Jasmeet Kaur vs Pawan Kumar
2010 Latest Caselaw 4511 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                    MAT.APP. No. 87/2009
                            Judgment delivered on: 24.09.2010

Jasmeet Kaur                                   ..... Petitioner
                           Through: Mr. Manish Nayak, Advocate

                               Versus

Pawan Kumar                          ..... Respondent
                           Through: Mr. H.C. Sharma, Advocate


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

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

2. To be referred to Reporter or not?                         Yes

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



KAILASH GAMBHIR, J. Oral:
*

1. By this appeal filed under Section 96 of the Code of Civil

Procedure, 1908 the appellant seeks to set aside the judgment

and decree dated 28.07.2009 passed by the court of Additional

District Judge whereby a decree of restitution of conjugal

rights was passed in favour of the respondent and against the

appellant.

2. Brief facts of the case relevant for deciding the present

appeal are that the respondent filed a petition for restitution

of conjugal rights stating therein that the marriage of the

appellant and the respondent was solemnized on 26.2.2004 in

Laxmi Narain Mandir, Faiz Road, New Delhi where after the

couple resided at 10219/43, Bhagat Singh Nagar, Manak Pura,

New Delhi. He further states that due to some marital discord,

the appellant was taken away from the matrimonial home by

her father and despite making efforts she did not return. On

the other hand, the factum of marriage itself is disputed by the

appellant. However, the respondent filed the petition under

Section 9 of the Hindu Marriage Act, 1955 for restitution of

conjugal rights and vide judgment dated 28.7.09 the same

was decreed in favour of the respondent and against the

appellant. Feeling aggrieved with the same, the appellant has

preferred the present appeal.

3. Ld. Counsel for the appellant submits that in fact no

proper marriage between the parties has taken place and even

the respondent has failed to prove solemnization of the

marriage between the parties according to Hindu rites and

ceremonies. Counsel also submits that even an FIR has been

registered against the respondent u/s 366/420/468/471 IPC

and in the said case, charges have already been framed by the

Ld. Trial Court against the respondent. Counsel also submits

that the respondent did not adduce any evidence to establish

the fact that the „Saptapadi‟ was performed around the sacred

fire at the time of the alleged ceremonies and therefore no

marriage between the parties according to Hindu rites and

ceremonies took place on the alleged date of 26.02.2004. In

support of his argument, counsel for the appellant has placed

reliance on the judgment of the Calcutta High Court in

Mousumi Chakraborty Vs. Subrata Guha Roy II (1991)

DMC 74 (DB).

4. Refuting the said submissions of the counsel for the

appellant, counsel for the respondent submits that the

marriage was duly solemnized between the parties according

to Hindu rites and ceremonies and a marriage certificate to

this effect was also issued by Shri Radha Krishan Mandir, Bela

Road, Delhi. Counsel further submits that even the marriage

of the parties was registered and the marriage certificate

dated 5.3.2004 was duly issued by the Registrar of Marriages.

The contention of the counsel for the respondent is that both

the parties had appeared before the Registrar of Marriages

and even the application form for the registration of marriage

was filled in by the appellant herself with her own handwriting

and thus the appellant cannot dispute the factum of marriage

in the face of these documents. Counsel also submits that the

appellant had failed to adduce any evidence to rebut the case

of the respondent. Counsel further submits that after the

solemnization of the marriage both the parties lived together

in the matrimonial home but the appellant left the company of

the respondent without any just and reasonable cause.

Counsel further submits that the respondent is still prepared

to take back the appellant to the matrimonial home.

5. I have heard counsel for the parties at considerable

length.

6. The respondent/husband filed a petition under

Section 9 of the Hindu Marriage Act, 1955 seeking restitution

of conjugal rights. In this petition he has stated that his

marriage with the appellant was solemnized according to

Hindu rites and ceremonies on 26.02.2004 in Laxmi Narain

Mandir, Faiz Road, New Delhi. The respondent further stated

that the marriage was duly consummated but no issue was

born out of the said wedlock. He has claimed that the said

marriage was a love-cum-arrange marriage as the parties

were known to each other for about eight years before the

marriage. The respondent has also claimed that the said

marriage was registered with the Registrar of Marriages,

Central Zone, New Delhi and the marriage certificate dated

05.03.2004 was duly issued by the said officer. The

respondent has stated that on 10.03.2004 when he was nearly

to leave for his work, the father of the appellant came to his

residence along with two/three persons and took away the

appellant with him along with all her belongings, including

clothes and jewellery, etc. The respondent has claimed that

the appellant is under the influence and pressure of her father

and due to that reason alone she has abandoned the

respondent without any reasonable cause. He further stated

that he made his best efforts to persuade the appellant to

come back and join the matrimonial home but with no results.

The respondent has also claimed that the appellant had also

put forth a condition that of taking a separate house and then

only she would return to join the respondent at the newly

purchased house.

7. The appellant had filed a written statement in

response to the said petition filed by the respondent husband.

The main objection of the appellant was that in fact no

marriage according to Hindu rights and ceremonies was

performed between the parties. The appellant, however, has

admitted the existence of the marriage certificate but has

claimed that she had appeared before the Registrar of

Marriages under pressure of the respondent/husband. The

appellant has also claimed that an application was also moved

by her before the concerned ADM to revoke the said marriage

certificate. The other allegations leveled by the respondent

have also been denied by the appellant in her written

statement.

8. Based on the pleadings of the parties the Ld. Trial

court framed the following issues:-

1) Whether the respondent No.1 left the company of the petitioner by leaving the matrimonial house without any reasonable cause or justification as alleged in the petition. If so, to what effect?

2) Relief.

Additional issue:-

1) Whether the present petition filed by the petitioner U/s 9 of the Hindu Marriage Act is not legally maintainable in view of the preliminary objections No. "A to D" taken by respondents in their Written Statement?"

9. The learned trial court first proceeded to decide the

additional issue. The respondent/husband examined himself as

PW1 and produced two witnesses in support of his case. He

vide his affidavit Ex. PW1/A submitted the fact of the

solemnization of marriage, though no specific place has been

stated. However in the additional affidavit tendered by him as

Ex. PW1/B he claimed that the marriage took place at Shri

Radha Krishna Mandir, Bela Road, Delhi and not in Laxmi

Narayan Mandir, Faiz Road, Delhi. This difference has been

seriously relied upon by the appellant claiming that it is

enough to negate the factum of marriage. The respondent

however has corroborated his stand by producing one

marriage certificate of the Shri Radha Krishna Mandir, Bela

Road, Delhi as Ex. PW1/7 where the marriage was duly

performed. He also produced photographs of the said

marriage Ex. PW1/2A to G, alongwith negatives thereof. He

produced the certificate of registration of marriage as Ex

PW1/4. He also placed on record a copy of the letter dated

9.3.2004, signed by the appellant, Ex. PW1/5, sent to the SHO

of P.S D.B Gupta Road giving information of their marriage

and the setting up of the matrimonial home.

10. The appellant, on the other hand, did not prefer to

adduce any evidence. The evidence of the appellant was

accordingly closed on 13.01.2009. In the written statement

file by her she had claimed that the marriage certificate issued

by the registrar was obtained by the respondent in collusion

with the Marriage Registrar. She even claimed that the

photographs produced by the respondent were fabricated.

However no evidence was led by the appellant to prove the

said allegations. The respondent on the other hand had

examined PW 2 Shri Anil Kumar from the office of the

Registrar of marriages who produced the documents

submitted by the parties at the time of registration of the

marriage which included the Secondary School Certificate of

the appellant, Election Card, etc., but no explanation as to how

they were in possession of the respondent at the time of the

marriage has been given. The appellant claimed that the

photographs produced by the respondent were fabricated but

nothing more than that has been said to dispute the existence

of the said photographs of the marriage. The appellant has

made a bald statement that the signatures on the letter dated

9.3.2004 are forged but no material to prove the claim or

request to send the signatures or the photographs to CFSL

was made. It is quite surprising to know that the appellant,

who has denied almost all the claims of the respondent, did

not even bother to step into the witness box to depose so as to

lend some sanctity to her vague allegations. Once the

appellant did not choose to contest the case set up by the

respondent, no infirmity or illegality can be found in the order

passed by the Ld. Trial Court believing the factum of the said

marriage between the parties. Mere denial of the marriage in

the written statement would not have sufficed as the

respondent has placed on record not only the marriage

certificate dated 26.2.2004 issued by Shri Radha Krishan

Mandir, Bela Road, Delhi but the marriage certificate issued

by the concerned Registrar of Marriages as well. The plea

that the marriage certificate issued by Shri Radha Krishan

Mandir was later on obtained by the parties simply because of

the fact that the Laxmi Narayan Mandir, Faiz Road did not

issue any marriage certificate, would not help the case of the

appellant. Even otherwise, the marriage certificate issued by

the Registrar of Marriages has not been denied by the

appellant and the explanation given by the appellant that she

had appeared before the marriage officer under pressure and

coercion of the respondent, the fact which could have been

established by the appellant by leading sufficient cogent

evidence. But the appellant failed to adduce any evidence in

this regard and therefore it is difficult to believe that she was

under pressure before the Marriage Registrar. This court is

therefore of the considered view that the ld. Trial Court has

rightly believed the factum of the said marriage.

11. So far the contention of the counsel for the appellant that

the marriage has not taken place according to Hindu rites and

customs is concerned, it was for the appellant to have

rebutted the evidence produced by the respondent claiming

that the marriage had in fact taken place according to Hindu

rites and ceremonies, which burden she failed to discharge.

When the fact of celebration of marriage is established it will

be presumed in the absence of evidence to the contrary that

all the rites and ceremonies to constitute a valid marriage

have taken place. The photographs produced by the

respondent show that essential ceremonies were being

performed by the parties. No suggestion was given by the

counsel for the appellant in the cross examination of the

respondent to suggest that the marriage was not performed

according to Hindu rites and ceremonies. Hence the totality of

evidence substantiates solemnization of a valid marriage. The

presumption may not be available in a case, for example,

where the man was already married or there was any

insurmountable obstacle to the marriage, but presumption

arises if there is strong evidence by documents and conduct

which is the situation in the present case. The judgment of the

Calcutta High Court in Mousumi Chakraborty (Supra) cited

by the counsel for the appellant will be of no help to the case

of the appellant as it supports the case of the respondent .The

judgment reiterates the law that the burden to prove the fact

of a valid marriage is on the party who claims it, and in the

case at hand the respondent has successfully discharged the

said burden and it is only the appellant who has failed to

dislodge the case set up by him.

12. The provision of Section 9 of restitution of conjugal

rights has been enacted in the Hindu Marriage Act with an

intention to give the parties to the matrimonial dispute an

opportunity to reconcile with the bitterness that emerges in

the delicate relationship of husband and wife. This provision

has been undoubtedly at the receiving end of scathing

remarks of various sections of the society as it becomes a

scapegoat provision for laying the foundation for claiming a

decree for divorce. But it cannot be ruled out that this

provision has been responsible for breathing life into many

relationships which have been on the verge of a stagnant

demise. The act of the party approaching the court for seeking

a decree under this provision has to be seen as a denotation of

the genuine effort to patch up the differences, whatsoever,

and give the matrimony another chance. The other party who

resists such a claim on the ground of any just and reasonable

cause can certainly be looked into, but in cases where it is

resisted in the garb of bringing the edifice of subsistence of a

valid marriage under scanner, the institution of marriage as a

whole suffers a setback. But in the hindsight it is the solemn

duty of the parties to make every endeavour that can give a

lease of fresh life to the relationship and conduce the parties

to lead a benign married life.

13. In the light of the aforesaid discussion, I do not find any

illegality and perversity in the impugned order passed by the

ld. Trial court. There is no merit in the present appeal and is

thus dismissed.

September 24, 2010                 KAILASH GAMBHIR, J
pkv