MISC. APPEAL No.139 OF 1997 ------- Against the judgment dated 5.3.1997 and decree dated 17.3.1997 passed by Smt. Rekha Kumari, the Principal Judge, Family Court, Patna in Matrimonial Case No.57 of 1993. -------- Arbind Kumar Divedi, son of Girja Divedi, resident of Mohalla- New Bengali Tola, Police Station-Jakkanpur, District-Patna ---- Appellant—Opposite Party. Versus Sunita Devi (described herself as so called) wife of Arvind Kumar Divedi, resident of village- New Bengali Tola, Police Station-Jakkanpur, District- Patna at present residing at Village Pura, Police Station- Barh, District-Patna. --- Respondent/Petitioner. -------- For the Appellant : Mr. S.K. Verma. For the Respondent : None. -------- P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE KISHORE K. MANDAL S.K. Katriar, J. Heard Mr. S.K. Verma for the appellant. None appears on behalf of the respondent. 2. The respondent of Matrimonial Case No.57 of 1993 (Sunita Devi Vs. Arbind Kumar Divedi), has filed this appeal in terms of Section 19 of the Family Court’s Act, 1984, and challenges the correctness of the order dated 5.3.1997, whereby the matrimonial case preferred by the respondent herein under the provisions of Section 9 of the Hindu Marriage Act, 1955, has been allowed. We shall go by the 2 description of the parties occurring before the learned Family Court. 3. A brief statement of facts essential for the disposal of the appeal may be indicated. According to the case of the petitioner (the respondent herein), she was married to the respondent (appellant herein) according to Hindu rites and customs on 19.5.1989 at Village Pura, Police Station, Barh, District- Patna, whereafter they lived like husband and wife up-to 25.5.1989. She went along with her husband to her Sasural on 26.5.1989, along with her own sister and brothers. Her further case is that her mother- in-law is a greedy person and demanded heavy dowry from her father which was beyond his capacity. She was paid a smaller amount than the demand, which did not satisfy her as a result of which the respondent filed false and concocted case against the brothers of the petitioner. The allegation made in the criminal case was that respondent had been abducted and forcibly married to the petitioner. The petitioner’s application further alleged that on account of the tough attitude of the mother- in-law, the marriage can not be conciliated although the informant is willing to take her lawfully married wife. The application was, 3 therefore, filed for declaration that she was lawfully married wife of her husband, and for the further prayer of restitution of conjugal rights. 4. The respondent entered appearance and filed written statement to the effect that the brothers of the petitioner had abducted him on 19.5.1989, and was taken to Village Pura by Car and forcibly confined there till 26.5.1989. He was shifted from one house to other house, and the marriage took place at the point of pistol. Hence the question of cohabitation does not arise and the marriage was never consummated. He has also filed a criminal case against the brothers of the petitioner. The following issues were framed by the learned Family Court for consideration: 1. Whether the case as framed is maintainable? 2. Whether the petitioner has got any cause of action for the case? 3. Whether there was a valid marriage between the parties as alleged by the petitioner? 4. Whether the respondent has withdrawn himself from the society of the petitioner without any reasonable cause? 5.Whether the petitioner is entitled to get a decree for restitution of conjugal rites? 6. To what other relief or reliefs, the petitioner is entitled? 5. The parties led evidence in support of their respective cases. Paragraph 11 of the judgment is reproduced hereinbelow: 4 “Thus from the documents filed by the respondent it also appears that the petitioner’s brothers were prosecuted for abducting the respondent and they were convicted, and that the case brought on behalf of the petitioner against the mother of the respondent for dowry was dropped as final form was submitted by the police.” 5. Learned Family Court allowed the application for restitution of conjugal rights with the following findings: “The respondent has also not prayed for declaration of nullity of the marriage in his written statement also, on the contrary he has simply prayed that the suit may be dismissed as there has been no marriage but from the evidence discussed above I have already come to the conclusion that there is consistent evidence to show that there was a marriage between the petitioner and the respondent. Though I have also arrived at the conclusion that there was absence of consent of the respondent in this marriage but from this the fact of marriage cannot be denied and there is no prayer on behalf of the respondent for declaration of the marriage to be null and void, I do not find any reason as to why the wife i.e. the petitioner should not get a decree for restitution of conjugal rights.” 6. We have perused the materials available on record and considered the submissions of learned counsel for the parties. We feel very unhappy at the findings recorded by the learned Family Court, and the manner in which she has disposed of the case. On the one hand, she has stated that there was absence of consent of the respondent for the marriage, notwithstanding 5 which she has stated that there was a valid marriage. The two are mutually destructive findings, and can not stand side by side. 7. We must, therefore, carefully go into the evidence of the witnesses to reach the correct conclusion. The respondent had set up a clear case in the written statement that he had been abducted by the brothers of the petitioner, was kept in illegal confinement for a few days, whereafter he was forcibly married to the petitioner at pistol point. He has stated at length to that effect in his examination-in-chief. He has remained unshaken in his cross-examination. Paragraph nos. 8 and 11 of his cross-examination are reproduced hereinbelow for the facility of quick reference: Þ8½ eSus viuk O;kurgjhjh i<+k gSA eSaus O;kurgjhjh esa ;g fy[kk;k gS fd eq>s ,ecslMj dkj ds }kjk vigj.k dj eq>s csgks”kh dh nok f[kyk;h x;h Fkh vkSj eq>s nwljs fnu lqcg esa gks”k gqvk Fkk vkSj rc eq>s dgk x;k fd Þesjh “kknh lquhrk ls gks x;h gSAÞ eSaus O;kurgjhjh esa fy[kk;k gS fd iqfyl ds vkus ij eq>s nwljs O;fDr ds ?kj esa j[kk x;k Fkk vkSj fnukad 27-5-89 dks thi ls iVuk vkus ij ehBkiqj QkeZ ds ikl iqfyl ge yksxks dks idM+k FkkA 11½ ,slh ckr ugh gS fd iwjk xzke esa 7 fnuksa rd jgus dh vof/k esa esjs vkSj lquhrk ds chp ifr iRuh dk lEcU/k FkkAÞ 8. This has to be read with the judgment of conviction recorded against the brothers of the respondent that were guilty of abduction and forcibly marrying the parties. On the other hand, the criminal case started on behalf of the petitioner against respondent’s mother for dowry under the provisions of Section 498(A) of 6 the Indian Penal Code was dropped and final form was submitted by the police. The finding of the learned Family Court is recorded in paragraph 11 and is reproduced hereinabove. We, therefore, reach the conclusion that the respondent was forcibly married to the petitioner without his consent and the marriage had never been consummated. In that view of the matter, it is evident that the alleged marriage between the parties is void ab initio. It, therefore, appears that there cannot be a direction for restitution of conjugal rights. 8. In the result, the appeal is allowed and the impugned judgment and decree are hereby set aside. In the facts and circumstances of the case, there shall be no order as to costs. ( S.K Katriar, J.) (Kishore K. Mandal,J.) Patna High Court, Patna. Dated 15th October, 2009. Vinay/ N.A.F.R.