Chattisgarh High Court
Bhumika @ Riya Mishra vs Nitin Soni @ Bittu on 11 October, 2022
Page 1 of 5
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 202 of 2018
1. Bhumika @ Riya Mishra W/o Nitin Soni @ Bittu, Aged About 21
Years, R/o House Of Chotelal Soni, Shitla Ward No. 19, Kabirpara,
Kawardha, Present R/o House Of R.P. Mishra, Gaya Nagar, In Front
Of A.B. Tailors, Ward No. 3, Lane No. 01, Durg, P.S. Mohan Nagar
Durg, District Durg (C.G.).
---- Appellant
Versus
1. Nitin Soni @ Bittu S/o Laxminarayan Soni, Aged About 24 Years R/o
House Of Chotelal Soni, Shitla Ward No. 19, Kabirpara, Kawardha,
Halmukam Sarara Line Kawardha, P.S. And Tehsil Kawardha,
District Kabirdham (C.G.).
--- Respondent
For Appellant : Mr. Vidya Bhushan Soni, Advocate appears
on behalf of Mr. Shikhar Bakhtiyar, Advocate.
For Respondent : None appears, despite service of notice.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
Per Goutam Bhaduri J.
11/10/2022
1) Heard.
2) The present appeal is against the judgment and decree dated
20/08/2018 passed by the Family Court, Kabirdham (C.G.) in Civil
Suit No. 46A/2017 whereby a decree for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act, 1955 (in short
"the Act, 1955") was passed in favour of the husband. Therefore,
the instant appeal by the wife.
3) The brief facts of the case are that the husband filed a petition for
restitution of conjugal rights on the ground that he was married to
the appellant Bhumika @ Riya Mishra on 08/02/2016 according to
the Hindu rituals following the ceremonies. Thereafter, they started
living at Kabirdham. It was stated that the family members of the
girl were not a consenting party to the marriage, as such, started
various objections. Meanwhile, in the month of December 2016 the
wife appellant stated that she wanted to meet her parents so as to
solve the issue and she went away, but thereafter she did not turn
back. Husband stated that when he tried to contact the wife, he
was abused but he waited for sometime with a hope that dispute
would be settled. Thereafter, a report was lodged against the
husband under Sections 366, 376, 420, 384 & 323 of IPC. It is
stated that the appellant was the legally wedded wife and despite
her marriage, after staying for sometime with the husband she left
the company of the husband without any lawful cause and since
December 2016 she was residing separately, as such the decree
for restitution of conjugal rights was prayed for.
4) The wife contended that she knew the respondent husband and on
08/02/2016 while she was going to College the respondent
husband came alongwith few friends and forced her to join their
accompany. While she joined their company, they went to Arya
Samaj Mandir at House No. DW-4 Indraprasth Colony, thereafter
abused and gave threat to her that if she do not marry she would
be killed and on the point of knife, she was forced to marry. She
further stated that thereafter at various points of time thereafter
money was obtained from her on some pretext or other and
signatures were too were obtained on blank papers. Eventually,
when the threat continued she made a report to the Police
whereby the offence was registered under Sections 366, 376, 420,
384, 506 & 323 of IPC.
5) The learned Court below framed the issue and came to a
conclusion that both the parties were married and without any lawful
cause the wife was living separately, as such, the decree for
restitution of conjugal rights was passed. Against such judgment
and decree, this instant appeal is preferred.
6) Learned Counsel for the appellant/wife would submit that in order to
grant a decree for restitution of conjugal rights, initially the relation
of husband and wife should be established. He would further submit
that in the instant case the wife has denied the relationship and also
the marriage. He would further submit it is been stated that she was
forced to perform a marriage for which an application under
Section 12 of the Act, 1955 has been filed. Therefore, until the
validity of the marriage is decided, there cannot be a decree for
restitution of conjugal rights.
7) No representation on behalf of the respondent.
8) We have heard learned Counsel for the appellant and also perused
the records.
9) The husband Nitin Soni himself examined as PW-01 and also
examined other three witnesses viz. Ravi Soni as PW-02 and Smt.
Rupam Sharma as PW-03. The husband (PW-01) in his statement
stated that he and Bhumika performed love marriage on 08/02/2016
according to the hindu rituals at Arya Samaj, thereafter she joined
the company and both were residing together. In order to prove the
marriage, the marriage certificate was proved as Ex. A-1 as also the
application for marriage exhibited as Ex. A-2. The other documents
i.e., the Aadhar (Ex. A-3), the Election Commission identity card
(Ex. A-4) and Marksheet (Ex. A-5) were filed. The Affidavit was also
proved as Ex. A-6. Perusal of the said documents would show that
an application was filed before the Arya Samaj alongwith the
affidavit that he is getting married to Bhumika Mishra and likewise
the application of wife appellant is marked as Ex. A-7, Aadhar Card
Ex. A-8, the Election Commission identity card Ex. A-9 and
Marksheet Ex. A-10 and affidavit as Ex. A-11. Perusal of the
affidavit Ex. A-11 filed by the appellant wife would show that she
gave an unequivocal declaration that both Bhumika and Nitin
decided to get married and thereafter certain photographs have
also been attached as Ex. A-15 showing that performance of
marriage rituals. In cross-examination of the witness nothing has
come out to disbelieve the statement and document. Instead
husband was confronted with an FIR which was marked as Ex. D-1
and application under Section 12 of the Act, 1955 which was filed
by the wife was marked as Ex. D-2, which only supports the factum
of marriage.
10) It appears from document Ex. D-2 that the application was filed by
Bhumika Mishra, the appellant herein, under Section 12 of the Act,
1955 to declare the marriage as void. Perusal of the averments
made therein would show it was averred by wife that she was
forced to marry against her will, for which a report was made to
Police. On the contrary, the affidavit which is filed and marked as
Ex. A-11 by the wife would show that she made a statement that
she is voluntarily going to perform the marriage with Nitin and
affidavit also contains a declaration that the marriage was
performed according to her own will without any undue pressure.
11) Reading of the aforesaid documents together would show that
performance of marriage on 08/02/2016 was established. Further, if
the application under Section 12 of the Act, 1955 was filed by wife
to declare the marriage as a nullity then until the marriage is set
aside it cannot be presumed that the marriage was performed by
fraud or under undue influence. As has been stated during the
argument, that application under Section 12 is still pending before
the Family Court, therefore, at this stage it would not be fair to hold
that the marriage took place on 08/02/2016 was outcome of undue
influence or fraud which is a matter of trial. Therefore, as on date as
the marriage still subsists it cannot be inferred in absence of any
evidence that there is any lawful cause exists at behest of wife to
stay away from the company of the spouse husband.
12) In view of above, this Court is of the opinion that the findings
arrived at by the learned Family Court are based on factual
aspects, documents and evidence on record, which do not call for
any interference.
13) In the result, the appeal fails and is hereby dismissed, leaving the
parties to bear their own cost(s).
-Sd/- -Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Chandrakant
