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2022 DIGILAW 2258 (BOM)

Mala Kundan Rai v. Rajeev Ramgopal Agarwal

2022-10-12

NITIN JAMDAR, SHARMILA U.DESHMUKH

body2022
JUDGMENT SHARMILA U.DESHMUKH, J. - Rule, returnable forthwith. 2. By consent of parties, Petition is taken up forthwith for hearing. 3. Appellant takes an exception to the judgment and decree dtd. 29/10/2021, passed by the Family Court, Thane, in Petition No.A-192 of 2017, whereby the marriage between the Appellant-wife and the Respondent-husband solemnized on 30/11/2013, was declared as null and void by a decree of nullity with effect from the date of decree. For sake of convenience, the parties are referred as per their status before the Trial Court. 4. Petitioner-husband filed Hindu Marriage Petition No.1342 of 2014 with the Family Court at Allahabad under Ss. 11 and 12(1)(c) of the Hindu Marriage Act, 1955, seeking annulment of the marriage solemnized as per Hindu Vedic Rites between the Petitioner and the Respondent on 30/11/2013. The said Petition was transferred to Family Court, Thane and was numbered as Matrimonial Petition No.A-192 of 2017. The impugned judgment and decree, which is under challenge in the present Appeal was passed by the Family Court, Thane. 5. The Petitioner and Respondent were married on 30/11/2013, according to Hindu Vedic Rites at the residence of the Petitioner at 25 Drummond Road, Prayagraj, Uttar Pradesh. Petitioner seeks annulment of the marriage on the grounds that at the time of their marriage, the Respondent was married to one Ashok Yadav and had a son from the said wedlock and these material facts were suppressed by Respondent. In Marriage Petition, the Petitioner has stated that the Respondent-wife had portrayed herself as an unmarried woman and that the Respondent did not inform Petitioner or any of his relatives that she was married to one Ashok Yadav and from that marriage she had begotten a son called "Yash", born on 10/11/1999. Petitioner became aware of the previous marriage of the Respondent and about the existence of the son of the Respondent after receiving a phone call from said Ashok Yadav on 10/9/2014. Petitioner, thereafter made inquires with the Respondent, who first denied, but when confronted with name of the child, admitted that she was married to Ashok Yadav, but, stated that she had left him. Petitioner also confirmed these facts from the Respondent's sister. On 4/10/2014 Petitioner filed the Marriage Petition seeking annullment of marriage under Ss. 11 and 12(1)(c) of the Hindu Marriage Act. 6. Petitioner also confirmed these facts from the Respondent's sister. On 4/10/2014 Petitioner filed the Marriage Petition seeking annullment of marriage under Ss. 11 and 12(1)(c) of the Hindu Marriage Act. 6. Respondent-wife filed her written statement to the Marriage Petition and opposed the relief sought by the Petitioner. Respondent, in her written statement, stated that she was in a live-in relationship and had a son from that relationship, which had ended approximately 15 years back. Respondent further stated that Petitioner was made aware of the relationship before their marriage, and, Petitioner had met her son prior to their marriage. Respondent further stated that this fact was brought to the notice of the Petitioner by the Respondent and her relatives prior to the marriage. Respondent further stated that she was forcefully removed from the matrimonial house on 7/12/2020, by retaining her Streedhan of Rs.1.00 Crore when Petitioner wanted to get rid of the relationship as the Petitioner was in illicit relationship with one Mrs.Varalakshmi. Respondent sought dismissal of the Petition and return of her Streedhan of Rs.1.00 crore. 7. Evidence in the form of oral and documentary evidence was led by both parties. After considering the evidence on record, Family Court, Thane by the impugned judgment and order declared the marriage as null and void by decree of nullity. 8. Heard Learned Counsels appearing for the parties. 9. The dispute centers around two issues i.e. the marriage between Respondent and the said Ashok Yadav and the suppression by the Respondent of the fact of the prior marriage and the existence of a son from the said wedlock. 10. Learned Counsel for Respondent(Appellant wife) submits that the Petitioner has failed to bring any evidence on record to prove that the Respondent was married to said Ashok Yadav; that the documentary evidence on record only proves that the father of the Respondent's son was Ashok Yadav. The Learned Counsel for Respondent submits that Respondent was in a live in relationship with Ashok Yadav. The Learned Counsel for Respondent further submits that there was no suppression of these facts from Petitioner in as much as the Respondent's profile created on Shaadi.com (Exh-43) shows the Respondent's marital status as "Divorcee-"leaving-in" and affirmative as far as child is concerned. The Learned Counsel further submits that prior to the marriage, Petitioner had met the Respondent's son and had also taken photographs with the Respondent's son. 11. The Learned Counsel further submits that prior to the marriage, Petitioner had met the Respondent's son and had also taken photographs with the Respondent's son. 11. Learned Counsel for Petitioner supports the impugned judgment and decree. Learned Counsel for Petitioner-husband submits that in the OPD/Admission card (Exhibit-20) of the maternity home where the child was born, and in the birth certificate of the Respondent's son (Exhibit-21), the name of the Respondent is Mrs. Mala Ashok Yadav and name of the father is Ashok Yadav. The Learned Counsel for Petitioner submits that the said documents have been admitted by Respondent. The Learned Counsel for Petitioner submits that Respondent's profile on Shaadi.com shows her status as "Divorcee" and while producing the document (Exhibit-43), Respondent forged the document by adding the words "Leaving Relationship", which is admitted by the Respondent in her cross examination. The Learned Counsel submits that the admissions given by the Respondent in her cross examination proves that Respondent had suppressed the fact that she was married to Ashok Yadav and that she had a son from the said wedlock. 12. With the assistance of the Learned Counsels for the parties, we have scrutinized the evidence on record. 13. In the Petition, Petitioner has come with a specific case that prior to their marriage, the Respondent had not informed him about her marriage with Ashok Yadav and that she had a son from the said marriage. Petitioner learnt about the same after he received a phone call from the said Ashok Yadav, who claimed to be husband of the Respondent. Respondent, in her written statement, denied that she was married to Ashok Yadav. However, she admitted that she was in live in relationship with Ashok Yadav which ended 15 years back and also admitted that she had a from the said relationship. Respondent stated that these said facts were brought to the notice of the Petitioner by Respondent and her relatives prior to the marriage. 14. The Petitioner had filed his Affidavit in lieu of evidence and repeated the contents of his Petition. We find from the scrutiny of Petitioner's cross examination, that it is the Respondent's case that entire past history of the Respondent was informed to Petitioner by Respondent's friend "Soumya" prior to the marriage. 14. The Petitioner had filed his Affidavit in lieu of evidence and repeated the contents of his Petition. We find from the scrutiny of Petitioner's cross examination, that it is the Respondent's case that entire past history of the Respondent was informed to Petitioner by Respondent's friend "Soumya" prior to the marriage. It is also Respondent's case in the Petitioner's cross examination, that on 3/2/2014 Respondent had called up the Petitioner to pay the fees of her son and on 10/2/2014, a company had transferred Rs.72, 000.00 to the account of the Respondent. Specific case is put to the Petitioner that Petitioner was not aware at the time of marriage that the Respondent had a son; that Respondent had contacted the Petitioner by taking his number from her sister; that Respondent had told the Petitioner that she is unmarried; that the Petitioner would give monies to the Respondent whenever she was in Bombay and since the Respondent asked for Rs.72, 000.00 the Petitioner transferred the amount to her account and that there was dispute between the Petitioner and the Respondent on the issue that she was married and had a child which was suppressed from the Petitioner. 15. Considering the Petitioner's evidence, we find that the Petitioner's cross examination in fact supports the Petitioner's case that the Petitioner was unaware, at the time of the marriage, that Respondent had a son from her previous marriage and that the Respondent had portrayed herself as an unmarried woman. Petitioner's cross examination reveals that Respondent has taken different stand in her written statement and in the evidence, in as much as, in the written statement she has stated that the Petitioner was informed about the past history of the Respondent by the Respondent herself and her relatives whereas in the cross examination the case of the Respondent is that the Petitioner was informed about the Respondent's past history by her friend "Soumya". 16. A perusal of the Respondent's Affidavit in lieu of evidence shows that the deposition of the Respondent travels beyond her pleadings on the following assertions: (a) That her profile is registered with Shaadi.com at her personal Id and the Petitioner had given her a message for first time on 5/8/2013, after which they met and discussion about marriage took place. A perusal of the Respondent's Affidavit in lieu of evidence shows that the deposition of the Respondent travels beyond her pleadings on the following assertions: (a) That her profile is registered with Shaadi.com at her personal Id and the Petitioner had given her a message for first time on 5/8/2013, after which they met and discussion about marriage took place. (b) That in the month of January and February, 2014 there was a discussion between Petitioner and Respondent on minor son Yash where Respondent requested Petitioner to meet him and give fatherly affection; (b) That the friend of Petitioner had conversation with Respondent regarding her son, and, therefore it is incorrect to state that Petitioner came to know about the son only on 10/9/2014; (c) That there was a transfer of school fee of the son of the Appellant in the sum of Rs.72, 000.00, from the account of the Respondent to the account of the Appellant; (d) That on 26/7/2014 to 28/7/2014, they had stayed in Bombay and had taken photographs alongwith her son Yash. 17. In her cross examination, the Respondent has given glaring admissions that from her sister's profile, she has shown interest in the Petitioner's profile; that she received the Petitioner's number from her sister's mobile after expressing interest ; that she contacted the Petitioner on his mobile on August 2013; that she has stated in her written statement that she had portrayed herself as unmarried woman; that Ashok Yadav is father of her son Yash and in the school admission form of Yash, the address of Ashok Yadav and her address is same address. Respondent also admitted that neither her sister nor her son was present during her marriage at Allahabad, and, that her son was not present for engagement also. 18. As far as the Respondent's profile on Shaadi.com is concerned, the Respondent has admitted in her cross examination that she expressed interest in the Petitioner's profile from her sister's profile. The fact that the contact was initiated by the Respondent and not by the Petitioner assumes significance in the context of her profile on Shaadi.com. Respondent relies upon her profile on Shaadi.com (Exhibit-43) which shows the marital status of Respondent as "Divorcee (Leaving Relationship)" and details of children as "Yes. The fact that the contact was initiated by the Respondent and not by the Petitioner assumes significance in the context of her profile on Shaadi.com. Respondent relies upon her profile on Shaadi.com (Exhibit-43) which shows the marital status of Respondent as "Divorcee (Leaving Relationship)" and details of children as "Yes. Living together." Respondent's case that she contacted the Petitioner by taking his number from her sister supports the Petitioner's case of absence of knowledge, in as much as Petitioner was not aware of her profile on Shaadi.com. Respondent admitted in the cross-examination that in original profile, the words "Leaving Relationship", was not mentioned and she had written those words and then taken a photo copy and same is filed on record in the form of documentary evidence. This act of Respondent amounts to perjury, however, we are not inclined to go into this aspect as we find that the Respondent's profile on Shaadi.com does not assist her case. 19. The documentary evidence on record i.e. OPD/Admission Card (Exhibit-20), Birth Certificate of Yash (Exhibit-21), which are admitted by Respondent, shows the Respondent's name as the mother and name of Ashok Yadav as the father of the child. In the application form for admission to U.S. Ostwal English Academy of the minor son Yash, the name of the father is shown as Ashok Yadav, and name of the mother is shown as Mala Ashok Yadav, and the residential address give as, J 57, 101 Navgarh Society, Poonam Sagar Complex, Mira Road (East), of the Respondent as well as the said Ashok Yadav. The documentary evidence coupled with the Respondent's admission proves that the said Ashok Yadav is the father of the Respondent's son. 20. As regards the nature of relationship between Respondent and said Ashok Yadav is concerned, the contention of Respondent is that there was live-in relationship and as per Petitioner, the Respondent was married to Ashok Yadav. In that respect, the provisions of Sec. 11 of the Hindu Marriage Act which deals with void marriages will have to be considered: "11. Void Marriages- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (I), (iv), and (v) of Sec. 5. Void Marriages- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (I), (iv), and (v) of Sec. 5. Sec. 5 of the Hindu Marriage Act, 1955 sets out the conditions for a Hindu marriage . In the present case we are concerned with sub sec. (i)of Sec. 5: 5. Conditions for a Hindu Marriage-A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely- (I) neither party has a spouse living at the time of marriage." 21. We have perused the documentary evidence on record. The documentary evidence in form of OPD/Admission Card (Exhibit-20), Birth Certificate of Yash (Exhibit-21), which is admitted by Respondent, shows Respondent as the mother and Ashok Yadav as the father. In the application form for admission to U.S. Ostwal English Academy of the minor son Yash, the name of the father is shown Ashok Yadav, and name of the mother is shown as Mala Ashok Yadav, and the residential address give as, J 57, 101 Navgarh Society, Poonam Sagar Complex, Mira Road (East), of the Respondent as well as the said Ashok Yadav. We find from the evidence on record, the fact that at the time of their marriage on 30/11/2013, there was already a subsisting marriage between the Respondent and said Ashok Yadav, is not proved. Considering the aforesaid, it is not necessary to decide the issue of nature of relationship between the Respondent and Ashok Yadav. 22. The Petitioner has sought annulment of marriage on two grounds i.e. existence of spouse at the time of his marriage with the Respondent under Sec. 11 and under Sec. 12 (1)(c) on the ground that the Respondent has suppressed material facts. On the aspect of suppression of facts, it is necessary to refer to Sec. 12 (1) (c) of Hindu Marriage Act which deals with voidable marriage: "12 Voidable marriages- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds namely- (a)..... (b).... (b).... (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Sec. 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent or (d)..... 23. Sub Sec. (c) of Sec. 12(1) of Hindu Marriage Act renders the marriage voidable and liable to be annulled by a decree of nullity where the consent of the Petitioner was obtained by fraud as to any material fact or circumstance concerning the respondent. 24. We find that the Respondent has admitted in her written statement in paragraph 4 that she had portrayed herself as unmarried woman to the Petitioner. Respondent relies upon her profile at Shaadi.com in support of her case that there is no suppression since the alliance was initiated through the said profile. Respondent's admission in her cross examination that she had expressed interest in Petitioner's profile through her sister's profile and had contacted the Petitioner by taking his number from her sister supports Petitioner's case that he was not aware of her profile on Shaadi.com. Respondent has admitted that neither her sister nor her son was present during her marriage at Allahabad, and, that her son was not present for engagement also. Pertinently, the Respondent has not explained the reason of absence of her son. In circumstances, we find the only plausible explanation can be, that the Respondent had not informed the Petitioner about her son. 25. As far as the issue of claim of the return of her Streedhan is concerned, no submissions have been advanced before us. A perusal of the written statement filed by Respondent does not show that any counter claim has been filed by the Respondent to return of her Streedhan. We find that there is no evidence on record in support of the case that the Appellant is entitled to a return of Streedhan. Pleading on this issue are very vague and insufficient, and has been rightly disbelieved by the Family Court. 26. We find that there is no evidence on record in support of the case that the Appellant is entitled to a return of Streedhan. Pleading on this issue are very vague and insufficient, and has been rightly disbelieved by the Family Court. 26. Considering the evidence on record in light of the statutory provisions of Hindu Marriage Act, 1955 , we find that the Petitioner has proved that the Respondent had suppressed material facts from the Petitioner at the time of the marriage and the consent of Petitioner was obtained by fraud. The evidence on record does not prove that the Respondent was married to Ashok Yadav and the said marriage was subsisting at the time of the marriage of the Petitioner and Respondent. Hence the marriage solemnised between Petitioner and the Respondent on 30/11/2013, is voidable marriage and not a null and void marriage. 27. Considering the aforesaid, we modify the judgment and decree passed by the Family Court, Thane, in Petition No.A-192 of 2017, and pass the following order: :: O R D E R :: (i) The marriage between the Appellant and Respondent solemnized on 30/11/2013, is annulled by a decree of nullity under provisions of Sec. 12 of Hindu Marriage Act, 1955; (ii) The judgment and decree dtd. 29/10/2021, passed by the Family Court, Thane in Petition No. A-192/2017, is accordingly, partly modified; (iii) Family Court Appeal Stamp No.4839 of 2022, is disposed of accordingly; (iv) Interim Application Stamp No.4840 of 2022, is disposed of.