Ms. Megha Manchanda vs Saurabh Sharma
2010 Latest Caselaw 4565 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI


                  MAT APP No. 80/2009

             Judgment delivered on:   28th September,2010

Ms. Megha Manchanda                   ..... Appellant

                      Through: Mr.Sanjay Aggarwal, Adv.

                      versus

Saurabh Sharma                      ..... Respondent

Through: Mr. Sanjiv Bahl,Adv.

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 28 of the Hindu

Marriage Act, 1955 the appellant seeks to set aside the

judgment and decree dated 24.7.2009 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 both the parties got married on 27.04.2005 at

Arya Samaj Mandir, Jamuna Bazar , Delhi and the marriage was

registered on 12.05.05 vide registration certificate dated

12.05.05 at Delhi. That on the pretext of the brother of the

appellant visiting from Australia the parents of the appellant

called her to the parental house and she never returned

thereafter. Consequently the respondent filed a petition under

section 97 Cr.P.C which was dismissed. The appellant on the

other hand had filed a suit for declaration to declare the

marriage as null and void which was withdrawn. Thereafter the

respondent filed a petition under section 9 of the Hindu

Marriage Act for restitution of conjugal rights and vide

judgment and decree dated 24.07.2009 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. Counsel for the appellant states that the marriage

between the parties was not solemnized according to Hindu

rites and ceremonies. Counsel further submits that in the

absence of the said marriage being proved by the respondent,

no decree under Section 9 of the Hindu Marriage Act could

have been passed by the learned trial court. Counsel further

submits that the prerequisites as laid down under Section 9

were not fulfilled as no evidence was led by the respondent to

prove that 'Saptapadi' was performed at the time of the

marriage. Counsel further submits that even the marriage

registration certificate could be of no help to the respondent

once the said essential ceremony was not proved by the

respondent. Counsel also submits that the appellant had filed a

suit for declaration to get the said marriage declared as null

and void but the said suit was withdrawn by the appellant in

view of the petition filed by the respondent under Section 9 of

the Hindu Marriage Act.

4. Refuting the submissions of the counsel for the

appellant, Mr. Bahl, counsel for the respondent supports the

judgment passed by the learned Additional District Judge.

Counsel submits that the respondent has duly proved on record

the factum of marriage and therefore, no fault can be found in

the impugned judgment and decree dated 24.7.2009 passed by

the court of the learned ADJ under Section 9 of the Hindu

Marriage Act.

5. I have heard learned counsel for the parties.

6. The case set up by the respondent husband in his

petition filed under Section 9 of the Hindu Marriage Act was

that both the parties got married on 27.4.2005 at Arya Samaj

Mandir, Jamuna Bazar, Delhi against the wishes of their

parents. It has also been stated that the said marriage was

performed according to the Hindu rites and ceremonies in the

presence of two close friends of the respondent husband and

the said marriage was registered on 12.5.2005 before the

Registrar of Marriage at Saket, Delhi. It was also the case of

the respondent husband that after the said marriage, the

parents of the respondent had reconciled with their marriage

and both the parties started residing together at the

matrimonial home at Flat No. 130-B, First Floor, Motia Khan,

New Delhi after mid of September, 2006. It was also stated

that the parents of the appellant wife were still reluctant to

agree to this marriage and the appellant was thus taken away

by her parents and thereafter did not return back. The

respondent had approached the Court of learned M.M. under

Section 97 of Cr. P.C. and in the said proceedings the appellant

had refused to join the company of the respondent.

7. The petition filed under section 9 by the husband

was duly contested by the appellant wife. The preliminary

objection raised by the appellant in the written statement was

that the marriage was not solemnized according to the Hindu

rites and ceremonies. The learned trial court framed the

following issues:-

"1. Whether the respondent has withdrawn from the society of the petitioner without any reasonable excuse? OPP

2. Whether the petitioner is entitled to a decree of Restitution of Conjugal Rights? OPP"

8. The respondent husband adduced his own evidence

and the evidence of his friend Nirmal Kumar by tendering

affidavits as Ex. PW1/1 and Ex. PW2/1 respectively. The

respondent husband proved the marriage certificate issued by

Arya Samaj Vedic Marriage Mandal as Ex. PW1/A, Marriage

Registration Certificate as Ex. PW1/B and marriage photographs

of the parties as Ex. RW2/P1 to Ex. RW2/P5. The plea taken by

the appellant in the written statement as well as in her

evidence was that on 27.4.2005 she was made to drink cold

drink which was adulterated and during the state of

intoxication the said marriage was performed. Even in the

proceedings initiated by the respondent husband under Section

97 Cr. P.C. the stand of the appellant was that their marriage

was not performed according to Hindu rites and ceremonies.

Although, no specific issue was framed by the learned trial

court with regard to the said preliminary objection taken by the

appellant but in any case both the parties led their respective

evidence to prove/disprove the factum of the said marriage.

9. The learned trial court in the impugned judgment has

observed that the appellant was not in a position to tell the

approximate time as to when she was intoxicated with the said

adulterated drink; whether it was given in the morning or

afternoon or in the evening. The learned trial court also

observed that marriage certificate is a public document and

therefore genuineness is attached to it and in the absence of

any cogent evidence placed on record by the appellant the

court did not disbelieve the said documents. It would be

appropriate to reproduce para 11 of the impugned judgment

here:

"11. Respondent's first defence is that she was not in a position to give her consent for marriage as she was made to drink intoxicated drink. Her father/RW1 also stated so but her story on this point is not credible on following counts:-

i. She is not able to tell the approximate time when intoxicated drink was given to her i.e. Whether it was given in morning or in afternoon or noon or in evening.

ii. She stated the marriage certificate as fabricated. It is a public document and genuineity is attached to it.

iii. She admitted in her cross examination that after the incident of 27.4.2005 her mother had forewarned to accompany the petitioner but she again accompanied him on 12.05.05 when the said marriage was registered at Saket. Why a girl would accompany a boy second time when he had already given her intoxicated drink and married her in that deception and also her mother had forewarned her.

iv. No doctor was called to treat respondent on 27.4.2005 or on 12.5.2005.

v. Her counsel did not put any suggestion to PW1 and PW2 that she was forced to drink adulterated drink and then was forced to undergo marriage ceremonies.

vi. She disclosed the incident of 27.04.2009 to her mother but did not bring her in the witness box.

vii. Why she did not make any complaint to Police regarding both incidents.

viii. Photographs of marriage from Ex.RW2/P1 to Ex. RW2/P5 are on record and in those photographs, respondent is looking happy and there is no sign that she was intoxicated."

10. This court does not find any infirmity in the above said

findings of the learned trial court. The ld. Trial court has rightly

held that the appellant failed to prove that she was

administered the adulterated drink or that she was coerced to

appear before the marriage registrar.

11. The second plea of the appellant is that the marriage was

not solemnized according to Hindu rites and ceremonies. In

para 13 of the impugned judgment also, the learned trial court

has observed that even the father of the appellant himself

admitted in his cross-examination that the marriage of his

daughter was solemnized according to Hindu rites and

ceremonies. Even in the certificate issued by the Arya Samaj

Vedic Marriage Mandal, Jamuna Bazar it was clearly mentioned

that the marriage was solemnized according to Hindu, Vedic

rites and customs. Based on the documentary and oral

evidence the learned trial court came to the conclusion that the

marriage between the parties was solemnized according to

Hindu rites and ceremonies.

12. 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 been gone through. In the present case, the marriage

certificate issued by the Arya Samaj Vedic Marriage Mandal

clearly states that the marriage between the parties has been

solemnized according to Hindu Vedic rites and customs. Hence

the presumption is in favour 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 marriage

certificate also is a strong piece of evidence which the

appellant failed to rebut which goes to further augment the

presumption of the factum of marriage. This court is therefore

of the considered view that the learned trial court has rightly

decided the existence of a valid marriage between the parties.

13. It cannot be lost sight of the fact that a petition under

section 9 is an effort by one of the parties to the marriage to

reconcile the differences which might have arisen between

them and give an opportunity to the spouse to join back the

matrimony unless there exists just and reasonable

circumstances. Marriage is a sequence of bitter sweet events.

When the spouse is unable to establish the cause of leaving the

matrimony, it brings home the message that there is still a

reserved potential, untapped which if explored can conduce the

parties to lead a benign married life.

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

any perversity or illegality in the impugned judgment and

decree.

15. There is no merit in the present appeal. The appeal

does not deserve admission and is accordingly dismissed.

September 28, 2010                  KAILASH GAMBHIR, J
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