THE HONOURABLE SRI JUSTICE N.V. RAMANA AND THE HONOURABLE SRI JUSTICE K.S. APPA RAO F.C.A. Nos. 85 and 86 of 2007 COMMON JUDGMENT: (Per NVR,J) The present appeals are directed against the common orders dated 09.03.2007 passed in H.M.O.P. No. 36 of 2005 and H.M.O.P. No. 60 of 2004 by the Judge, Family Court, Tirupati. The appellant herein is the petitioner in H.M.O.P. No. 60 of 2004 and respondent in H.M.O.P. No. 36 of 2005. For the sake of convenience, the parties will be referred to as the appellant-wife and the respondent-husband. The appellant-wife filed H.M.O.P. No. 60 of 2004, under Section 12(1)(c) of the Hindu Marriage Act, 1955, seeking annulment of marriage between her and the respondent-husband, which took place on 17.05.2004. It is her case that when she was pursuing her 3rd year B.Tech Course in S.V.P. College of Engineering and Technology, Puttur, Chittoor District, she was residing in a room at Puttur to attend the college and the respondent who is the friend of one of her roommates used to come to meet them and thereby she has got acquaintance with him. It is her further case that on 14.05.2004 at about 7.30 p.m., the respondent, along with some others, came in a Tata Sumo vehicle to her room and asked her to take him to her roommates and believing his words; she boarded the vehicle and noticed that another four persons are present in the vehicle. They offered her cold drink and after consuming the same, she fell unconscious and by the time she regained consciousness, she was at Visakhapatnam. There she was threatened and forced to marry the respondent and when she refused to marry him, she was threatened that if she does not marry the respondent, her parents will be killed. By putting the appellant under threat and coercion, the respondent tied a yellow thread around her neck and thereafter took her to Registrar’s office and obtained her signatures. Except tying the yellow thread, no other formalities of Hindu marriage were followed. Finally she was rescued from the clutches of the respondent on 17.05.2004 and since then she has been living with her parents at D. No. 18-2-103/A, Ashok Nagar, Korlagunta, Tirupati. It is her further case that the respondent has filed Habeas Corpus petition being W.P. No. 9372 of 2004 before the Hon’ble High Court, praying to direct the police and also her father to produce her before the Court. Thereupon, she appeared before the Court on 01.06.2004 and expressed her willingness to live only with her parents and complete her studies. In view of the same, the writ petition was closed. While so, she has received a notice dated 22.06.2004 from the respondent’s counsel, seeking restitution of conjugal rights, to which she issued a suitable reply dated 10.07.2004. As the marriage that was taken place between her and the respondent is not a valid marriage in the eye of law, the appellant has prayed the Court below to annul the marriage. The respondent-husband filed a counter stating that he used to meet the appellant in her room, when she was doing her 3rd year B.Tech Course in S.V.P. College of Engineering, and denied the allegation that he has forcibly taken her in Tata Sumo vehicle as also the other allegations, except the factum of marriage taking place between them, his filing a writ petition before this Court, and issuing notice to the petitioner for restitution of conjugal rights. So far as the facts of H.M.O.P. No. 36 of 2005 are concerned, the respondent-husband originally filed O.P. No. 437 of 2004 on the file of the Family Court, Visakhapatnam, seeking restitution of conjugal rights. On the application filed by the appellant-wife, in Tr.C.M.P.No. 370 of 2004, the said O.P. was transferred to the Family Court, Tirupati, by the orders of the Hon’ble High Court dated 24.01.2005, and re-numbered as O.P. No. 36 of 2005. The case of the respondent- husband was that he and the appellant loved each other and when the same came to the knowledge of her parents, they wanted to get her married to the person of their choice. On 15.05.2004, the appellant came to Visakhapatnam and both of them got married on the same day at 7.00 p.m. at Simhachalam Devasthanam in the presence of friends and well-wishers as per Hindu rights and customs and their marriage was registered with the Registrar of Marriage, Visakhapatnam, on 17.05.2004, at Serial No. 396/2004. The marriage was consummated immediately after the marriage, at the house of his parents at Visakhapatnam. On 17.05.2004, the father of the appellant came to Visakhapatnam and lodged a complaint with the police, alleging kidnap of the appellant. When the police called both the parties and enquired into the matter, the appellant informed that she being a major married the respondent-husband on her own, by coming down to Visakhapatnam. On the request made by the appellant’s father that she has to appear for 3rd year B.Tech Exams and he will send her back after the exams, and by giving a written undertaking to that effect, the appellant and her father left Visakhapatnam on 18.05.2004. Subsequently there was no communication from the appellant and on 26.05.2004, she informed the respondent-husband over phone that she was confined in relatives house at Tirupati till 25.02.2004 and brought to her parents’ house on 26.05.2004 and she is not being allowed to speak with anyone and further informed that her parents are trying to get her married and she will commit suicide, if he does not come to her rescue. The respondent-husband informed the same to the Police, Visakhapatnam, on 27.05.2004, and as the police failed to take any action, he filed W.P. No. 9372 of 2004 before the Hon’ble High Court, and the said writ petition was closed basing on the statement of the appellant-wife. However, the respondent came to know that she gave such statement as her parents have threatened her that they will commit suicide. As the respondent is very much in love with the appellant, he issued notice dated 22.06.2004 and no reply notice was issued thereto. As the appellant-wife is staying away from the matrimonial house without any reasonable case, he prayed for restitution of conjugal rights. The appellant-wife filed a counter denying all the allegations and reiterated her contentions in H.M.O.P. No. 60 of 2004. The Court below clubbed both the O.Ps. and recoded common evidence in H.M.O.P. No. 60 of 2004. On behalf of the appellant-wife, P.Ws.1 to 3 were examined and Exs.A1 and A2 were marked, while R.Ws. 1 and 2 were examined and Exs. B1 to B8 were marked on behalf of the respondent-husband. The Court below has framed the following issues for consideration in H.M.O.P. No. 60 of 2004. 1) Whether the respondent put the petitioner under coercion and threat and married her against her consent. 2) Whether the marriage dated 17.05.2004 between the petitioner and the respondent is nullity? 3) Whether the petitioner is entitled to a decree of divorce? 4) To what relief? In H.M.O.P. No. 36 of 2005, the Court below has framed the following issues for consideration. 1) Whether the respondent voluntarily deserted the petitioner without any reasonable cause? 2) Whether the petitioner is entitled for restitution of conjugal rights? 3) To what relief? The Court below has considered issues 1 and 2 in both the O.Ps. together and came to the conclusion basing on the evidence of R.Ws.1 and 2 that their evidence is natural and nearer to the truth. The Court below has disbelieved the version of the appellant-wife that she was unconscious till she reached Visakhapatnam, which is 800 km. away from Chittoor, and has taken into consideration Ex.B7 dated 25.04.2004, which was written by the appellant herself that she is willing to marry the respondent through registered marriage. The Court below has also taken into consideration Ex. B3, the letter written by the appellant to the police stating that there is no threat and coercion and the marriage was performed on her own decision and with her consent. The Court below observed that even before the High Court, she stated that she wants to stay with her parents to complete her studies, which shows that she had love and affection towards the respondent-husband, even on 01.06.2004. The Court below gave a finding that there is ample evidence to show that the parties have loved each other and came to the conclusion that forcible taking of the appellant-wife by the respondent-husband is invented for the purpose of filing the case and if at all any threat is there, it is only from her parents and not from the respondent. On the basis of evidence of P.Ws. 1 and 2 and Exs. B1 to B8, the Court below observed that the appellant voluntarily went to Visakhapatnam on her own accord and insisted the respondent to fix the date for marriage and further observed that all the necessary conditions for a valid marriage are fulfilled and the marriage between the parties is a valid one and the appellant-wife is staying away from the respondent-husband without reasonable cause. Hence, the Court below dismissed the petition filed by the appellant for annulment of marriage, and decreed the petition filed by the respondent for restitution of conjugal rights, by the common order dated 09.03.2007. Aggrieved by the same, the appellant-wife is before this Court by way of the present appeals. Now the issue that arises for our consideration in these two appeals is- “Whether the Court below was right in dismissing the O.P. filed by the appellant-wife for annulment of marriage and allowing the O.P. filed by the respondent- husband for restitution of conjugal rights?” Heard the learned counsel for the parties and perused the common order under appeals and other material available on record. As seen from the order under appeals, the Court below, relying on Exs. B1 to B8 and more on Ex. B7 alleged to have been written by the appellant-wife, has come to the conclusion that the appellant has married the respondent on her free will and there is no fraud or coercion. When an allegation of fraud or misrepresentation or coercion is made, undoubtedly the burden lies on the party who makes such allegation, to prove the same satisfactorily. The word “fraud” has not been defined in Hindu Marriage Act, misrepresentation inducing consent to marriage, and that for the annulment of marriage on the ground of fraud, the party forced upon must be deceived to such an extent that in reality there is no consent at all to the marriage. The word “fraud” in matrimonial law has a technical meaning. It does not include cases of misrepresentation or active concealment of material facts. For annulment of marriage, fraud means which procures the acceptance without the reality of consent i.e. there is no real consent. “Fraud” has been defined under Section 17 of the Contract Act. According to it, consent is said to be free when it is not caused by fraud as defined in Section 17 or misrepresentation as defined under Section 18 of the Act. Though the burden lies on the appellant to establish the charge, normally the rule, which governs civil proceedings, is that a fact can be said to be established if it is proved by preponderance of probabilities. This is for the reason that under Section 3 of the Evidence Act, a fact is said to be proved when 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. The Hon’ble Apex Court in Dr. N.G. Dastane vs. Mrs. S. Dastane[1], while dealing with the standard of proof in civil cases, held as follows: “……The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this of process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.” In view of the guidelines enunciated in the above judgment of the Hon’ble Apex Court, we have to consider the facts of the case on hand and determine whether the preponderance is in favour of the wife to declare the marriage as null and void or in favour of the husband for restitution of conjugal rights. The admitted facts of the case are that the appellant left to Visakhapatnam on 14.05.2004 at about 7.30 p.m. and got married on 15.05.2004 at 7.00 p.m. The father of the appellant came to Visakhapatnam on 17.05.2004 and took her back on 18.05.2004. According to the appellant, the marriage took place by force and it is not consummated, while according to the respondent, marriage is consummated and the appellant married him with her free will. Now, we would like to look into the evidence available on record. On behalf of the appellant-wife, she herself was examined as P.W.1, her father as P.W.2 and one Nagaraju, resident of the locality, as P.W.3, and Exs. A1 and A2 were marked. Ex. A1 is the served copy of the notice and Ex.A2 is the office copy of reply notice. On behalf of the respondent-husband, he himself was examined as R.W.1 and his friend as R.W.2, and Exs. B1 to B8 were marked. Ex. B1 is the marriage photographs, Ex.B2 is the certificate of marriage, Ex. B3 is the letter dated 18.05.2004 written by the appellant, Exs. B4 is the letter dated 18.05.2004 written by the appellant’s father, Ex. B5 is the xerox copy of complaint, Ex. B6 is the order copy in W.P. No. 9372 of 2004, Ex. B7 is the letter dated 25.04.2004 written by the appellant and Ex. B8 is the attested copy of marriage certificate. The Court below has come to the conclusion that there is no fraud and coercion on the part of the respondent-husband, on the ground that Ex.B7 letter dated 25.04.2004 was written by the appellant to the respondent, asking him to make arrangements for their marriage at Vizag and after that they can get the marriage registered with the Registrar of Marriages and gave her particulars, and basing on that, he made all the arrangements. We have gone through Ex. B7, which begins with the statement that “she is writing the letter with her own handwriting and out of free will and she is giving her consent wholeheartedly to marry him”. It is the specific case of the appellant- wife that she has not at all written that letter. The Court below has not considered this aspect and apart from this, another important aspect which the Court below failed to take into consideration is that the respondent-husband has not stated about the said letter written by the appellant-wife either in the notice got issued by him or in the petition filed by him for restitution of conjugal rights. By going through the contents of the letter, by any stretch of imagination, one cannot expect a girl who is pursuing Engineering Course, to use that type of language as if she is deposing something on oath. The language employed in the letter supports the case of the appellant-wife that she did not write that letter. Apart from this, even to a naked eye, it is quite clear that the signatures of the appellant available in the marriage register maintained by the temple and in Ex.B7 are not one and the same. Thus, Ex.B7 strengthens the stand taken by the appellant-wife that she did not write the letter. But the trial Court did not consider the same and erred in taking it for granted, in spite of clear denial by the appellant-wife that she did not write the said letter. The other ground on which the trial Court dismissed the O.P. filed by the appellant for annulment of the marriage is that when the respondent-husband filed a writ petition before the Hon’ble High Court, the appellant made a statement before the Court that she wants to live with her parents to complete her studies, which shows that the appellant-wife has love towards her husband as on that day, and in view of the evidence of R.Ws. 1 and 2 coupled with Exs. B1 to B9, the Court below came to a conclusion that there was no threat or coercion from the husband and if at all there is any coercion, it is only from the father. In matrimonial cases, the onus of proof is on the person who comes to the Court pleading the relief, as held by the Hon’ble Supreme Court, the degree of proof is not beyond reasonable doubt, but preponderance of probabilities. If the appellant can show preponderance of existence of fact that there is coercion, then the Court would be justified in allowing her petition. If the facts and circumstances are such that no reasonable man would draw a particular inference from them or if the degree of probability in the case is such that as to include any hypothesis besides the one to be proved, then the party who relies on a particular theory cannot be said to have discharged onus of proof of establishing that theory. But, if there is evidence strongly prepondering in favour of any of the two theories set up, the Court is entitled to act upon it. As far as the case on hand is concerned, the case of the appellant-wife is supported by the unclinching evidence of her along with P.W.2 and P.W.3, who is an independent witness, and there is no inconsistency in their evidence. Ex. B7 letter, which was alleged to have written by the appellant-wife, as already held by us, was not examined by the Court below properly and the preponderance is in favour of the wife that Ex.B7 letter was not written by her. The contention of appellant-wife that she was forcibly taken by the respondent-husband from her place, is supported by the evidence of P.W.3, who is an independent witness. Though the contention of the appellant that she was taken in an unconscious state from Chittoor to Vizag could not be proved, but all the other evidence clearly supports the case of the appellant-wife. The fact that after the marriage, the parties have not stayed together and there is no communication between them, clearly strengthens the case of the appellant-wife that the marriage was performed by putting her under coercion and undue influence and threatening her that if she does not agree for marriage, he will kill her father. If a girl is dare enough to go all the way to Vizag and get married to a boy of her choice, as stated by the respondent, she would have the same courage to continue the relationship with her husband. No evidence has been placed on record to show that the appellant tried to talk to the respondent even at one instance after she left from Vizag on 18.05.2004 till the date of filing the O.P. for annulment of marriage. If really she married the respondent with her free will and she was forcibly detained by her parents, it was open to her to reveal the true facts before this Court, when she appeared before this Court during the hearing of the writ petition filed by the respondent-husband and during the conciliation proceedings held by us. But, she stated that she wants to stay with her parents. The Court below gave a finding in this regard that it would show that she has love and affection towards the respondent-husband even on that day. In our view, the findings recorded by the Court below are arbitrary, improper and without sufficient justification. Such arbitrariness in the findings caused serious miscarriage of justice to the appellant-wife. A marriage cannot be annulled on the basis of any and every misrepresentation or concealment. But here is a case where the appellant-wife is forced to give her consent under threat and coercion, which definitely attracts Section 12(1)(c) of the Hindu Marriage Act. Section 12 of the Hindu Marriage Act, deals with voidable marriages, and sub section 1(c) thereof reads as under: 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) ------ c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 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. It is also relevant to make a reference to Section 5 of the Act, which reads as under: 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 the marriage; (ii) at the time of the marriage, neither party:- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity (iii) the bridegroom has completed the age of twenty-one years and the bridge the age of eighteen years at the time of marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; Even though none of the clauses of Section 5 refers to the requirement of consent of the parties, if the consent of the appellant is obtained by force or fraud, the marriage becomes voidable and is liable to be annulled by a Court of competent jurisdiction. It is noteworthy to state here that marriage is a sacred institution, which cements a bond between a man and woman. It is a sacrosanct relationship for the purpose of carrying on the light of human race. The basic conception of procreation is at the foundation of marriage. The purpose of marriage is to establish, accord harmony and suitable balance in the society. No man or woman should play with such a collective institutional principle. No man should harbour the idea that a woman is to