Abdul Hamid Mir vs Arjubanu Khatun
2021 Latest Caselaw 1615 Cal

18   02.03.2021                     S.A.18 of 2020
as
                                         With
                         CAN 1 of 2018 (Old CAN 7086 of 2018)

                                    Abdul Hamid Mir
                                          Vs.
                                    Arjubanu Khatun

                  Mr. Debashis Roy,
                  Mr. Bidyut Baran Biswas.
                                                     ...for the Appellant.


                         The concurrent findings of fact recorded by

                  both the courts below is sought to be challenged in

                  the instant second appeal solely on the ground

                  that the appellate court before admitting the

                  additional evidence and marking the document as

                  exhibit must afford an opportunity to cross-

                  examine the defendant/respondent.

At the first blush, we thought that the

aforesaid point appears attractive but after going

through the materials available on the record and

the certified copy of the depositions of the

plaintiff/appellant, we do not think that such

point takes a front seat. The entire matter can be

decided without looking or taking any clue from

the additional evidence.

The plaintiff/appellant filed a suit for

negative declaration that the

defendant/respondent is not his married wife. It is

alleged that he was employed in Delhi and could

come in contact with the respondent/defendant

who offered better employment within the State of

West Bengal. In pursuit of better future, the

plaintiff/appellant gave his photographs and some

documents to the brother-in-law of the

defendant/respondent and also put the signature

on the blank paper which has now been utilised

for the purposes of the marriage with the

defendant/respondent. In reality, there was no

marriage performed between the parties and the

claim of the respondent/defendant is fabricated

and/or concocted.

        On          the            other        hand,        the

defendant/respondent                contested       the      said

proceeding and it is all along the specific stand of

the said respondent/defendant that the marriage

was solemnised according to the Muslim Rites and

Customs and a joint application was made to the

Marriage Registrar and the marriage certificate

was subsequently issued. The said certificate was

filed in the case and marked exhibit. She further

contended that the complaint was lodged with the

local police station which was registered as first

information report and a case was started under

Sections 376/417 of the Indian Penal Code against

the plaintiff/appellant which upon submission of

the charge sheet was committed to sessions trial.

The judgement of the criminal sessions case was

also tendered in evidence and was marked exhibit

without any objection.

The trial court held that the story set up by

the plaintiff/appellant is unbelievable and found

that there was, in fact, the solemnisation of the

marriage between the parties. Before the appellate

court, the defendant/respondent took out an

application for additional evidence seeking to rely

upon the depositions in the criminal sessions case

where there was an admission on the part of the

plaintiff/appellant on the solemnisation of the

marriage.

Mr. Roy, learned Advocate appearing for

the appellant heavily relies on the portion of the

findings made by the first appellate court on the

acceptance of the additional evidence and marking

the certified copy of the depositions in the criminal

sessions case as exhibit. According to Mr. Roy, the

judgment of the appellate court is based upon the

new document produced as an additional

document without affording an opportunity to

cross-examine the witness and also to give an

evidence on the clarification and explanation to

such depositions made therein.

It is no doubt true that while permitting

the parties to produce additional evidence at the

appellate stage, the court must permit the other

side to have its version on such additional

evidence. If the document is sought to be received

in evidence for the purposes of marking exhibit,

such document unless admitted by the other side

should be tendered by the witness and an

opportunity to cross-examine such witness should

also be afforded.

There is no fetter on the part of the

appellate court to take additional evidence itself

without relegating the matter to the trial court.

However, while we gave second thought over the

matter, we find that the ultimate decision of the

appellate court cannot be faulted with even on

disregarding the additional evidence. The judgment

of the criminal sessions case was tendered in

evidence in the trial court and was exhibited. The

relevant excerpts recorded therein exemplify the

nature of the evidence as well as the stand of the

accused and the victim.

It was all along the specific stand of the

respondent/defendant that though the element of

cohabitation came before the marriage but

subsequently they married each other and the

sessions court found that there is no illegality in

the cohabitation of the husband and wife. The

civilised society permit so. Subsequently the

criminal case was dismissed leading to an

acquittal order of the plaintiff/appellant.

We are not unmindful of the proposition of

law, that the judgement of the criminal court does

not bind the civil court. Even we disregard the

same, the evidence of the plaintiff/appellant is

required to be seen for the purpose of ascertaining

the correctness of the statement made in the

plaint. In the cross-examination, the

plaintiff/appellant himself admitted that he

applied for registration of the marriage between

him and the defendant before the Muslim Marriage

Registrar. He further deposed that his parents did

not agree to the marriage with the

defendant/respondent and also admitted the joint

photographs put on the marriage certificate.

This part of the evidence goes directly in

conflict with the stand taken in the plaint. If the

plaintiff/appellant himself has admitted that he

applied for registration of the marriage, it runs

counter to the story set up by him that the

brother-in-law of the defendant/respondent took

the photographs and the signature on some blank

documents for the purpose of his employment

within the State of West Bengal. If such evidence is

taken, it belied the stand of the plaintiff/appellant

that the marriage was never solemnised and the

certificate issued by the Marriage Registrar is a

manufactured document. Such admission cannot

be overlooked and, therefore, we find that the

decision of the appellate court in dismissing the

appeal cannot be said to be infirm and/or illegal.

We do not find any substantial question of law

involved in the instant appeal.

Accordingly, the appeal is dismissed at the

stage of Order XLI Rule 11 of the Code of Civil

Procedure.

In view of the dismissal of the appeal,

connected application is also dismissed.

There will be no order as to costs.

(Harish Tandon, J.)

(Kausik Chanda, J.)