Smt. Renu Saxena vs Sunil Saxena
2010 Latest Caselaw 3804 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  FAO No. 718/2003


%                           Judgment delivered on: August 16, 2010

Smt. Renu Saxena                             ...... Petitioner
                            Through:Mr.Dinesh Kumar, Adv.
                   versus

Sunil Saxena                        ..... Respondent
                            Through: Mr. Mohit Gupta and
                                      Ms. Neha Jain, Adv.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.    Whether the Reporters of local papers may           Yes
      be allowed to see the judgment?

2.    To be referred to Reporter or not?                  Yes

3.    Whether the judgment should be reported             Yes
      in the Digest?

KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 28 of the Hindu

Marriage Act, 1955, the appellant seeks to challenge the

judgment and decree dated 10.9.2003, whereby, the court of

learned Additional District Judge, Delhi dismissed the petition

filed by the appellant under Section 9 of the Hindu Marriage

Act.

2. Brief facts of the case relevant for deciding the

present appeal are that the appellant was married to the

respondent according to Hindu rites and ceremonies on

29.7.1991 at Kalkaji temple, New Delhi which fact is denied by

the respondent. Thereafter the respondent left for his native

place at Kanpur and after return contacted the appellant but

evaded living with her on one pretext or the other. Feeling

cheated by the respondent, the appellant preferred to file a

petition under section 9 of the Hindu Marriage Act, 1955 for

restitution of conjugal rights which vide order dated 10.9.2003

was dismissed by the learned ADJ. Feeling aggrieved with the

same, the appellant has preferred the present appeal.

3. Assailing the impugned order, counsel for the

appellant submits that the learned trial court has failed to

appreciate the fact that the appellant and the respondent had

married on 29.7.1991 at Kalkaji Temple, New Delhi,

according to Hindu rites and ceremonies. Counsel further

submits that the said fact of marriage was fully proved by the

appellant not only through her own deposition but also through

the testimony of PW-4 Mr. Babu Lal, an employee of the temple.

Counsel for the appellant further contends that the learned trial

court also fell in grave error by taking a view that since the

respondent had already remarried therefore discretion under

Section 9 should not be exercised in favour of the appellant.

Counsel thus contends that simply because the respondent

had remarried during the subsistence of his first marriage, the

said fact by itself would not create any hurdle to deny relief to

the appellant under Section 9 of the Hindu Marriage Act.

4. Counsel for the respondent while vehemently

denying the factum of marriage between the appellant and the

respondent supports the judgment passed by the court below.

5. I have heard learned counsel for the parties and

gone through the records.

6. The petitioner had filed a petition under Section 9 of

the Hindu Marriage Act against the respondent seeking

restitution of conjugal rights. The case set up by the appellant

in her petition was that she got married with the respondent

according to Hindu rites and ceremonies on 29.7.1991 at

Kalkaji Temple, New Delhi and despite the persistent efforts

made by the appellant the respondent husband did not allow

the appellant to live with him. The principal contention raised

by the counsel for the appellant while arguing the present

appeal was that the learned trial court wrongly disbelieved the

factum of the marriage of the appellant with the respondent.

The trial court framed a specific issue with regard to the

factum of marriage. The same is reproduced as under:

"1. Whether the marriage has been solemnized between the parties according to Hindu rites and ceremonies? (OPP).

7. In support of her evidence, the appellant had

examined herself as PW-1 besides examining three other

witnesses. In support of her marriage the appellant had also

filed marriage certificate obtained from one Pandit Pitambar

Dass which was proved on record as Ex.PW4/1. The said

certificate is admittedly not on any letter head of the Kalkaji

temple, New Delhi and the same has not been executed or

signed by any authority of the temple. Some person with the

name of Pitambar Dass is a signatory of the said marriage

certificate but the said Pitambar Dass was not produced in

the witness box by the appellant. No explanation has come

forth from the appellant as to why and in what circumstances

the evidence of the said material witness was withheld. The

explanation given by the counsel for the appellant is quite

amusing as he stated that it is possible that Pitambar Dass

must have died at the stage of evidence. The explanation

given by the counsel for withholding the evidence of such a

material witness is far from convincing. Instead of producing

the said Pitambar Dass, one Mr. Babu Lal was examined as

PW-4, but no credence can be attached to his testimony as he

even failed to produce any document or proof to show his

employment with the said Temple. He also failed to produce

any document on record to show that for how long he had

worked in the said temple and how he was well versed with

the handwriting and signatures of Pitambar Dass. The

evidence of PW-4 is thus most unreliable and untrustworthy.

8. It is the case of the appellant herself that she had

never stayed with the respondent after her alleged marriage

and no explanation has come forth from the side of the

appellant as to why she had waited for a period of seven long

years to file the petition under Section 9 of the Hindu Marriage

Act. It is hard to believe that the marriage which took place

on 29.7.1991 has not seen the light of the day in its true sense

as since then the parties did not stay together to discharge their

marital obligations and it is surprising as to why the appellant

would keep making efforts for seven long years to persuade her

husband to come and reside with her without taking any legal

action.

9. The respondent has strongly denied the existence of

his marriage with the appellant. He in fact has pleaded to have

married some other lady named Nidhi since 4.12.1994 and the

respondent is also facing criminal proceedings for bigamy under

Section 494 IPC. It is also an admitted fact on record that the

respondent had two children from the said wedlock.

10. In this background of facts and in the absence of

any cogent and reliable evidence placed and proved on record

by the appellant, no fault can be found with the findings of the

learned trial court disbelieving the factum of the said marriage

between the appellant and the respondent. Once having

decided the Issue No. 1 against the appellant and in favour of

the respondent, no order under Section 9 of the HMA could

have been passed by the learned trial court.

11. There is no merit in the appeal and hence the same

is hereby dismissed.

August 16,2010                        KAILASH GAMBHIR, J.