The Division Bench of the Delhi High Court in the case of Arindam Saha vs Dipanwita Thakur consisting of Justices Mukta Gupta and Neena Bansal Krishna observed that mere oral assertion of divorce comes in the realm of hearsay evidence and can be of no consequence in the absence of any cogent evidence.
Facts
The appellant and respondent met via social media, got married in February 2007 and in April 2007 the respondent became pregnant. The appellant noticed sudden behavioural change in her conduct towards him in November 2007, which aroused his suspicion. The respondent quarrelled with the appellant and went to Kolkata. The appellant received information about the birth of a daughter in Behala Nursing Home but on reaching Kolkata, he found that there was no such hospital. The appellant tried to contact the respondent, but her mobile phone was switched off.
Procedural History
The appellant filed a petition u/s 9 of the Hindu Marriage Act, 1955 (“the Act”) and the matter was amicably settled in 2009 as the parties made the statement that they would reside peacefully together along with the daughter in the matrimonial home. The petition was accordingly disposed of. But the respondent stayed only for four days and refused to join the matrimonial home. The appellant again filed the present petition u/s 9 of the Act for Restitution of Conjugal Rights.
The respondent in her written statement denied her marriage and cohabitation with the appellant while claiming that the marriage certificate and other documents have been fabricated by the appellant. She admitted that she became friends with the appellant through social media i.e., ‘Facebook’ but denied all other assertions. She explained that she got married to one Sankar Nandi in 2002 which was registered before the Additional District Registrar, West Bengal. She needed a residence during her job in Pune in 2007 and the appellant, whom she had befriended through ‘Facebook’ offered her to stay in his flat as a paying guest for some time, to which she agreed as she was pregnant at that time. The respondent came to stay with the appellant who was fully aware of her marriage.
The appellant filed the petitions and prepared fake documents and some super-imposed nude photographs and started blackmailing the respondent and demanded Rs. 2,00,000/- to return the fabricated documents and to withdraw the petition. The respondent was thus compelled to make the statement and also sign documents before the court, in order to save her dignity. The respondent also paid the money to the appellant. Thereafter, the appellant again filed the present petition for restitution and demanded Rs. 5,00,000/- for withdrawing the same. However, the respondent refused to pay the money and contested the present petition.
The petition u/s 9 of the Act was dismissed and the appellant filed an application under O9R13 CPC for review or recall of the judgement, but it was also dismissed. Aggrieved, the appellant filed the present appeal. Appellant is an innocent litigant, who cannot be penalized for the lapses and negligence of his earlier counsel who did not pursue his case diligently and acted without his knowledge.
Contentions Made
Appellant: In the first petition u/s 9 of the Act, admissions had already been made about the marriage of the appellant and the respondent and once the finding had attained finality, the issue of marriage between the appellant and the respondent could not have been reopened in this second petition. The respondent after leaving the appellant, got re-married to Sankar Nandi (respondent’s first husband). Reliance was placed on Kores (India) Limited vs. Bank of Maharashtra &Ors., Harjit Singh Uppal vs. Anup Bansal and Satyadhyan Ghosal vs. Deorajin Debi (SMT) & Anr to argue that when the final order is challenged any interlocutory orders made during the trial can also be challenged in the same appeal. Appellant was defrauded by the respondent and is entitled to relief. The decree in regard to the validity of the marriage, seriously prejudiced the appellant as it had direct bearing on his custody petition.
Respondent: Appellant himself was aware of the earlier marriage of the respondent with Sankar Nandi. Mere hearsay claim of divorce from her husband which is denied by the respondent, is of no legal consequence. The petition is nothing but a tool to harass the respondent.
Observations of the Court
The Bench noted that:
“The Hindu Marriage Act, 1955 provides a complete mechanism for the divorce and an oral divorce is not recognized under the Hindu Marriage Act, 1955. The alleged divorce between the respondent and her husband-Sankar Nandi was required to be proved by way of cogent evidence, but no material particulars have been disclosed nor has a single document been produced by the appellant. Mere oral assertion of divorce which comes in the realm of hearsay evidence, can be of no consequence in the absence of any cogent evidence. Curiously, the appellant has asserted that the respondent has got remarried to her first husband.”
It was concluded that the respondent was already married in 2007 when she met the appellant which implies that the first requirement of clause (i) of Section 5 of the Act, 1955 which provides that ‘both the spouses must be unmarried at the time of marriage‟ has not been satisfied. Consequently, the alleged marriage of appellant with the respondent is void as provided u/s 11 of the Act thereby disentitling the appellant to the relief of restitution of conjugal rights.
It was also noted that mere decision to reside together neither amount to an admission of the respondent that she was validly married to the appellant estopping her from claiming otherwise in subsequent proceedings. There was no finding on merit about the marriage or its validity. So, there was no question of invocation of principle of res judicata. Moreover, the principle of estoppel cannot be invoked against a statute which makes the second marriage without the dissolution of first marriage, as void.
It was further noted that the appellant and his counsel appeared on various dates after the impugned order, but no steps were taken for recalling of the impugned order and it was only challenged along with the main appeal.
Judgment
The Bench concurred with the decree of the learned Principal Judge, Family Court that the appellant despite being given ample opportunities, failed to adduce evidence to prove his marriage to the respondent; so much so that he even failed to file an affidavit of evidence. The appeal was, therefore, dismissed.
Case: Arindam Saha vs Dipanwita Thakur
Citation: MAT.APP. (F.C.) 220/2019
Bench: Justice Mukta Gupta, Justice Neena Bansal Krishna
Decided on: 3rd June 2022
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