Bombay High Court
Chhandupriya @ Priyanka W/O. ... vs Rahul S/O. Arun Mohod on 17 March, 2016
Bench: V.A. Naik
FCA 97/15 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL No. 97/2015
Chhandupriya @ Priyanka w/o Rahul Mohod,
Maiden Name : Chhandupriya @ Priyanka @
Shubhangi Bhoyar,
aged about 28 years,
R/o C/o Smt.Satyabhama wd/o Tejraj Bhoyar,
At and Post Khasala, Tahsil Kamptee,
District Nagpur (On R.A.). APPELLANT
(Ori. Respondent)
ig .....VERSUS.....
Rahul s/o Arun Mohod,
aged 34 years, Occupation Advocate,
r/o C/o 86/87, Kachore Colony,
Chinch Bhawan, Wardha Road,
Nagpur - 440 025 (On R.A.) RESPONDENT
(Ori. Petitioner)
Shri S.P. Hedaoo, counsel for the appellant.
Shri A.V. Khare, counsel for the respondent.
CORAM :SMT.VASANTI A.NAIK AND
V.M. DESHPANDE, JJ.
DATE : 17 TH MARCH , 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)
The Family Court Appeal is ADMITTED and heard finally with
the consent of the learned counsel for the parties.
2. By this Family Court Appeal, the appellant challenges the
judgment of the Family Court, Nagpur, dated 21.11.2015 in Hindu
FCA 97/15 2 Judgment
Marriage Petition No. 1021 of 2013, allowing the petition filed by the
respondent-Husband for a declaration of nullity of marriage under
Section 12(1)(c) of the Hindu Marriage Act, 1955.
3. The facts giving rise to the Family Court Appeal are stated
thus:
The marriage between the respondent-Husband and the
appellant-Wife was solemnized on 13.06.2013 at Nagpur as per Hindu rites
and custom. The marriage was an arranged marriage. After the marriage,
the parties started residing together in the matrimonial home. Before the
marriage, the engagement ceremony was performed on 24.02.2013. It is
the case of the respondent-Husband in the Hindu Marriage Petition filed
by him against the appellant-Wife for a decree of nullity of marriage that
the appellant-Wife was never anxious to meet the respondent-Husband
after the engagement ceremony was performed. According to the
respondent-Husband, whenever the respondent-Husband asked the wife
to come out for a movie or accompany him to a hotel, the appellant-Wife
did not show any interest and refused to accede to his request. It is the
case of the respondent-Husband that on 11.06.2013, i.e. just two days
before the date of marriage, he received a phone call from an unknown
person informing him that the appellant is having an affair with one
Muslim boy and they are involved in physical relationship since 4 to 5
FCA 97/15 3 Judgment
years. It is pleaded by the respondent-Husband in the Hindu Marriage
Petition that it was informed by the unknown caller that he was the
respondent's well wisher and the respondent should not marry the
appellant. It is pleaded in the petition that after receiving the phone call,
the respondent-Husband was disturbed and spoke about the same with
the appellant-Wife and her brother. It is pleaded that the appellant-Wife
and her family members denied the information that was supplied to the
respondent-Husband by the unknown caller and he was told that
somebody might have mischievously called him with a view to defame the
appellant and her family members. It is pleaded that believing the words
of the appellant and her family members the marriage was performed on
13.6.2013. It is pleaded that after the marriage, the appellant-Wife was
remaining aloof and was disinterested in the respondent-Husband and his
family members. It is pleaded that there was no excitement on the face of
the appellant-Wife like a newly married girl. It is pleaded that the
appellant informed the respondent-Husband that she was not interested
in cohabitation. It is pleaded that the respondent-Husband thought of
giving some time to the appellant, but the appellant-Wife did not change
her ways and did not allow any physical relationship. It is then pleaded
that when once the respondent-Husband, his cousin and the appellant
were chatting, the appellant started reciting Azan, i.e. prayer in Urdu,
before them. It is pleaded that they were surprised to hear the prayer and
FCA 97/15 4 Judgment
on asking the appellant as to how she could recite the Azan, the
appellant-Wife replied that she likes Urdu and is interested in learning
Urdu. It is pleaded that one day the respondent-Husband found a diary in
the name of the appellant with some Urdu writing on it. It is pleaded that
the respondent-Husband got the Urdu writing translated and found that
the meaning of the said words were "I love you, you are my wife and I
cannot live without you." It is pleaded that on securing the knowledge of
the meaning of the aforesaid writing, the respondent-Husband got
distrubed. It is further pleaded that when the appellant-Wife went to her
parents' house for Ashadi Ekadashi, she did not call the respondent-
Husband till she returned to the matrimonial home after ten days. It is
pleaded that the respondent-Husband sought an explanation from the
appellant about the phone call, the Urdu writing and her non-cooperative
behaviour. It is pleaded that the appellant was frightened as soon as the
respondent-Husband showed the Urdu writing to her and she told the
respondent-Husband that she loves Mohammad Javed Khan, who is a
medical representative now, and that they had an affair for a period of 4-
5 years and both had decided to get married. It is pleaded that the
appellant-Wife informed the respondent-Husband that Mohammad Javed
Khan and the appellant could not marry due to the objection from the
mother and the brother of the appellant. It is pleaded that the appellant-
Wife confessed that she married the respondent only under pressure.
FCA 97/15 5 Judgment
4. It is pleaded that the respondent-Husband was frustrated on
hearing the aforesaid facts from the appellant and he informed the
appellant that he is not ready to continue with the matrimonial
relationship. It is pleaded that on the birthday of the respondent-
Husband, i.e. on 30th of July, the appellant did not greet the respondent-
Husband and informed him that she was not interested in him. It is
pleaded that the appellant's brother Satyajeet came to the house of the
respondent-Husband and took the appellant to the parental home. It is
pleaded that since 10th of August, the appellant is residing in the parental
home. On the basis of the aforesaid facts, it is pleaded that the appellant-
Wife had concealed a material fact in respect of the appellant's affair with
Mohammad Javed Khan from the respondent-Husband . It is pleaded that
the appellant-Wife had cheated the respondent-Husband and the consent
of the respondent-Husband for the marriage was secured by the
appellant-Wife by fraud and by concealing a material fact concerning the
appellant. It is pleaded that the respondent-Husband met Mohammad
Javed Khan and Mohammad Javed Khan admitted that he has an affair
with the appellant and he was helpless as the appellant's family members
did not permit him to marry her. It is pleaded that some meetings took
place to settle the matter amicably but without any success. On the
aforesaid pleadings, the respondent-Husband sought a declaration that
the marriage solemnized between the appellant-Wife and the respondent-
FCA 97/15 6 Judgment
Husband on 13.06.2013 was null and void under Section 12(1)(c) of the
Hindu Marriage Act.
5. The appellant-Wife filed the written statement and denied the
claim of the respondent-Husband. The fact of solemnization of the
marriage, after the engagement ceremony dated 24.02.2013, on
13.06.20013, was admitted by the appellant-Wife. The appellant-Wife,
however, denied that she had an affair with Mohammad Javed Khan. It
was denied by the appellant-Wife that she was not interested in marrying
with the respondent-Husband and that she did not show any interest in
accompanying the respondent-Husband to movies and hotels. The
pleading in respect of the alleged phone call received by the respondent-
Husband, a couple of day before the marriage, was denied by the
appellant-Wife. The appellant denied that she had recited complete Azan
(prayer in Urdu) in the presence of the respondent-Husband and his
cousin Ashwin. It is denied that the appellant-Wife knows Azan and that
she had told the respondent-Husband that she likes Urdu and is interested
in learning Urdu. The pleading of the husband, in respect of the diary
with some Urdu writing on it, was denied by the appellant. It was denied
that the respondent-Husband got the Urdu writing translated and
according to the translation, the writing was, "I love you. You are my wife
and I cannot live without you." It was denied that the appellant did not
FCA 97/15 7 Judgment
call the respondent-Husband during her ten days stay in her parental
home during 'Aashadhi Ekadashi.' The appellant-Wife denied that though
she had an affair with Mohammad Javed Khan, she was not able to marry
him because of her mother and brother. It was denied that the appellant-
Wife was forced to marry the respondent-Husband by her family
members. It was denied that the marriage was not consummated. It is
pleaded that the respondent-Husband had falsely pleaded an imaginary
story about the love affair of the appellant with Mohammad Javed Khan.
It is denied that the respondent-Husband met Mohammad Javed Khan
and Mohammad Javed Khan admitted about his affair with the appellant-
Wife. It is reiterated that the appellant does not have any relationship
with Mohammad Javed Khan and the case tried to be made out by the
respondent-Husband in the Hindu Marriage Petition is false and
concocted. The appellant-Wife then pleaded that after one month of the
marriage, the respondent-Husband informed the appellant-Wife that he
had an affair with one of his professional colleagues but due to the strong
opposition from his parents, he was not able to marry her. It is then
pleaded that since the marriage, the respondent-Husband was doubting
her character and the appellant-Wife was mentally tortured due to the
said behaviour. It is pleaded that the respondent-Husband doubted the
character of the appellant-Wife without any reason. It is lastly pleaded
that though the appellant-Wife tried to contact the respondent-Husband
FCA 97/15 8 Judgment
and asked him to take her back to the matrimonial home, the respondent-
Husband refused to do so and stated that if the appellant-Wife returns to
the matrimonial home, he would commit suicide or leave the house
forever. The appellant-Wife sought for the dismissal of the Hindu
Marriage Petition.
6. On the aforesaid pleadings of the parties, the Family
Court framed the issues. The respondent-Husband examined himself
and also examined Nagsen Mankar, who is said to have got the Urdu
writing on the diary translated. The respondent-Husband examined
Mohammad Sharik who knew Mohammad Javed Khan for four years
before he tendered the evidence. The appellant-Wife examined
herself and closed the evidence on her side. The respondent-Husband
produced certain documentary evidence to prove his case. On an
appreciation of the material on record, the Family Court, by the
judgment dated 21.11.2015 allowed the petition filed by the respondent-
husband and declared that the marriage, solemnized between the
appellant-Wife and the respondent-Husband on 13.06.2013, is null
and void under Section 12(1)(c) of the Hindu Marriage Act. Being
aggrieved by the said judgment, the appellant-Wife has filed this
Family Court Appeal.
FCA 97/15 9 Judgment
7. Shri Hedau, the learned counsel for the appellant-Wife
submitted that the Family Court was not justified in allowing the Hindu
Marriage Petition for a decree of declaration of nullity of marriage. It is
submitted that the Family Court erroneously relied on the Urdu writing in
the diary at Exhibit 44 though the respondent-Husband had not examined
the translator. It is stated that though the appellant-Wife had admitted
that the diary belonged to her, the writing in the diary was not proved. It
is stated that though Nagsen had stated in his evidence that he had given
the transcription of the Urdu writing to the respondent-Husband, the said
transcription is not filed in the court. It is stated that when the appellant-
Wife had gone to her parental home, the diary was found by the husband
and the Family Court could not have relied on the same, especially when
the appellant had denied the meaning of the Urdu words in the said
diary. It is stated that the case of the respondent-Husband is not
supported either by his parents or brother. It is stated that the
respondent-Husband ought to have examined either his parents, brother
or sister who was working in the same college where the appellant and
Mohammad Javed Khan were stated to have studied. It is stated that an
adverse inference needs to be drawn against the respondent-Husband for
not examining either Mohammad Javed Khan or any of his family
members in support of his case. It is stated that the Family Court did not
give due weightage to the last four lines in Exhibit 46-Note Book, wherein
FCA 97/15 10 Judgment
the wife had stated "Rahul, I will wait for you. I cannot live without you."
It is stated that the aforesaid words clearly show that the appellant-Wife
had great affection for the respondent-Husband and she did not want to
sever the ties with him. It is lastly stated that on the basis of the material
tendered by the respondent-husband, the Family Court should not have
recorded the finding that the appellant-Wife had an affair with
Mohammad Javed Khan and this material fact was not disclosed by the
appellant-Wife to the respondent-Husband.
8. Shri Khare, the learned counsel for the respondent-Husband
supported the judgment of the Family Court and submitted that on a
proper appreciation of the evidence on record, both oral and
documentary, the Family Court has rightly arrived at a conclusion that the
appellant-Wife had concealed a material fact or circumstance, the
disclosure of which may have resulted in the refusal on the part of
the respondent-Husband to perform the marriage with the appellant-Wife.
It is stated that though each material fact by itself may not be enough to
prove the concealment on the part of the appellant-Wife of a material fact
or circumstance concerning her, the cumulative effect of all the proven
facts clearly lead to a conclusion that the appellant-Wife has concealed a
material fact or circumstance concerning herself. It is submitted that
though the parties resided together for nearly 45 days, there is enough
FCA 97/15 11 Judgment
evidence on the part of the husband that the marriage between the
parties was not consummated. It is submitted that there is evidence
on record to show that the appellant-Wife was disinterested in
accompanying the respondent-Husband to movies and hotels during the
period between the engagement and the solemnization of marriage. It is
stated that the evidence of the respondent-Husband is supported by the
evidence of Nagsen and Mohammad Sharik. It is stated that the there is
nothing in the cross-examination of the respondent-Husband or his
witnesses to falsify their statements in the examination-in-chief. It is
stated that the appellant-Wife had admitted in the cross-examination that
the Book of Islam was possessed by her and the diary also belonged to
her. It is stated that Nagsen had clearly proved by his evidence that he
had got the Urdu writing translated and he had informed about the said
translation to the respondent-Husband. It is stated that Mohammad
Sharik had also clearly stated in his evidence that he knew Mohammad
Javed since past three to four years and he also knew that Mohammad
Javed had an affair with the appellant-Wife. It is stated that the Family
Court rightly considered the evidence of the respondent-Husband and his
witnesses as also the Urdu writing in Exhibit 44, which reads, "I love you.
You are my wife and I cannot live without you." It is stated that it was
necessary for the appellant-Wife to have examined some witnesses to
prove that some of the facts pleaded by the respondent-husband and
FCA 97/15 12 Judgment
concerning the appellant's brother and mother were not proved. It is
stated that the appellant had not applied for Restitution of Conjugal
Rights and this would clearly show that the appellant-Wife is not
interested in the respondent-Husband as she had an affair with
Mohammad Javed. It is stated that the mediation report clearly shows
that the mediation failed because of the counsel for the appellant-Wife. It
is stated that the view expressed by the Family Court is a correct view and
this Court may not interfere with the same in the Family Court Appeal.
9. On hearing the learned counsel for the parties and on a
perusal of the record and proceedings, it appears that the following points
arise for determination in this Family Court Appeal :
I) Whether the respondent-Husband is entitled to a decree of
declaration of nullity of marriage, under Section 12(1)(c) of
the Hindu Marriage Act?
II) What order?
10. For determining the points, it would be necessary to consider
the pleadings of the parties and the evidence tendered by them. It would
not be necessary to reiterate the pleadings of the parties, as we have
narrated the facts pleaded in the petition and the written statement in
FCA 97/15 13 Judgment
detail in the earlier part of the judgment. The respondent-Husband had
examined himself and had also examined two other witnesses in support
of his case. The respondent-Husband had reiterated the facts pleaded in
the petition in his examination-in-chief. The respondent-Husband was
cross-examined at length on behalf of the appellant-Wife. It was
admitted by the respondent-Husband in his cross-examination that the
parties exchanged their mobile numbers with a view to talk to each other
after the marriage was settled. The respondent-Husband denied the
suggestion that he did not receive the call pertaining to the appellant's
character and her affair with Mohammad Javed Khan on 11.06.2013.
The respondent-Husband denied the suggestion that he had falsely stated
that on 11.06.2013, he received a call in respect of the appellant's
character. The respondent-Husband denied the suggestion that the
marriage between the parties was consummated. The respondent-
Husband denied the suggestion that the appellant-Wife was not allowing
the respondent-Husband to maintain physical relationship. The
respondent-Husband admitted that he is unable to read and write Urdu.
The respondent-Husband reiterated in his cross-examination
that the appellant-Wife understands Urdu language and she had disclosed
the said fact to him. The respondent-Husband denied the suggestion that
he had falsely stated that the appellant-Wife had recited Azan in his
presence and in the presence of his cousins. The respondent-Husband
FCA 97/15 14 Judgment
denied the suggestion that with a view to create evidence against the
appellant-Wife, he had got written the Urdu writing in diary, Exhibit 44.
The respondent-Husband stated in his cross-examination that after the
marriage, the appellant-Wife brought all her books and educational
documents from her parental home to her matrimonial home. The
respondent-Husband denied that he had falsely stated that on inquiry
from the appellant-Wife, she had informed him that she had an affair
with Mohammad Javed Khan since past five years and because her
parents had not consented for the marriage, they could not marry. It was
denied by the respondent-Husband that he had not talked with
Mohammad Javed Khan and that he had not confessed about his affair
with the appellant-Wife. The respondent-Husband denied the suggestion
that after one month of the marriage, he had informed the appellant-Wife
about his affair with his colleague. The respondent-Husband denied the
suggestion that he was a man of suspicious nature and used to doubt the
character of the appellant-Wife. It is apparent, on a reading of the cross-
examination of the respondent-Husband, that there is nothing in the
cross-examination that falsifies his case either in his pleadings or in his
examination-in-chief.
Witness Nagsen was examined on behalf of the respondent-
Husband. Nagsen stated in his examination-in-chief that the respondent-
Husband had told him that he was not happy with his marriage as the
FCA 97/15 15 Judgment
appellant-Wife had an affair with Mohammad Javen Khan, who is a
Medical Representative. Nagsen stated that the respondent-Husband had
told him that he had found a diary with Urdu writing in the bag of the
appellant-Wife. Nagsen stated in his examination-in-chief that the Urdu
writing on the diary possessed by the appellant-Wife was got translated
by him from the Court. Nagsen was cross examined on behalf of the
appellant-Wife. Nagsen admitted in his cross-examination that he did not
have personal knowledge about the Urdu writing and that it was
addressed to the appellant-Wife. Nagsen, however, denied the suggestion
that he had falsely stated that the respondent-Husband requested him to
get the Urdu writing translated. Nagsen denied that the respondent-
Husband had not shown any diary or Urdu writing to him. Nagsen
admitted that he did not get the Urdu writing translated from the Court
and it was wrongly written in the affidavit that he got it translated
through the Court, though it is true that he had got the Urdu writing
translated.
11. The next witness examined on behalf of the respondent-
Husband is Mohammad Sharik. The said witness has stated that he knew
the respondent-Husband since past twelve years and he also knew
Mohammad Javed Khan, who is working as a Medical Representative,
since past 4 years. The witness stated that he was informed by the
FCA 97/15 16 Judgment
respondent-Husband in a depressed mood that he was not happy with his
marriage, as the appellant, his wife, was in love with Mohammad Javed
Khan, who is a Medical Representative. The witness stated that he
arranged the meeting of the respondent-Husband with Mohammad Javed
Khan and Mohammad Javed Khan had disclosed that he knew the
appellant-Wife, as they were in the same college of Pharmacy and they
were in love for a long time and had decided to marry each other but, the
family members of the appellant-Wife had forced the appellant to marry
with the respondent-Husband. Mohammad Sharik had admitted in the
cross-examination that he was not present at the time of the marriage of
appellant-Wife and the respondent-Husband. He, however, denied the
suggestion that he had falsely stated that Mohammad Javed Khan had
informed the respondent-Husband that he had an affair with the
appellant and he wanted to marry her. The witness denied that the
affidavit pertaining to his examination-in-chief was prepared by the
respondent-Husband on his own accord and that he had signed it without
going through the contents.
The appellant-Wife examined herself and reiterated the
pleadings in the written statement, in her examination-in-chief. She
stated in her examination-in-chief that the respondent-Husband informed
her after one month of the marriage that he had a love affair with one of
his professional colleagues but due to strong opposition from his family,
FCA 97/15 17 Judgment
he was unable to marry her. It is stated by the appellant-Wife that the
respondent-Husband was doubting her character. It is stated that though
she had asked the respondent-Husband to take her back to the
matrimonial home, he had refused to take her. Though the appellant-
Wife had denied in her written statement that the Diary-Exhibit 44 and
the Note Book-Exhibit 46 belong to her, she admitted in the cross-
examination that the Diary-Exhibit 44 and the Note Book-Exhibit 46
belong to her. The appellant-Wife admitted that the writing on the
second last page of Exhibit 46 i.e. Note Book, is in her handwriting. The
appellant-Wife denied the suggestion that she had prevented the
respondent-Husband from maintaining physical relationship with her.
The appellant admitted that she had completed her Diploma in Pharmacy
from Sachchidanand Institute of Pharmacy. She admitted that between
the year 2007-2010, she was studying in the said college. The appellant-
Wife admitted that before the marriage, the respondent-Husband had
been to her parental home on the occasion of her Birthday on 12.04.2013.
The appellant-Wife admitted that thereafter the parties did not meet each
other till the date of marriage, i.e. 13.06.2013. The appellant-Wife
denied the suggestion that though the respondent-Husband had asked her
to accompany him to movies and hotels, she had refused to do so. The
appellant-Wife denied the suggestion that she had falsely stated that the
respondent-Husband has a suspicious nature. The appellant-Wife denied
FCA 97/15 18 Judgment
the suggestion that she had falsely stated that the respondent-Husband
had threatened to commit suicide if she returned to the matrimonial
home. The appellant-Wife, however, admitted that she had never lodged
any report against the respondent-Husband in the Police Station.
12. It is clear on a consideration of the oral and the documentary
evidence, mainly the documents at Exhibits 44 and 46, that the
respondent-Husband had succeeded in proving that the appellant-Wife
had concealed the material fact in respect of her affair with Mohammad
Javed Khan while securing the consent of the respondent-Husband for the
marriage. Though the appellant-Wife had denied that Exhibits 44 and 46,
the Diary and the Note Book belong to her, in the cross-examination, she
has clearly admitted that the two documents belong to her and were
possessed by her. Both these documents play a very important part in
proving the case of the respondent-Husband. It is stated in the evidence
of the respondent-Husband and it is also not disputed by the appellant-
Wife that the appellant-Wife had carried all her books, note books and the
other study material from her parental home to her matrimonial home.
The respondent-Husband had discovered the Diary at Exhibit 44, while
the appellant-Wife was not at home. It is difficult to gauge, as to how,
the diary of a Medical Representative could be possessed by the appellant-
Wife, who is not working as a Medical Representative, though she has
FCA 97/15 19 Judgment
secured a degree of D.Pharm. Firstly, the appellant-Wife had denied in
her written statement that the diary, Exhibit 44 belongs to her. The wife
has, however, admitted in her evidence that the Diary Exhibit 44, belongs
to her. There is no explanation whatsoever coming forth from the
appellant-Wife as to how the Diary, Exhibit 44, came in possession of the
appellant-Wife. We find that there is some Urdu writing in the Diary
Exhibit 44. The respondent-Husband does not understand Urdu
language. It is the case of the respondent-Husband that he got the Urdu
writing translated through the help of his friend Shri Nagsen, who is
examined by the respondent-Husband, as one of his witnesses. It is stated
by the respondent-Husband in his evidence that the translation of the Urdu
writing is "I love you, you are my wife and I cannot live without you."
There is no explanation from the appellant-Wife about the possession of
the diary by her and also the Urdu writing. There is a suggestion from
the appellant-Wife that the Urdu writing was written by the respondent-
Husband only to create evidence against the appellant-Wife. We find
that the evidence of the respondent-Husband and his witness Nagsen is
more trustworthy than the evidence of the appellant-Wife. The Family
Court, therefore, rightly relied on the evidence of the respondent-
Husband and his witness Nagsen to hold that the respondent-Husband
had been successful in proving the Urdu writing on the document, at
Exhibit 44. Merely because the translator has not been examined, it
FCA 97/15 20 Judgment
cannot be said that the case of the respondent-Husband is falsified or
weakened. It would be necessary at this stage to reiterate that the
appellant-Wife is not a trustworthy witness, as she had denied in her
written statement that the diary belongs to her, but had admitted the said
fact in her cross-examination. In this background, the Family Court
rightly believed the case of the husband and his witnesses to hold that the
respondent-Husband had successfully proved on the basis of oral evidence
as also the documents Exhibits 44 and 46 that the appellant-Wife had an
affair with Mohammad Javed Khan and this fact was concealed by the
appellant-Wife while securing the consent of the respondent-Husband for
the marriage. Exhibit 46 is a Note Book that belongs to the appellant-
Wife, as admitted by her. On the last but one page on Exhibit 46, the
word "sorry" has been written almost 100 times by the appellant-Wife.
The appellant-Wife admits that the writing on the last but one page of the
note book at Exhibit 46 is in her handwriting. The Family Court has
rightly disbelieved the case of the appellant-Wife that the word "sorry"
was written many times by her as the respondent-Husband had asked her
as to how many times she could write the word "sorry" in one minute.
The Family court has disbelieved the case of the appellant-Wife in this
regard. The Family Court rightly held that a newly married couple will
not choose the word "sorry" for playing the game of writing a word
several times in a minute. The Family Court held and rightly so that the
FCA 97/15 21 Judgment
respondent-Husband had been successful in proving that after the
appellant-Wife admitted that she had an affair with Mohammad Javed
Khan, she wrote the word "sorry" several times in view of her guilt.
Apart from holding that the respondent-Husband had proved his
case on the basis of the aforesaid documents and his oral evidence, the
Family Court has held that the respondent-Husband had succeeded in
proving that the appellant-Wife had recited Azan, the prayer in Urdu
language in the presence of the husband and his cousins. The Family
Court found that the husband had been successful in proving that
Mohammad Javed Khan and the appellant-Wife were studying in the
same college of Pharmacy during the same period. The Family Court
found that though the parties were residing separately for a long time, the
appellant-Wife did not file a petition for restitution of conjugal rights.
Also, though the appellant-Wife had levelled the allegation in respect of
the disclosure of the affair of the respondent-Husband with one of his
colleagues, the wife had not substantiated the said fact. It is notable that
the wife had not disclosed the name of the colleague of the respondent-
Husband. We find that the allegations made by the appellant-Wife in this
regard are reckless and baseless and if it was really so, the wife would
have mentioned the name of the colleague with whom the respondent-
Husband allegedly had an affair. In one breath, the appellant-Wife has
levelled the allegation that the respondent-Husband was having an affair
FCA 97/15 22 Judgment
with one of his professional colleagues and in the other breath she has
pleaded that he constantly suspected her character. If the husband really
had an affair, why should he suspect the character of the wife. An infidel
husband would not bother about the wife. The approach of the Family
Court in appreciating the evidence is just and proper and the view
expressed by the Family Court, after consideration of the entire material
on record, appears to be the only view that could have been expressed.
13.
Much has been said on behalf of the wife in regard to the
non-examination of Mohammad Javed Khan by the respondent-Husband.
The Family Court rightly held that in the circumstances of the case, the
respondent-Husband could not have examined Mohammad Javed Khan.
The Family Court rightly observed that the parties should lead the best
evidence available with them but, in the circumstances of the case, it
cannot be said that the respondent-Husband was in a position to examine
Mohammad Javed Khan as his witness and despite that, he had failed to
examine him. The Family Court rightly observed that on the contrary, it
was not possible for the respondent-Husband to examine Mohammad
Javed Khan. The Family Court, therefore, rightly held that this was not a
case where the respondent-Husband had failed to produce the best
possible evidence that was available, in support of the claim of the
respondent-Husband that the appellant-Wife had an affair with
FCA 97/15 23 Judgment
Mohammad Javed Khan. We also do not find any force in the submission
that the respondent-Husband ought to have examined his family members
as his witnesses. The examination of the family members of the
respondent-Husband was not necessary for proving his case, in regard to
the affair of the appellant-Wife with Mohammad Javed Khan and the
respondent-Husband had rightly examined Nagsen, who had got the Urdu
writing in Exhibit 44 translated and Mohammad Sharik, who had
accompanied the respondent-Husband to Mohammad Javed Khan, who
was known to him for past four years, both being Medical
Representatives. The respondent-Husband proved his case on the basis of
the witnesses and also Exhibits 44 and 46 which supported his case about
the affair of the appellant-Wife with Mohammad Javed Khan for about
four to five years, before the solemnization of the marriage. We do not
find any force in the submission made on behalf of the appellant-Wife
that the wife was ready and willing to reside with the husband as the last
four lines on Exhibit 46 recited that Rahul, I would be waiting for you, I
cannot live without you. We find that after admitting the affair with
Mohammad Javed Khan before the respondent-Husband, the appellant-
Wife had written the word 'Sorry', a number of times on the last but one
page of Exhibit 46 and it seems that while leaving the house, with
repentance the wife wrote on Exhibit 46 that she would wait for the
respondent-Husband and that she cannot live without him. The last few
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words on Exhibit 46 would carry no meaning when the respondent-
Husband has approached the Family Court for a declaration that the
marriage solemnized between the parties is a nullity as the appellant-Wife
had concealed a material fact while securing the consent of the
respondent-Husband for the marriage.
14. We find that the Family Court has considered the entire
evidence in the right perspective to hold that the respondent-Husband
had been successful in proving his case for a decree of nullity of marriage
under Section 12 of the Hindu Marriage Act. There is no scope for
interference with the judgment of the Family Court in this appeal.
Hence, for the reasons aforesaid, the Family Court Appeal is
dismissed with no order as to costs.
JUDGE JUDGE
/TA/BRW/Gulande/APTE
