-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 332/2008 Sachin Gajanan Lohakpure -versus- Ku. Vaishali Haridas Sarode ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 15, 2009. Heard Advocate Shri N.B. Raut, for appellant - husband and Advocate Shri J.B. Kasat, for respondent – wife. Challenge is to reversing judgment delivered by the Lower Appellate Court. The appellant – Husband had filed proceedings for restitution of conjugal rights and the said H.M.P.No.182/2004 was allowed on 28.03.2007 by the Joint Civil Judge, Senior Division, Amravati and by the very same judgment the claim made by the respondent wife was dismissed. Wife challenged the same in Regular Civil Appeal No. 75/2007 and the Lower Appellate court vide judgment dated 11.07.2008 allowed the appeal after holding that the -2- trial court did not correctly appreciated the evidence and there was no material on record to show that there was valid marriage between the respondent and the present appellant. Advocate Shri Raut, has challenged this judgment on two grounds. His first contention is that the appeal was heard by the Lower Appellate Court on 05.07.2008 and on that date there was already an application for adjournment filed vide Exh.13 by the counsel representing the respondent / husband before the Lower Appellate Court. No orders were passed on that application and matter was fixed for judgment on 11.07.2008. According to him therefore in such an important matter the judgment has been delivered without hearing the counsel for present appellant. He further states that there was a certificate placed on record issued by Priest, Arya Samaj, Amravati which disclose that there was marriage duly performed by the present respondent and appellant and he argues that the said certificate has been discarded for irrelevant reason and evidence of Priest has also been disbelieved. Advocate Shri Kasat, appearing for respondent points out that the Lower Appellate Court has considered the material produced on record and has found that there was no evidence to show that -3- there was a valid marriage with the consent of the respondent between the parties. He also invites attention to reply to the said application filed by respondent to show that on the relevant date the Lower Appellate Court waited till 11.45 in the morning and thereafter arguments were commenced and application for adjournment was filed belatedly at about 1.30 in the afternoon and the Court adjourned the matter to 11.07.2008 for delivery of judgment. After 5.7.2008 till 11.07.2008 the appellant had not taken any steps requesting the Lower Appellate Court to permit the counsel to argue the matter. It is mentioned that no such steps were taken on 11.07.2008 also. Advocate Shri Raut, at this stage has sought permission to place on record certain documents and also sought adjournment for 7 days for that purpose. According to him no orders were passed on Exh.13 and he wanted to produce certified copy of Exh.13 on record. However, the present reply is served by the respondent on the appellant on 08.09.2008 and for a period of about 4 months there is no counter and no documents are filed on record. In the circumstances, that request came to be rejected. Perusal of the judgment delivered by the Lower Appellate Court reveals that the Lower -4- Appellate Court has scrutinized the entire evidence on record and found that the photographs placed on record were not proved in accordance with law, and therefore were not sufficient to show that there was any marriage between the appellant and respondent. The certificate issued by the Priest of Arya Samaj Exh.36, was also looked into and it was found that this certificate did not bear the signature of President or Secretary of the said Arya Samaj. The paper cutting which was produced below Exh.48 was also found to be not legally proved. The Appellate Court concluded that certificate Exh.36 does not appear to be genuine. Evidence of Priest alone is not sufficient to show that there was marriage between the parties, when there could have been other evidence as the marriage itself was seriously in dispute. In the circumstances, I do not find any substantial question of law arise in the matter, as the appreciation of evidence by Lower Appellate Court cannot be treated as erroneous or perverse, Second Appeal is dismissed. No cost. JUDGE Rgd.