N» HIGH COURT OF CHHATTISGARH, BILASPUR DIVISIONBENCH t\^t ^ /> QORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. APPELLANT: RESPQNDENT: First Appeal (M) No.24 of 2008 Sushant Mukherji Versus Ku. Poonam Jaiswal JUDGMjENT FOR CONSIDERATION HON'BLE MR. JUSTICE R.N. CHANDRAKAR Plost for pronouncement of iudament pn z7' "October, 2009 Sd/- T.P.Sharma Judge 3 Gi-ci Sd/- R.N. Chandrakar Judge •^. Sd/- HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH dORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. APPELLANT/: (Defenc^ant) RESPONDENT/: (Plaintiff) First Appeal (M) No.24 of 2008 Sushant Mukherji S/o Shri K.R. Mukherji, aged about 30 years, R/o MIG-2/1 Sada Colony Jamnipali Korba, Tahsil Katghora Distt. Korba C.G. Versus Ku. Poonam Jaiswal D/o Shri Umakant Jaiswal, aged about 24 years, R/o Sardar Vallabh Bhai Patel Nagar, Sada Colony Jamnipali Korba, Tahsil Katghora, Distt. KorbaC.G. {First appeal under Section 1 9 of the Family Courts Act, 1984} Presenli: }r. Rakesh Pandey, counsel for the appellant. 1 l\4r. Parag Kotecha, counsel forthe respondent. JUDGMENT ( ^^ October, 2009) The tollowina order ofthe Court was passed bv T.P. Sharma. J: - 1. By this appeal under Section 19 of the Family Courts Act, 1984 (for short 'the Act of 1984'), the appellant/defendant has chatlenged the legality & propriety of the judgment & decree dated 10-1-2008 passed by the Judge, Family Court, Camp Court Katghora, Distt. Korba in Civil Suit No.1|6-A/2007, whereby & whereunder learned Judge, Family Court has i declared the marriage under Sections 11 & 13 of the Hindu Marriage Act, I 1955(for short 'the Act of 1955') null and void, and allowed the suit filed by the respondent herein. V 2. Judgment & decree are challenged on the ground that the Judge, Family Coui^t was not competent to declare the marriage void on the ground of abs^nce ofwill & consent which is not available under Sections 11, 12 & 1 13ofthe Act of 1955 and thereby committed illegality. 3. Brief facts giving rise to this appeal, according to the pleadings of the parti^s (as per the suit filed by the respondent), are that the respondent 1 . wasltaking tuition from the appellant at Korba, the appellant was in domjnating position and by misusing his position, he has taken signature ofth;e respondent oversome papers at Arya Samaj Temple, Sakti. The resppndent objected the act ofthe appellant and immediately went back to her parental house where she informed her mother & father about the sam6. The respondent has never consented for marriage. On 18-2- 2004 just after 15 days of the alleged marriage, an agreement was execjuted between the parties declaring the alleged marriage void. The resppndent is not the legally wedded wife of the appellant and she has nev^r married the appellant. On theaforesaid ground, the respondent i has filed a suit for declaration ofthe alleged married null and void. ! 4. The |appellant herein has denied the allegation and specifically alleged that ithe respondent is his legally wed'ded wife and marriage has been solemnized in Arya Samaj Temple. Parents of the respondent forcefully took|her to their house and the respondent is not discharging her matrimonial obligations. Parents of the respondent have forcefully obtajned the signature of the appellantover the agreement. The appellanthas also filed petitiQn for restitution of conjugal rights. 1 5. The|appellant herein had also filed petition for restitution of conjugal rightS which has been dismissed vide judgment & decree dated 10-1- 200^ passed by the Judge, Family Court, Camp Court Katg.hora, Distt. ! • i • • . . . . ; 1 Korfc^a in Civil Suit No.17-A/2007 and against the said judgment & '^: I i 'T^ 1 '^.%^..^\/ '^^•.^•i~ ^' v€w: ^^•^' decrpe, the appellant herein has preferred an appeal before this Court h^ bearjng First Appeal (M) No.23/2008. ^ °) 6. We have heard learned counsel for the appellant, perused the judgment j impugned and record of the Court below. i 7. Courisel for the respondent has not argued the matter. 8. Learhed counsel for the appellant vehemently argued that Section 5 of the ^\ct of 1955 does not provida any provision for taking consent from the ^najor woman. Parties are legally married Hindu spouses and they have solemnized their marriage in the Arya Samaj Temple. The 1 is not discharging the matrimoniat obligations and on the 1 presSure of her parents she has filed the petition for declaration of marriage null &-void. The Family Court is not having jurisdiction to ire the marriage null & void in absence of any ground available under Section 11 or Section 13 of the Act of1955. 9. On has the basis of averments of the parties, learned Judge, Family Court |framed issues and after affording opportunity of hearing to the parties,learned Judge, Famity Court has decreed the suit and declared marriage null and void. the 10.In o real the rder to appreciate the contentions of the parties and to decide the pontroversy, we have examined the evidence adduced on behalf of parties and pleadings available on record. 11.Evid^nce adduced on behalf of the parties reveals that marriage is not solemnized in accordance with Section 7 of the Act of 1955. Section 7 of the Act of 1955 reads as follows: - "7. Ceremonies for a Hindu mamage.—(1)A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. ^^-< ^•^ ^ ^.' ^ (2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken." 12.1n the present case, according to the pleadings and evidence of the appellant, both the parties have married before Arya Samaj Temple, Sakt^ in accordance with the hlindu rituals. In para 6 of his cross- exartiination, the appellant has specifically deposed that at the time of marnage at the Arya Sarnaj Temple, no relatives of the parties were I presfent, he has not stated that they have observed any rituals necessary 1 for n]iarriage in accordance with Section 7 of the Act of 1955. He has not prov^d any document in support of his marriage in the Arya Samaj Temple. However, the appellant has pleaded in para 3 of his written i stat^ment that the marriage was solemnized in accordancewith the Arya i Marriage Vatidation Act, 1937 (for short 'the Act of 1937'). The provjsions contained in Section 2 ofthe Act of 1937 relating to validity of marriageread as follows: - "2. Marriage between Arya Samajists not to be . jnvalid.—Notwithstandingany provision of Hindu law, usage or custom to the contrary no marriage contracted whether before or after the commencement of this Act between two persons being at the time of the marriage Arya Samajists shall be invalid orshall be deemed ever to have been invalid by reason only of the fact that the parties at any time belonged to different castes or different sub-castes of Hindus or that either or both of the parties at any time before the marriage belonged to a religion otherthan Hinduism." 13.Acc^»rdJng to Section 2 'of the Act of 1937, marriage is a contract between the parties. Marriage contracted between the Arya Samajists is valid notwithstanding any provision contrary to the Hindu law, usage or p F t-N^ custpm. No procedure has been provided in the Act of 1937 for valid marrjiage under the provisions ofthe Act of1937. i 14.1n tlie Act of 1937, the Legislature has used the words 'marriage contf'acted' and has not provided any custom, usage or rituals necessary for t^ie marriage. But in Sections 5, 7, 11, 12& 13 ofthe Act of 1955, the I Legislature has used the words 'marriage solemnized'. In the Act of 195?, the Legislature has not used the words 'marriage contracted', but has jntentionally used the words 'marriage solemnized'. Section 7 (1) of the Act of 1955 specifically provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of 1 eith^r party thereto, which shows that observance of customary rites and 1 ceremonies for solemnization of marriage under the Act of 1955 is sine qua lnon. . , 15.Sect^on 5of the Act of 1955 provides conditions for valid marriage. 1 Section 5 of the Act of 1955 reads as follows: - 1 "5. Conditions for a Hindu marriage.—Amarriage 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) atthe time ofthe 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 ofchildren; or (c) has been subject to recurrent attacks of insanity; (iii)the bridegroom has completed the age oftwenty-one years and the bride, the age of eighteen years at the time ofthe marriage; ^' (iv)the parties are not within the degrees of prohibited relatiohship unless the custom or usage governing each ofthem permits ofa 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;" 16.1n S;ection 2 of the Act of 1937, the legislature has used the words 'marriage contracted whether before or after the commencement of this /]/ Act' yvhichshows that marriage is a contract under the provisions of the Act 6f1937. The word 'contract' has been interpreted in Section 2 of the I^idian Contract Act, 1872 (for short 'the Act of 1872'). Clause (h) of Sectjon 2 of the Act of 1872 reads as follows: - " An agreement enforceabte by law is a contract;" According to clause (h) of Section 2 of the Act of 1872, an agreement i .. . . . .^ ' v enfofceable by law is acontract. The word 'agreement' has also been inter^reted in clause (e) of Section 2 of the Act of 1872 which reads as folloWs: - "Every promise and every set of promises, forming the j consideration for each other, 'is an agreement;" 17.Acc9rding to Section 10 ofthe Act of 1872, all agreements made by the free |consent of parties competent to contract, for a lawful consideration 1 and iwith a lawful object are not expressly declared as void or contract. J Sect|on 10 of the Act of 1872 reads as follows: - "10. What agreements are contracts.—AIIagreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or 1 ^ 1 C ^&^^^f^ 'l. 7 in the presence of witnesses, or any law relating to the registration of documents." In a^cordance with Section 10 of the Act of 1872, the free consent of parti^s competentto contract is sinequa non. 18.1n ttie present case, both the parties are majors and are competent to contract. The respondent has denied the case of free consent and has speqifically pleaded and deposed in her evidence that the appellant who wasiher tutor has administered some intoxicant to her on which she bec^me unconscious and when she regained consciousness, she found POO/-I has looron her head and on being asked, the appellant told her that he rnarried her in the Arya Samaj Temple where some documents have been prepared. They have gone to the parental house ofthe respondent wheire the appellant informed the factum of alleged. marriage to the itsofthe respondent. On 18-2-2004, both the parties executed one document Ex. P-1 which reveals that the alleged transaction between the partips was void and they have declared their alleged mamage void. 19.Accq>rding to the case of the appellant,.the marriage was solemnized on i 3-2-?004 and the alleged document for declaration of marriage void was I ' •.. exequted by the parties on 18-2-2004 within 15 days of the alieged marriiage. The respondent has specifically deposed that from the temple i they]came to the house of her father and she has never gone to the 1 house of the appellant. 1 20.The|factum of alleged document dated 18-2-2004 is admitted by the partifes, though the appellant has pleaded anddeposed that parents of the respondent have taken his forceful signature upon Ex. P-1". The app^llant has deposed in para 1 of his evidence that after the marriage on 3-2-2004, they discharged their marital obligations and on 4-2-2004 the respondent went to her parental house. 21 )rmance of marriage has been denied by the respondent. Burden to- prov^ valid marriage was on the appellant. The appellant has not 1 adddced any documentary or oral evidence of the concerned authority of the Arya Samaj Temple to prove valid marriage in Arya system. Parties i hav^ not observed any rituals necessary under Section 7 of the Act of 1955. The appellant has pteaded and deposed that the respondent has con^ented for marriage, but the respondent has specifically denied the factqm of consent. Even according to the case of the appellant, on secdnd day of the alleged marriage, parents of the respondent took the respbndent to their house and on 18-2-2004 i.e. on 15th day, both the parties executed agreement Ex. P-1 which reveals that they have declared their marriage void. This shows that if the evidence and plea^jings of the appellant are admitted as gospel tr.uth,,the appellant marijied the respondent on 3-2-2004, on 2nd day the respondent left the app611ant in his house and went to her parental house, and on 18-2- 2004, the document relating to declaration of marrtage void was exequted. These facts are sufficient to disprove the factum of consent on behalf of the respondent. In absence of any observance of rituals in accdrdance with Section 7 of the Act of 1955 or observance of any )m and in absence of consent ofthe respondent as required for valid fW contifact under Section 2 of the Act of 1872, it is difficult to hold that the appellant has married the respondent and the respondent is legally wedded wife of the appellant. i . 22.In the present case, learned Judge, Family Court has declared the marriage null & void under the provisions of Sections 11& 13 of the Act of 1^55. For any declaration under Sections 11 & 13 of the Act of1955, soleijrinization of marriage is sine qua non. But in the present case, marriage has not been solemnized between the parties and, therefore, /fe ~\^ ^ •^. "" <^ '^ ff any [such decree of declaration of marriage void would not be legally pos^ible. Learned Judge, Family Court: has decreed the suit in accordance with the provisions of the Act of 1984. Section 7 of the Act of 1984 deals with jurisdiction of the Family Courts. Explanation (b) to 1 sub-^ection (1) of Section 7 of the Act of 1984 empowers the Family i • . - Court to declare as to the validity of a marriage or as to the matrimonial status of any person. Explanation (b) to sub-section (1) of Section 7 of the Act of 1984 reads as follows: - ' "Explanation— The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely,— 23. In Act< a marriage (a) *** *** *** (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;" 6f accordance with Explanation (b) to sub-section (1) of Section 7 of the 1984, the Family Court is competent to declare as to the validity of or as to the matrimoniat status of any person. The decree of annUlment of marriage passed by the Judge, Family Court is sustainable under Explanation (b) to sub-section (1) of Section 7 of the Act of 1984. 24.Aftei{ appreciating the evidence available on record, especially absence of consentand non-obsen/ance of any custom or rituals required under Section 7 of the Act of 1955, learned Judge, Family Court has declared the rparriage null & void. Learned Judge, Family Court has declared the matrimonial status and validity of marriage of the respondent for which i he i^ competent under Explanation (b) to sub-section (1) of Section 7 of 1 theActof1984. i 25. For the foregoing reasons and considering the findings & final result of 1 declaration, we do not find any ground for interference in the judgment & / k» ;-:"7'^. ^f t^^ 1 'f 10 decr^e impugned. Consequently, the appeal is liable to be dismissed ,1. and jt is hereby dismissed with costs. 26.Advocate fees as per schedule. 27.Deci^ee be drawn up accordingly. j 28. A cojpy of this judgment & decree be placed in the record of First Appeal (M) No.23/2008. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge Soma