Shri Alok Kumar Das vs Ms. Mamta & Others
2011 Latest Caselaw 1936 Del

R-213
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment reserved on: 30.03.2011
                        Judgment delivered on: 04.04.2011

+     RSA No.299/2006 & CM Nos.12571/2006 & 12074/2008

SHRI ALOK KUMAR DAS                             ...........Appellant
             Through:         Mr. Prahlad Kumar, Advocate with
                              appellant in person.

                  Versus

MS. MAMTA & OTHERS                               ..........Respondents

                  Through:    Mr.Pranam Rana, Advocate             with
                              respondent No. 1 in person.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers 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


INDERMEET KAUR, J.

1 This appeal has impugned the judgment and decree dated

22.07.2006 which had reversed the findings of the trial Judge dated

05.09.2005. Vide judgment and decree dated 05.09.2005, the suit

filed by the plaintiff Alok Das seeking a declaration of his

matrimonial status that he be declared as a single and un-married

man; that he is not married to defendant No. 1 (Mamta) had been

decreed in his favour. This finding was reversed in appeal. The first

appellate court had dismissed the suit of the plaintiff.

2 The facts as borne out from the record are that the plaintiff

was a closed friend of the brother of defendant No. 1. They were

childhood friends and their families were known to each other.

They used to visit each other often. The plaintiff was unaware of

defendant No. 1's attraction towards him. She was older by several

years; her parents were making efforts to find a suitable match for

her. The plaintiff was an intelligent and a hard working man.

Defendant no. 1 along with her family members had made a design

with mala-fide intentions to trap the plaintiff. He refused to

succumb to their pressure. On 27.05.2002, defendant No. 1 had

also created a scene in the house of the plaintiff. Criminal

complaint was lodged. On 05.09.2003, the defendant had even

lodged a complaint in the Crime against Women Cell (CAW Cell)

with a view to malign the image of the plaintiff. The plaintiff was

constrained to file the present suit.

3 Defendant contested the suit. Her contention was that she

was married to the plaintiff. The plaintiff had in fact trapped the

defendant into marriage; he had duped her and had also extracted

a large sum of money from her. The parties had got married at his

residence on 20.05.2002; pandit had been called at the instance of

the plaintiff.

4 On the pleadings of the parties, the following three issues

were framed:-

1. Whether the marriage between the parties has ever been solemnized or not? If solemnized, its effect and if not, its effect? OPP/OPD

2. Whether this Court has jurisdiction in view of Hindu Marriage Act? OPD

3. Relief.

5 Oral and documentary evidence was led. Issue No. 1 is

relevant for the controversy in dispute. Testimony of PW-1 the

plaintiff and DW-1 the defendant was scrutinized. Documentary

evidence had also been examined. The Court was of the view that

the plaintiff has been able to establish that he is single and un-

married; the defendant had failed to show that she was married to

the plaintiff. Suit of the plaintiff was accordingly decreed.

6 The impugned judgment had reversed this finding. Oral and

documentary evidence was reappreciated & re-evaluated.

7        This is a second appeal. It had been admitted and on

28.08.2009,       the   following    substantial      question     of   law     was

formulated:-

"Whether the appellate Court adopted the right approach in appreciating the documents placed on record and proved in evidence by the parties while allowing the appeal?"

8 The finding returned in the impugned judgment is extracted

hereinbelow:-:-

"7. The record of the trial court reveals that the defendant No. 1 herein in her examination-in-chief referred to the letter sent by the plaintiff to her as Exs. RW-1/1 to RW-1/10. The testimony of defendant No. 1 in respect of these documents goes unrebutted, unchallenged and uncontroverted as there is no cross-examination of the appellant in respect of these documents at all. Hence, these documents are deemed to be admitted at all. Hence, these documents are deemed to be admitted by the plaintiff and thus, they stand proved on record. Similarly, in her examination-in-chief, the defendant No. 1 referred to the affidavit of the plaintiff as Ex. RW-1/11. Again there is no cross-examination of the defendant No. 1 in respect of this document. Hence the testimony of the defendant No. 1 in respect of this document goes unrebutted, unchallenged and uncontroverted and is deemed to be admitted by the plaintiff. Hence this document also stands proved on record. Even otherwise, Ex. RW-1/11 bears photograph of the plaintiff. I have also compared the signatures of the plaintiff on the pleadings with the signatures on Ex. RW-1/11 and have no doubt that the signatures on RW-1/11 are those of the plaintiff.

8. In Ex. RW-1/8 the plaintiff has stated that (written in Hindi) Maine bahut sochne smajhne ke baad hi tumse shaadi ki them chahe uss shaadi ka kahatav tumhare liye ho ya nahin lekin main shaadi ke baad se tumhe apni patni manta hoo. Aur jald hi Neetu ke shaadi ke paad tumhe sabke saamne bhi shadi karke ghar le aaunga.... Patne hone ke naate Mamta yeh tumhara kartavya hai ke iss zimmedari ke nibhane mein tum meri usi prakaar madad karo jaisi tumne Neetu ki shaadi mein ke thim. Kuch he mahine aur hamari shadi ke baat ko chhupa kar rakho..." ( I had married you after seriously considering the matter. The marriage may or not be important to you but I consider you my wife after the marriage and soon after marriage of Neetu, I will bring you home after marrying you publicly... and being a wife Mamta, it is your duty that you should help me in fulfilling this duty of mine in the same manner in which you did in the marriage of Neetu. Keep our marriage a secret for a few more months only... and I will bring you to my home after marrying you in front of everybody). Similarly Ex. RW-1/10 which is addressed to defendant No. 1, the plaintiff has stated that (written in Hindi) "Tumhare gharwale samay aane par hamari shaadi ko maan jayenge..." "Main tumse his shaadi karunge..." (One day your parent/relatives will accept our marriage... I will marry only you). In affidavit, Ex. RW-1/11, the plaintiff stated that I have married you on 20.05.2002 at Shalimar Garden, Delhi according to Hindu rites and customs at my residence in the presence of witnesses. " and " That after solemnization of my marriage, Miss Mamta, D/o Sh. Vinay Kumar will be my legalized wedded wife...." Since all these documents, as held by me above are admitted by the plaintiff, there cannot be any doubt that it stands proved on record that both the parties were married on 20.05.2002.

9 This is further fortified by the fact that in the cross-examination of the defendant No. 1 it was suggested to her on behalf of the plaintiff that the plaintiff called her to Shalimar Garden on 20.05.2002 that her marriage was performed at the plaintiff's Mamaji' residence, that no relative of the plaintiff except a few friends namely Raju, Sonu and Anil were present at the time of marriage, that the plaintiff arranged for a Pandit, that her marriage was consumated during the period the defendant started residing with the plaintiff at Shalimar Garden for 10-15 days and after that at Purani Kothi for 4-5 days. All these suggestions clearly shows that the plaintiff himself admits not only that there was marriage between the parties on 20.05.2002 at the residence of the maternal uncle of the plaintiff but also, that the marriage was consumated.

10. Even further, RW-2 examined by the appellant in support of her case before ld. Trial Court in his examination-in-chief, specifically stated that the plaintiff married the defendant No. 1 on 20.05.2002 in his residence. Although RW-2 was cross-examined at length, it was not suggested to him that there was no marriage between the parties.

11. Ld. Trial Court held that and it was also contended by the counsel for the plaintiff during the arguments that in her complaints lodged by the defendant No. 1 with the police and CAW Cell, the defendant No. 1 has been taking shifting

stands in as much as in her complaint to Police Station New Usmanpur, Delhi, she nowhere stated that she is married to the plaintiff, on the contrary, she stated that she wanted to marry the plaintiff. However, in her complaint to CAW Cell, she claimed that she was married to the plaintiff and thus, she cannot be believed.

12 I have perused both the complaints. No doubt in her complaint to Police Station, New Usmanpur, the defendant No. 1 has stated that she wants to marry the plaintiff. However, keeping in view the contents of Ex.RW-1/8 and Ex. RW- 1/10 and Ex.RW-1/11 it is clear that the parties had married on 20.05.2002 but the marriage was kept a secret with the promise by the plaintiff to marry the defendant No. 1 in public. It was under these circumstances that the defendant No. 1 had stated in her complaint to SHO, Police Station Usmanpur that she wanted to marry the plaintiff. Hence the contention of the counsel for the in this regard is rejected.

13 Ld. Trial Court failed to take into account the aforesaid documents proved on record particularly Ex. RW-1/8, Ex. RW-/10 and Ex. RW-1/11. In fact these documents have not been mentioned in the entire judgment at all.

14 One of the reasons given by Ld. Trial Court for arriving at the finding is that as per the defendant No. 1 her marriage was solemnized in the presence of her uncle Sh. Jagdish Prasad and Mausi Ms. Asha by a pandit but none of these three persons was examined by the defendant No. 1. However, the record of Ld. Trial court reveals that as far as the Pandit is concerned, in her written statement itself the defendant No. 1 had started specifically that pandit was arranged by the plaintiff. This is also proved on record as per suggestions given by the plaintiff to the defendant No. 1 in her cross-examination. Hence the defendant No. 1 cannot be expected to know the whereabouts of the Pandit. As far as the non-examination of other two witnesses is concerned, keeping in view the documents proved on record as also the suggestions given by the plaintiff himself to the defendant No. 1 in her cross-examination, I am of the view that the non-examination of these two witnesses is not of much relevance.

15 Another reason given by the ld. Trial court is that the complaint filed by the defendant No. 1 before CAW Cell has been filed as the said Cell could not find any proof of marriage between the parties. I am of the view that this fact is not even relevant for deciding the controversy in the present suit where ld.trial court was required to proceed as per evidence on record before it.

16 In view of the above discussion, I am of the view that it stands proved on record that the marriage between the plaintiff and defendant No. 1 was solemnized on 20.05.2002. Hence the finding on issue No. 1 given by ld. Trial court cannot be sustained. Hence, the appeal is allowed. The finding on issue No. 1 by ld. Trial court is hereby set aside. The issue is accordingly decided in favour of defendant No. 1."

9 This finding cannot be faulted with. It had reappreciated and

rescrtunized the oral and documentary evidence to arrive at the

aforenoted finding. RW-1 i.e. the defendant herself had come into

the witness box and proved the documents RW-1/1 to RW-1/10. The

affidavit given by the plaintiff is Ex. RW-1/11; photograph of the

plaintiff is affixed on the document; not even a single suggestion

had been given to RW-1 that this document had in fact not been

signed by the plaintiff or that it is forged or fabricated. RW-2 had

also fully supported the case of the defendant; he was an eye

witness to this marriage performed between the parties on

20.05.2002. No suggestion has also been given to him that in fact

no such marriage had taken place. The letters Ex.RW-1/8 and RW-

1/10 and their contents also show the admission of the plaintiff that

he had in fact married the plaintiff. Although before this Court it

has been vehemently argued that these documents are false yet no

suggestion had been given to RW-1 who have proved these

documents in her examination in chief that the aforenoted

documents are false or have been concocted. On the

preponderance or probabilities, the impugned judgment had rightly

noted that the parties had married one another on 20.05.2002 at

Shalimar Garden. In fact in RW-1/11, the plaintiff had admitted

that he had married defendant No. 1 as per Hindu rites and

customs at his residence; this was the affidavit bearing his

photograph. There is no perversity in this finding.

10 Reliance by learned counsel for the appellant on the

judgment of this Court reported in 102 (2003) DLT 672 Rama Tube

Company Vs. Jay Rapid Roller Ltd. to support his submission that

the evidence has to be in consonance with the pleadings is

misplaced. In the written statement there was a categorical

averment by the defendant that the parties had married each other

on 20.05.2002; the evidence which had been led by the defndnat

thereafter was in consonance and emanated from the pleadings.

The judgment of the Apex Court reported in (1965) 2 SCR Bhaurao

Shankar Lokhande & Anr Vs. State of Maharashtra & Anr. is also

inapplicable. In this case, the Supreme Court was dealing with the

penal provisions of Section 494 of the Indian Penal Code; question

which had arisen was whether to make out the offence of bigamy

under section 494 of the Indian Penal Code the essential

ceremonies of a marriage i.e. sapatapadi and gandharva are

necessary or not. The Court had held that these were essential

ceremonies which had not been abrogated by custom; prosecution

had failed to establish that the second marriage had been

performed in accordance with the applicable customary rites. The

ratio of the said judgment is wholly inapplicable to the instant

scenario.

11 The impugned judgment calls for no interference on any

count. Substantial question of law is answered in favour of the

respondent and against the appellant. There is no merit in this

appeal. Appeal as also pending applications are dismissed.

(INDERMEET KAUR) JUDGE APRIL 04,2011 A