Suman Singh vs Vinod Kumar
2012 Latest Caselaw 4738 Del

16 & 17.

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Date of Decision: 13.08.2012

%     FAO 335/2012 and FAO 336/2012

      SUMAN SINGH                                    ..... Appellant
                            Through:     Mr. D.S. Dalal & Ms. Sunita,
                                         Advocates,     along    with the
                                         appellant in person.

                            versus

      VINOD KUMAR                                    ..... Respondent
                            Through:     None.

      CORAM:
      HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
      HON'BLE MR. JUSTICE VIPIN SANGHI


VIPIN SANGHI, J. (Oral)

C.M. Nos. 13744/2012 & 13746/2012 (for exemption)

Exemptions allowed, subject to all just exceptions.

C.M. Nos. 13743/2012 & 13745/2012 (for delay)

In view of the averments made in the present applications, the

same are allowed and the delay of two days in filing the appeals is

condoned.

The applications stand disposed of.

FAO Nos. 335-336/2012

1. These two appeals arise from similar orders dated 24.04.2012

passed by Shri Kamlesh Kumar, Additional Principal Judge

(hereinafter referred as APJ), Family Court, Rohini, Delhi in H.M.A.

No.856/2010, preferred by the appellant under Section 9 of the

Hindu Marriage Act, 1955 to seek restitution of conjugal rights, and

case No.481/10 also preferred by the appellant, being a petition

under Section 125 Cr.P.C. to claim maintenance from the

respondent - whom she claims to be her legally wedded husband.

The learned APJ has dismissed both these petitions with the finding

that the appellant has failed to establish her marriage with the

respondent.

2. The case of the appellant is that she was married to the

respondent on 05.06.1997 according to Hindu rites and ceremonies

at Old Kalkaji Temple, New Delhi. At the time of her marriage, she

was a widow having two daughters from her previous husband, who

expired on 29.11.1996. She claimed that she lived with the

respondent - who was working as an electrician, for a period of two

months prior to their marriage. She further claimed that the

respondent belongs to village Rithala. The family of the respondent

was not happy with the marriage of the parties and did not accept

her in their home. She claimed that she conceived three times

while living with the respondent but had to abort her pregnancy

under pressure from the respondent. She decided to live in a

separate accommodation owned by her in Budh Vihar Phase-II, New

Delhi. It is claimed that the parties shifted to Gujarat in the year

2006 to avoid disturbance/interference from the family members of

the respondent in their marital life. She claimed that the

respondent started consuming alcohol and other narcotic drugs.

While in Gujarat, she purchased a house in her own name from her

own source of income. She claimed that the respondent was

annoyed with her and left her society and returned to Delhi with all

her valuable articles and jewellery. The respondent started running

taxi of a call centre drawing a monthly salary of Rs.20,000/-. The

appellant decided to return to Delhi in November 2009. She learnt

that he was residing with a woman and has two children from her.

The appellant claims that she was pacified by the respondent, and

thereafter she took a rented accommodation in Krishan Vihar, Delhi

and started living there with the respondent. She claimed that the

attitude of the respondent towards her and the minor children

changed. He picked up quarrel with the appellant in July 2010 and

left her company without any rhyme or reason. She claimed that

the respondent had withdrawn from her society without any

reasonable cause since July 2010. The efforts made by her for

reconciliation with the respondent proved futile. She claimed that

the respondent had deserted her and has made no provision for her

maintenance. She claimed that the respondent was morally and

legally obliged to maintain her. Further averments with regard to

the respondent's rental income were also made by the appellant.

3. The respondent contested the two petitions stating that he

had no relations with the appellant and that the petitions have been

filed on the basis of forged and fabricated documents. He

emphatically denied having married the appellant. He claimed that

the appellant got acquainted with him as a widow lady, while he was

working as an electrician in the area where she resided, i.e. in Budh

Vihar, Delhi. Out of sympathy, he sometimes helped her. He

claimed that he was married to Smt. Pushpa and has two children

from the wedlock. He denied having ever lived with the appellant in

village Rithala or anywhere else. He even denied that the appellant

has conceived as a result of any alleged relationship between the

parties. He also denied that the appellant has ever been in contact

with his parents, or that he is working as a driver with a call centre

drawing a salary of Rs.20,000/- per month. He stated that he was

working as an electrician earning around Rs.3,000/- to Rs.3,500/-

per month. The respondent denied that he shifted to Gujarat with

the appellant in the year 2006 or lived with the appellant as her

husband. The documents relied upon by the appellant were claimed

to have been forged, and prepared to implicate and trap the

respondent. The respondent stated that the appellant had obtained

his signatures on some papers and photographs on the pretext of

getting a loan long time back, and had misused the same.

4. The Trial Court examined the witnesses of the parties in the

two cases. The primary issue which arose for consideration before

the Trial Court was whether the appellant was the legally wedded

wife of the respondent, and whether he had deserted the appellant.

The learned APJ marshalled the evidence of the parties. While

examining the aforesaid issue, he notes that the appellant admitted

that no receipt was given by the temple authorities for performing

the alleged marriage. She admitted that she had not taken any

proof of marriage from the Pandit, who performed the marriage.

The marriage had not been got registered. She could not tell the

name of the Pandit, who solemnized the marriage. PW-2 Smt. Renu

James claimed to have attended the marriage, but could not tell the

name of any person who was present along with her at the time of

the alleged marriage. Though she stated that a photographer was

present, she did not have his particulars. She also stated that no

document was prepared by the Priest/Pandit in the temple with

regard to the marriage. She had not witnessed the execution of any

document. PW-3 Shri Shiv Saran Singh, brother of the appellant,

testified that except him, none from his family and relatives had

attended the alleged marriage. He also testified that photographs

had been taken at the time of marriage but did not know as to who

has taken the photographs. He could not testify as to why the

appellant had not invited her parents to the alleged marriage.

5. The learned APJ has observed and, in our view rightly so, that

this being the second alleged marriage of the appellant, she would

have definitely informed and invited her parents and other family

members and there is no explanation as to why she did not deem it

fit to have the presence of her family members and other relatives

on such an important occasion, if there was truth in her claim of

marriage with the respondent.

6. The learned APJ takes note of the fact that neither the

appellant nor the witnesses could disclose the name of any person

from the side of the respondent, who attended the alleged

marriage, which gives support to the case of the respondent that no

marriage ceremony was ever performed. Even though the

appellant's witnesses claimed that a photographer was present

when the marriage was solemnised, the appellant had failed to bring

on record particulars of either the photographer; the person who

arranged the photographer; and, the photographs allegedly taken

on the occasion. The learned APJ also takes note of the fact that the

appellant was a mature lady with two daughters from the first

marriage. She would have definitely collected the documents and

photographs, if not for preserving proof, at least for fond memories.

7. Pertinently, the appellant did not produce any independent

witness from the Old Kalkaji Temple in support of her claim that she

was married to the respondent in the said temple on 05.06.1997.

The learned APJ also takes note of the respondent's case that he

had signed certain blank papers, as the appellant desired that he

stands surety for some loan to be obtained by her. According to the

respondent, the said blank papers have been misused by the

appellant to forge documents relied upon by her, namely the ration

card stated to have been got prepared in Gujarat Ex. PW-1/C, which

shows the respondent as the head of the appellant's family and the

two daughters of the appellant as the other two members of the

family.

8. The learned APJ then proceeds to decide the case on the

principle of preponderance of probabilities. On the one hand, the

failure of the appellant to produce any worthwhile evidence in

relation to the marriage is taken note of by him. He also takes note

of the appellant claims that the respondent withdrew from her

company in the year 2007 - taking away all her valuable articles

and jewellery, and doubts the same as she did not raise a grievance

or make a complaint in relation thereto. She allegedly came to

Delhi only after two years searching for him. When she came to

Delhi, she took an accommodation on rent leaving her two minor

school going daughters to live independently on their own in her

house, while she claims that her brother lives in another house five

kilometres away. This story is doubted as it appears even to us

highly impalatable that a lady would come to Delhi only to search

her alleged husband after two years of separation; she would take a

house on rent and settle down there, leaving her two minor

daughters to fund for themselves a house, all alone.

9. The strange story of the appellant does not stop there. Even

though she claims that she found the respondent residing with a

woman Smt. Pushpa with two children born out of their wedlock, she

states that the respondent started living with her once again in the

year 2009 only to leave her again in the year 2010. So, if the

appellant is to be believed, the respondent - without any resistance,

either from himself or from his wife Pushpa simply started living

with the appellant once again as her husband. Neither the appellant

lodged any complaint with the police regarding his marriage with

Smt. Pushpa when she came to know of it, nor Smt. Pushpa took any

action despite her husband, i.e. the respondent allegedly leaving

her and living with the appellant. The learned APJ finds this story as

highly improbable and difficult to believe and, in our view, rightly so.

The appellant claimed that she again conceived when the

respondent was living with her between 2009-2010. However, when

the baby girl was born, she did not disclose the name of the father

as that of the respondent in the hospital records. Looking to the

nature of the appellant's statement made during her cross-

examination, the learned APJ finds the testimony of the appellant to

be untrustworthy. The learned APJ also observes that the appellant

has held back evidence which she could have produced, namely her

neighbours in Gujarat and in Delhi to prove that the respondent was

residing with her as her husband. However, she has failed to lead

any such evidence, and this was also viewed adversely against the

appellant.

10. The submission of learned counsel for the appellant before us

is primarily based on the documents Ex. PW-1/C, i.e. the APL-1 Card

prepared in Gujarat; Ex. PW-1/D, i.e the bank passbook issued in the

name of the parties jointly by Kotak Mahindra Bank in Gujarat, and;

PW-1/B, i.e. the appellant's own election card prepared in Gujarat,

which shows the respondent's name as her husband; to submit that

these documents prove the factum of the marriage of the parties.

11. We are unable to agree with the aforesaid submission of

learned counsel for the appellant. These documents only establish

the factum that ration card was prepared in Gujarat showing the

name of the respondent as head of the family of which the appellant

and her two daughters were members. Similarly, the bank account

passbook Ex. PW-1/D merely shows that a joint account was opened

in the name of the two parties. Same is the case with the election

identity card Ex. PW-1/B. The stand of the respondent that he had

executed blank documents to enable the appellant to obtain loan

appears to be as unbelievable as is the appellant's own case of her

having married the respondent. However, that by itself is not

sufficient to prove the marriage of the parties. At the highest, what

the appellant can claim by relying upon these documents, even if

they are believed to be genuine, is that the parties did live together

for some time in Gujarat. Even if it were to be accepted that the

respondent did live with the appellant in Gujarat for some time

when the said documents were prepared, the same does not lead to

the inference that they were legally married. The appellant

miserably failed to establish the factum of marriage, which allegedly

took place in the Old Kalkaji Temple on 05.06.1997. Neither any

photograph, nor the records of the said mandir, nor any

independent witness from the temple - such as the Pujari or the

photographs were produced. The failure of the appellant to produce

evidence of her neighbours where she allegedly lived with the

respondent as his wife, either in Gujarat or in Delhi, also adversely

impinges on the appellant's case. In our view, the learned Trial

Court has adopted the correct approach while marshalling the

evidence lead before him and he has rightly concluded upon

preponderance of probabilities that the parties never got married

legally.

12. We may at this stage also note another submission of learned

counsel for the appellant that the respondent did not agree to

undergo Deoxyribonucleic Acid (DNA) test to establish that he was

not the biological father of the baby girl born after the filing of the

aforesaid petitions. The same, at best, may lead to the drawing of

an adverse inference against the respondent that he is the

biological father of the baby girl. However, that by itself does not

establish the existence of a marriage between the parties.

Pertinently, the appellant did not seek any maintenance for the

baby girl and she only prayed for maintenance for herself in Case

No.481/2010 under Section 125 Cr.P.C.

13. Since the appellant failed to prove her marriage with the

respondent, she obviously could not have been granted restitution

of conjugal rights or maintenance for herself under Section 125

Cr.P.C.

14. For the aforesaid reasons, we find no merit in these appeals

and dismiss the same.

VIPIN SANGHI, J

SANJAY KISHAN KAUL, J

AUGUST 13, 2012 'BSR'