Karnataka High Court

R Kubendrappa S/O K Rudrappa vs G R Shashikala on 3 December, 2021

Bench: B.Veerappa, K S Hemalekha

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 03RD DAY OF DECEMBER, 2021

                           PRESENT

              THE HON'BLE MR. JUSTICE B. VEERAPPA

                              AND

         THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

  MISCELLANEOUS FIRST APPEAL No.8965/2011 (SMA)

BETWEEN:

R KUBENDRAPPA
S/O K RUDRAPPA
(PARTY-IN-KPERSON)
B.A GRADUATE, (ARTS)
AGED ABOUT 54 YEARS
R/AT DUMMY (AT AND POST)
KOLALKERE TALUK
CHITRADURGA DISTRICT.
                                                     ...APPELLANT
(BY SMT. SARASWATHI, ADVOCATE)

AND:

G.R SHASHIKALA
D/O G RUDRAPPA
AGED ABOUT 51 YEARS
B.A GRADUATE (PSYCHOLOGY)
R/AT SIRIGERE (AT AND POST)
OPP. BOYS PRIMARY SCHOOL
CHITRADURGA TALUK AND DISTRICT.
                                                    ...RESPONDENT
(BY SRI B.K.S SANJAY, ADVOCATE)

                              ****

       THIS   MISCELLANEOUS   FIRST   APPEAL   IS   FILED   UNDER
SECTION 39(1) OF THE JUDGMENT AND DECREE DATED 30.06.2011
PASSED IN M.C NO.40/2009 ON THE FILE OF II ADDITIONAL SENIOR
                                    2


CIVIL JUDGE. CHITRADURGA, DISMISSING THE PETITION FILED
UNDER SECTION 25(I) (III) OF SPECIAL MARRIAGE ACT FOR DECREE
OF NULLITY.


      THIS MISCELLANEOUS FIRST APPEAL COMING ON                 FOR
HEARING THIS DAY, K.S.HEMALEKHA      J., DELIVERED              THE
FOLLOWING:

                             JUDGMENT

The present Miscellaneous First Appeal is filed under

Section 39(1) of the Special Marriage Act, 1954, assailing

the judgment and decree dated 30.06.2011 passed in

M.C.No.40/2009 on the file of the II Additional Senior Civil

Judge, Chitradurga, dismissing the petition filed by the

appellant/husband under Section 25(i) and (iii) of the

Special Marriage Act, 1954.

2. The appellant/husband (hereinafter referred to

as "husband" and respondent/wife would be referred to as

"wife" for the sake of brevity).

3. The husband filed a petition under Section

25(i) and (iii) of the Special Marriage Act, 1954

(hereinafter referred to as "the Act" for short), to annul the

marriage solemnized on 06.08.1997, by a decree of nullity.

The husband pleaded that on 15.12.1985, the marriage

was performed at Chitradurga as per the rites and customs

prevailing in their community. After the marriage, they

were living together as husband and wife at Bengaluru and

out of the wedlock, they have three children, two male and

one female. However, due to total incapability and serious

illness of the wife, as she could not perform her marital

obligations with the husband, on the advise of elders, they

filed mutual consent petition for divorce under Section 13B

of the Hindu Marriage Act, 1955 before the Family Court,

Bengaluru, in M.C.No.488/1994 which came to be allowed

by the judgment and decree dated 20.02.1995. It was

further contended by the husband that on 28.01.1996, the

wife along with other persons forced him to tie tali to the

neck of his own sister's daughter-Latha. However, the said

marriage between the husband and Latha did not last for

long and that too ended up in divorce.

4. It was further contended that on 06.08.1997,

the brother and sister's husband of the wife by putting

threat to the life of the husband performed his marriage

with the wife again at the Sub-Registrar's office,

Basavanagudi, Bengaluru. In this regard, the husband

lodged a complaint with the Kumaraswamy Layout Police

Station. Though mutual consent divorce was passed

between the husband and wife, due to life threat which

was put on husband, he was forced to marry the wife

again. It was alleged that, on 26.06.2002, the wife along

with her brother assaulted the husband with deadly

weapons and caused grievous injuries and thus, the

husband lodged private complaints with the

Bharamasagara Police Station in C.C.No.775/2002 and

C.C.No.678/2006 and they are pending for adjudication. It

was further contended that since last 15 years there is no

cohabitation and that the husband is residing in the same

house along with the wife and due to physical and mental

harassment caused by the wife, the husband filed petition

seeking nullity of marriage.

5. The wife appeared and filed her objections,

specifically contending that though initially her marriage

with the husband was performed on 15.12.1985, the

marriage did not last long and same ended up in mutual

consent divorce. She further contended that mutual

consent divorce was obtained fraudulently by the husband

by harassing her. The wife contended that again marriage

was performed and registered in the office of the Sub-

Registrar, Basavanagudi, Bengaluru, on 06.08.1997 at the

request of the husband himself and therefore, prayed for

dismissal of the petition.

6. The Trial Court, considering the rival

contentions urged by the parties, framed the following

points for consideration.

1. Whether the petitioner proved that, his consent was obtained by coercion, fraud and by putting threat to his life by respondent and her followers and performed his marriage along with respondent on 06.08.1997, accordingly this marriage is voidable marriage?

2. Whether the petitioner is entitled for decree of nullity as prayed for?

7. The husband, in order to prove his case got

examined himself as P.W.1 and examined two witnesses as

P.Ws.2 and 3 and got marked the documents Exs.P.1 to

P.72. The wife examined herself as R.W.1 and got marked

the documents Exs.R.1 to R.10.

8. The Trial Court, on hearing the learned counsel

for both the parties and on going through the materials on

record, dismissed the petition filed by the husband under

Section 25(i) and (iii) of the Special Marriage Act, 1954,

with costs. Hence, the present appeal.

9. We have heard the learned counsel for the

parties to the lis.

10. Smt.Saraswathi, learned counsel for the

husband contended with vehemence that the wife is having

permanent disability and she is incapable to perform her

marital obligations. The marriage alleged to have been

registered on 06.08.1997 before the Sub-Registrar was

performed by force, is obtained by fraud and coercion. In

view of the mutual consent divorce passed in M.C.No.

488/1994 dated 20.02.1995, the question of remarrying

the wife again and registering the said marriage on

06.08.1997 would not arise. Learned Counsel further

contended that the medical reports produced by the

husband clearly depicts that the wife has undergone

medical test and the said medical reports were not taken

into consideration while passing the impugned judgment

and decree dismissing the petition filed by the husband.

Learned counsel further contended that since past 15

years, the parties are living separately and there is no

chance of reunion and there are criminal petitions filed by

the respondent against the husband and therefore, sought

to allow the present Miscellaneous First Appeal.

11. Per contra, Sri B.K.S.Sanjay, learned counsel

for the wife supported the reasonings accorded and sought

to justify the impugned judgment and decree passed by

the Trial Court.

12. In view of the rival contentions urged by the

learned counsel for the parties, the points that would arise

for our consideration are:

(i) Whether the husband has proved that the marriage solemnized and registered on 06.08.1997 is a nullity in view of Section 25 (i) and (iii) of the Special Marriage Act?

(ii) Whether the impugned judgment and decree passed by the Trial Court in M.C.No.40/2009 requires any interference, in the facts and circumstances of the present case?

13. We have given are thoughtful consideration to

the arguments advanced by the learned counsel for the

parties and perused the papers including the original

records carefully.

14. The undisputed facts in the present

Miscellaneous First Appeal are that, the appellant and

respondent are husband and wife and out of their wedlock

which was solemnized on 15.12.1985, three children were

born. The marriage earlier had ended up in mutual

consent divorce in M.C.No.488/1994 dated 20.02.1995. It

is also not in dispute that on 06.08.1997, again, the

husband married the wife and the marriage was registered

in the office of the Sub-Registrar, Basavanagudi,

Bengaluru, and till 2002, the appellant and respondent

were residing together as husband and wife. The only

allegation of the husband is that the marriage solemnized

on 06.08.1997 in the office of the Sub-Registrar after the

mutual consent divorce passed by the Trial Court, is

performed by force, coercion and fraud and therefore,

sought to nullify the marriage.

15. The provisions of Section 25 of the Special

Marriage Act, 1954, read as under:

"25. Voidable marriages- Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if,-

(i) the marriage has not been consummated owing to the willful refusal of the respondent to consummate the marriage; or

(ii) the respondent was at the time of the marriage pregnant by some persons other than the petitioner; or

(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872.

PROVIDED THAT, in the case specified in Cl.(ii), the Court shall not grant a decree unless it is satisfied-

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(b) that proceedings were instituted within a year from the date of the marriage; and

(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:

PROVIDED FURTHER THAT in the case specified in clause (iii), the Court shall not grant a decree if,-

(a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.

16. The provisions of Section 25(i) of the said Act

depicts that the marriage has not been consummated

owing to the willful refusal of the wife to consummate the

marriage. In view of Section 25(i), the husband has

contended that the wife was suffering from permanent

physical disability and the same has been admitted by her

in M.C.No.488/1994 and thus, contended that performing

marriage with the wife on 06.08.1997 is a voidable

marriage in view of Section 25(i) of the Act as the

marriage which has not been consummated owing to the

physical disability of the wife. The said contention of the

husband cannot be accepted as the contention urged that

there was a physical disability to perform marital obligation

is not a ground to hold that the marriage is a voidable

marriage or a nullity as contemplated under Section 25(i)

of the Special Marriage Act. On the other hand, Section

25(i) of the said Act specifies that there should be a willful

refusal of the wife to consummate the marriage. Even

looking into the medical reports Exs.R-1 to R-4, which are

the laboratory reports produced by the husband shows

that she was suffering from some ill-health, but in the

report nowhere it reveals the incapability of the wife to

perform her marital obligations and thus, the ground urged

by the husband that the marriage is voidable as per

Section 25(i) of the Special Marriage Act does not find any

merit.

17. The next ground urged by the husband in his

petition is to annul the marriage under Section 25(iii) of

the Special Marriage Act. The proviso to Section 25(iii) (a)

and (b) of the Act states as under:

"PROVIDED FURTHER THAT in the case specified in Cl.(iii), the Court shall not grant a decree if-

(a) proceedings have not been instituted within one year after the coercion had ceased, or, as the case may be the fraud had been discovered; or

(b) the petitioner has, with his or her free consent, lived with the other party to the marriage as husband and wife after the coercion had ceased, or as the case may be, the fraud had been discovered."

Since the registration of the marriage is not in

dispute, we need not refer to the evidence at length in that

aspect. The only question is, whether the registration of

marriage is obtained by fraud or coercion and conditions

and limitations as contemplated under proviso to Section

25 (iii) is fulfilled.

18. In order to prove that the marriage was

solemnized on 06.08.1997 before the Sub-Registrar and

the said marriage was obtained by fraud, coercion and

threat to his life, the husband has examined himself as

PW.1 and two witnesses PW.2 and PW.3. PW.1 in his

cross-examination has admitted that he had been to the

Sub-Registrar Office and he has signed the register and

also states the presence of witnesses from the side of his

wife. The cross-examination of PW.1 clearly admitted that

he has signed before the Sub-Registrar and the marriage

was performed on 06.08.1997. It is also clear from the

evidence of P.W.1 that from 1997 till 2002, husband was

staying with the wife and only after 2002, husband has

made some allegations of assault and has not proved the

fraud and coercion.

19. PW.2 is none other than the own brother of the

husband, who could only be an interested witness. PW.3

would not support the case of the husband as he is not an

eyewitness. The alleged assault according to the husband

himself is that on 26.06.2002 and not on the date of

registration of marriage on 06.08.1997. Though he tries

to putforth his case, that he has been assaulted on that

particular date, there is no satisfying evidence to impress

the conscious of this Court that the consent of the husband

is obtained by fraud, coercion and by giving threat to his

life. The husband is an educated person. He was quiet

from 1997 to 2002 and a criminal complaint came to be

filed of an alleged incident which occurred on 26.06.2002.

Thus, from 1997 to 2002 no complaint was lodged that

there is a threat to his life and after the lapse of thirteen

years, the present petition M.C.No.40/2009 was filed

invoking Section 25(i) and (iii) of the Act.

20. Admittedly, the complaint filed by the husband

is after a lapse of 10 years from the date of the registered

marriage to which he pleads that his consent was obtained

by force, coercion and under life threat. The alleged force,

threat and assault pleaded by the husband is during the

year 2002 which no way relates to the incident alleged to

have been occurred on 06.08.1997 and nowhere, the

husband has deposed that there was an act of threat by

the wife and her relatives during his marriage on

06.08.1997. The word 'coercion' defined under Section 15

of the Indian Contract Act, 1872 reads as under:

"15. Coercion defined- 'Coercion' is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement."

Explanation: It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed."

The word 'fraud' defined under Section 17 of the

Indian Contract Act, 1872, reads as under:

"17. "Fraud" defined.--"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1 , with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:--

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it;

(4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent.

Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech."

21. In view of the proviso to Section 25(iii)(a)

specifically contemplates that the Court shall not grant the

decree if the proceedings have not been instituted within

one year after the coercion is ceased, or, as the case may

be, the fraud has been discovered and also Section

25(iii)(b) contemplates that if the petitioner and the other

party with their own free consent, lived as husband and

wife after the coercion had ceased, or the fraud has been

discovered, the Court shall not grant a decree of divorce.

In view of the proviso stated supra, it is not disputed that

from the year 1997 to 2002, they lived as husband and

wife and only a complaint came to be filed in the year