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2019 DIGILAW 665 (HP)

Neena Kumari v. Pawan Kumar

2019-05-30

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal, stands, directed by the aggrieved petitioner/appellant herein, namely Neena Kumari, against, the dismissal of her petition, cast under the provisions of Section 12 (1) (c) of the Hindu Marriage Act, 1955, wherethrough, she sought annulment of her martial ties with her husband/respondent herein, on anvil, of, the requisite Saptapadi, not, standing performed. 2. The brief facts of the case are the sister of the respondent was the classmate of the petitioner/appellant herein, and, they planned to go to their home via Shimla. They reached Shimla on 27.3.2009 at about 9.30 a.m. The respondent received them at bus-stop at Shimla, and, on the pretext that the bus to Hamirpur is after some time, he took them to his residential accommodation to have in the meantime some refreshment. On consumption of eatables and drinks, the petitioner/appellant herein felt abnormal and toxic as if some psychotropic substance would have been administered to her. The petitioner on disclosing that some thing abnormal is happening with her and on finding herself totally helpless asked Meena Kumari, sister of respondent to take her care. On returning to her senses, petitioner found herself in the house of respondent at village Katoh, Tehsil Bhoranj, District Hamirpur. Meena Kumari told that her health suddenly deteriorated and want not in senses, as such was brought to village Katoh. On 29.3.2009, respondent took her to her parents at village Lahra, Post Office, Galore, Tehsil Nadaun,District Hamirpur and on disclosing about her health, her parents thanked respondent to have taken her care. The petitioner completed her B. Tech Degree by the last quarter of 2011, and, her parents started looking for a suitable match for her marriage. On getting engaged and likelihood of marriage may be solemnised during March,/April 2012, the petitioner shared said news with Meena Kumari. The respondent maintained a close touch with the petitioner and her parents and kept on making secret queries regarding whereabouts of her would be spouse and his family. In may, 2012, respondent proclaimed that the marriage of petitioner has been performed with respondent on27.3.2009 at Radha Krishan Temple Gang Bazar, Shimla and also produced photographs. The respondent showed these photographs to the proposed groom and his family members which led to breakdown of the marriage. In may, 2012, respondent proclaimed that the marriage of petitioner has been performed with respondent on27.3.2009 at Radha Krishan Temple Gang Bazar, Shimla and also produced photographs. The respondent showed these photographs to the proposed groom and his family members which led to breakdown of the marriage. This struck the mind of the petitioner about the incident happened on or about 27.3.2009, making her to reasonable believe that during her loosing her senses, the respondent on taking advantage thereof would have managed to take her to temple and took some photographs posing corresponding to Hindu Marriage in temple. In fact no valid marriage has been solemnized by the petitioner with respondent nor the same was ever consummated. It is averred that on discovering the fraud being played, the petitioner and her family members reminding the respondent of the existence of good relationship between them persuaded the respondent that if any wrong has happened about which neither the petitioner knows nor she ever told to her parents, said shim marriage be got dissolved by mutual consent. He however agreed to same but later refused to sign the petition on raising demand of Rs.1,50,000/- which was beyond the capacity of the petitioner's father being a petty employee i.e. driver. Hence the instant petition. 3. The petition for divorce instituted by the petitioner before the learned Addl. District Judge concerned, stood contested by the respondent, by his instituting a reply thereto, wherein, he averred that about six months prior to 27.3.2009, the petitioner and her father as well as sister-in-law were in continuous contact with him in order to settle the marriage which was fixed for 27.3.2009. For solemnization of marriage, petitioner reached Shimla on 25.3.2009 and as per Hindu folkways, rites, custom and ceremonies, the marriage of petitioner was solemnized with respondent on 27.3.2009. Since, 25.3.2009 to 31.3.2009, the petitioner was in the company of respondent and celebrated their Suhagrat in the house of respondent and thereafter left to VPO Tarkwari, Teh. Bhoranj. A contrary story presented by the petitioner is false. The respondent then sent the petitioner for higher studies i.e. B. Tech. To Baddi and bore all expenditure of the education for three years. Bhoranj. A contrary story presented by the petitioner is false. The respondent then sent the petitioner for higher studies i.e. B. Tech. To Baddi and bore all expenditure of the education for three years. It is submitted that , in fact after completion of her studies, the petitioner without any reasons, and, his consent absconded from the matrimonial home, and, is living in adulterous relationship with her Jija i.e. Rajesh Kumar and with his connivance has concocted the alleged false story. The petitioner filed a complaint before S.P. Hamirpur where herself admitted that the marriage of petitioner was successful only for three days. It is denied that respondent made any demand for money as alleged. Rajesh Kumar was asked many times to leave the petitioner so that she could join the company of the respondent being his legally wedded wife, but in vain. Contrarily, he has conveyed that during his life, he will not allow her to return to matrimonial home. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether marriage of petitioner with respondent is result of force or fraud practized upon her as alleged?OPP. 2. Whether necessary ceremonies constituting a valid marriage have not been performed, as alleged?OPP. 3. Whether the petitioner is entitled for a decree of nullity of marriage as prayed for?OPP. 4. Whether the petition is not in consonance with the Hindu Marriage Divorce Act (Himachal Pradesh) Rules 1982?OPR. 5. Whether the petitioner has not approached the court with clean hands?OPD. 6. Whether the petition is not maintainable?OPR 7. Relief. 5. On an appraisal of evidence adduced before the learned District Judge, the latter dismissed, the, apposite petition. 6. The photographic evidence existing on record, and, bearing mark R-1 to Rx- 11,though makes vivid display (s) qua, (a) Hindu Marriage inter se the petitioner, and, the respondent being solemnised at Radha Krishan Mandir, Ganj Bazar Shimla, (b) and, the photographs bearing Mark R-2, and, Rx-5, also make pointed communication (s) qua the “Saptapadi” at the afore temple, rather being progressed. However, the learned counsel appearing for the appellant, has contended, that the afore echoing, emanating from the afore photographic evidence, cannot, (c) comprise either a valid or admissible evidence, vis-a-vis, performance of “Saptapadi”, at the afore temple, as, the negatives, which comprise the original (s) thereof, rather remained unadduced into evidence. However, the learned counsel appearing for the appellant, has contended, that the afore echoing, emanating from the afore photographic evidence, cannot, (c) comprise either a valid or admissible evidence, vis-a-vis, performance of “Saptapadi”, at the afore temple, as, the negatives, which comprise the original (s) thereof, rather remained unadduced into evidence. However, the afore espousal, reared before this court, for negativing or repelling the reliance placed thereon, by the learned counsel appearing, for the respondent, rather warrants, it, being discountenanced, (d) as, the petitioner, while being faced, with, the afore photographic evidence, hers not denying qua the afore photographs being morphed or being forged, (e) rather when she has in her deposition, made an admission qua hers figuring, in the afore photographs, (f) thereupon, an inference, is, sparked, qua, dehors negatives thereof, hence, comprising the original (s), of the afore photographic evidence, rather remaining unadduced into evidence, rather not belittling the afore displays existing therein, imperatively, vis-a-vis, the marked display therein, of hers progressing “saptapadi” with, the respondent herein, at the afore temple. Corollary thereof, is that, the afore admission, renders the relevant displays, in the afore, to be both admissible, (f) and, want of adduction into evidence qua negatives thereof, though, comprising the original (s) of the afore evidence, rather not entailing, this Court to be dismissive, vis-a-vis, hence palpable sanctity, being meteable thereto, conspicuously, vis-avis, the performance of “Saptapadi”, at the afore temple. 7. Be that as it may, further there onwards, affidavits respectively, borne in Ex.PW4/A, and, in Ex.PW4/B, hence, stood furnished before the Sub Divisional Magistrate, Shimla (Urban), with declarations borne, therein qua the petitioner, and, the respondent solemnizing their marriage, in consonance, with the Hindu rites and customs, at Sanatam Dharam Mandi Anaj Mandi, Shimla, (i) and, the afore adds corroborative vigour to the afore photographic evidence, and, with the petitioner, when faced, with the afore exhibits neither taking to contest the occurrence of her signatures thereon, hence, lends added forthright corroboration, vis-a-vis, the photographic evidence, borne, in the afore referred marks. 8. 8. Even though, the petitioner has also strived, to contest, all the afore echoings borne, in the afore referred evidence, by hers rearing an espousal, qua, (i) at the afore stage, some narcotic drug/substance being surreptitiously administered, to her, (ii) and, under influence thereof, hers performing “Saptapadi”, with the respondent herein, at the afore temple, hence, the afore act being stained, with, lack of volition (s), (iii) and, also, her signing, the, afore affidavit with the afore echoings also likewise being a sequel of soporific effects, uponj her, emanating from hers being surreptitiously administered some drugs, (iv) and, thereupon, no reliance being meteable thereon, rather, the performance, of, “Saptapadi”, and, also execution of affidavit (s), with, echoings therein qua hers performing marriage, in consonance with the Hindu rites, and, customs at Sanatan Dharam Mandir Anaj Mandi, Shimla, H.P. with the respondent herein, begetting hence stains of deception, undue influence, and, misrepresentation. However, the afore espousal, reared in the petition, and, in the testification, as, rendered in consonance therewith, by the petitioner/appellant herein, is, eroded of its vigour, (a) given her affidavit borne in PW4/A, being sworn, on 28.3.2009, and, it echoing the factum of hers solemnizing marriage, with the respondent on 26.3.2009 at Sanatam Dharam Mandi Anaj Mandi, Shimla, hence, two days prior to the execution of the affidavit, (b) thereupon, with its execution occurring, in the interregnum, vis-a-vis, of the performance of the marriage with the respondent, in consonance with the Hindu rites and customs, and, with the afore affidavit, being attested by Sub Divisional Magistrate, Shimla (Urban), District Shimla, hence, renders the afore mark, of, attestation, made on Ex.RW4/A, by the Sub Divisional Magistrate, Shimla (Urban), to be a public act, (c) and, imbibes therewithin, the mandate of Section 35 of the Indian Evidence Act, qua it being made by the officer concerned, in the discharge, of his public duty, (d) and, the further sequel thereof, is also, marshable qua the afore performance, of, a public duty, by the officer attesting Ex.PW4/A, being regularly and duly performed, (e) whereupon, the afore espousal qua the authoring of the afore contents, borne in Ex.PW4/A being rather under the influence, of, some narcotic drug, if any, as stood purportedly surreptitiously administered to her, hence, hers making it, in-volitionally, rather being also both eclipsed and waned, (f) unless best medical evidence, in contemporaneity therewith, was adduced. However, the best medical evidence highlighting, and, earmarking the afore effects, rather remained unadduced on record, and, thereupon, the afore presumption, remains unfalsified. Even otherwise, Ex.RW4/A was executed, in March, 2009, and, the Hindu Marriage Petition, seeking annulment of marital ties inter se the petitioner, and, the respondent, for want of performance of “Saptapadi”, stood instituted, in the year 2012, (g) hence, the afore inordinate procrastinated delay since the making, of, the affidavits till the institution, of the HMA petition, before the learned Addl. District Judge, and, with the afore espousal, being enunciated therein rather renders, the afore espousal, and, also the evidence in consonance, therewith, as, testified by the petitioner/appellant herein, to be merely a sharp contrivance, and, an afterthought, and, thereto no credence, can be, meted. Contrarily, a formidable inference is erectable, that the making of the photographic evidence, as well, as the authoring of Ex.PW4/A by the petitioner/appellant herein, both emanating, from hers volition being free, from effect, if any, of hers being surreptitiously administered, some narcotic substance/drug, (h) nor it can be concluded that, the, marriage as stood solemnized inter se the petitioner, and, the respondent, being a sequel, of, any exertion of undue influence, fraud, and, deception, upon, her. 9. Further, thereonwards, the petitioner herein, does not contest, that she instituted in the year 2012, hence, belatedly since the afore marriage occurred inter se her and the respondent also predominantly, since, her authoring affidavit Ex.PW4/A, a complaint, against, the respondent herein, qua hers being blackmailed by the respondent herein, to, solemnise marriage with the latter. However, the effect, if any, of the afore complaint reared, by the petitioner/appellant herein, against the respondent, (i) rather works adversarially, to the petitioner, (ii) and, also undermines, the afore espousal reared, by her, for, hence credence being not meted, vis-a-vis, the afore evidence, rather pronouncing qua hers solemnising marriage, in consonance with Hindu rites and customs with the respondent herein, (iii) as therein, an admission is made by her qua hers solemnizing. a Hindu marriage, with the respondent, in a temple on 27.3.2009. a Hindu marriage, with the respondent, in a temple on 27.3.2009. Even though, she has alleged, that, the respondent rather blackmailing her, for, solemnising the afore marriage, with him, (iv) yet when the more trite and important factum, of hers, being surreptitiously administered drugs, with, an concomitant waning effect, upon, her cognitive faculties, and,when she had reared, the latter espousal in the Hindu marriage petition, thereupon, with inter se contradictions, vis-a-vis, Mark Ry, and, the averments made in the HMA petition, rather renders a conclusion from this Court qua hers prevaricating, the, factum of hers solemnising marriage, with respondent herein, under the influence of some narcotic drug/substance, purportedly, surreptitiously administered, to he,r by the respondent. 10. The above discussion unfolds that the conclusions as arrived by the learned trial Court, are based, upon a proper and mature appreciation, of, the relevant evidence existing, on record. While rendering the findings, the learned trial Court has not excluded germane and apposite material from consideration. 11. For the foregoing reasons, there is no merit in the instant appeal which is accordingly dismissed. The impugned judgment and decree is maintained and affirmed. All pending applications also stand disposed of. Records be sent back forthwith.