Misc. Appeal No.394 OF 1998 **** Appeal against the judgment and decree dated 30th April, 1998 passed by the Principal Judge, Family Court, Patna in Title Suit No.3 of 1995. **** Sanju Kumari: …. …………. Appellant Versus Manoj Kumar: ….. ……. ……… Respondent **** For the Appellant : M/s Helal Ahmad, Naushad Akhtar For the Respondents: Md. Kamal Uddin **** P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD THE HON’BLE MR. JUSTICE DR. RAVI RANJAN Dr.Ravi Ranjan,J. Appellant-wife, being aggrieved by judgement and decree dated 30th April 1998 passed by the Principal Judge, Family Court, Patna, in title suit no. 3 of 1995 declaring that there has been no legal marriage between the appellant and the respondent, has preferred this appeal. Husband respondent filed title suit no. 3 of 1995 for declaration that there has been no legal marriage between the respondent and the appellant. The status of the respondent-appellant is not that of legally wedded wife of the plaintiff as the marriage is showy, vitiated by fraud, coercion, mispresentation and thus not valid. According to the husband, who was born on 10.6.1976 and had just attained the age of 2 majority, the occurrence is of 19.7.1994. On persuation of one Mantu Kumar, who was known to him, the respondent-husband accompanied him to Bahpura Bazar for purchase of certain articles. While he along with Mantu Kumar was approaching the Bazar certain persons namely Rama Autar Singh, Bimal Singh, Nawal Singh, Gorakh Singh, Mahesh Singh and Kaushal Singh riding on motorcycles accosted them. They forced him to sit on one of the motorcycles and brought him to the adjacent compound of the Masaurhi Court. He was forced to sign upon typed papers and thereafter he was brought to Rustamganj in the house of one Nathu Ram @ Sachidanand Singh and was kept under confinement for three days. However, on getting information that one kidnapping case has already been filed against them, the kidnappers released him near the Canal of Naubatpur on 23.7.1994. Back home he explained everything to his father and other persons of the village. On the next day, as has been stated by the husband, he tried to lodge a case before the officer in charge Bihta P.S. but his statement was not recorded and hence he got his statement recorded by the Magistrate at Danapur. He further states that the kidnappers who were the relatives of Nathu Rai had kidnapped him for the purpose of marriage but the same could not materialise as the petitioner-respondent had to be freed from custody as aforesaid. It is the further case of the petitioner-respondent that his father had already lodged a first information report 3 on 22.7.1994 for aforesaid occurrence. He further states that while staying at village Habibpur, Nanihali village of his father, he along with two others came to Mithapur for purchasing some articles. They were being watched by certain persons, who again forced him to sit in the Maruti Car and brought him to Rustamganj and some photographs were forcibly taken along with the appellant-wife. Thereafter, on the next day the miscreants took him to Danapur and again forcibly took signature on certain typed paper despite his protest and a false drama of swearing affidavit was created and subsequently he was released near B.S. College. Further case of husband is that he then returned to the court and told the peshkar about the swearing of an affidavit under force, coercion and threat who according to him informed the court also about this. On the next day he filed a complaint case regarding the aforesaid offence. It has been stated therein that no marriage has been solemnized ever. No rituals were performed including the lighting of sacred fire and Saptapadi etc. It has been clearly stated by the plaintiff that under threat of life he was forced to make gestures and postures for taking photographs which was merely a drama. There was no marriage ceremony at all. The respondent-appellant (wife) rebutted the aforesaid allegations by filing written statement denying that the marriage between them is vitiated by fraud, coercion, misrepresentation and concealment. 4 According to her case, chief mediator of marriage was one Mantu Kumar who was bosom friend of the husband and a regular visitor of his house. She further states that Mantu Kumar had brought the petitioner- respondent to the house of the respondent-appellant for the purpose of interaction. Her case is that the petitioner-respondent got impressed by her and had agreed to marry her but his father was not ready for marriage without hefty dowry. Thereafter her father along with Ramautar Rai went for negotiation. Settlement of marriage was agreed upon by the husband side on getting a sum of Rs. 20,000/- as expenses of marriage. The marriage was settled in the last month of June 1994. However, the petitioner-respondent’s father started demanding of motorcycle, gold chain and Seiko watch etc. which the respondent-appellant side was unable to meet. It has been stated that the Manoj did not like the attitude of his father and came along with his friend to Rustamganj without informing his father and there, marriage was performed. She has stated in her written statement that in the said marriage Saptapadi was performed before sacred fire and Manoj Kumar put vermilion on the forehead of the defendant. This has been further disclosed in the written statement that several photographs have been taken with regard to the aforesaid marriage. She further states that after solemnization of marriage on 17.7.1994 both the respondent-appellant and the petitioner-respondent lived at Rustampur as husband 5 and wife for five days and, thus, the marriage was consumated. Her further case is that since the husband was apprehensive that his father may not like the marriage hence he had sworn an affidavit on 19.7.1994 and then returned to his home. In the meantime, according to her, a false case against the relatives of the wife under section 365 of the Indian penal Code was filed for kidnapping of Manoj Kumar. The case was registered as Bihta P.S. case no. 160 of 1994. Mantu Kumar was also made accused in that case. After getting knowledge of the same, petitioner- respondent had sworn affidavit on 3.9.1994 stating therein that he had voluntarily married the respondent. Thus her case is that marriage was valid and out of free will of the appellant and the respondent and it was the respondent who had filed the case under coercion on being forced by his father. The respondent appellant has clearly stated in her W.S. in paragraph 16 that the respondent petitioner Manoj Kumar came alone for marriage and marriage was solemnized according to Hindu rituals on 17.9.1997 in the absence of his family members. Therefore, the only point for determination in this case before the court below was whether there was any marriage between the parties according to Hindu rites and customs. Since the positive case of the appellant respondent was that valid marriage has taken place, therefore, the 6 Principal Judge, Family Court, has held that onus lies on the respondent appellant to prove the above fact. The respondent-appellant in altogether has examined six witnesses. O.P.W.1 Mantu Kumar has stated in his evidence that he was the mediator of the marriage negotiation. O.P.W 2 Chandeshwar Prasad and O.P.W.4 Ram Peyare Thakur have also been examined to support the case of the respondent appellant. O.P.W.3 Shakuntla Devi is the mother of the respondent- appellant. She has stated that dowry money was arranged by mortgaging certain lands, whereas O.P.W.5 Sanju Devi is the respondent-appellant herself. O.P.W.6 Ramautar Rai is the maternal grand father of the respondent-appellant. The wife herself has been examined as O.P.W.5 and she has stated in her evidence that marriage took place on 17.7.1994 at Rustamganj.Mantu Kumar (O.P.W.1) was the mediator in the marriage negotiation. The father of the respondent has also given consent for the marriage and was demanding Rs. 20,000/- as expenses thereof. She has further stated that marriage was solemnized by following all the customs including Saptpadi around the sacred fire, Kanya Dan and Sindur Dan etc. She has stated that after marriage she was taken to her matrimonial village and there her father-in-law and husband started demanding of Seiko wrist watch, motorcycle and gold chain and threatened her that she would not be accepted unless the aforesaid demands are fulfilled. Ultimately her husband took her back to 7 her father’s place on 19.7.1994. The mother of the respondent appellant (O.P.W.3) has stated that marriage was solemnized between the parties and Rs. 20,000/- was given to the father of the petitioner respondent prior to marriage. She has further stated that on the following day of marriage the custom of” Bidayee”also took place but at the same time the father of the petitioner-respondent started raising demand for motorcycle, Seiko watch and gold chain etc. However, the parents of the respondent appellant simply conveyed him that they are not capable of fulfilling the further demand. She has stated that though the respondent-appellant went to her matrimonial house but her son-on-law took her back to her parent’s house due to the aforesaid differences. Similarly O.P.W.6 is the maternal father of the respondent-appellant who has also supported the marriage and deposed that Rs. 20,000/- was given to the father of the petitioner for meeting the expenses of the marriage. He has further stated that both the parties have signed affidavit on 19.7.1994 and 3.9.1994. The alleged mediator of the marriage, Mantu Kumar, who has been examined as O.P.W.1 is stated to be the friend of the petitioner respondent and has claimed that it was he who got the marriage settled between the parties. He has further stated that father of the petitioner has also consented for marriage and he was given Rs. 20,000/- by the girls’ side for meeting expenses along with the ornaments 8 etc. According to him marriage was performed on 17.7.1994 following all Hindu rites and customs but after marriage the father of the petitioner- respondent made certain demands which could not be met by the father of respondent-appellant. He has also stated that respondent appellant stayed for two days in her matrimonial house and the husband Manoj Kumar has sworn affidavit twice. O.P.W.2 has also stated about the marriage taking place according to Hindu rites and customs. O.P.W.4 has described himself as Hajam (Barber) and has supported the case of respondent appellant that marriage was performed between the parties. He has gone far ahead to state that even Baarat had come to their village Maula and Bhola Pandit has performed the religious rites. He has stated in his cross examination that Bhola Pandit is still alive. However, surprisingly enough, though the witness has stated that Bhola Pandit has performed the ritual customs, but said Bhola Pandit has not been examined in this case. The evidence of O.P.W.4 has contradicted the statement of the respondent appellant made in paragraph 16 of the written statement that the petitioner respondent namely Manoj Kumar came alone without informing his father to Rustamganj for marriage. Petitioner-respondent has examined altogether eight witnesses in this case. P.W.1 Manoj Kumar is the husband himself, P.W.2 is the Mishri Pd. Singh is his father, P.W.3 Kamla Singh, P.W.4 Badri 9 Singh, P.W.5 Mangru Singh, P.W.6 Gupteshwar Pd., P.W.7 Uma Nath Singh and P.W.8 Ganesh Prasad are other witnesses. Petitioner-respondent P.W.1 Manoj Kumar has stated in his evidence that on 19.7.1994 he was present in the house when Mantu Kumar (O.P.W.1) who happens to be his co-villager, came to him and at his instance he went to Bahpura for purchasing certain articles where he was kidnapped by Ramautar (O.P.W.6) and others. He was taken to Masaudhi Court on a motorocycle and was forced to sign on a paper and was brought to Rustamganj where he was confined in the house of Nathu Rai for ¾ days. On being released on 23.7.1994 he returned to his house and informed his father about the occurrence and also filed a complaint case at Danapur. Thereafter he started living at maternal house of his father. He has further stated that on 2.9.1994, when he had come to Mithapur, Patna, as soon as he reached near Bhartiye Press he was again kidnapped by Bimal Singh and others and was taken back to Rustampur village by a Maruti Car about 10 P.M. in the night. Thereafter, joint photographs of petitioner-respondent and respondent-appellant were forcibly taken on the roof of the house while he was detained there for whole night and then on 3.9.1994 he was brought to Daldali Road Danapur in a house and again his signatures were forcibly taken on certain papers. Moreover he was released near the gate of B.S. College, Danapur. The witness has stated that 10 there was no marriage at Rustamganj and no custom and rites were performed nor any Pandit was there to perform the marriage. Father of the petitioner respondent has been examined as P.W.2 and he has stated that his son was abducted on 19.7.1994 for which he has filed a criminal case in Bihta police station against Mantu Kumar , Ramautar Rai, Bimal Rai , Mahesh Rai , Gorakh Rai and Kaushal Rai. According to him his son came back on 23.7.1994 and his statement was recorded under section 164 Cr.P.C. on 1.8.1994. He has further stated that his son was again kidnapped on 2.9.1994 and a complaint case had been filed in this regard. He has completely denied regarding the marriage and taking of Rs. 20,000/- by way of expenses of marriage and also denied the demand of motorcycle, gold chain etc by him. He has further denied that petitioner respondent went alone to the house of appellant respondent for the purpose of marriage on 17.7.1994. Similarly P.Ws 2, 3 and 5 have also denied the marriage and have stated about the abduction of the petitioner respondent. P.W.6 and 7 claim to have seen the incident of kidnapping whereas P.W.8 has stated that on 19.7.1994 no incident took place with Manoj. The Principal Judge has stated in his judgment that since the positive case of the respondent appellant is that there was a valid marriage and the husband has completely denied the marriage, therefore, the onus lies on the respondent 11 wife to prove that she was legally married with the petitioner. In my view, where there is no history of cohabitation for a long period rather even the girl has come with the statement that she has lived only for few days in the matrimonial house and the husband completely denies the factum of marriage supported with the fact that there has been cases filed by the father and son for kidnapping, the aforesaid view of Principal Judge does not seem to be incorrect. So far the documentary evidences are concerned the respondent-appellant has brought certain photographs of petitioner respondent and respondent appellant together as Annexure A series and two affidavits as Ext. B series whereas the petitioner- respondent has brought on record the certificate of Bihar School Examination Board as Ext.1. The judgment of complaint case no. 234 of 1993 is Ext.2. The first information report of Bihta police statioin is Ext.3. The order sheet dated 5.9.1994 of the complaint case is Ext.4 and the complaint petition is Ext.5 and the report of the Officer Incharge of Maner Police Station with regard to case no. 186(c ) /95 has been brought on record as Ext.6. On consideration of material on record including the oral and documentary evidence led by the parties the principal Judge has held without hesitation that there was no legal and valid marriage between the petitioner respondent and the respondent appellant. 12 So far the oral evidence is concerned, two contrasting versions have come up through the respective rival witnesses. However, there are certain contradictions in the evidence led by the respondent- appellant. First contradiction is in the evidence of O.P.W.4 namely Ram Peyare Thakur who described himself as “Barbar”. He has clearly contradicted the pleadings put forward by the respondent appellantg in her written statement where she has stated that annoyed with the behaviour of the father respondent- petitioner came to the village Rustamganj alone and thereafter marriage was performed according to Hindu rites and customs whereas this witness has clearly gone to say that sixty to seventy persons came with the bridegroom as Barati. There was Samiyana and Barati was made to stay in the school at Rustamganj. This is a vital contradiction and is against the case of respondent- appellant. Similarly O.P.W.5 has stated that demand of dowry was made by the husband and the father-in-law at her matrimonial house whereas the mother O.P.W.3 has stated that at the time of Bidai said demand was made. The grand father of the respondent-appellant has stated that during the marriage the father of the petitioner- respondent demanded motorcycle etc. whereas O.P.W1 has stated that after the marriage the demand was made and the respondent-appellant side refused to fulfill the demand. These are the vital contradictions not only in between the witnesses themselves but their statements 13 are contradictory to the pleading of respondent appellant also. Similar contradiction is found with regard to the negotiation and talks of marriage also.O.P.W.1, the alleged mediator of the marriage has stated that one month prior to the marriage talks had taken place at village Maula and in the said talks father and grand father of the of the respondent were also present along with the witness and on the same day marriage was settled. He says that the talks continued for about two hours and the date of marriage was also fixed in the said sitting. However, the O.P.W.6 has stated that the marriage negotiation did not take place in his presence. He has categorically stated that he never had a talk with the father of the respondent. Further O.P.W.3 has stated that dowry money was arranged by mortgaging certain lands but no such deed of mortgage or any document in support thereof has been produced by way of documentary evidence. O.P.W.1 has also stated that Girja Pandit and Mudrika Thakur have attended the marriage from Barat side and they are alive. These witnesses belong to village Maula but still the aforesaid Pandit or barber could not be examined on behalf of the respondent appellant. Not only that if the marriage was performed according to the Hindu custom then Pandit etc. must have participated and performed the Hindu rites on behalf of the girl side also. Failure of examination of any such Pandit also goes against the case of the respondent- appellant. 14 The most vital documentary evidence, as per the submission made on behalf of the learned counsel for the appellant are the photographs brought on record as Ext.A series. Ext.A is the photograph of the petitioner respondent and the respondent appellant standing together. Ext.A/1 is also photograph of the couple under the same ways as in Ext.A. but in sitting position. Ext.A/2 is also similar to that of Ext.A. Ext.A/3 is the photograph where the boy is holding a thali in the hand and putting vermilion to the respondent appellant. In my opinion these photographs cannot help in proving the marriage in the absence of any photographs showing the marriage ceremony itself. O.P.W.2 in his evidence has stated that the marriage was performed in the court yard where the photographs were taken. However, the aforesaid photographs cannot be regarded as evidence of marriage at all in absence of Mandap etc. Not a single photograph is there to show that there was marriage ceremony rather they go to support the case of the petitioner-respondent who has clearly stated in his pleading that he was forced to pose for certain photographs on the roof on the house. Learned counsel for the appellant submits that since the girl’s parent are very poor, therefore, they could not be able to take photographs of the marriage ceremony. It is very difficult to accept the aforesaid submission. If some body takes 4/5 photographs then at least one snap showing the 15 marriage ceremony could have easily been taken. Further submission of the learned counsel for the appellant is that in the photograph the boy’s face is looking smiling and there was no any sign of force and threat. However, learned counsel for the respondent submitted that the appellant will never bring such photographs on the record which could show the sign of threat, force or coercion. As the appellant has to prove the entire marriage of drama, therefore, the boy might have been forced to smile also. In fact the photographs aforesaid instead of proving the marriage goes disproving the fact of marriage. It also appears that there is not a single photograph of the couple along with the other family members or the family members of the bride groom side. During the course of examination the witnesses have said about rites of “Bidayee” etc. also but these rites were not supported by the photographs brought on record. So far the affidavits brought on record as Ext.B, B/1 are concerned, that cannot be relied upon as proof of marriage after having considered the oral and documentary evidence as aforesaid. Learned counsel for the respondent further submitted that it is a peculiar case wherein after the alleged marriage the couple has sworn an affidavit about the factum of marriage. Ordinarily when the marriage is solemnized according to Hindu rites there is no occasion of swearing an affidavit confirming the marriage. In view of the aforesaid 16 submission and also in view of the fact that the petitioner respondent has alleged that his signatures were forcibly taken on those papers to create some proof regarding the alleged marriage, I find substance in the submission of the learned counsel appearing on behalf of the respondent and thus it is held that the aforesaid affidavits do not support the respondent- appellant in substantiating her claim regarding marriage. Ext.3 is the F.I.R. lodged by the father against Mantu Kumar and Ramautar Singh (O.P.W.1 and O.P.W.6) along with other persons as accused regarding alleged act of abduction and about the missing of Manoj Kumar since 19.7.1994. So far the oral evidence adduced on behalf of the respondent- petitioner is concerned there are no deviation on the part of the husband or his witness at any place in their cross-examination. It appears to be correctly stated by the Principal Judge that the natural conduct of the party should be that in case of non fulfillment of demand, the bride is left deserted and not that any criminal case is filed for abduction of the petitioner. Thus, I do not find any vital contradictions in the evidence led on behalf of the respondent petitioner. From the materials available on record it is evident that the respondent appellant has not been able to prove that the marriage was held according to Hindu rites and customs. On the other hand the petitioner-respondent has been able to prove 17 that he was abducted, put under coercion and threat and confined by the persons of the respondent appellant side and there has been no legally valid marriage. Thus, I am of the opinion that the Principal Judge has rightly held that there was no legal marriage between the petitioner-respondent and the respondent appellant. In view of the aforesaid, the judgement and decree passed by the Principal Judge is lawful and valid. I do not find any merit in the appeal and it is dismissed accordingly,however, without any order as to costs. (Dr. Ravi Ranjan, J) Chandramauli Kr.Prasad J. (Chandramauli Kr.Prasad, J) Patna High Court The th Sept. 2008 Rahman/(A.F.R.)