(5) .^. ^ i^1 IN THE HIGH COURT OF JUDICATURE AT BILASPUR FIRST APPEAL (Misc) N0. ( 5T) OF 2010 APPELLANT A \^'f^.,. ^ ^^^' ^.»:^r" ^ Smt. Radhika W/o Kedar Dubey, D/o Late Shri Sarju Pandey, aged about 30 years, R/o Bhaisara, Post Akaltari, District Janjgir Chainpa, at present resident at Bilha Ettabhatta Mohalla , Tahsil Bilha, District Bilaspur (CG). (DEFENDANTNO.l) VERSUS Kedar Dubey S/o Ramchandra Dubey , aged about 53 years, R/o Bilha, Tahsil Bilha, District BUaspur (CG). (PLAINTIFF) The Station House Officer, Police Station Bilha, District Bilaspur (CG). (DEFENDANT N0.2) MEMORANDUM OF FIRST APPEAL UNDER SECTION 19 (1) OF FAMILY COURTS ACT RESPONDENTS 1. w ./ -'l-. HIGH COURT OF CHHATriSGARH AT BILASPUR DB: Hon'Me Shri Justfce I.M Quddusj. & Hon'bte Shri Justice Prashant Kumar Mishra.JJ. F.A.fMlNo.lSOof 2010 Smt. Radhika. Versus Kedar Dubey and another. JUDGMENT FOR CONSIDERATION Sd//- Prashant Kumar Mishra Judge Hon'bte Shri I.M.QucMusi. J. 3^-^^^^ . Sd/- I.M.Quddusi Judge Postfor^l- 07-2011 Sd/- Prashant Kumar Mishra Judge B ,^^^•^ \... ^ "'&-^s^^ i \\ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'bleShri I.M. Quddusi, J. & Hon'ble Shri Prashant Kumar Mishra. J. F.A.fMlNo.150 of 2010 APPELLANT Smt. Radhika. Versus RESPONDENTS Kedar Dubey and another. Shri Sushobhlt Singh, counsel torthe appellant. Shri VJneet Pandey, counsel for respondent. JUDGMENT {^r/^011) PERPRASHANTKUMARMISHRA. J. Thjs appeal under Section 19(1) ofthe Family Court's Act, 1984 has been preferred by the appellant challenging the judgment and decree passed by the Family Court, Bilaspur in CJvil Suit No. 40-A/2010 by which a declaratjon has been made in favour of respondent and against the appellant to the efFect that the appellanVdefendant is not the legally married wife of respondent/plaintiff. (2) The facts of the case, briefly stated, are that respondent Kedar Dubey preferred a suit for declaration and permanent injunction on the pleadings inter afia that he js a Teacher in Government School and the defendant/appellant is a resident of villase Bhaisda, Tahsil Janjgir. The plaintiff has four issues from his deceased wife Kaushalya and are aged between 12 to 21 years. To take care of children the plaintify was in requirement of a iady belonging to hjs caste and on the recommendation of one Dwarika Singh the defendant was engaged 1n February 2001 , however when the defendant was being brought to Bilha, her mother atong with Chhotelal, Dwarika Singh, Fulsingh and Mahendrapal coereed the plaintifF to put signature on stamp paper by saying that it is necessary so that the ad ^^ •^- defendant can leave plaintiffs house as and when she desires. Thereafter the defendant started residing in the plaintiffs house at Bilha. (3) It was further stated in the plaint that after abput one month, the defendant started behaving and asserting as if she is the wife of DlaintifF and started treating the children arrogantty and with cruelty. When the plajntiff advised her to not to behave in this manner, she threatened of false implication in Court cases and because of this the plaintifF started residing in a separate house by leaving the defendant jn his own house because she was not willing to leave the house. lr» the meanviriiile, the defendant got included her name in the voter list by narrating her name to the Election Officer as Radhika W/o Kedar Dubey and has also succeeded in obtainjng a Family Ration Card. The Ration Card was issued in spite of objection by the plajntiffthat the respondent is not his wife. (4) The defendant fited her written statement and admitted the fact about plaintiff's earlier marriage, however she denied the plaintifTs case that the defendant was engaged to look after his children and that she was not living as plaintjff'8 wife. According to the defendant she was earlier mamage to Suraj Prasad Tiwari and after death of her husband, she was introduced to the plaintiff by one Lata Singh W/o Satyanarayan. PlaintifF and defendant started meeting frequently and developed a love affeir and thereafter they mamed on 21/11/2000 in Kali Temple, Bhatgaon and also executed an affidavit on 11/12/2000. She afso stated that Stamp Paper was executed in front of witnesses and the plaintjff put his signature out of his own free will and was never pressurized. (5) In cross of trial plaintiff examined hjmselfas R/V-1, Ramanand Saraswati as PW-2 whereas the defendant examined herself as DW-1, 3 Mahendrapal as DW-2, Santosh Mishra as DW-3 and Ravishankar Sahu asDW-4. (6) On the basis of evidence on record the leamed Family Court has decreed the suit to declare that the defendant is not legally married wife of the plajntiff. (7) We have heard learned counsel for.the parties at length and perused the record. From the averments made in the plaint and the written statement it appears that it is an admitted position that the appellant/defendant has stayed in the house of plaint'tff for about 3 to 6 months. Case of the defendant js that they were married at Kali Tempte, Bhatgaon whereas PW-2 Ramanand Sarswati, who is the priest of the said Kali Temple has deposed that he has never performed any mamage of any coupte Jn the name of Kedar Nath Dubey and Radhika Dubey on 21/11/2000 or on any other day. This witness has also stated that though he does not always remain present throughout the day in the temple yet a major function Hke mamage does not take place in the temple in his absence. The appellant has not proctuced any evidence of marriage by examjning the management of the temple or the pereons who were present at the time of mamage. The witnesses examined by the appellant are witnesses of the agreement executed on the non-judicial stamp and afRdavjt (Ex. D/2). (8) From the document Ex. D/2 it would appear that the said affidav'rt makes statement about the plaintiff's intention to lead his further life with the defendant as husband and wife, however, the law requires performance of a valid Hindu Mamage by taking seven steps around the fire i.e. 'Saptpadi' and a valid Hindu Marriage cannot be performed by executing an affidavit. i N. .^^-t... II w%% '^ ^! ^- (9) It is also to be seen that in paragraph 10 of her cross examination the appellanVdefendant herself has admjtted that they lived for about six months and that when they had gone to Kali Temple for performing marriage the temple priest Ramanand Saraswati was not available and they came back after breaking coconut. Neither in her afRdavft under Order 18 Rute 4 of C.P.C. nor jn cross-examination she has stated about performing 'Saptpadi' i.e. taking seven steps around the fire. (10) (n the matter of Surjit Kaur vs. Garja Singh and others reported jn (1994) 1 SCC 407 the Hon'ble Supreme Court has held thus in para 12:- "12. Reliance placed on Charan Singh AfR 1961 Pwy 301 is not correct because that will apply only if the widow were to marry the brother of the husband. But, here Gulaba Singh was a stranger. As rightly contended by the respondent, mere (iving as husband and wife does not, at any rate, confer the status of wife and husband. In B.S. Lokhande (1965) 2 SCR 837, 'rt was laid down that the bare fact of the man and woman Iiving as husband and wife does not, at any rate, normally gh/e them the status of husband and wife even though they may hold themselves out before the society as husband and wife and the society treats them as such. The following extract }s useful for this purpose. "Prima facie, the expression 'whoever ... mames' must mean 'whoever.. . marries validly' or 'whoever ... marries and whose mamage js a valid one'. If the marriage is not a valid one, according to the law applicable to the parties, no question of its bejng void by reason of its taking place (Suring the life of the husband or wife of the person marryjng arises. If the mamage is not a valid mamage, it is no marriage in the eye of law. The bare fact of a man and a woman Ijving as husband and wife does not, at any rate. normally give them the status of husband and wife even though they may hold themselves out before ^- 'v- 'v. ife^-.-." *; ^ .^,A. ••i. V'*: ! •' G^ ^l^^^" "'^^rf^ -5- society as husband and wife and the society treats them as husband and wife" tn the above matter of Surjit Kaur vs. Garja Singh and others (supra) has relied on its earlier judgment in the matter of Bhaurao Shankar Lokhande and another vs. The State of Maharashtra and another A1R 1965 SC 1564. (11) Thus, to prove a valid Hindu marriage it is necessary for the party claiming performance of such marriage to prove the due performance of essentials of a valid marriage i.e. taking seven steps around fire or pleading and proving any custom prevalent jn the area and performance of ceremonies Sn that regard, however. jn the present case neither performance of 'Saptpadi' is pleaded or proved nor any other custom or performance of rituals as per the said custom has been pteaded or proved. (12) In the facte and circumstances of the case, thjs Court has no hesitation in holding that the appellant/defendant has feifed to prove existence of a valid Hmdu marriage between herself and the plaintiff/respondent and that the finding recorded by the Family Court in this regard does not suffer from any perversity pr infirmity. (13) Learned counsel for the appellant has relied on a recentjudgment of the Hon'ble Supreme Court in the matter of Chanmunjya Vs. Virendra Kumar SinQh Kushwaha and another reported in (2011) 1 SCC 141 to argue that the parties having resided together as husband and wife, there arises a presumption of a valid marriage between them. In th»scase the Hon'ble Supreme Court has held thus in para 9 to 16:- "9. In Lf. C.W, CQmpbel) v. John A.G. Campbell (1867) LR 2 HL 269, also known as the Sreacte/feane case, the House of Lords held that cohabltation, with the required repute, as husband and wife, was proof that the parties ^'•"^'•'"'••:. •-' J'' ":\'^^^' ,,y/ '^.^ 6- between themselves had mutually contractect the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonjal by consent. This may be evidenced by habit and repute. 10. In the instant case both the appellant and the first respondent were related and lived in the same house and by a social custom were freated as husband and wjfe. Their marriage was solemnjsed wjth katha and sindur. Therefore. following the ratio of the decisions of the House of Lords, this Court thinks that there is a very strong presumptjon in favour of mamage. The House of Lords again observed in De Thoren v. Attomey Generaf (1876) 1 AC 686 (HL) that the presumption of marriage is much stronger than a presumption in regard to other facts. 11. Again. in Sas&y Vefaider Afionegafy v. Seinbewtty Vaigalie (1881) 6 AC 364, \t was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the confrary is clearly proved, that they were living together in consequence of a valid mamage, and not in a state ofconcubjnage. 12. In India, the same principjes have been followed in Andrahennedige Dinohamy v. Wijetunge LiyQnapatsbenclsge Balahamy AIR 1927 PC 185, in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is dearly proved, ttiat they were Iwing together in consequence ofa valid marriage, and not in a state ofconcubinage. 13. In Mohabbat All Khan v. Mohd. Ibrahim Khan AfR 1929 PC 135 the Privy Council has !aid down that the law presumes in favour of marriage and against .concubinage when a man and woman have cohabited continuously for numberofyears. 14. In Gokal Chand v. Parvin Kumsiri AfR 1952 SC 231, this Court held that continuous cohabitation of man and /=>^) -7- woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and jfthere are circumstances which weaken and destroy that presumption, the Court cannotjgnorethem. 15. Further, in Badri Prasadv. Difector of Consolidstton (1978) 3 SCC 527, the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a lona spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive ttie relationship of tegal on'gin. 16. Again, in Tulsa v. DurghQ^ya (2008) 4 SCC 520. that where the partners lived together for a lona soell as husband and wife, a presumption would arise in favour of a valid wedlock." (emphasis supplied) (14) Thus to take shelter of presumptive prove of a valid marriage the law reqUires a lona and subsistina relation like husband and wife between the parties, however in the present case the so calted relationship between the parties is only for a period of about six months and it is appellant's/defendant's own case that after few days of their living together the respondent/plaintiff started behaving indifferently and that the plaintiff thereafter started residing separately. This plea of appellant would itself establish that there is comptete lack of pleading and proof about long cohabitation and living life llke husband and w'rfe. (15) In view of the above, this Court is not abte to talce any different view of the matter than what has been taken by the tearned Family Court while decreeing the suit in favour of respondenVplaintiff to declare that the appellant is not the legally married wife of the respondent. ^w ^ ^ (16) There is no substance in this appeal which fails and is hereby dismjssed. (17) A decree be drawn-up accordingly. Sd/- LM.Quddusi Judge Sd//- Prashant Kumar Mishra Judge )S