Delhi High Court
Smt. Pooja Dubey vs Sh. Manish Kumar on 28 September, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 13th September, 2022
Pronounced on: 28th September, 2022
+ MAT.APP.(F.C.) 108/2021, CM APPL. 40621/2021 (Stay)
& CM APPL. 40622/2021 (Delay)
SMT. POOJA DUBEY ..... Appellant
Through: Mr. Mahesh Srivastava with
Mr. Vaibhav Manu Srivastava,
Advocates
versus
SH. MANISH KUMAR ..... Respondent
Through: Mr. Manjeet Singh Bhamra,
Advocate (through video
conferencing)
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA J.
CM APPL. 40622/2021 (Delay)
The present application under Section 5 of the Limitation Act
has been filed on behalf of the appellant, seeking condonation of
delay of 35 days in filing the present appeal. In view of the facts and
circumstances of the case and averments made in the application, the
delay is condoned and the application is allowed.
The application is disposed of accordingly.
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
MAT.APP.(F.C.) 108/2021 & CM APPL. 40621/2022 (Stay)
1. The present matrimonial appeal under Section 19 of The
Family Courts Act, 1984 has been preferred against judgment dated
19.12.2019 passed by Shri Dinesh Bhatt, Judge, Family Courts
(West), Tis Hazari, Delhi in HMA No. 1124/2014, whereby petition
filed by respondent under Section 9 of The Hindu Marriage Act was
allowed and a decree for restitution of conjugal rights was passed in
favour of the respondent and against the appellant.
2. Necessary facts for determination on the present appeal are as
follows:-
(i) The respondent herein (hereinafter referred to as
husband) had preferred a petition under Section 9 of The Hindu
Marriage Act 1955 seeking restitution of conjugal rights. It was
the case of the husband that marriage between the appellant and
the former was solemnized on 03.03.2012 at Shri Bharat Mandir,
Jamuna Bazaar, Delhi-110006 according to hindu rights and
rituals. It was stated in the petition by the husband that the said
marriage was against the wishes of their respective parents, but
they were hopeful that after disclosure of their marriage, their
respective parents might approve and accept them as husband and
wife. Although the husband was able to convince his parents, but
the parents of the appellant did not approve of the same and did
not allow the appellant to join the husband at their matrimonial
home. Consequently, the husband initiated necessary steps,
including a writ petition in the nature of habeas corpus which was
disposed of by Division Bench of this Court by recording the fact
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
that the appellant had refused to accompany the husband. It is also
on record that the appellant had filed a writ petition seeking to
restrain the husband from publishing, circulating and using
photographs and documents with respect to their marriage which
was disposed of by learned Single Judge of this Court, on the
statement made by the learned counsel for the husband that the
photographs and documents regarding marriage would not be
circulated in public except that they may be used by the husband
in any litigation before a Court of law. As per the petition under
Section 9 of The Hindu Marriage Act, 1955 preferred by the
husband, the appellant was under pressure from the family
members and refused to join his company as his wife and
therefore, the remedy available to him under Section 9 of The
Hindu Marriage Act, 1955 was sought by way of the aforesaid
petition.
(ii) In the written statement filed by the appellant before the
Family Court in response to the aforesaid petition, under Section 9
of The Hindu Marriage Act 1955, the appellant primarily took a
stand that there was no valid marriage. The marriage photographs
and her signatures on the documents were forcibly obtained. It
was also the case of appellant that marriage was performed in
absence of essential ceremonies like "saptapadi" and therefore, it
was not solemnized as per Hindu Law.
(iii) After completion of pleadings in the aforesaid petition
bearing no. HMA 1124/2014, the learned Family Court framed
following three issues:-
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
"i) Whether the Court has got jurisdiction to entertain the
present petition. Onus on respondent?
ii) Whether legal and valid marriage was solemnized
between the parties. Onus on the parties?
iii) Whether the petitioner is entitled to restitution of
conjugal rights U/s 9 of HMA. Onus of petitioner?"
(iv) The learned Family Court, after examining the evidence
on record including the testimony of the witnesses and the
documents exhibited, returned the finding on all issues in favour
of the husband. With regard to issue no. (ii), the learned Family
Court, in the impugned judgment dated 19.12.2019, records as
under:-
"Petitioner's case is that he was knowing respondent;
they had long courtship period and had been meeting
secretly and talking on phone with each other. They,
without involving or informing their parents, on
03.03.2012 solemnized their marriage at Arya Samaj
Mandir according to Hindu rites and customs at Bharat
Mandir, Jamuna Bazar, New Delhi. Thereafter, both the
parties went to their respective homes without disclosing
this fact to their parents and decided that they would
disclose the same to their parents in a conducive manner
and try to win them never for their decision of marriage.
However, on 05.03.2012, petitioner received a phone call
from respondent at 11:00PM, where he heard screams of
respondent and he could make out that she was being
beaten mercilessly. Thereafter, he could not contact
respondent at any point of time. He tried his level best but
found that respondent had been missing. He got worried
and therefore, filed a complaint with the police and
subsequently filed writ petition before the Hon'ble High
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
Court which was withdrawn with liberty to approach the
appropriate court for seeking remedy as per law.
Respondent's case is that she had never married
petitioner. Petitioner in connivance with some persons
called her from her house on 3rd March 2012 at about
11:00AM and asked her to accompany him to meet her
uncle in AIIMS hospital with her Aadhaar and Rations
cards for entering in the hospital. She believed petitioner
and therefore, accompanied him but on route petitioner
threatened her and under pressure, she followed
petitioner's instructions and allowed him to take
photographs with garlands in the Mandir. There, she was
also forced to put thumb impressions and signatures on
blank papers. Thereafter, petitioner dropped her at her
house and after about one month when petitioner
circulated their marriage photographs and marriage
certificate, her family members decided to file writ
petition before the Hon'ble High Court, wherein
petitioner was restrained from circulating the
photographs and documents relating to marriage except
for using the same before Court of law. Petitioner in this
regard deposed as per his petition and produced the
marriage certificate (Ex.PW1/1), marriage photographs
(Ex.PW1/2) and the affidavits filed by both the parties
(Ex.PW3/A collectively) in respect of the marriage and
also examined the Purohit as PW3, who had performed
the marriage as well as produced the original records
relating to the marriage of the parties of Arya Samaaj
Vedic Pracharak Samiti, Bharat Mandir, Yamuna Bazar,
Delhi.
The marriage photographs as well as the certificate
in question are not disputed though respondent's plea is
that she had never given her consent for marriage, her
marriage photographs were taken under petitioner's
pressure and threat and that marriage certificate was not
valid as no legal marriage was performed nor essential
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
ceremonies like 'Saptapadi' had been performed for the
marriage. In this regard, on the issue of marriage
ceremonies and photographs, there was no cross-
examination of Pandit (PW3) to this effect, who
specifically stated that he performed marriage of parties
as per Shastra and had performed large number of
marriages. There was no specific cross-examination
relating to performance of saptapadi of this witness. He
was merely given suggestions that he had not performed
the marriage ceremony between the petitioner and
respondent or that there was no legal or valid marriage
performed by him. Respondent has taken a specific stand
that she is not an Arya Samaji and the marriage
ceremony as per Hindu customs had not been carried out
but there is also no specific cross-examination of the
witness on this aspect aspect. Thus, PW3's version in
regard to marriage as per Hindu rights and customs
stands substantiated on record. Further, even PW1
specifically mentioned in his cross-examination
mentioned that he had taken steps before the sacred fire,
sindoor was poured in the Maang of respondent and he
also exchange garlands with respondent for fulfilling the
requirement of marriage ceremony as per Hindu rites.
Marriage photographs (Ex.PW2/2) are also clear to the
extent that petitioner and respondent are seen performing
ceremonies near the sacred fire. The marriage certificate
of the parties is Ex.PW1/1 which is proved by PW1, PW3
and PW4. Thus petitioner has reasonably proved that
necessary ceremony as per Hindu rites and customs had
been performed between the parties on the date of
marriage i.e. 03.03.12.
Respondent's second plea is that the marriage in
question was carried out under pressure and threat of the
petitioner, therefore, there was no legal marriage
between the parties. Petitioner denied the plea and stated
that they were in love relationship and had decided to
marry but had concealed this fact from their parents and
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
therefore, they had secretly gone from their homes along
with all documents and. returned back after the marriage
and had decided that they would try to win the hearts of
their parents and make them agree for their marriage and
thereafter tell them about the actual facts. However,
before this could happen, respondent's parents gave
beating to respondent and forced her to leave their house
and did not allow respondent to meet petitioner. PW1
supported his case and similarly RW1 also deposed in
terms of the her abovesaid defence but in her the cross-
examination admitted that she had been residing at her
native village and had recently come to Delhi to live with
her parents, brother, sister and uncle. Thus it is difficult
to believe that respondent without much acquaintance
completely believed on the petitioner and decided to go to
hospital to see her uncle that too without asking or
informing her family about this. Further, even, if the
respondent's version is believed to be correct, then there
is no explanation as to why respondent did not
immediately inform her parents about the petitioner's
conspiracy, when she return back to her home after few
hours of the marriage in question. There is also no
explanation, why no complaint was lodged with the police
or any steps had been taken 1n this regard. Respondent
should also have been aware that petitioner could misuse
her documents, photographs, signature etc. which
admittedly had been taken in her presence but no steps
were taken by her in this regard. Respondent even failed
to examine any of her family members or Uncle to prove
her defence that she had gone to visit her uncle on the
said date. There is also no documents filed on record to
prove this fact.
Respondent also stated that she had filed a writ
petition before the Hon'ble High Court, wherein
petitioner was stopped from circulating or using the
marriage photographs/documents except for legal
proceedings. Petitioner also stated that he had also filed
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
writ petition and during the proceedings of the writ
petition filed by both the parties and parties were called
to the chamber of the Hon'ble Judges and respondent had
denied to go with the petitioner and both the writ petition
was disposed off. Respondent has mentioned the sum and
substance of her writ petition in para no.2 of her evidence
affidavit (Ex.RW1/A) and also placed on record the copy
of the order dated 16.08.2012 of the said writ petition
(Ex.RE1/A) wherein it is clearly mentioned that the
"Hon'ble Judges had called the parties to the chamber
and it is recorded that they had spoken to Pooja in the
chamber in the presence of Ms. Rakhi Dubey, Advocate.
Subsequently, Manish Kumar was also called in the
Chamber and he spoke to them and tried to speak to
Pooja. Pooja clearly stated that she does not want to go
and reside with Manish Kumar". The matter ·was
thereafter withdrawn by the petitioner with liberty to take
appropriate legal steps. The aforesaid proceedings are
silent about respondent's plea of forcible marriage. There
is also no explanation, why this fact was not brought to
the notice of Hon'ble Court at the first instance. Further,
in any case, if respondent's plea is taken to be correct,
there is no explanation, why respondent had not taken
any steps for declaring the marriage, marriage certificate
as null and void at any point of time. RW1 in cross-
examination also mentioned that her father, uncle and
brother were working but her mother and sister used to
reside at home in the year 2012. Thus, there is no
explanation, why respondent had not informed any of her
family members before leaving the house on the date in
question or had not informed her family members even
when she had returned back to her home after the alleged
forcible marriage in question. The photographs
(Ex.PW1/2) also show respondent to be normal and is
seen exchanging sweets with the petitioner. Thus
respondents contention that she was forcibly made to
perform marriage ceremony is even not supported from
the photograph in question. She also admitted in her
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
cross-examination that she had never lodged any
complaint in the year 2012 or any point of time thereafter
against the petitioner or his family members in this
regard. She was also shown copy of statement (Mark-E),
which she denied but mentioned that her thumb
impression was taken on a blank paper by the petitioner
in a temple in Delhi. Respondent's conduct in this regard
clearly suggest that she was a willing party when she left
her house with the petitioner and performed marriage
ceremony and returned back to her home.
The entire facts in question support petitioner's
version and there is nothing on record to substantiate
respondent's plea of her forcible marriage. Accordingly,
issue no (ii) is decided in favour of the petitioner and
against the respondent."
(v) Since the aforesaid issue no. (ii), wherein the marriage
of the parties was held to be legal and valid was held in favour of
the husband, issue no. (iii) was accordingly decided in favour of
the husband and against the appellant as the Family Court held that
the appellant was residing separately from the husband, without
justification.
3. We have heard learned counsel for the parties.
4. Learned counsel for the appellant has reiterated the same
issues raised before the learned Family Court, i.e. the validity of
the marriage, both with respect to the non-performance of essential
ceremonies and her forcible consent.
5. Learned counsel for the appellant, however, could not
demonstrate from the pleadings and the documents on record that
the findings of the Family Court were erroneous or that the
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
appreciation of the evidence in the impugned judgment suffers
from any illegality or perversity.
6. We have gone through the impugned judgment and the
material on record and concur with the findings of the Family
Court as reproduced hereinbefore. It is pertinent to note that the
appellant in her evidence by way of affidavit, in paragraph 4, has
stated; "The petitioner is not entitled to live with me because the
petitioner is not my husband." We agree with the findings of the
learned Family Court that the appellant did not lead any evidence
to support her claim with respect to the marriage between the
parties being invalid, nor did she lead any evidence to prove
reasonable excuse for her residing separately from the respondent.
7. Section 9 of The Hindu Marriage Act, 1955 reads as follows:-
"9. Restitution of Conjugal right.- When either the
husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved
party may apply, by petition to the district court, for
restitution of conjugal rights and the court, on being
satisfied of the truth of the statements made in such
petition and that there is no legal ground why the
application should not be granted, may decree
restitution of conjugal rights accordingly.
Explanation -- Where a question arises whether there
has been reasonable excuse for withdrawal from the
society, the burden of proving reasonable excuse shall
be on the person who has withdrawn from the society."
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
A bare perusal of the explanation to Section 9 shows that the
burden of proving reasonable excuse would be on the person who has
withdrawn from the society of her/his spouse.
8. It is also an admitted situation that the appellant till date has
not filed any proceeding challenging the marriage between the parties
under The Hindu Marriage Act, 1955 or under any other provision of
law in support of claims made in the written statement filed before
the learned Family Court.
9. In view of the above, we see no reason to interfere with the
impugned judgment dated 19.12.2019 passed by Shri Dinesh Bhatt,
Judge, Family Courts (West), Tis Hazari, Delhi in HMA No.
1124/2014 filed by the respondent under Section 9 of The Hindu
Marriage Act, 1955.
10. Accordingly, the present matrimonial appeal is dismissed and
disposed of accordingly. Pending applications, if any, also stand
disposed of.
AMIT SHARMA
JUDGE
SIDDHARTH MRIDUL
JUDGE
SEPTEMBER 28, 2022/ab
Digitally Signed
By:ANITA BAITAL
Signing Date:28.09.2022
11:26:41
