Deepraj vs Vijay Laxmi
2010 Latest Caselaw 3772 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         MAT APP. NO. 7/2009

                                    Date of Decision: August 13, 2010

       DEEPRAJ                                             ..... Appellant
                               Through:        Mr. Aditya Agarwal,
                                              Advocate with Appellant in
                                              person.
                 versus

       VIJAY LAXMI                                       ..... Respondent
                               Through:       Mr.P.K.Shrivastava,
                                              Advocate.

       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1)         Whether reporters of local paper may be
                 allowed to see the judgment?
     (2)         To be referred to the reporter or not?              Yes
     (3)         Whether the judgment should be reported
                 in the Digest ?                                     Yes

                             JUDGMENT

ARUNA SURESH, J.

1. Under challenge in this appeal is the judgment and

decree of the learned Additional District Judge dated 6th November

2008, whereby petition of the appellant filed under Section 9 of the

Hindu Marriage Act (hereinafter referred to as the 'Act') for

restitution of conjugal rights was dismissed.

2. In brief, facts of the case are that parties to the petition

were married on 16th April, 2004 at Gorakhnath Temple, Gorakhpur,

UP. Parties were in love with each other for about four years but

since parents of the respondent were not in favour of the marriage,

appellant's parents arranged the marriage and the marriage was

performed in the temple. This marriage was also got registered.

Since 28th May, 2004, respondent deserted the company of the

appellant in his absence and left the house without any sufficient

cause.

3. Respondent challenged the maintainability of the

petition on the ground of territorial jurisdiction of this Court. She

has alleged that she was kidnapped by the appellant when she was

only 14 years and 7 months old. She was a minor at the time of

alleged marriage. Appellant had intoxicated her by administering

some drug, kidnapped her and took her to Gorakhpur for which a

complaint was also lodged by her father. She has claimed that since

no marriage was solemnized between her and the appellant, petition

was not maintainable.

4. Following issues were framed by the Trial Court for

consideration:-

1. Whether marriage between the parties was solemnized on

16.4.2004 according to Hindu rites and ceremonies? OPP

2. Whether this court has no territorial jurisdiction to entertain

this petition as respondent is not residing at Delhi? OPR

3. Whether respondent has without any reasonable excuse

withdrawn from the society of the petitioner? OPP

4. Whether petitioner is entitled to the relief claimed? OPP

5. Relief.

Findings of the Trial Court on issue No. 2 have been accepted

as correct by the appellant, hence it needs no adjudication in this

appeal.

Issues No. 1, 3 and 4:-

6. Since these issues are inter related and on the basis of

findings on issue No. 1 Court has decided issues No. 3 and 4 against

the appellant, they are taken up together for consideration.

7. It is submitted by Mr. Aditya Aggarwal, counsel

appearing for the appellant that the Trial Court failed to appreciate

that respondent had been making contradictory statements in her

examination-in-chief and cross-examination. He asserted that the

Trial Court failed to appreciate the Courts observations recorded

during the cross-examination of the respondent that photo depicted in

Ex.PW-1/B7 and Ex.PW-1/C at point-A appeared to resemble the

respondent and that Trial Court wrongly rejected evidentiary value of

the photographs on the ground that negatives of the photographs

were not placed on record and the photographer had also not been

examined to prove the photographs. Trial Court has also failed to

appreciate that respondent did not place on record any evidence to

prove her age whereas appellant had placed sufficient evidence on

record to prove that respondent was 20 years of age at the time of

marriage. He has further argued that Trial Court did not properly

appreciate the documentary evidence placed on record by the

appellant to show that a legal and valid marriage was performed

between the parties and therefore, dismissal of the petition by the

Trial Court is erroneous in law.

8. Mr.P.K.Shrivastava, counsel appearing on behalf of

the respondent has refuted the submissions made by counsel for the

appellant.

9. Documents submitted by the appellant on record are:-

(1) Marriage photographs Ex.PW-1/B1 to Ex.PW-

1/B12.

(2) Original application for registration of marriage Ex.PW-1/C.

(3) Application receipt Ex.PW-1/D. (4) Kalandara under Sections 107/150 Cr.P.C. Mark PW-1/D.

10. Documents placed on record by the respondent are:-

(1) Progress card mark RW-1/A.

(2) ESI Hospital record Ex.RW-2/A.

11. Appellant claimed that he had performed marriage with

the respondent according to Hindu Rites on 16th April, 2004 at

Gorakhnath Temple, Gorakhpur.

12. Trial Court has fairly appreciated and analyzed the

testimonies of various witnesses examined by the parties while

deciding these issues against the appellant. Trial Court was right

when it rejected to accept the application dated 17th May, 2004

Ex.PW-1/C filed by the appellant for registration of marriage and its

receipt dated 22nd May, 2004 to hold that marriage between the

parties was duly registered. Admittedly, marriage certificate is not

placed on record. Appellant could have summoned the record from

the Registrar's office to prove that his marriage with the respondent

was duly registered.

13. Trial Court while assessing the evidence of the

appellant on registration of marriage observed in paras 34 to 37:-

"34. Even otherwise a perusal of file would reveal that Ex.PW1/C is photocopy of application for registration of marriage. It is dated 17/05/2004. On the reverse side of the application as against particulars of bride's father-guardian, name of Murari Lal has been mentioned. These particulars are purported to

have been signed by Murari La. It is significant to note that said Murari Lal is no father of the respondent. It has come in the evidence of the petitioner that these particulars are of his maternal grandfather. There is nothing on record to explain as to how particulars of maternal grandfather of the petitioner came to be recorded in the column meant for bride's father-guardian and how the particulars came to be signed by him. Father's name of the respondent is also Murari Lal. He or his wife did not agree for any such marriage.

35. In view of this fact, it can safely be said that name of Murari Lal in the above referred to column appears to have been mentioned so as to make the concerned authorities believe that father of the respondent had also agreed for solemnization of the marriage of the respondent.

36. The column below the aforesaid column is meant for particulars of officiating priest. Name of Ramdhan Mishra, priest has been given in this column. However, petitioner has not examined said Sh.Ramdhan Mishra, for the reasons best known to him.

37. Names of Ram Chander and Shankar Prasad find mentioned at the bottom of the application as witnesses but none of them has been examined to prove submission of the application Ex.PW1/C by the parties to the concerned officer. Non-examination of the priest and any of the attesting witness to the application creates doubt if this application was signed by the respondent voluntarily. In view of this fact, even if respondent stated in her cross examination that she was not given any intoxicant/drugs by the petitioner, it does not come to the aid of the petitioner. Consequently,

certificate Ex.PW1/D issued by the office of Registration of Hindu Marriage is no avail to the petitioner."

14. Counsel for the appellant has argued that original

marriage certificate was placed on record but the court failed to

consider the same in evidence. However, I do not find any original

marriage certificate or its certified copy on record. In the absence of

the marriage certificate, it cannot be said that parties were legally

married by way of a registered marriage and that respondent was 20

years old at the relevant time.

15. Therefore, I find no reason to interfere in the

observations of the Trial Court made in paras 34 to 37 while

considering the genuineness and validity of the registration of

marriage Ex.PW-1/C.

16. Under the Hindu Marriage Act 'HOMA' and 'Saptapadi'

are essential attributes of a valid marriage. Marriage becomes

complete and binding when the seventh step is taken. It is not in

dispute that in this case both the parties were governed by provisions

contained in Section 7 of the Act. It is not the case of the appellant

that their customary rights and ceremonies did not include the

'Saptapadi'. Appellant has failed to produce any evidence to prove

that 'HOMA' and 'Saptapadi' were performed at the time of

solemnization of the marriage.

17. If the marriage is not a valid one according to law

applicable to the parties i.e. Section 7 of the Act, it is not a marriage

in the eyes of law. Traditional meaning of the word 'solemnisation'

is 'to celebrate the marriage with proper ceremonies and in due form',

as defined in the Shorter Oxford Dictionary. Thus, it is obvious that

unless their marriage is performed with proper celebrations and in

due form, it cannot be said to have been solemnized.

18. In similar circumstances, in 'Mousumi Chakraborty

Vs. Subrata Ghua Roy', 95 CWN 380' while holding that the

marriage between the parties was void, it was observed:-

"12. In this particular case the appellant had filed a suit stating that there had been no marriage at all between her and the respondent. On the contrary the respondent claimed that there was a valid marriage. It is well settled principle that the burden of proof lies upon the party who substantially asserts the affirmative of the issue. The evidential burden in matrimonial case is that the burden is on the proponent, or in other words, the party, who claims that there was a valid marriage has to prove that marriage. The question is whether the production of marriage registration certificate raises a presumption and even if a presumption is there, whether the same could be rebutted.

Section 8 of the Hindu Marriage Act 1955 provides for registration of Hindu

marriages; registration has been introduced for the purpose of facilitating the proof of Hindu Marriage. The registration is not the sole proof of marriage in order to become a valid marriage. Section 7 of the said Act provides that the validity of a marriage will depend on observance of "customary rites and ceremonies". The expression "customary rites and ceremonies" means such Shastric ceremonies, which the caste or community to which party belongs is customarily following. Customary rites and ceremonies to be accepted must be shown to have been followed definitely as an essence of marriage ceremony from ancient times and recognised such ceremonies as obligatory. Two essential ceremonies to the validity of a marriage are (a) Invocation before the sacred fire and (b) Saptapadi. Absence of these essential ceremonies invalidates the marriage. In our view, two ceremonies essential to the validity of a marriage, as stated above, have to be proved and that where the factum of marriage is disputed essential ceremonies constituting the marriage must have to be pleaded and proved. Evidence regarding the performance of marriage according to Hindu rites must be brought on record to show that there had been a valid marriage............"

19. In the instant case, appellant has only produced

photographs Ex.PW-1/B1 to Ex.PW-1/B12 to emphasize that he had

solemnized marriage with the respondent according to Hindu Rites

and Customs within the ambit of Section 7 of the Hindu Marriage

Act. None of these photographs indicate that 'Saptapadi' was

performed in the marriage i.e. seven steps were taken by the parties

jointly before the sacred fire. The photographs depict only the

appellant and some other people besides a bride. Respondent has

denied that the photographs depict her. The photographs in fact are

not properly proved in evidence as neither the photographer who had

taken the photographs was examined as a witness nor negatives of

the photographs had been placed on record and proved in evidence

by the appellant. Simply because the photographs have been

exhibited in evidence for identification purposes cannot, in any

manner, be construed as proved documents in evidence. In the

absence of the negatives, genuineness of the photographs becomes

doubtful. Under the circumstances, any observation made in the

court, while recording evidence, that photograph depicted in Ex.PW-

1/7 and Ex.PW-1/C appears to resemble the respondent has lost its

significance. Trial Court was, therefore, right in rejecting the

photographs as a substantive piece of evidence to prove validity of

the marriage.

20. From the evidence on record, it is clear that two

ceremonies i.e. invocation before the sacred fire and 'Saptapadi',

essential to the validity of the marriage, are wholly absent.

Intriguingly, even the Pujari, who allegedly performed this marriage

was not examined as a witness. Appellant when asked could not

disclose the name of the Priest who had performed the alleged

marriage. Parents of the respondent were not agreeable to this

marriage. This kind of marriage, which is unknown in the society in

which customary rites and ceremonies are not performed at all,

cannot take place of a regular and solemnized Hindu marriage, which

is accepted in the society. This at the best can be said to be a fake

marriage and a fake marriage cannot be considered as a valid

marriage under the provisions of the Act.

21. Respondent has claimed herself to be a minor at the

time of the alleged marriage. However, the said documents were not

properly proved in evidence and therefore, the same were not taken

into consideration by the court. The other witness examined by the

respondent to prove her date of birth is RW-2 Kanta Prashad, Record

Clerk, ESI Hospital, who produced and proved on record entry

Ex.RW-2/A from the Birth Register w.e.f. 13th November, 1990 to

30th October, 1991 containing the registration of birth of a female

child mentioned at page No.61 at serial No. 180. The date of birth of

the female child born to Smt. Usha wife of Sh. Murari Lal i.e. the

mother of the respondent is 17th January, 1991. True that, a question

was put to the witness if the said entry belonged to another female

child born to Smt. Usha, subsequent to the birth of the respondent, to

which witness could not give any satisfactory reply. The fact

remains, it was for the appellant to prove that respondent was of age

at the time of alleged marriage. Marriage with a minor child is a

void marriage in law unless it is performed with the consent of the

child. In this case, respondent has disputed her consent to the

marriage with the appellant.

22. Since appellant failed to prove the documents placed

on record, even if they are exhibited, the said documents cannot be

read in evidence in his favour.

23. Under these circumstances, I do not find any reason to

interfere in the judgment and decree of the Trial Court as it has

assessed the oral as well as documentary evidence in the right

perspective. Hence appeal is hereby dismissed being without any

merits.

24. Trial Court record be sent back forthwith.

ARUNA SURESH (JUDGE) AUGUST 13, 2010 sb