10 HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. ^F^ APPELLANT: RESPONDENT: First Appeal (M) No.44 of 2008 Smt. Maya Devi Versys Kishore Verma JUDGMENT FOR CONSIDERATION Sd/- T.P. Sharma Judge HON'BLE MR. JUSTICE R.N. CHANDRAKAR ^) Sd/- R.N. Chandrakar Judge Post for pronouncement of order on ^ ^ October, 2009 Sd/- AP^ HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. First Appeal (IVI) No.44 of 2008 APPELLANT/: (Applicant before the Family Judge) RESPdNDENT/: (Non-applicant before the FamiIyJudge) Smt. Maya Devi, W/o Shri Kishore Kumar, aged about 23 years, R/o Qtr.No. 15C, Road No.29, Bhilai Nagar,Tahsil & Distt. Durg (C.G.) Versus Kishore Verma, S/o Vishnu Singh Verma, aged about 31 years, R/o Village Sursa bandha, Thana Rajim, Tahsil Rajim, Distt. Raipur (C.G.) {Appeal under Section 19 (1) ofthe Famity CourtsAct} Present: Mr. Jitendra Gupta with Mr. Rishi Rahul Soni, counsel for the appellant. Mr. L.C. Dash, counsel forthe respondent. ORDER ( -2.3 October, 2009) The followina order ofthe Court was oassed bv T.P. Sharma. J: - 1. This appeat under Section 19 (1)of the Family Courts Act is directed against the judgment & decree dated 30-1-2008 passed by the 2nd Additional Principal Judge, Family Court, Durg in Civil Suit No. 121 A/07, whereby & whereunder learned Additional Principal Judge, Family Court has dismissed the petition for restitution of conjugal rights filed by the appellant herein under Section 9 ofthe Hindu Marriage Act, 1955. 2. Judgment is challenged on the ground that learned Additional Principal Judge, Family Court has erred in holding that the appellant has converted herself into Islam and married some Muslim person namely, Syed Zuber, and thereby committed illegality. •MB| QL<I jepun eiqjssod IQU Sl 9|BLU9^-9|BLU l Lui|sn|/\| ^ npuiH ueeMisq siqBu |e6nfuoo ^o uoiin^sey 'jeqnz peAs | L|I!/V\ iue||9dde SLIVO 96eujeLu 01 6up|9j SL|dej6oioL|d p uoissessod u! si luopuodsej eqi •pojeisiSsj 96Bujeuj jsq \oG pue 6jna 'jeoi^o 9Beuje|/\| 9L|i ejo^oq pejeedde SBLI jiesjeq iue||9dde 9^1 •9JiU9Q esjApy AijLuej eqip esiApe eqi uo ijodsj e^ uMejpq^Mseq 8L|S inq '"o'd'l QLJUO V8617 uoipes jepun eiqeqsiund eous^o sqi jo^ luepuodsaj eqi isuieSe yodej pe6po| SBL^ iue||8dde eqi •suo!ie6i|qo leiueuj e^ eejeqosip 01 pesnpj luepuodssj eq} 'iuepuodsej eq^ p 9Bp9|MOU>| eqi 01 GLueo spej. eqi ueqM pue 'jaqnz peAg peujeLU pue Lue|s| Q}U\ ^©sjsqpepsAuoo seL| eqs 'iAea eAe|/\| iou pue eqsjN tueuqeqs si iue||8dde eqi jo QLUBU IBLII p9pee|d A||eoyp9ds pue suone68||e esjeApe sq} peiuop seq luepuodssj i eqi •^ •MO|9q ynoo Q{\} ejo^eq iue||9dde aqi Aq p9|y seM s^qBu |e6nfuoo p uoiini^ssj JQJ uoiiipd 'spe; pjesejo^e eqi p siseq eqi UQ "UJIM LIIIM iue||9dde eqi d98>| 0} Apeej iou si luepuodsej eqi i-Luiq q^iM >|oeq jeq Q>|BI 01 pesnjej pue esnoq |eiusjed joq 01 iue||8dde 941 }\QO} luepuodsej eqi 'AIIBUIJ 'iue||8dde 9L|} p jepejeLjo eqi 6uiuLU9puoo SJ8^8| P8AIQ09J OS|B SBq lU8pUOdS9J Q^} 'J9i|je3 'suoiieBiiqo IBIUBLU eBjeqosip o} pesn luepuodssj eqi •iue||8dde 8L|i p jepejeqo eqi uo uo!ie69||e es|e^ 6ui||9A9| luepuodsej eq^ 0} sj9»9| eiuos ^ues uosjed UMOU^Un 8LUOS 'GLUjl 8LUOS J8UV "8J!1 |BlUeLU pQlJBlS Asqi QJ9L|M esno^ siq 01 iue||8dde QL|I ^ooi luepuodsej QLII pue peBuejje se/w uoipun^ lepig e 'suoiieuituexe jeq J9yy "300Z -'soA eqi. ui |euy 'os'a p9!pnis 8L|s 9j9L|/v\ ssipnis joqijnj jo^ esnoL) leujeieuj jeq 01 IUQM iue||8dde eqi '^uepuodsej e^ p eoiApe eqi uo 'eBeujeuj j9Lj p ^UOLU euo jeyy "©snods peujeuj npuiH QJSM luepuodsej eqi ^ iue||8dde 8L|i ieqi eje 'sejyed Q{\} p sBuipe8|d eq^ 01 Suipjoooe 'ieedde SILII 01 esu BujAiB spe^ jeug •g ^^^^ ^:—^-^^-^. y i^ ':i 1 ^ ^ j ^•J?J: ,:.:.:',^^' l«t 5. On the basis of the averments of the parties, issues were framed and after affording opportunity of hearing to the parties, learned Additional v ^ Principal Judge, Family Court has dismissed the petition for restitution of conjugal rights filed on behalf of the appellant. 6. We have heard learned counsel for the parties, perused the judgment impugned and record of the Court below. 7. Learned counsel for the appellant argued that the appellant has never converted herself into Islam, she has never denied the marital relation with the respondent, some unknown person has intentionally sent letters to the respondent condemning the character of the appellant, after marriage and even prior to marriage between the parties. The respondent has not given any weightage to the said.letters, but after marriage again when he received such letters, he doubted the character of the appellant and refused to discharge the marital obligations. The appellant has not married Syed Zuber and she has not filed any apptication for registration of marriage before the Marriage Officer, Durg. Photographs fited by the respondent are not photographs of the appellant. 8. On the other hand, learned counsel for the respondent argued that the appellant has converted herself into Islam and she is not having good character, the respondent received some letters relating to her character and when he came to know that the appellant has converted herself into Islam anct married Syed Zuber, he refused to discharge marital obligations with the appellant. 9. In order to appreciate the contentions of the parties, we have examined the evidence adduced on behalf of the parties. In support of the pleadings of the appellant, the appellant has deposed in her evidence f'C?^ i . j ^ " "^ ' ;" 4 "-^-;,,^r; that she had married the respondent, but some person has intentionally sent letters to the respondent condemning her character even before her marriage, but the respondent has not given any weightage to the said letters, however, afterwards when he received some more letters, he doubted her character and refused to discharge marital obligations with her. lO.Kamal Prasad Deshmukh (AW-2) - father of the appellant, has corroborated the evidence of the appellant and deposed that on the basis of some letters, the respondent told him that the appellant was married with some Muslim person, and they called the suspected person who refused the factum of marriage with the appellant. The respondent was trying for second marriage which they resisted, but finally, he married another woman. 11.Mohd. Touhid Aalam Ashrafi (AW-3) has deposed about the procedure of conversion into Islam. He has specifically deposed that the appellant and Syed Zuber have not married with each other in his mosque. 12.Per contra, the respondent has examined himself and has stated that he received photographs & letters relating to the character of the appellant prior to his marriage and even after mar.riage, lastly when he received registration of marriage report, he reported the matter to the caste community. The appellant has married a Muslim person and thereafter, on the customary advise, he has married another woman. The respondent has fifed the photographs Exs.D-3 to D-8. 13.The appellant has examined Syed Zuber (NAW-2) who has deposed that I he has married (Nikah) Maya Devi at Camp Bhilai and obtained the i certificate Ex.D-9 and also got registered their marriage before the Marriage Officer, Durg and the Marriage Officer, Durg has issued Sertificate Ex. D-10. Syed Zuber has further deposed that the photograph Ex.D-1 bears his and the appellant's photo; He has filed the documents relating to age of the appellant Exs.D-12 & D-13, affidavits Exs.D-14 & D-15 and photos Exs. D-16 & D-17. He has also deposed that after marriage, Maya Devi resided with him for five days and thereafter, she left his house. In his detailed cross-examination, Syed Zuber has admitted that he do not know the name of Moulana before whom the appellant has converted herself into Islam. He has admitted that in the Nikahnama Ex.P-9, name of the bride is mentioned as Shabnam Nisha and not as Maya Devi. 14.Evidence of Syed Zuber (NAW-2) is full of suspicion. His evidence reveals that he does not know the name of Moulana before whom the appellant has converted herself into Islam and he does not know the name of Moulana who solemnized the marriage of the appellant with him. After marriage the appellant stayed only for five days with Syed Zuber and the appellant has left his house thereafter. Self-contradictory and suspicious statement of respondent's witness No.2 Syed Zuber (NAW-2) is not ofworth reliance, credence and safe to rely upon. 15.The appellant herself has specifically admitted that before and after her marriage the respondent has received some tetters condemning her character. She has admitted her signature over the affidavit and has explained that her husband has obtained her signature under compulsion. She has admitted that she was studying with Syed Zuber but she has not converted herself into Islam or has not married Syed Zuber. She has denied the signature in the name of S. Nisha. She has also denied the fact relating to her pregnancy test. The respondent has admjttedthat he has received letters & photographs. 16.The appeliant has denied photographs & report of pregnancy test. Entire dispute between the parties is based on some previous letters written by unknown person, factum of conversion of the appellant into Islam, Nikah/marriage of the appellant with one Syed Zuber, registration of marriage before the Marriage Officer and the alleged photographs which the appellant has specifically denied. The respondent has not adduced any evidence of the doctor or the person concerned to show that the appellant is the lady who has been examined by the doctor relating to preghancy test. The respondent has also not adduced any evidence to show that by which mode he has received the alleged letters Exs.D-3 to D-6.1 The respondent has not filed any negatives of the photographs and has also not examined the person who has taken the photographs. These are the documents produced by the respondent against the appellant which she has denied and unless the documents are proved by cogent evidence, reliance cannot be placed on the same. IT.According to the respondent, the appellant has married Syed Zuber. But evidence of Syed Zuber and his conduct are futl of suspicion. According to Syed Zuber, the appellant stayed only for five days with him and thereafter, she left his house. Syed Zuber does not know the name of Moulana before whom the appellant converted herself into Islam and he does not know the witness & Moulana who solemnized their marriage. However, jt is not disputed that the appeltant was taking tuition from Syed Zuber and Syed Zuber was having opportunity to take photographs or to commit mischief with the appellant. Unless genuineness of letters & photographs are proved, it is difficult to hold that the appellant was married with Syed Zuber. 18.1n the present case, the respondent has produced four letters alleged to have been addressed to father of the respondent Vishnu Verma, but the suoseej 941 JQJ inq 'iuspuodsej eq} 01 eiqeiieAB SBM punoj6 (eiiueisqns i Sjqi pue siqBu |e6nfuoo jeq p uoiininsej LUIBIO puueo UBLUOM sso.ioAip j V '9SUOdS9J/lU9UJ9lBlS U9HUM Siq Ul 4U9puods9j eq^ Aq pape9|d ueeq 1 IQU QABq uojiiied oqip AijiiqeuieiuiBLU sqi jo^ Ajesseoeu QJOM qoitiM spe^ IBjiueisqns ese^ ^ng -seiijed eqi u99Mi9q eoeid ^ooi QOJOAJP Ajeujoisno }eqi pesodep seq luspuodsej eqi 'eouepiAe SJL^ p 3 ejed U| •UBLUOM je^oue peujeujsj SBL| aq ^eqi s/woqs luepuodsej ©qip souepiAg-ei. •AiieoipOLU jeq euiLuexe o} peui iou seq luepuodsej eqi 'uoipoqe p Lunpe^ eqi 9Aojd 01 A||eojp8UJ iue||edde a^ euiLuexe 0} Aiiunijoddo 6ujAeLj p ^ids u| 'S9A!^e68u Aue p8|ij ^ou SBL| 8L| u9A9 pue SL|dej6oiOL|d s^ UQ^BI SBLI oq/v\ sseuiiM Aue peuituexe ^ou seq^uepuodsej eqi •iue||edde 941 Aq p8|U8p uesq OS|B 9Aeq SLidejBoioqd eqi -lUQpuodsoj sqi 01 sj9H8| uedo 888^ U8UUM seq uosjed uMou>|un eujos }B^} ^UQpuodsej eqi p eseo 8^ IOU Sj l| •9pOLU |eisod LjBnojq} jsq^ siq Aq peAieoej useq 9Aeq|A9L|i IBLII sjeyei 9L|i p sseueujnueS OLUOS MOL|S 0} s9do|9Aue eqi p9|y iou SBL| jo JOLI^ SIL| peuiLuexe }ou seq luepuodsej eqi 'IUQS ajQM Aeqi eoeid qoiqM 0104 01 se sjeyei p eojnos eq^ inoqe Qjinbui 0} peidiiie^e jouipaui jeqijQu SBL| 9L| 'iuepuodsej eqi 0} UMOU>| iseq suoseej eqi JQJ 'ijsdxe leoipeuj Aq UIOJQLI iue||8dde eqi 'e'! Mei-ui-jeiqBnep siq euiLuexe i96iAeiu luepuodsej eqi p JQL|^ pue peyueA eq ABLU spej ©Aoqee^ ieqi 9-d"x3 Ul U8MUM OS|B SBM }\ •p9poqe AoueuBejd eqi 106 SBL| QLJS pue lueuOejd SBM iue||9dde eqi }B^} suieiuoo 9-a"X3 'Aiiepedsg -uosjed euo Aq uenuM iou 8J8M Aeqi ^eqi |B9A9J g-a 0} e-a'sx^ 'e/oe/ eiuud 'sjeuei 941 p ssQusuinueB Q^ inoqe ejjnbui 0} paui iou seq luepuodsej eqi •spe^ piesejoje eq^ eAOjd 0} JSLIIBJ siq peuiujexe iou SBLI luepuodsej 941 USA^ rsjeuei pjesejoje 9L|} peAieoej seq J9L|iej siq epoiii qoiqM Aq leq^ MOLIS 0} 93U9PIA9 psonppe iou seq jo 9do|9AU9 eqi p9|y iou seq ^uepuods^!^ ^'^ ^.y 'sis^B's3^st|known to the respondent, the respondent has not pleaded and even has notadduced any evidence of the persons to prove such customary^ divorce and without waiting further he has immediately performed marriage with another woman in Choodi custom. These circumstances are sufficient to show that defence and conduct of the respondent are not natural and full ofsuspicion, cleverness & selfishness. i I 20.Matnmonial ties are normally based on bona fide belief and confidence upori each other, entrustment and devotion between each other. Matrjmoniat ties are delicate in nature, but are not so weak to break even on trifle ground or whims & wishes of the parties and on the ground of whims & wishes by creating certain suspicion, the life and rights of any married woman/bride cannot be brushed. 21.Aftei| going through the entire evidence, its nature, pleadings & conduct of the parties, we are of the considered view that learned Additional Principal Judge, Family Court has not considered the material in its evidentiary value and its spirit, and thereby committed illegality. i I • . .' '. .. ' ' » 22.This is a matrimonial dispute and the Judges, especially the Judges of the Family Courts, are under obligation to resolve the disputes between the parties and to consider the evidence legally admissible. But the very basis of the finding is based on the evidence not legally admissible. i Thecefore, the judgment & decree impugned are not sustainable under the law and the same are liable to be set aside. 23.Consequently, the appeal isallowed and thejudgment & decree refusing the restitution of conjugal rights are hereby set aside. The case is remitted back to the Court below for providing opportunity of adducing evidence and prove the documents in accordance with law, and pass the judgment & decree afresh. Parties shall bear their own costs. .•^^-^^ •A:^. -^\ 9 \..^... "^^.^ rParties are directed to appear before the Court below on 26-11-2009 for further proceeding of the case. 25.Record be sent immediately to the Court below. 26.Advocate fees as per schedule. 27.Decree l^e drawn up accordingly. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge Soma