2) did not mean that no marriage was at all performed between the parties. Moreover, the certificate Ex.P/1 has been disbelieved on the basis of evidence of Mohit Kumar (DW-2) which claims to be representative of Aarya Pratinidhi Sabha. The marriage can not be said to be invalid on the ground that the certificate Ex.P/1 has not been issued according to various proformas as deposed by Mohit Kumar (DW-2). 21. In view of the overriding effect given to the provisions of the Hindu Marriage Act, Under Section 4 thereof, the validity of the marriage will have to be examined keeping in view the provisions contained in Sections 5 & 7 of the Hindu Marriage Act. The provision of Aarya Samaj Marriages Validation Act, 1937 cannot be pressed into service to invalidate a marriage. Therefore, the finding of the learned trial Court is liable to be reversed and it has to be held that the plaintiff succeeded in proving that the solemnization of marriage between the plaintiff and defendant, which is binding on the parties. The plaintiff's pleading is that she has been deserted by her husband. She has clearly deposed in para 3 of her evidence that after marriage, plaintiff and defendant were residing at Junapara, Baikunthpur where she stayed for about one and half years. This evidence has remained un-controverted in her cross-examination. She has further deposed after the defendant got the job/employment in the C.G. Vidut Mandal Darripara on 25.09.2013, he went to join there and plaintiff continued to reside in Junapara. Thereafter defendant did not return and when she went to meet him, he refused to keep the plaintiff along with him. This evidence has remained un-controverted in her cross-examination. She has further deposed after the defendant got the job/employment in the C.G. Vidut Mandal Darripara on 25.09.2013, he went to join there and plaintiff continued to reside in Junapara. Thereafter defendant did not return and when she went to meet him, he refused to keep the plaintiff along with him. She has further deposed that she conceived twice but the pregnancy was aborted because defendant did not want any issue and had given pills to consume due to which, pregnancy was aborted. She stated in her evidence that the defendant's father and cousin threatened her and she has been deserted by her husband and he would not keep her. Once the marriage between the parties is proved, the plaintiff is entitled to restitution of conjugal rights. 22. In the result, the appeal is allowed, the impugned judgment and decree is set aside. The plaintiff's suit for restitution of conjugal rights is decreed. The appellate decree be drawn accordingly.