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2022 DIGILAW 330 (CHH)

Kishor Kumar S/o Shri. Vishnu Singh Verma v. Maya Devi W/o Shri Kishor Kumar

2022-07-26

DEEPAK KUMAR TIWARI, GOUTAM BHADURI

body2022
JUDGMENT : Deepak Kumar Tiwari, J. 1. This Appeal has been preferred under Section 19(1) of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 against the judgment dated 12.2.2016 passed by the 3rd Additional Principal Judge, Family Court, Durg District Durg in Civil Suit No.226- A/2014, whereby the suit of the respondent filed under Section 9 of the Hindu Marriage Act, 1955 for Restitution of Conjugal Rights has been decreed. 2. Indisputably, the marriage between the appellant and the respondent was solemnized on 5.5.2001 at Village Junwani, Tehsil Gunderdehi, District Durg and both the parties are living separately. The respondent herein had filed a civil suit for Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act, 1955, on 19.6.2003 stating that marriage between the appellant and the respondent was solemnized according to Hindu custom, and at the time of marriage, the appellant and the respondents were Hindu. The respondent has already passed B.Sc. 2nd Year Exam and on the insistence of the appellant, the respondent agreed to complete her graduation as a regular student, and for the said purpose, the appellant left the respondent to her parental house after one month of the marriage. The respondent appeared in the B.Sc. Final Year Exam on 27.4.2002. Thereafter on 6.5.2002, Vidaai ceremony (Bride’s Farewell) was organized and the respondent was sent with the appellant. A letter was sent by the unknown person by post to her in-laws’ house raising false allegations on her character, so that a doubt could be created in the mind of the appellant. Likewise, similar letter was sent to the respondent’s parents. As a result, the appellant refused to stay with the respondent and left the respondent to her parents’ house. Earlier also, the appellant had received an anonymous letter doubting his wife’s (respondent) character and thereafter the appellant and the respondent did not believe the contents of the said anonymous letter and the appellant assured the respondent about the said letter that there was no doubt in his mind. On 6.5.2002, the appellant brought the respondent to his village. However, again on 8.5.2002 and 10.5.2002, the appellant received anonymous letters and refused to live with the respondent. In this way, the respondent, without any reason, is being ignored by the appellant and he refused to live with the respondent. 3. On 6.5.2002, the appellant brought the respondent to his village. However, again on 8.5.2002 and 10.5.2002, the appellant received anonymous letters and refused to live with the respondent. In this way, the respondent, without any reason, is being ignored by the appellant and he refused to live with the respondent. 3. The appellant had filed a written statement admitting the marriage with the respondent on 5.5.2001. The appellant denied the rest of the plaint averments. It was also pleaded that the respondent has converted into Islam religion and had become Shabnam Nisha. She had married with one Saiyyad Zuber, therefore, she is no longer a wife of the appellant. When the appellant came to know that the respondent has converted into Muslim religion and married with the said Saiyyad Zuber, the appellant started living separate. On 6.5.2002, the appellant was not knowing this fact and, therefore, he brought her to his home. The respondent and her father deliberately and fraudulently suppressed the above facts. So the respondent is not entitled for Restitution of Conjugal Rights. 4. On the basis of averments of the parties, issues were framed and opportunity of hearing was afforded to the parties. Respondent Smt. Maya Devi has examined herself as AW-1, her father Kamal Prasad Deshmukh as AW-2, Mohd. Tauhid Alam Ashrafi as AW-3 & Ramesh Kumar Deshmukh as AW-4 whereas the appellant Kishor Kumar has examined himself as NAW-1, Saiyyed Zuber as NAW-2, Kumari Sunanda Dhenge as NAW-3, a handwriting expert; Shri Vishnu Singh Verma as NAW-4, father of the appellant and Shri Gulab Ram Deshmukh as NAW-5, executive member of Dilliwar Kurmi Kshatriya Samaj. By the impugned judgment, suit of the respondent was allowed. 5. We have heard learned counsel for the parties at length and perused the impugned judgment as also the record of the Court below. 6. Learned counsel for the appellant would submit that before the Marriage Officer at Durg, in Marriage Case No.157/01 under the Special Marriage Act, 1954, the respondent and Saiyyed Zuber (NAW- 2) have filed their affidavits (Ex.-D/14 & D/15), also annexed photograph (Ex.-D/11) and their mark sheets (Ex.-D/12 & D/13). After conducting statutory enquiry, the Marriage Officer has issued certificate of marriage which has been solemnized on 20th December, 2001 between the respondent Smt. Maya Devi @ Shabnam Nisha and Saiyyed Zuber (NAW-2) and granted certificate on 26th December, 2001. After conducting statutory enquiry, the Marriage Officer has issued certificate of marriage which has been solemnized on 20th December, 2001 between the respondent Smt. Maya Devi @ Shabnam Nisha and Saiyyed Zuber (NAW-2) and granted certificate on 26th December, 2001. Such certificate shall be deemed to be a conclusive evidence according to Section 13 of the Special Marriage Act, 1954, of the fact that the marriage under the said Act has been solemnized and that all formalities have been done. He further submits that the appellant has also proved Khulanama Talaq (Ex.-D/18), which was duly accepted by Saiyyed Zuber (NAW-2). So, considering the evidence on record, the learned trial Court has not appreciated the evidence in its proper perspective. Conduct of the wife is sufficient for the appellant to withdraw himself from the society. So learned counsel prays to allow the Appeal and set aside the impugned judgment and decree. 7. On the other hand, learned counsel for the respondent submits that the respondent has never converted herself into Islam community. The authenticity of marriage certificate has also been challenged. Some unknown persons have intentionally sent anonymous letters (Ex.-D/3 to D/6) to the appellant condemning her character. Even such letters were sent prior to the marriage between the parties. Initially the appellant has not given any weightage to such letters, but after the marriage, when he continued to receive some other letters, he doubted the character of the respondent and refused to discharge the marital obligations. She has not married with said Saiyyed Zuber. So, learned counsel for the respondents supported the impugned judgment, which is based on proper appreciation of evidence and does not call for any interference. 8. In the matter of Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 , it was observed that in India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself. 9. Under Section 9 of the Hindu Marriage Act 1955, the Court on being satisfied that either the husband or wife has without reasonable excuse withdrawn from the society of the aggrieved party can pass a decree for restitution of conjugal rights. Section 9 of the Hindu Marriage Act, 1955 reads thus : “9. 9. Under Section 9 of the Hindu Marriage Act 1955, the Court on being satisfied that either the husband or wife has without reasonable excuse withdrawn from the society of the aggrieved party can pass a decree for restitution of conjugal rights. Section 9 of the Hindu Marriage Act, 1955 reads thus : “9. Restitution of conjugal rights.—When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. [Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]” 10. In the matter of Peddigari Annapurnamma v/s Peddigari Appa Rao, AIR 1963 AP 312 it was explained that ‘reasonable excuse’ synonymous with any ground which could be the foundation for a petition for judicial separation or for nullity of marriage or for divorce. 11. In view of the above backdrop, reverting back to the facts of the present case, if we examine as to whether there was any justification for the appellant-husband for living apart or withdrawing from the society of the respondent, we are of the view that burden is on the appellant to discharge the same. 12. Appellant Kishore Kumar (NAW-1) deposed that after solemnization of the marriage on 5.5.2001, the respondent-wife had stayed only for one month in the matrimonial house and thereafter to complete her studies (B.Sc. Final Year), she had gone to her parental house and resided there for about one year. After completion of her examination, he has brought the respondent to his house. He further stated that he has received several letters (Ex.-D/3 to D/6). To find out the authenticity of such letters, he had gone to the Collector Office and obtained certified copy of the marriage certificate, as the respondent had performed marriage with Saiyyed Zuber (NAW-2) and he has also produced marriage certificate (Ex.-D/1) along with annexures, photograph annexed with the petition. 13. To find out the authenticity of such letters, he had gone to the Collector Office and obtained certified copy of the marriage certificate, as the respondent had performed marriage with Saiyyed Zuber (NAW-2) and he has also produced marriage certificate (Ex.-D/1) along with annexures, photograph annexed with the petition. 13. The appellant further stated that after coming to know about the said fact, they called a social meeting and in such meeting, the respondent and her father Kamal Prasad Deshmukh (AW-2) admitted about the marriage with Saiyyed Zuber, and the members of the caste community present in the meeting advised the appellant and the respondent to live separate. 14. Gulab Ram Deshmukh (NAW-5), who is the Executive Member of Dilliwar Kurmi Kshatriya Samaj, also corroborated the version of the appellant and stated that in the society meeting, the respondent and her father were called and both of them have admitted that the respondent has married with Muslim Man after conversion in Islam Religion. Father of the appellant has also stated in the similar terms. 15. The respondent (AW-1) in her cross-examination stated that Saiyyed Zuber (NAW-2) has given tuition to her from Class-10th to B.Sc. (Final Year) i.e. for about 5 years. She denied that during the said period love relations were developed. She specifically denies to the proceeding before the Marriage Officer and deposes that she never appeared before such Officer. But during cross-examination when she was confronted with the photographs of the marriage proceeding, firstly, she denies and thereafter corrected herself to state that the photograph was not her photograph, but it was look-alike her. However, father of the respondent has categorically admitted in para-3 of the cross-examination that the photograph affixed in the record of the marriage registration was of his daughter. He also admits that he has made a complaint against the appellant under Section 498-A of the IPC and for dowry case, in which counseling was held and in such proceeding, Saiyyed Zuber (NAW-2) had also participated, though he stated that during such proceeding, Saiyyed Zuber did not admit about the fact that he has solemnized marriage with the respondent. But in his cross-examination, he significantly stated in para-4 that after living for about 6 months, Saiyyed Zuber fled away. He admits that he has not taken any action against Saiyyed Zuber. But in his cross-examination, he significantly stated in para-4 that after living for about 6 months, Saiyyed Zuber fled away. He admits that he has not taken any action against Saiyyed Zuber. He also admits that on application filed under Section 498-A of the IPC against the appellant, the police has not proceeded any further. 16. After scrutinizing the evidence of the respondent and her father, it clearly appears that there is some connection between the respondent and Saiyyed Zuber. Saiyyed Zuber (NAW-2) admits his marriage with the respondent on 20.11.2001 at Camp Bhilai and also produced Nikahnama (Ex.-D/9). He further stated that prior to marriage with the respondent he was not aware that the respondent was already married. He further stated that the respondent has persuaded him for registration of marriage, therefore, he got the marriage registered and completed the formalities, and the marriage certificate (Ex.-D/10) was also issued in their favour. He stated that after the Nikah, the respondent has resided with him only for 5 days and thereafter she had gone to her parental house. He further deposed that on 18.7.2002 with the consent of respondent Smt. Maya Devi @ Shabnam Nisha, a Talaknama in the form of Khulanama was executed between them. 17. From the aforesaid evidence, it is explicit that after marriage of the appellant with the respondent, certain anonymous letters were received and the same were verified and it came to the notice of the appellant’s family that the respondent had performed another marriage in a secret manner with Saiyyed Zuber. Thereafter Saiyyed Zuber also executed Talaknama (Ex.-D/18). Therefore, in the above circumstances, the appellant wanted to perform second marriage. Hence he called a social meeting and in the said meeting, the fact regarding relations of the respondent with Saiyyed Zuber was placed. Thereafter the father of the respondent has also made a police complaint in which the police has not taken any action against the appellant. The appellant has proved the marriage certificate (Ex.-D/10), which fact was also acknowledged by Saiyyed Zuber (NAW-2). So, the appellant has been able to bring on record from various instances and circumstances to establish the fact of his living apart from the respondent. 18. It is pertinent to mention that the marriage certificate issued under Section 13 of the Special Marriage Act, 1954 is a conclusive piece of evidence. So, the appellant has been able to bring on record from various instances and circumstances to establish the fact of his living apart from the respondent. 18. It is pertinent to mention that the marriage certificate issued under Section 13 of the Special Marriage Act, 1954 is a conclusive piece of evidence. In the matter of Smt. Somawanti and others Vs. The State of Punjab and Others, AIR 1963 SC 151 , the Constitution Bench has made it clear that there is no difference if the statue uses the word as conclusive evidence in stead of conclusive proof and the relevant paras 18 & 19 are as under:- “18. A distinction is sought to be made between “conclusive proof” and “conclusive evidence” and it is contended that where a law declares that a fact shall be conclusive proof of another, the court is precluded from considering other evidence once such fact is established. Therefore, where the law makes a fact conclusive proof of another the fact stands proved and the court must proceed on that basis. But, the argument proceeds, where the law does not go that far and makes a fact only “conclusive evidence” as to the existence of another fact, other evidence as to the existence of the other fact is not shut out. In support of the argument reliance is placed on Section 4 of the Evidence Act which in its third paragraph defines “conclusive proof” as follows: “When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.” This paragraph thus provides that further evidence is barred where, under the Evidence Act, one fact is regarded as proof of another. But it says nothing about what other laws may provide. There are a number of laws which make certain facts conclusive evidence of other facts : (see Companies Act, 1956, Section 132; the Indian Succession Act, 1925, Section 381; Christian Marriages Act, 1872, Section 61; Madras Revenue Act, 1869, Section 38; Oaths Act, 1873, Section 11). The question is whether such provision also bars other evidence after that which is conclusive evidence is produced. 19. The object of adducing evidence is to prove a fact. The question is whether such provision also bars other evidence after that which is conclusive evidence is produced. 19. The object of adducing evidence is to prove a fact. The Evidence Act deals with the question as to what kind of evidence is permissible to be adduced for that purpose and states in Section 3 when a fact is said to be proved. That section reads thus: “‘Evidence’ means and includes— (1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the court; such documents are called documentary evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” Since evidence means and includes all statements which the court permits or requires to be made, when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact it implies that fact can be proved either by that evidence or by some other evidence which the court permits or requires to be advanced. Where such other evidence is adduced it would be open to the court to consider whether, upon that evidence, the fact exists or not. Where, on the other hand, evidence which is made conclusive is adduced, the court has no option but to hold that the fact exists. If that were not so, it would be meaningless to call a particular piece of evidence as conclusive evidence. Once the law says that certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. In substance, therefore, there is no difference between conclusive evidence and conclusive proof. Statutes may use the expression “conclusive proof” where the object is to make a fact non-justiciable. But the legislature may use some other expression such as “conclusive evidence” for achieving the same result. In substance, therefore, there is no difference between conclusive evidence and conclusive proof. Statutes may use the expression “conclusive proof” where the object is to make a fact non-justiciable. But the legislature may use some other expression such as “conclusive evidence” for achieving the same result. There is thus no difference between the effect of the expression “conclusive evidence” from that of “conclusive proof”, the aim of both being to give finality to the establishment of the existence of a fact from the proof of another.” 19. In the matter of Lily Thomas v. Union of India, (2000) 6 SCC 224 , the Hon’ble Supreme Court has guided the principles that a second marriage, during the lifetime of the spouse, would be void under Sections 11 and 17 of the Hindu Marriage Act 1955, besides being an offence and the relevant paras 25, 30 & 32 are as under : “25. It would thus be seen that the court would take cognizance of an offence punishable under Chapter XX of the Code only upon a complaint made by any of the persons specified in this section. According to clause (c) of the proviso to sub-section (1), a complaint for the offence under Section 494 or 495 can be made by the wife or on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister. Such complaint may also be filed, with the leave of the court, by any other person related to the wife by blood, marriage or adoption. If a Hindu wife files a complaint for the offence under Section 494 on the ground that during the subsistence of the marriage, her husband had married a second wife under some other religion after converting to that religion, the offence of bigamy pleaded by her would have to be investigated and tried in accordance with the provisions of the Hindu Marriage Act. It is under this Act that it has to be seen whether the husband, who has married a second time, has committed the offence of bigamy or not. It is under this Act that it has to be seen whether the husband, who has married a second time, has committed the offence of bigamy or not. Since under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act, any marriage solemnised by the husband during the subsistence of that marriage, in spite of his conversion to another religion, would be an offence triable under Section 17 of the Hindu Marriage Act read with Section 494 IPC. Since taking of cognizance of the offence under Section 494 is limited to the complaints made by the persons specified in Section 198 of the Code of Criminal Procedure, it is obvious that the person making the complaint would have to be decided in terms of the personal law applicable to the complainant and the respondent (accused) as mere conversion does not dissolve the marriage automatically and they continue to be “husband and wife”. 30. Now, conversion or apostasy does not automatically dissolve a marriage already solemnised under the Hindu Marriage Act. It only provides a ground for divorce under Section 13. The relevant portion of Section 13 provides as under: “13. (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (i)*** (ii) has ceased to be a Hindu by conversion to another religion; or (iii)- (ix)***” 32. Change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground for judicial separation under Section 10 of the Hindu Marriage Act. Hindu law does not recognise bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for “monogamy”. A second marriage, during the lifetime of the spouse, would be void under Sections 11 and 17, besides being an offence.” 20. Hindu law does not recognise bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for “monogamy”. A second marriage, during the lifetime of the spouse, would be void under Sections 11 and 17, besides being an offence.” 20. Even Section 43 of the Special Marriage Act stipulates that a person already married under any law contracts second marriage under the Special Marriage Act, 1954 shall be deemed to have committed an offence under Section 494 or Section 495 of the IPC and the marriage so solemnized shall be void. 21. So, in view of the aforesaid appreciation, this Court finds that conduct of the respondent-wife is sufficient ground for withdrawal from the society by the appellant and the appellant has successfully establishes his defence in the suit because there is more than reasonable excuses in this case for the appellant to stay away with his wife. 22. For the foregoing, this Court is of the opinion that the findings recorded by the Court below are perverse and not sustainable, and the same are liable to be set aside. 23. In the result, the Appeal is allowed and the impugned judgment is set aside. The petition/suit filed by the respondent-wife under Section 9 of the Hindu Marriage Act, 1955 is hereby dismissed. 24. The parties shall bear their own cost. 25. A decree be drawn accordingly.