Bombay High Court
Ketaki Ramakantrao Paralkar vs Ganesh Sudhakarrao Jadhav on 8 December, 2023
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2023:BHC-AUG:25748-DB
1 1 FCA19.2023&Anr.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FAMILY COURT APPEAL NO. 19 OF 2023
Ketaki d/o Ramakantrao Paralkar,
Age : 27 years, Occupation : Household,
R/o. Ramakantrao Paralkar,
C 20, Basmath Road, M.I.D.C., Parbhani,
Tq. & Dist. Parbhani. ....Appellant
Versus
Ganesh Sudhakarrao Jadhav,
Age : 37 years, Occupation : Private Sevice,
R/o. Ckhilkha, Tq. Ahmedpur,
Dist. Latur. ....Respondent
AND
FAMILY COURT APPEAL NO. 22 OF 2023
Ketaki d/o Ramakantrao Paralkar,
Age : 27 years, Occupation : Household,
R/o. Ramakantrao Paralkar,
C 20, Basmath Road, M.I.D.C., Parbhani,
Tq. & Dist. Parbhani. ....Appellant
Versus
Ganesh Sudhakarrao Jadhav,
Age : 37 years, Occupation : Private Sevice,
R/o. Ckhilkha, Tq. Ahmedpur,
Dist. Latur. ....Respondent
.....
In both matters :
Mr. Nikhilesh K. Tungar - Advocate for the appellant
Mr. Mahesh V. Ghatge - Advocate for respondent
.....
CORAM : MANGESH S. PATIL
AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 1 DECEMBER 2023
PRONOUNCED ON : 8 DECEMBER 2023
2 2 FCA19.2023&Anr.odt
JUDGMENT [ PER : Neeraj P. Dhote, J. ] : -
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of the parties. Perused the papers.
2. These are the Appeals under Section 39 of the Special
Marriage Act, 1954 [hereinafter referred to as "the Act"], against the
common Judgment and Order dated 05.08.2022 passed by the Family
Court, Parbhani, in Petition No. A-45/2020 and Petition No. A-46/2020,
dismissing the Petition No. A-45/2020 and allowing the Petition No.
A-46/2020, with a direction to the Appellant to resume cohabitation
with the Respondent within sixty days, failing which the Respondent
shall be at liberty to take recourse to the provisions of law.
3. The Petition No. A-45/2020 was filed by the wife for decree
of nullity of her marriage under Section 25(iii) of the Act and the
Petition No. A-46/2020 was filed by the husband for restitution of
conjugal rights under Section 22 of the Act.
4. The order dated 04.07.2023 in both the Appeals shows
that, time was granted to the Advocates of both the sides to take
instructions from the litigating parties as to whether these appeals
should be referred to the Mediator at the High Court level. The order
dated 29.08.2023 in both the appeals shows that the wife was not ready
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to go for mediation as she was claiming declaration in respect of nullity
of the marriage, though the respondent was ready to go for mediation.
5. The Appellant is the wife and the Respondent is the
husband. The parties are referred to as per their nomenclature in the
Appeal.
6. It is submitted by the learned advocate for Appellant that
the marriage between the parties was not consummated. He further
submitted that consent of the Appellant for the marriage was obtained
by coercion and fraud. He would submit that the learned trial Court did
not appreciate the evidence available on record which would sufficiently
establish that the marriage was never consummated between the parties
and the consent of Appellant for the marriage was not voluntary. He
submitted that therefore, the impugned Judgment and Order needs to
be quashed and set aside.
7. It is submitted by the learned advocate for Respondent that
Appellant had approached the Family Court with incorrect pleadings and
her cross-examination could not discard the version of the Respondent.
He submitted that the learned Family Court has rightly passed the
impugned Judgment and Order.
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8. Though in the appeal, the Appellant has raised the ground
of non-consummation of her marriage with the respondent, it is clear
from the papers on the file that the petition was filed for decree of
nullity of marriage on the ground of consent being obtained under
coercion or fraud i.e. under Section 25(iii) of the said Act. The petition
filed before the trial Court is silent of the pleadings for annulment of
marriage on the ground of consummation of marriage which is governed
by Section 25(i) of the Act. It is needless to state, that in the absence of
specific pleadings about annulment of her marriage on the ground of
non-consummation, no evidence could have been led. The relevant
Section 25 of the said Act reads as under : -
"25. Voidable marriages. - Any marriage solemnized under this Act
shall be voidable and may be annulled by a decree of nullity if -
(i) the marriage has not been consummated owing to the
wilful refusal of the respondent to consummate the
marriage; or
(ii) the respondent was at the time of the marriage pregnant
by some person other than the petitioner; or
(iii) the consent of either party in the marriage was obtained
by coercion or fraud, as defined in the Indian Contract
Act, 1872:
Provided that, in the case specified in clause (ii), the Court shall
not grant a decree unless it is satisfied-
(a) that the petitioner was at the time of the marriage
ignorant of the facts alleged;
(b) that proceedings were instituted within a yeawr from the
date of the marriage; and
(c) that marital intercourse with the consent of the petitioner
has not taken place since the discovery by the petitioner
of the existence of the grounds for a decree:
Provided further that in the case specified in clause (iii), the
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Court shall not grant a decree if-
(a) proceedings have not been instituted within one year
after the coercion had ceased or, as the case may be, the
fraud had been discovered; or
(b) the petitioner has with his or her free consent lived with
the other party to the marriage as husband and wife after
the coercion had ceased or, as the case may be, the fraud
had been discovered."
9. Accepting the petition and the evidence as it is, there is
nothing to show/establish that there was non-consummation of the
marriage owing to the wilful refusal of the respondent/husband to
consummate the marriage. Even if for the sake of argument it is
accepted that the petition was on the ground of non-consummation of
her marriage, the same is not established before the Court below. Even
if the evidence of Appellant of not willing to undergo medical test is
ignored, the remaining evidence falls short of establishing the ground of
non-consummation. The necessary ingredients of the Section 25(i) of
the Act are not made out or proved by the Appellant. Thus, the ground
of non-consummation of marriage fails.
10. The other ground is that the consent of the Appellant for
the marriage was obtained under coercion or fraud. The evidence on
record shows that Appellant examined herself and her father in support
of her case whereas; the respondent examined himself, the lady Police
Constable as defence witness no. 2 at Exh. 81 and his friend as defence
witness no. 3 at Exh. 83 in Petition No. A-45/2020. The evidence
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available on record nowhere establishes that there was any coercion or
fraud practiced by Respondent on Appellant to seek her consent for the
marriage.
11. The evidence of lady Police Constable shows that when she
was on duty at Ahmedpur on 11.04.2017, the police from Parbhani
brought Appellant and Respondent with them and the statement of
appellant was recorded in her presence and she identified said statement
at Exh. 57. Her evidence shows that, in the statement Appellant had
stated that, she had accompanied Respondent willingly and that she
would go back to the Respondent after her examination was over. The
cross-examination of this witness no. 2 could not create dent in her
examination-in-chief.
12. It was a marriage registered under the Act which mandates
a prior notice under Section 5 of the Act, which was duly complied with
before the marriage was duly registered. The time of a month before
the marriage and fact that the matter had reached the police about two
months thereafter coupled with the conduct of the appellant and her
parents in never seeking to register any crime for alleged performance of
marriage by resorting to coercion are the additional circumstances to
discard appellant's stand/case about the manner in which the marriage
was performed.
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13. The scrutiny of the evidence led by the parties nowhere
proves that the Appellant's marriage with the Respondent before the
Registrar of the Marriage was under coercion or fraud. The necessary
ingredients of the Section 25(iii) of the Act are not proved by the
Appellant. Consequently, the ground of consent by coercion or fraud also
fails.
14. The Family Court considered all the aspects of the matter
and the observations/findings are consistent with the evidence available
on record. Even on re-appreciation of the evidence led before the Court
below, no other inference or conclusion is possible than the one arrived
at by the Court below. Hence, we pass the following order : -
ORDER
[i] The Family Court Appeals No. 19 of 2023 and 22 of 2023
are dismissed with no order as to costs.
[ii] Decree be drawn up accordingly.
[iii] The Record and Proceeding of the Petitions No. A-45/2020
and A-46/2020 be sent back to the Family Court,
Aurangabad.
[NEERAJ P. DHOTE] [MANGESH S. PATIL]
JUDGE JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 11/12/2023 11:09:09
