FIRST APPEAL No. 335 OF 2001 Against the judgment and decree dated 13.07.2001 passed by Sri Shiva Shankar Sharma, 1st Additional District Judge, Saharsa in Matrimonial Case No.6 of 1996. RANI DEVI ……….Applicant-Appellant Versus YOGESH KUMAR AZAD & ANR. ……… Opposite Parties-Respondents ******** For the Appellant : Mr. Anil Kumar Sinha, Advocate For the Respondent : Mr. Jitendra Prasad Singh, Advocate Mr. Abhishek, Advocate Dated : 16th day of May, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The applicant-appellant, Rani Devi has filed this First Appeal against the judgment and decree date 13.07.2001 passed by Sri Shiva Shankar Sharma, the learned 1st Additional District Judge, Saharsa in Matrimonial Case No.6 of 1996 dismissing the application filed by the appellant under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal right. (2) The appellant filed the aforesaid application under Section 9 of the Hindu Marriage Act alleging that the father and brother of the appellant contacted the respondents and negotiated the marriage of the Mungeshwar Sahoo, J. 2 appellant with respondent no.1, Yogesh Kumar Azad. The respondents accepted the offer and agreed to marry with the appellant. The respondents saw the appellant, Rani Devi in presence of their relatives and they agreed to marry. The golden ring along with cloth and cash were given to the appellant by respondent no.2 who is mother of respondent no.1. The date of marriage was fixed on 12.01.1996 and on the said date, marriage was performed according to Hindu rites. Photos were also taken. However, at the time of feast after marriage, some of the relation of the respondents demanded wine to which the father of the appellant refused. As a result of which, there was altercation of hot words and opposite parties-respondents threatened to face dire consequences. The respondent no.1 i.e the husband became very angry and demanded scooter, freeze, godrej, colour T.V. and cash of Rs.50,000 as dowry from the father of the appellant which was not fulfilled causing annoyance to the respondents. After intervention of well wishers, the appellant was brought by the respondent to Saharsa on 13.01.1996. On 16-17th January 1996, the respondent no.1 and his brother abused her and did not provide food. They started torturing her in relation to demand of dowry. The respondent no.1 filed a false criminal case against the brother and relation of the appellant in collusion with Railway Police. At Saharsa, she lived with her husband and there was physical relation between them. Subsequently, she was sent back to her parent’s house. In spite of repeated request made by her father and other relation to keep the appellant with him, the respondent no.1 did not agree and instead demanded 1 katha land at Saharsa. On these grounds, the appellant prayed for restitution of conjugal rights. 3 (3) The respondents appeared and filed written statement denying all the allegations made in the application under Section 9 of the Hindu Marriage Act. They also denied the marriage between the appellant and the respondent no.1 on 12.01.1996. According to the respondents, the opposite party-respondent no.1 was posted as Ticket Collector and was on duty on 15.01.1996 till 12:30. After completing his duty when he reached near Railway enquiry, the brother of the appellant namely Vijay Verma, Bhagwan Verma, Natwar, Suma, Himansu Shekhar Verma kidnapped him and kept him confined in a room. They proposed him to marry with the appellant to which he refused. As a result of which, they assaulted him brutally. On 16.01.1996, the villagers saved him. Then he filed criminal case being Saharsa Rail P.S. Case No.3 of 1996 on 17.01.1996 under Section 363,366,323 and 506/34 I.P.C.. The chargesheet has been submitted in the case against the said accused persons. The brothers of the appellant are criminals and there are several criminal cases against them. The number of many cases has been mentioned in the written statement. The further defence is that on 11.01.1996 and 12.01.1996, the respondent no.1 was on duty as Ticket Collector at Saharsa Railway Station. (4) On the basis of the above pleading of the parties, the learned Court below framed the following issues: I. Is the suit as framed maintainable? II. Has the plaintiff got any cause of action for the suit? III. Is the plaintiff legally wedded wife of defendant Yogesh Kumar Azad? IV. Has the plaintiff been deserted by her husband defendant no.1 and is she entitled to any restitution of her conjugal life? 4 V. Any other relief or reliefs which the plaintiff is entitled to? (5) After trial, the learned Court below came to the conclusion that the appellant has failed to prove the marriage on 12.01.1996 and, therefore, dismissed the application for restitution of conjugal right. (6) The learned counsel for the appellant, Mr. Anil Kumar Sinha submitted that the learned Court below has approached the case in a wrong angle. Although, there were overwhelming evidences regarding the marriage held on 12.01.1996, the learned Court below has wrongly discarded the evidences on untenable grounds and dismissed the application. The appellant’s case was that on 12.01.1996, marriage was solemnized whereas according to the defence, no marriage was held. Therefore, the Court was required to find out as to whether there was marriage or not but the learned Court below held that “Saptpadi” was not performed and in Hindus in the month of January till Sankranti, no marriage is permitted which was not the case of either the appellant or the respondent. The Court has made out a third case. So far criminal case filed by the respondent no.1 is concerned, the learned counsel submitted that because there was quarrel after marriage regarding demand of wine, the respondents became angry and they started torturing the appellant in Sasural demanding dowry and for not fulfillment of the same, a false case was filed. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside and the application for restitution filed by the appellant be decreed. (7) Mr. Jitendra Prasad Singh, the learned counsel appearing on behalf of the respondents submitted that for a valid marriage, 5 performance of “Saptpadi” is necessary but the appellant has failed to prove the same. The respondent no.1 has adduced overwhelming evidences to prove that he was on duty on 11.01.1996 to 15.01.1996 and, therefore, there was no question of marriage arises on 12.01.1996. The learned Court below has appreciated all the evidences available on record and has rightly found that the appellant has failed to prove the marriage. On these grounds, the learned counsel submitted that the impugned judgment and decree cannot be interfered with. (8) In view of the above submission of the parties, the points arises for consideration in this appeal is as to “whether the appellant has been able to prove her marriage with respondent no.1 on 12.01.1996” and “whether the impugned judgment and decree are sustainable in the eye of law?” (9) In the plaint at paragraph 6, there is clear and specific averment to the effect that on 12.01.1996, opposite party no.1 married with the petitioner and the marriage was performed according to the Hindu rites. At paragraph 10, the venue of marriage, the name of Pandit and the name of Thakur have been mentioned and again, it is stated that the marriage was performed according to Hindu rites. In reply to paragraph 6 of the plaint in the written statement at paragraph 16, it is stated that the statements made in the said paragraph and paragraph 5 and 7 are baseless and wrong. They denied all the allegations regarding negotiation, conversation, giving of ring, cloth and marriage on 12.01.1996. The statement made in paragraph 10 of the plaint has been replied at paragraph 24 of the written statement wherein it is stated that the statements made in paragraph 10 and other paragraphs 6 are false and fabricated. From the pleadings, it is clear that the appellant is specifically saying that on 12.01.1996, marriage was held according to Hindu rights whereas according to the respondents, no marriage was held. This is two versions before the Court. In such circumstances, the Court is required to find out which version is correct. Whether the version of the appellant or the version of the respondent is correct? (10) To prove their respective cases, the parties have adduced evidences. A.W.1 is the applicant-appellant, Rani Devi herself. She has fully supported the case made out in the application under Section 9 of the Hindu Marriage Act. It will be only repetition if her statement is written here. She has named the Pandit who performed marriage and also named the Thakur. She has stated that after marriage, her husband brought her to Sasural. Marriage Card was also printed and distributed. She lived with her husband from 13.01.1996 to 16.01.1996. Thereafter she was driven out from the Sasural in connection with demand of T.V., godrej, freeze, sofa etc. and the husband is not keeping her with him. In the cross-examination, suggestion has been given that no “Sidhanth” was performed. She has also stated that during marriage, photographs were taken. At paragraph 31 of her cross-examination, suggestion has been given to her that no marriage was performed. A.W.2 is the Pandit who performed marriage. He has stated that he performed the marriage between the appellant and respondent no.1 according to Hindu rites and customs. Barat had also come. In the said marriage, Chandeshwari Thakur was barber. He was knowing Yogesh Kumar Azad from before. In the cross-examination, he has stated at 7 paragraph 10 that he was Purohit in the marriage of sister of the appellant also. He has named the sister of appellant as Punita whose marriage was performed two years earlier. Suggestion has been given to him that he has not performed marriage between Yogesh and appellant to which, he has denied. A.W.4 is brother of the appellant who has also supported the performance of marriage of the appellant with respondent no.1 according to the Hindu rites. Same is the evidence of A.W.5. (11) The respondents have examined D.W.1 who has stated that no marriage was performed according to Hindu rites and customs. On 11.01.1996, shradh was performed in the house of Yogesh. In that shradh, father and brother of Rani Devi and others were present. This shradh was performed upto 13.01.1996. It may be mentioned here that so far marriage is concerned, he has only denied. In other words, his evidence is negative evidence. However, in paragraph 2, he has stated that father and brother of the appellant were present in shradh. D.W.2 has also stated about shradh. According to this witness, shradh was performed in his house from 12.01.1996 and all the villagers were invited. At paragraph 2, he has stated that to his knowledge no marriage was performed. D.W.3 has also simply denied that no marriage was held on 12.01.1996 or any other date. D.W.5 has also simply denied the marriage. D.W.7 is brother of Yogesh Kumar Azad. He has stated that no marriage was performed on 12.01.1996 as on 12.01.1996,yearly shradh of his grandmother was performed. D.W.8 is not on the point of marriage. D.W.9 is the mother who is respondent no.2. D.W.10 has also denied the marriage. D.W.11 is respondent no.1 8 himself. D.W.12 and 13 have also simply denied that no marriage was held on 12.01.1996. D.W.15 has also denied that no marriage was held. (12) From the discussion of the oral evidences as stated above, it appears that the evidence adduced on behalf of the respondents is negative. Negative needs no proof. Therefore, it is for the appellant to prove the marriage as alleged by her. We have discussed the evidences of the appellant-witnesses. Almost all of them including the Purohit and the barber have stated about the performance of marriage according to Hindu rites and customs on 12.01.1996 whereas according to the respondents, they simply denied that no marriage was performed. From perusal of the impugned judgment, it appears that the learned Court below disbelieved A.W.5 on the ground that he is unable to give the name of anyone of Barat party and also failed to name brother and brother-in-law of bridegroom. On the basis of this observation, the learned Court below came to the conclusion that this witness is highly tutored witness and it is not safe to place reliance on him. In my opinion, this approach of the learned Court below is not tenable. Only because he is unable to name the brother or brother-in-law of bridegroom or any Barat party, his entire evidence cannot be discarded. Likewise, the learned Court below has disbelieved A.W.2 on the ground that he is resident of another village in the District of Supaul whereas the marriage was performed in village Khatomi. The distance is about 50-60 kilometers. In my opinion, on this ground also, the evidence of Purohit could not have been disbelieved. Further, the learned Court below observed that there is nothing on record that how this witness was employed as a priest to perform the marriage. So far this 9 observation is concerned also, is nothing but doubt only. This witness has clearly stated that he is the family priest of the appellant. Likewise, the learned Court below also observed that A.W.1 and A.W.4 have not stated as to why this priest was employed in preference to priest of his village. In my opinion, this is not a ground for doubting the presence of A.W.2 in the marriage and performing the marriage. The learned Court below further held that generally in Hindu community in the month of Paush, no marriage is performed and, therefore, doubted about the present marriage. So far this finding of the Court below is concerned also, it is not acceptable because there is no bar in Hindu Marriage Act to the effect that marriage cannot be performed in the month of Paush. Here, the appellant has given specific date of marriage on 12.01.1996. Therefore, the Court is required to see whether the marriage was held on that date or not. By mere raising doubts the fact which had happened and established by the evidence cannot be negatived. The learned Court below further observed that this witness has not stated about “Saptpadi”. So far this observation is concerned also, it is untenable because it is not the case of the respondent that marriage is void or voidable because “Saptpadi” was not performed. As stated above, only dispute between the parties is that marriage was held on 12.01.1996 or not. It appears that the learned Court below disbelieved the evidences of A.W.4 and A.W.1 on the ground that marriage cannot be performed in the month of Paush. As stated above, neither there is any statutory bar nor customary bar nor any provision to presume that no marriage can be held in the month of Paush. 10 (13) Here, the applicant-appellant herself has been examined as A.W.1 and she categorically stated that she was married with the respondent no.1 on 12.01.1996. There is no reason as to why a Hindu woman will depose falsely that she has been married with a person with whom in fact, no marriage was performed. There is no reason as to why her evidence be looked into with the aid of wooden spectacle. No doubt, there may be some inconsistencies/discrepancies in the evidences of the witnesses but in civil cases, burden is to prove balance of probability. All inconsistencies or infirmities in the evidences cannot impeach the credit of the witness. From perusal of the impugned judgment, it appears that the learned Court below pointed out various minor discrepancies and/or infirmities in the statements of the witnesses which are not sufficient to disbelieve the case of the appellant. (14) The learned counsel for the appellant submitted that the defence taken by the respondents regarding kidnapping by the brother of the appellant is not relevant in the present case. Likewise, performance of shradh of grandmother is also not relevant because in a Matrimonial Suit, the Court is not required to examine and find out whether the defence is correct or not. From perusal of the record, it appears that the respondents have filed the F.I.R.(Exhibit-B). It appears that this Exhibit-B is dated 17.01.1996. The allegation has been made that the respondent was kidnapped on 15.01.1996. This is not the case of the respondent that after kidnapping, he was forcibly married with the appellant. Therefore, this Exhibit-B is not relevant for the purpose of deciding the question as to whether marriage took place on 12.01.1996 or not. This occurrence is subsequent to marriage. Exhibit-C is the 11 chargesheet in that case. This Exhibit-C has also got nothing to do in this case. Exhibit-A series are the Certificates granted by Chief Ticket Collector and Mukhiya. The authors of these Certificates have not been examined and, therefore, this Exhibit-A series cannot be taken into consideration. (15) From the discussion of the evidences of the parties, prima facie, it is clear that marriage was performed on 12.01.1996. The evidence of the appellant is unshaken. I do not find any reason to disbelieve her statement before the Court. The evidence of A.W.4 who is brother of the appellant cannot be discarded on the ground that a criminal case has been instituted subsequent to the marriage by the respondent or on the ground that other criminal cases are pending. Likewise, the marriage cannot be disbelieved only because generally no marriage is fixed prior to January 14th or in the month of Paush. There is no such presumption under any law that if it is performed in the month of January prior to 14th , then it will not be relied upon on the ground that it is month of Paush. I have discussed the reasonings of the learned Court below. In my opinion, all the reasonings assigned by the learned Court below for discarding the evidences of the witnesses are untenable and are not sound reason. It may be mentioned here that this is not a criminal case and, therefore, the appellant is not required to prove the fact beyond all reasonable doubt. It appears that the learned Court below disbelieved the case of marriage on other ground i.e. the parent of the appellant has not been examined. It may be mentioned here that appellant herself has been examined and her brother has also 12 been examined. No adverse inference can be drawn for non- examination of parents. (16) In view of my above discussion, I find that the appellant has been able to prove the marriage with the respondent no.1. Since the respondent has not made out any reasonable excuse for withdrawal from the society, the only defence is that no marriage was held, I, therefore, find that the appellant is entitled for a decree for restitution of conjugal right. (17) In the result, this First Appeal is allowed. The impugned judgment and decree are set aside. The Matrimonial Suit filed by the appellant under Section 9 of the Hindu Marriage Act is allowed with cost of Rs.15,000. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 16th May, 2011 Saurabh/N.A.F.R.