Shitij Khurana vs Shreha Khurana
2013 Latest Caselaw 5595 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment pronounced on: December 03, 2013

+                         MAT.APP. 31/2013

       SHITIJ KHURANA                                       ..... Appellant
                    Through            Mr.Arvind Nayar, Adv. with
                                       Mr.Zeyaul Haque & Ms.Nanda
                                       Devi, Advs.

                          versus

       SHREHA KHURANA                                      ..... Respondent
                   Through             Mr.C.L.Sahu, Adv. with
                                       Mr.Rajendra Sahu, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The present appeal has been filed by the appellant under Section 28 of the Hindu Marriage Act (hereinafter referred to as "the Act") read with Section 151 CPC against the judgment and decree dated 7 th October 2013 passed by the learned Additional District Judge, Tis Harzari Courts, Delhi

2. Brief facts leading to filing of the present appeal are that the respondent had filed a petition for annulment of marriage between the appellant and the respondent under Section 12 of the Act.

3. As per the case of the respondent, as set out in the petition, the respondent was known to the appellant and his family since her childhood as the maternal uncle of the appellant stayed in the vicinity of the respondent's house and that the appellant and his family members used to often visit the appellant's maternal uncle.

3.1 It was stated in the petition that the respondent developed friendly relations with the family of the appellant, more particularly, the sister of the appellant, Ms. Aanchal, who persuaded the respondent to accompany her to a visit to Jaipur for a trip on 30th January 2008, also accompanied by the appellant. It was averred that on the way to Jaipur, the appellant and his sister gave Pepsi to the respondent which was administered with some drug(s) and that consequently, the respondent lost her normal senses and started following the commands of the appellant and his sister. 3.2 It was further averred that the appellant, his sister and the respondent stayed overnight in Jaipur and came to Delhi in the late hours of 31 st January 2008 and that they kept roaming in the car till morning of 1st February 2008, and that in the meantime, the appellant and her sister continued to administer drugs to the respondent in soft drinks at regular intervals. 3.3 It was contended that the appellant and his sister took the respondent to an Arya Samaj Mandir in Delhi on the forenoon of 1st February 2008 and in presence of some relatives and friends of the appellant, a marriage was solemnized between appellant and the respondent with Hindu rites and rituals. It was averred that the respondent was not in her normal and proper senses to understand what was going on and neither did she give nor was she in a position to give her consent to the said marriage and that the same was not as per her wishes. It was further averred that the respondent was merely following the commands of the appellant and his sister.

4. After the solemnization of the marriage, the respondent was brought to a Sai Baba Mandir in Rohini by the appellant and his relatives and thereafter appellant's sister called respondent's mother to inform that they had reached Delhi from their trip and that she could come and take the respondent. It was averred that on reaching the said mandir, the respondent's

mother was taken aback on seeing the respondent wearing a Mangalsutra and sindhoor (vermilion). On enquiry, she was informed about the said marriage and that after several requests, which were resisted, the mother was somehow able to persuade to appellant and his parents to permit her to take the respondent home with her.

5. Thereafter, the respondent was admitted at Dr. Ram Manohar Lohiya Hospital on 2nd February 2008 for about 4 days, since she had been consistently feeling unwell. Simultaneously, on a complaint being filed on 2nd February 2008 by the respondent, an FIR under section 328/366/34 IPC was registered with the police against the appellant and his sister on 5 th February 2008.

6. However, due to intervention of some common friends, the parties arrived at an amicable settlement which was reduced to writing on 9 th February 2008 whereby it was agreed that the respondent would move for annulment of the marriage and that the appellant would cooperate for the same and that similarly the respondent would cooperate with the appellate for getting the FIR against the appellant quashed. Further in terms of the said agreement, all the photographs and other documents pertaining to the marriage were to be handed over to the respondent and thereafter be destroyed.

7. It was averred that the appellant breached the said memorandum of understanding by telling their common friends that the respondent is his wife. In a petition filed by the appellant for quashing of the FIR against him, he pleaded that he is married to the respondent and that the said marriage was without any threat, coercion or pressure and also filed some photographs alongwith the same although as per the memorandum of understanding, the said photographs alongwith the negatives were to be

handed over to the respondent. It was also averred that the factum of the memorandum of understanding was not disclosed to the Court.

8. The appellant contested the petition filed by the respondent and contended that the said marriage was solemnized as per the wishes and desire of the respondent and that at the time of the said marriage, the respondent was in full senses and conscious. The appellant contested that the marriage was valid and that all ceremonies of a hindu marriage were performed 8.1 It was admitted that the respondent was known to the appellant since her childhood as the maternal uncle of the appellant stays in the vicinity of the house of the respondent and that the petitioner alongwith his family members had been often coming to stay at that place.

8.2 It was averred that the sister of the appellant, Ms. Aanchal was in Delhi on 30th and 31st January 2008, when the appellant and the respondent went to Jaipur and that her location could be ascertained by scrutiny of her mobile details, phones numbers of which were provided therein. It was contended that the sister of the appellant had nothing to do with the entire episode and in fact it was the respondent herself who called up the appellant and persuaded him to visit Jaipur on 30th January 2008 with her to get married as the father of the respondent was against her relationship with the appellant.

8.3 It was further averred that the appellant and the respondent checked in a hotel in Jaipur where they stayed for a night and thereafter came back to Delhi, where they spent a night at the residence of one of the relatives of the appellant.

9. All the contentions and averments made in the petition were denied and among other things, it was denied that a written settlement was arrived

at between the parties with their free will as the same was entered into under pressure to concede to all the allegations made therein, under influence that the same could help the appellant in getting bail from the Court against the FIR filed against him. It was averred that the parties were previously involved in physical relationship with each other much prior to their marriage and this was the main reason behind the respondent's refusal to get herself medically examined.

10. The issues in the matter were accordingly framed and the evidences were led by both the parties.

11. The main issue in the matter was whether the respondent had married the respondent with her voluntary consent without any fraud and misrepresentation by the appellant. It was observed by the learned Trial Court that appellant in his examination had admitted that the settlement dated 9th February 2008 was arrived at between the parties and he also admitted signatures on the said settlement, however, denied the contents thereof. The learned Trial Court observed that said marriage was solemnized between the parties without the free consent of the respondent and that the same was observed to be under the influence of drugs as administered by the appellant and his sister.

12. Accordingly, with these observations, the said marriage was declared as voidable under section 12 of the Act and the marriage between the appellant and the respondent was decreed and annulled by the decree of nullity

13. Aggrieved thereof the appellant filed the present appeal stating that while passing the impugned order, the learned Trial Court did not consider that in a suit previously filed by the respondent against the appellant, which was later on withdrawn by her, the respondent had moved an application for

cancellation of the bail given to the appellant, stating that the appellant had violated the terms of the said Memorandum of Understanding. However, while dismissing the said application of the respondent, the learned Trial Court observed that non fulfillment of the terms of the said settlement cannot be the basis of granting or cancelling the bail. Also, in a suit for permanent injunction filed by the appellant against the respondent restraining the respondent to enter into another marriage till subsistence of the said marriage between the parties, though the application for ad-interim stay was dismissed, the learned Trial Court observed that it does not hold the said settlement deed to have any legal sanctity as far as the purpose that the same was intended to serve. In fact in an appeal against this order, the illegality of the said settlement deed was upheld by the appellate court.

14. By way of an application being CMA 17842/2013 filed by the appellant for bringing on record an additional fact, it was stated that the respondent has illegally entered into another marriage despite an appeal pending before this Court and without the statutory limitation period of preferring an appeal provided under Section 28 of the Act against the impugned order having been expired.

15. In this regard the appellate has relied upon the Supreme Court's decision in Lata Kamat v. Vilas, (1989) 2 SCC 613 wherein the orders passed in two appeals preferred against the order declaring the marriage between the parties as a nullity under Section 12 of the Act were set-aside in case of re-marriage of one of the party. The Apex Court opined that though different phraseology has been used in Section 11-12 and Section 13 of the Act inasmuch under Section 12 of the Act, the marriage may be "annulled by a decree of nullity" whereas under Section 13 the marriage may be "dissolved by a decree of divorce", but the legal meaning or the effect is that

by intervention of the court, the relationship between two spouses is severed or brought to an end and the marriage is dissolved. The wide language of Section 28 of the Act which provides for an appeal would include a decree under Sections 11, 12 as well as 13. It was further opined that though Section 15 which provides for re-marriage, uses the term "decree of divorce", but the impact of phraseology "right to appeal" occurring in Section 15 is to be examined in the light of language of Section 28. So construed, there will be no difference in respect of the right to appeal whether the decree is under section 11, 12 or 13. It was opined that the phrase "marriage has been dissolved by decree of divorce" in Section 15 thus means where the relationship of marriage has been brought to an end by intervention of court by a decree. This decree would include a decree under section 11, 12 or 13.

16. In light thereof, it is contended that the said statutory period of preferring an appeal has to expire to entitle a party/spouse, having got divorce under section 11,12 or 13 of the Act, to remarry. Accordingly, it is contended that the respondent has gone contrary to the said statutory provisions of the Act.

17. So far as the observations made in the above mentioned case are concerned, the same are made in accordance with law and hold good. However, the same cannot be followed in the present case considering that the facts of the present case are distinguishable as much as there is an additional factor of the memorandum of understanding/settlement deed dated 9th February 2008 entered into by the parties whereby the appellant himself has conceded that the said marriage was performed without the consent and knowledge of the respondent and was against her wishes. The execution of the amicable settlement is not denied by the appellant who has

also not denied the annulment of marriage on that day itself and merely formalities were to be completed by obtaining the formal decree from the competent court, nothing remained in the relationship between them. By virtue of said settlement the appellant undertook to cooperate with the respondent in order to obtain decree for annulment.

The relevant portion of the said memorandum of understanding reads as under:

"1. that the said marriage between the parties to this agreement is & be treated in nullity & it is agreed that there is no relation of any kind whatsoever between the parties to this agreement.

2. that the party of the first part agrees & declares that he will never proclaimed that he is married to party of the second part or claim that she is his wife 3 ...

4 ...

5. that the parties have entered this agreement out of their free will & accord without any pressure or coercion.

6 ..."

18. It is also the admitted position that the appellant has not challenged the validity of the amicable settlement arrived at between the parties within reasonable time. Rather, the material placed on record shows that later on, he changed his mind and also his stand in Court.

19. This Court is of the considered view that once he has made admission of his guilt in the amicable settlement and has also taken benefit of the same in criminal proceedings, all his subsequent protests is an afterthought. His conduct is so deplorable that even now he wishes to destroy the remaining life of the respondent who is now leading a happily married life with her husband. The objection raised by him about the alleged illegality of the other marriage that the respondent entered into despite of an appeal period available to him is without any force in view of the admission made by him

in the amicable settlement. As a matter of fact, on the date of execution of amicable settlement, the marriage had become annulled and merely formalities had remained to obtain a decree on the basis of the said settlement. In view of the peculiar facts and circumstances of the present case and in the interest of justice of saving the second marriage of the respondent, this Court is inclined to condone the omission committed by the respondent, in respect of the objection raised by the appellant, as probably the respondent at the time of second marriage was not aware about the implication of statutory period of appeal.

20. The appeal is accordingly dismissed.

21. No costs.

(MANMOHAN SINGH) JUDGE DECEMBER 03, 2013