Delhi High Court
Namita Mallik vs Nishant Kumar & Anr. on 24 March, 2015
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.388/2014 & C.M. Nos.20519/2014, 20520/2014
Decided on : 24th March, 2015
NAMITA MALLIK ...... Appellant
Through: Mr. A. Niyaz, Advocate.
Versus
NISHANT KUMAR & ANR. ...... Respondents
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellant against the
judgment and decree dated 26.5.2014 passed by the learned Additional
District Judge-I (East), Karkardooma Courts, Delhi in R.C.A. No.40/2010
titled Namita Malik vs. Nishant Kumar.
2. Briefly stated the facts of the case are that Nishank Kumar filed a
suit for declaration and permanent injunction against Namita Malik, the
present appellant and one Rohit Bhdaya seeking declaration that the
marriage between Nishant Kumar and Namita Malik, the present
appellant was a valid marriage performed according to Hindu rites and
ceremonies and that the marriage between the appellant, Namita Malik
and Rohit Bhdaya was void and illegal as it was contracted during the
subsistence of the first marriage. Further, a decree of permanent
injunction was also sought seeking a restraint order against the present
appellant and respondent No.2 from living together.
3. The case which was setup by respondent No.1/plaintiff was that
while he was studying with the present appellant, he had fallen in love
with her and both of them had got married against the wishes of their
parents in Gujarat Samaj Mandir, Paschim Vihar on 22.8.2008 according
to Hindu rites and ceremonies. After marriage, they lived together and
consummated the marriage also; however, because of the pressure of the
parents, they started living along with their parents. During the period of
their separation, the present appellant was married to respondent No.2,
Rohit Bhdaya, which culminated into filing of the present suit for
declaration and permanent injunction. The appellant/defendant No.1 and
respondent No.2, Rohit Bhdaya were served. The appellant was served
but she did not file her written statement. Her defence was struck and
thereafter, respondent No.1 adduced evidence in support of his case. He
examined himself as PW-1 and three more witnesses, one of which was
the Purohit, who solemnized the marriage and the other two persons were
the witnesses to the marriage. All these four witnesses were cross-
examined and after analysis of evidence, the learned trial court granted
declaration as prayed for by respondent No.1 declaring the marriage
between the present appellant and respondent No.1 as a valid marriage
and also declaring the marriage between the appellant and respondent
No.2, Rohit Bhdaya as null and void as the same was contracted during
the subsistence of the first marriage. However, so far as the grant of
injunction is concerned, that relief was refused. It was observed that it is
not proper for the court to pass such kind of injunction orders and the
respondent No.1 has an efficacious remedy available to him to seek
restitution of conjugal rights.
4. Feeling aggrieved, the present appellant filed the first appeal titled
Namita Malik vs. Nishant Kumar bearing R.C.A. No.40/2010. The
appellate court upheld the judgment and the decree passed by the trial
court as it did not find any infirmity or perversity in the judgment and the
decree assailed.
5. Still not feeling satisfied, the present regular second appeal has
been filed. The second appeal, according to Section 100 CPC is
entertainable only when a substantial question of law is involved in the
matter. The learned counsel for the appellant, in the instant case, has
made three submissions. The first submission which has been made by
the learned counsel for the appellant is that the court has relied upon the
photographs without the negatives of the marriage being produced and,
therefore, the said photographs could not be treated as valid evidence. It
has been contended by the learned counsel that the witnesses have been
cross-examined and despite the fact that the purohit, whose testimony has
been recorded for the purpose of proving solemnization of marriage, he
was not a purohit of the mandir, his testimony has been relied upon. It
has been contended that the court has erroneously interpreted the
evidence to assume that there was a valid marriage between the appellant
and respondent No.1.
6. I have considered the submissions. None of the submissions which
have been made by the learned counsel for the appellant is constituting a
question of law much less a substantial question of law. The question of
appreciation of evidence is already done by the two courts. It is not a
case of the appellant that the finding of marriage returned by the two
courts below is not supported by any evidence at all which could have
made it, is a case of perversity. There is ample evidence by way of
statement on oath not only of respondent No.1 but also corroborative
evidence of the purohit and the witness in whose presence the marriage is
stated to have been solemnized. Even if the photographs are ignored still,
the oral evidence adduced by respondent No.1 clearly proves that there
was a valid marriage solemnized between the appellant and respondent
No.1. The present appellant has failed to demolish their testimony by
way of cross-examination. The appellant has been so callous that despite
the service, no written statement has been filed by her and she has not
setup any defence. Therefore, this point does not merit any consideration.
7. In view of the aforesaid facts and circumstances of the case, it is
observed that the present appeal is totally misconceived and the same
does not merit any consideration. Accordingly, the appeal is dismissed.
V.K. SHALI, J.
MARCH 24, 2015
'AA'
