^ HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. ^ APPELLANT: RESPONDENT: First Appeal (M) No.76 of 2008 Smt.Anita Sharma Versus Shri Sanjay Banjari, @ Banty JUDGMENT FOR CONSIDERATION Sd/- T.P. Sharma Judge 'IBNN^, HON'BLE MR. JUSTICE R.N. CHANDRAKAR °> ^y^-^j^ Sd/- R.N. Chandrakar Judge Post for pronouncement of order on ^ October, 2009 Sd/- T.P. Sharma Judge HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. APPELLANT: RESPONDENT: First Appeal (M) No.76 of 2008 Smt. Anita Sharma, W/o Shri Sanjay Banjari (Sharma), aged about 45 years, R/o Near Nag Mandir, Sukrawari Bazar, Kundrapara, Gudhiyari, Raipur (C.G.) Versus Shri Sanjay Banjari, @ Banty, S/o Shri Mohan Lal Banjari, aged about 40 years, Panda Mandir Gali, Lodhipara Station Road, Raipur (C.G.) {Fjrst appeal under Section 19 (1) ofthe Family Courts Act, 1984} Present: Mr. Shrawan Agrawal, counsel for the appellant. . , Mr. SaifKhan, counselfor the respondent. ORDER ( ^ October, 2009) The followina order of the Court was passed bv T.P. Sharma, J: - 1. This|matrimonial appeal under Section 19 (1) ofthe Family Courts Act, 1984 is directed against the judgment & decree dated 30-4-2008 passed by the 1st Additional Principal Judge, Family Court, Rajpur in Civil Suit No.1j62 A/2007, whereby learned Additional Principal Judge, Family Court has dismissed the suit for restitution of conjugal rights filed by the appellant herein. 2. Judgment& decree are challenged on the ground that the Additional Principal Judge, Family Court has not considered the evidence sufficient to establish the relationship of husband & wife between the appellant & the respondent and thereby committed illegality. i^i^ ^£,3.-Brief facts giving rise to this appeal, according to the pleadings of the parties, are that the appellant was married to one Hazari Lal Sharma f7.j who;died in the year 1993. The appellant continued the business of money lending of her deceased husband after the death of her husband. In the year 1998, the appellant came into contact with the respondent and the respondent used to help the appetlant in her business. After some time, the respondent made a proposal of marriage with the appellant to which the appellant refused and finally the appellant agreed for marriage. In the month of November, 1998, the appellant married the respondent in a temple and continued her matrimonial life with the respondent till March, 2007. After March, 2007, all of a sudden, the respondent stopped to discharge his matrimonial obligations and left the house of the appellant. The appellant has requested the respondent to live with her as her husband and discharge the matrimonial life, but the respondent refused to continue the relation. Finally, theappellant filed a petition under Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act, !1955') for restitution of conjugal rights. 4. Theirespondent has opposed the allegation and specifically alleged in his pleading that he has never married the appellant, he has not discharged the matrimonialobligation and he has never requested the appellant for marriage and had never married the appellant at temple. The appeltant is not Hindu and she is Muslim by caste having three children. Valid marriage was even not possible in accordance with Section 5 ofthe Act, 1955. 5. On the basis of averments of the parties, issues were framed and after affording opportunity of hearing to the parties, learned Additional \ ' • '• ^ Principal Judge, Family Court has dismissed the petition for restitution of \ conjugal rights filed on behalf of the appellant. IIO^ ^i^^^ ^^^^'; ? w:3i^. 1 :w:issm ^: 3 '^^w 6. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe Court below. 7. Learned counsel for the appellant vehemently argued that the appellant has adduced sufficient evidence to prove her marriage with the resppndent in accordance with the Hindu law and the respondent has not rebutted the evidence adduced on behalf of the appellant, but the Court below has not considered the un-rebutted evidence adduced on behalf of the appellant and committed illegality by dismissing the petition for restitution of conjugal rights. 8. On the other hand, learned counsel for the respondent vehemently opposed the appeal and submitted that for getting decree of restitution of conjugal rights the appellant was required to prove the factum of valid marriage under the Hindu taw, but the appeltant has utterly failed to prove the factum of valid marriage. The appellant is not the member of Hindu and she belongs to Islam community. Valid marriage between a Hindu and a member of Islam is not legally possible. In absence of valid marriage the Court below has rightly -declined to pass decree for restitution of conjugal rights. 9. In order to appreciate the contentions of the parties, we have examined the evidence available on record. lO.Appellant Smt. Anita Sharma has deposed in her evidence that after the death of her first husband Hazari Lal Sharma, she was continuing her husband's business. The respondent came into her contact and he used to help her in her business. After some time, in the year 1998 the respondent proposed for marriage and also gave threat that if she witl not Imarry him, he will commit suicide. Finatly she married the respondent in a temple. But after some time, the respondent used to a ^^ "::"is9. j, i :^ ^' consume liquor and misbehave with her. Ultimately, the respondent left her on which she sent notice Ex.P-1 for restitution of conjugal rights, but even after receiving the notice, the respondent refused to live with her. Herwitnesses Smt. Jayanti Tandi, Smt. Lijawat Mary, Smt. Sangita Kale, PrahladAppaji, Prakash, Yashpal & Raj Kumar Ratanchand Sethia have supported her evidence. 11. Respondent Sanjay Banjari has examined himself and denied the allegation of marriage. In his cross-examination, the respondent has admitted that he know Hazari Lal Sharma. He has denied the allegation of marriage and has specifically deposed in para 13 of his evidence that the appetlant's name is Anisha Begum. 12.The appellant herein has admitted in para 4 of her evidence that after marriage she has not used Sindhoor. In para 5 she has admitted that she was known as Anisha Begum. She has also admitted in para 5 that she iis member of Islam. But after her evidence, she had filed an appljcation for correction in her statement dated 24-7-2007 vide application dated 17-1-2008 in which she has prayed that in her depositjon she had stated that "itis wrong that she is member of Islam", but erroneously it has been written that "it is true that she is member of Islam". 13. It appears from the evidence of theappellant and her application that she is not member of Islam, but she is member of Hindu. Prahlad Appaji (AW-5), Prakash (AW-6), Yashpal (AW-7) & Raj Kumar Ratanchand Sethia (AW-8) have specificatly deposed that they were present at the tjmelof marriage in Mahakaleshwar temple at Nagpur. Prahlad Appaji (AW-5) has deposed that he was Secretary of Mahakaleshwar temple. \ ! i \ But !they have not produced any record of marriage. Raj Kumar ^ ^. IK^ ^^ t ••^ y i te^Ratanchand Sethia (AW-8) has specificallydeposed that the appellant has changed her religion and married the respondent. Prakash (AW-6) has also admitted in para 2 of his cross-examination that the appellant has adopted Hindu religion. Prahlad Appaji (AW-5) has also deposed in para 2 of his evidence that the appellant has changed her religion and married the respondent. 14.According to the evidence & pleadings of the appellant, her name is Anita Sharma and she is member of Hindu religion. She has not pleaded that she has conyerted herself into Hindu or she was previously member of Islam, though she has signed in Urdu. She has neither deposed nor pleaded that she has converted herself into Hindu from Islam or from another religion. However, her witnesses who were present at the time of alleged marriage had specifically deposed that after converting herself into Hindu, she married the respondent. 15:The respondent has specifically pleaded and adduced evidence that the appellant is member of Islam and is daughter of one Bahadur Khan. Marriage between a Hindu and a Mus'lim is not legally possible. The respbndent has also deposed the aforesaid facts in his evidence, but the appellant has neither pleaded nor deposed the facts relating to her conversion from Islam to Hindu. However, her witnesses whom she had relied upon namely, Prahlad Appaji (AW-5), Prakash (AW-6) & Raj Kumar Ratanchand Sethia (AW-8) had deposed that the appellant has changed her religion and married the respondent. If the appellant was Hindu and the respondent was also Hindu, there was nooccasion or necessity for her conversion into Hindu. The evidence adduced on behalf of the appellant shows thatoriginally the appellant was not \ member of Hindu and she was member of another religion. Without her conversion into Hindu, tawful marriage between her and the respondent '^i FN^ 11»^. ^%. wasmot possible. Her statement and the evidence adduced are self- contradictory and not sufficient to prove the factum of lawful marriage. 16.After evaluating the evidence adduced on behalf of the parties, learned Additional Principal Judge, Family Court had arrived at a finding that the appellant & the respondent are not legally wedded Hindu spouses and has |dismissed the petition for restitution of conjugal rights. Learned Additional Principal Judge has not committed any illegality or infirmity in dismissing the petition. 17.For the foregoing reasons, we do not find any illegality or infirmity in the judgment & decree impugned warranting any interference. Consequently, the appeal is tiable to be dismissed and it is hereby dismissed. i ., , ' v 18.Parties shall bearthe costs ofthe suit as well as ofthe appeal. ! . . . • 19.Advocate fees as per schedule. 20.Decree be drawnup accordingly. Sd/- T.P. Sharma Judge | Sd/- R.N. Chandrakar Judge Soma