HC: HM Act S 9-Plaintiff failed to produce best evidence to prove marriage – adverse inference drawn
HIGH COURT OF JUDICATURE AT ALLAHABAD
FIRST APPEAL NO. 522 OF 1998
Smt. Surekha and another
\ Jitendra alias Deshpal.
Hon’ble Yatindra Singh,J.
( Delivered by Hon’ble R.K. Rastogi,J.)
1. This is an appeal against judgment and decree dated 5.10.1998 passed by Sri Chandrabhan, Judge Family Court, Meerut in matrimonial suit no. 495 of 1996, Jitendra alias Deshpal Vs. Smt. Surekha and another, decreeing the suit for restitution of conjugal rights.
2. The facts giving rise to this appeal are that the plaintiff respondent filed the aforesaid suit against the defendants appellants under section 9 of the Hindu Marriage Act with these allegations that the marriage of respondent Jitendra alias Deshpal had taken place with defendant appellant no. 1 Surekha on 17.6.1995 according to Hindu religion in presence of a large number of persons. Photographs of the marriage ceremony were also taken. Thereafter Smt. Surekha went to the plaintiff’s house at village Sarurpur Kalan and resided with him for three to four days, thereafter she went back to her parents’ house when her brother came for her Vida. There after she did not come to the plaintiff”s house inspite of his repeated efforts and she had deserted the plaintiff without any reasonable and lawful excuse. She had also taken with her the ornaments which were given to her by the plaintiff. Then the plaintiff had suspicion that her parents might have forcibly detained her and might have been forcing her to lead adulterous life with Gulvir, defendant no.2. Then he moved an application before the Sub Divisional Magistrate, Baghpat and got Surekha summoned
through police. Smt. Surekha appeared and denied her marriage with the plaintiff, Jitendra. Her brothers, uncles and maternal grand mother also gave the same statement. Then the authorities instead of giving her in the custody of the plaintiff , sent her back to her parents’ house. Then the plaintiff filed this suit for restitution of conjugal rights.
3. The defendant appellants no. 1 and 2 filed a joint written statement in which they denied the allegation of marriage of Surekha with the plaintiff Jitendra. It was further stated that photographs filed by the plaintiff are false and fictitious. No ornaments were given by the plaintiff to Surekha. Actually the marriage of Surekha had taken place with Gulvir, defendant no.2 and both of them are residing as husband and wife. Since no marriage had taken place between Jitendra and Surekha, Jitendra was not entitled to the decree of restitution of conjugal rights and his suit was liable to be dismissed.
4. Following issues were framed by the Judge, Family Court in the aforesaid suit:
(1) Whether the defendant no.1 is legally wedded wife of the plaintiff and whether she had deserted the plaintiff without any lawful excuse?
5. The learned Judge, Family Court held on issue no. 1 that it was sufficiently proved from the evidence on record that the marriage of the plaintiff had taken place with defendant no.1 Smt. Surekha and she is legally wedded wife of the plaintiff and she had deserted the plaintiff without any lawful excuse. He, therefore, held on issue no.2 that the plaintiff was entitled to the relief of restitution of conjugal rights and so he decreed the suit. Aggrieved with that judgment and decree, the defendants filed this appeal.
6. We have heard learned counsel for the parties and perused the record.
7. The first and foremost question to be determined in the present case is whether actually any marriage had taken place between the plaintiff and defendant no.1. The defendant no.1 Surekha examined herself as D.W.1 and she stated that her marriage never took place with the plaintiff Jitendra and actually her marriage had taken place with Gulvir. Her statement was recorded on 9.9.1998. She stated in her statement that she had also given birth to a daughter, who is the daughter of Gulvir. Gulvir also examined himself as D.W.2 and he stated that his marriage had taken place with Surekha and out of this wedlock a daughter was born to Surekha. The defendant also produced Karan Singh as D.W.3. His age was 76 years on 9.9.1998 when his statement was recorded. He had been Pradhan of the village from 1972 to 1982. He had passed B.Sc. (Agriculture ) Examination in the year 1947. He stated that he has been personally acquainted with Satpal and his daughter Surekha and the marriage of Surekha had taken place with Gulvir resident of village Sisauli and that her marriage had not taken place with any one else.
8. The plaintiff Jitendra examined himself as P.W.1, Kuldip as P.W.2, Bijendra Kumar as P.W.3 and Rameshwar as P.W.4 to prove his marriage with Surekha. Rameshwar P.W. 4 has stated that he is Pandit and had performed the marriage of Surekha with the plaintiff Jitendra. Bijendra Kumar P.W.3 is the photographer who had taken the photographs of their so called marriage. P.W.2 Kuldip is the driver of Maruti Van who had allegedly taken the marriage party of Jitendra to the place of marriage. The plaintiff has also filed 24 Photographs to prove the marriage tie between him and Surekha. However, out of these 24 photographs there is not even a single joint photograph of Jitendra and Surekha. There are some photographs of a lady along with Jitendra but the face of that lady is completely covered in all the photographs and it cannot be said that these photographs of the lady with veiled face are of Surekha.
9. It has been stated by Jitendra P.W.1 that according to the local custom the newly married bride does not open her face at the time of marriage and remains Parda Nashin and she opens her face after going to her in-laws’ house before younger members of the family. The above statement of Jitendra does not inspire confidence. Brides observe Parda with the elder members in the family of her husband but they do not observe any Parda at the house of their parents where they have resided since the time of their birth and so this allegation that Surekha did not open her face at the time of her marriage even at her parents’ house does not appear to be believable. Taxi Driver Kuldip P.W.2 has stated in his very examination-in-chief that at the time of Vida from the house of the parents of Surekha she had come upto the Maruti Van with open face. According to the statement of P.W.1 Jitendra the bride opens her face at the house of her husband before junior members of the family. Photographer Bijendra Kumar P.W.3 has stated that he had taken joint photographs of Jitendra and Surekha in village Sarurpur at the house of Jitendra. In those photographs the face of Surekha must have been open but no such joint photograph of Jitendra and Surekha with unveiled face has been filed. Non production of any such photograph when they had been taken at the house of Jitendra in village Sarurpur creates serious doubts regarding the allegation of marriage of Surekha with Jitendra because the general practice and custom is that after the marriage bride and bridegroom pose for romantic photographs infront of the photographer at their residence.
10. According to the statement of Jitendra P.W.1 father, mother, uncle, aunt, grand father, grand mother, sisters and others relations of Surekha were present at the time of her marriage with Jitendra, but it is to be seen that the father of Surekha, namely, Satpal did not perform Kanyadan of Surekha, and as per the evidence produced from the side of the plaintiff respondent, Kanyadan was done by Khajan, grand-father of Surekha. It is again not clear that when Satpal, father of Surekha was alive and was present in the marriage ceremony, as per statement of Jitendra P.W.1, why he did not perform Kanyadan ceremony of Surekha? P.W. 4 Pandit Rameshwar has stated that he does not know when father of Surekha had died, though he resides in the same village where parents of Surekha reside.
11. It is also to be seen that according to the statement of Kuldip P.W.2 he had taken Barat in Maruti Van no. DBB 820 owned by Yatindra of village Sarurpur. He has, however, admitted that it was a private vehicle and it was not registered as taxi and there was no permit to ply it as a taxi. Even then it was plied as a taxi and fare of Rs.500/- was charged for carrying the Barat.
12. All the above facts and circumstances go to show that the plaintiff had utterly failed to prove his marriage with Surekha. In this connection, it is to be seen that as per the statement of D.W.3 Karan Singh, marriage of the cousin sister of Surekha had taken place with a person residing in the village of the plaintiff Jitendra. Jitendra might have attended that marriage ceremony and he might have liked Surekha for marriage in that ceremony, but his proposal might not have been accepted by Surekha and her parents, and then he with a view to obtain Surekha filed this suit against her with false allegations of marriage producing some photographs which might had been taken at the time of marriage of that cousin sister of Surekha. 13. It is also to be seen that as per the allegations of the plaintiff his marriage with Surekha had taken place on 17.6.1995 and she resided at the house of Jitendra for 3 or 4 days only after the marriage and thereafter she came to her parents’ house and she did not return back to the plaintiff’s house and then he filed the suit for restitution of conjugal rights in the year 1996 which was decreed in the year 1998. A period of more than ten years has elapsed since June, 1995 when Jitendra and Surekha allegedly resided together for 3 or 4 days only and they have not resided together thereafter. On the other hand Surekha and Gulvir, her so called husband, are residing together and two issues have also been born to them. In this view of the matter, when Surekha is willingly residing with Gulvir and with her children born out of her relations with Gulvir, there is no justification for maintaining the above decree of restitution of conjugal rights in favour of Jitendra passed by the learned Judge, Family Court against Surekha, when he has utterly failed to prove his marriage with Surekha.
14. The appeal, therefore, deserves to be allowed and the judgment and decree passed by the learned Judge, Family Court are liable to be set aside and the plaintiff’s suit for restitution of conjugal rights against the defendants appellant no. 1 deserves to be dismissed.
15. The appeal is allowed. The judgment and decree passed by the learned Judge, Family Court, Meerut are set aside and the plaintiff’s suit for restitution of conjugal rights against the defendant no.1 Surekha is dismissed with costs throughout.