Chetan vs Swarna

B.S. Patil, J.—These two appeals are filed challenging the judgment and decree dated 23.08.2013 passed by the learned Senior Civil Judge, Kumta, thereby allowing the petition filed by the wife under Sections 5(1) and 11 of the Hindu Marriage Act, 1955 (for short, ''the Act'') declaring the marriage solemnized between the appellant and the respondent on 24.04.2011 as null and void with a direction that the husband shall pay a sum of Rs. 2 lakhs as compensation by way of damages to the wife.

M.C. No. 32/2011 was filed by the wife against her husband seeking a declaration of their marriage as null and void contending inter alia that her husband respondent before the Trial Court bad contracted marriage with her by suppressing his first marriage and therefore, the same was void.

Aggrieved by the decree declaring the marriage as null and void and directing payment of a sum of Rs. 2 lakhs, husband has filed M.F.A. No. 23730/2013. Seeking enhancement of the amount of compensation awarded by way of damages, wife has filed M.F.A. No. 23927/2013.

We have heard these two appeals together and they are being disposed of by this common judgment.

For the sake of convenience, parties are referred to by their ranks assigned in the Trial Court.

As already stated, petitioner in the Trial Court is the wife of the respondent. She instituted M.C. No. 32/2011 alleging that marriage between the petitioner and the respondent took place on 24.04.2011 at Ankola Nadavar Samudaya Bhavan as per Hindu customs and rites. Petitioner was the resident of Soorve Basgod Village in Ankola Taluk and was a B.Sc. and M.B.A. Graduate. Respondent was introduced to the petitioner as a person having M.Com. end M.B.A. qualification, employed at Sony International Company as Sales Manager earning monthly salary of Rs. 1,16,000/- and owning a house at Mumbai. As the sister-in-law of the respondent was the neighbour of the petitioner, she believed the words of respondent and his parents. Engagement ceremony was performed on 21.12.2010 in the house of the petitioner. Thereafter, parents of the respondent demanded a sum of Rs. 10 lakhs. As engagement ceremony had already been performed, parents of the petitioner paid a sum of Rs. 7 lakhs on 20.04.2011 assuring that remaining amount would be paid after the retirement of the mother of the petitioner which was to take place on 30.06.2011. Their marriage was performed on 24.04.2011. Thereafter, differences having arisen, petitioner asked the respondent to show his degree certificate, which he refused. Petitioner noticed that her husband was often talking to a lady. When the petitioner was cleaning the cupboard, she found the marriage certificate dated 21.09.2007 of the respondent with one Padmashree Premanand Raorane and questioned the respondent and his parents. He admitted his marriage with Padmashree, but stated that the said lady had already left the respondent. He threatened to kill her if the petitioner indulged in mischief in that regard. Having realised that the respondent had already married and had indeed lied about his qualification and the job, a police complaint came to be lodged, followed by institution of the present proceedings.

On service of notice, respondent appeared and filed objections denying all the allegations made against him. He admitted the marriage between the petitioner and the respondent at Ankola as per Hindu rites and customs. He contended that it was the petitioner and her family members who had approached the respondent with the marriage proposal. He urged that he had never informed the petitioner and her family members about his salary and his job. He denied demanding any amount and payment of Rs. 7 lakhs. He alleged that petitioner was in the habit of doubting each and every aspect including the character of the respondent by making false allegations against him. He further contended that petitioner never intended to lead married life will the respondent and was having illicit relationship with unknown person. When he questioned the same, petitioner started making false allegation against the respondent. He denied having married any other person. He further alleged that it was the petitioner and her family members who were solely responsible for the misunderstanding and hence, he was not liable to pay any damages. He urged that he was in great financial loss and therefore, was not in a position to pay any maintenance or compensation amount, but had no objection for grant of divorce.

In the light of the pleadings, the Trial Court framed the following issues:

(a) Whether the petitioner proves that the respondent was already married before the solemnization of her marriage with the respondent on 24.4.2011?

(b) Whether the petitioner further proves that the respondent was having a spouse living at the time of her marriage with the respondent?

(c) Whether the respondent proves that the petitioner herself abandoned him on her own wish?

(d) Whether the petitioner proves that she is entitled to a decree of divorce by declaring her marriage with the respondent dated 24-4.2011 as null and void?

(e) Whether the petitioner further proves that she is entitled for the damages of Rs. 10,00,000/- from the respondent as alleged in the petition?

(f) What order?

In supper of her case, petitioner examined herself as P.W. 1 and two other witnesses by name Smt. Padmashree Premanand Raorane, the alleged first wife of the respondent as P.W. 2 and Sri Premanand, father of the alleged first wife of the respondent as P.W. 3. Exs. P1 to P16 were produced and marked. Respondent examined himself as R.W. 1 and produced and marked the copy of the complaint given to Ankola Police Station.

The Trial Court has held that petitioner successfully proved that respondent had already married before solemnization of her marriage with the respondent and having a spouse living, respondent had contracted second marriage. The Trial Court has further held that petitioner was entitled for a decree declaring her marriage with the respondent as null and void and for compensation by way of damages in a sum of Rs. 2 lakhs. Accordingly, judgment and decree in the above terms has been passed.

We have heard Mr. V.P. Kulkarni, learned counsel appearing for the husband and Mr. Mrutyunjay Tata Bangi, learned counsel for the wife.

It is contended by Mr. Kulkarni, that petitioner-wife has failed to establish solemnization of marriage with Padmashree as she has not adduced any evidence regarding the customs prevalent, the ceremonies to be performed for solemnization of marriage in the community of the respondent and also that of the community to which Padmashree, the alleged first wife belongs. He contends that while respondent belonged to Nadavar community, his alleged first wife belonged to Marata community. Therefore, in the absence of any evidence regarding the nature of ceremonies required to be performed for solemnizing the marriage in these two communities, the Trial Court could not have declared that there was a valid marriage between the respondent and Padmashree. In this regard, he invites the attention of the Court to Sections 5(1) and 11 of the Act and places reliance on the judgments in the case of Smt. Suma Gouda @ Anitha @ Vasanthi Vs. Sri. M.K. Poovaiah, (2010) ILR (Kar) 5255 : (2010) 4 KCCR 2713 : BHAURAO SHANKAR LOKHANDE ANOTHER VS. STATE OF MAHARASHTRA and ANOTHER - AIR 1955 SC 1564 ; and Balwinder Kaur Vs. Gurmukh Singh, AIR 2007 P&H 74 . He also invites the attention of the Court to the evidence of PW-3 to contend that as admitted by him, all ceremonies had not been performed during the first round of marriage between the respondent and PW-3''s daughter, and therefore, second round of ceremonies were performed.

It is his further submission that the affidavit evidence by way of examination-in-chief filed by PW-2 cannot be taken into consideration, because as per her say she has stated that she had not given any information to her lawyer regarding her marriage and had not given any such instructions for preparing the affidavit.

The next contention urged by him is, that Ex. P1 marriage certificate though registered before the competent authority cannot prove the marriage so also the photographs Exs. P14 to P17. He invites the attention of the Court to Ex. P11 statement given before the police by the petitioner to state that petitioner has not stated anything about the celebration of marriage.

Mr. Kulkarni invites the attention of the Court to Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act, 1998, particularly to Sections 6(1)(b) to contend that the parties and three witnesses to the marriage shall appear in person before the Registrar and sign the memorandum, and therefore, in the absence of examination of the witnesses who have signed the memorandum before the Registrar, as required under Section 68 of the Evidence Act, the registration certificate issued by the Registrar and the due registration of marriage cannot be said to have been proved.

As regards the amount of compensation awarded, it is urged by him that no evidence regarding any loss caused or damages sustained by the petitioner had been proved by leading evidence and therefore, there was no material for the Trial Court to award compensation in a sum of Rs. 2 lakhs. He has placed reliance on the judgment in the case of Mousumi Chakraborty Vs. Subrata Guha Roy, 95 CWN 380 : (1991) 2 DMC 74 : (1992) 1 ILR (Cal) 130 , to contend that burden was on the petitioner who asserted regarding the solemnization of first marriage to prove the same.

Learned Counsel for the respondent has strongly supported the findings recorded by the Trial Court. He has urged that registration of marriage pre-supposes solemnization. He has placed reliance on the provisions of Sections 8(1) and 8(5) of the Act, to contend that registration of marriage Will provide proof of marriage. He has relied on the judgment in the case of SMT. SEEMA VS. ASHWANI KUMAR � 2006 (2) AIR KAR 402. It is his submission that evidence of PW-2 - first wife of respondent clearly discloses chat all rituals had been performed. PW-3 - father of PW-2 has also stated that he performed ''Kanyadhana'' and other rituals in the temple.

Both the learned Counsel have taken us through the pleadings, evidence and the documents on record. In the light of the above, the points that arise for our consideration are,

(i) whether the pleadings, evidence and documents on record establish that the marriage of the petitioner and the respondent is null and void in view of the respondent having already married Padmashree - PW-2?

(ii) whether the judgment and decree passed by the Trial Court declaring the marriage between the petitioner and respondent solemnized on 24.04.2011 as null and void and directing payment, of damages in a sum of Rs. 2 lakhs by way of damages suffers from any illegality and/or perversity, warranting interference in exercise of the appellate jurisdiction?

Point No. 1:

PW-1 has vividly stated in her examination-in-chief that her marriage with the respondent was solemnized on 24.04.2011. She is a B.Sc. and M.B.A. Graduate and was working at Bengaluru in Star India Company. She has stated that the respondent represented that he had B.Com. and M.B.A. qualification and was working in Sony International Company as Sales Manager earning Rs. 1,19,000/- per month as salary. Engagement ceremony took place on 21.12.2010. Criminal complaint was filed before the Ankola Police Station by the father of the petitioner and admittedly within one and half year from the date of marriage, this petition seeking declaration of nullity of marriage has been presented.

Petitioner has made allegations in the petition that the respondent-husband was talking to some lady frequently and that when she searched the cupboard, she found a marriage certificate showing that there was a registered marriage conducted between the respondent and one Padmashree. In the objections filed, the respondent-husband alleges illicit relationship against the petitioner with some unknown person. He has further stated that he has no objection for dissolving marriage, but he had no financial capacity to pay any damages.

PW-2 - Padmashree has stated in her evidence that her marriage with the respondent took place on 21.09.2007 in Sainath Mangal Karyalava as per Hindu religious traditions and customs. She has stated that she belonged to Maratha community and respondent belonged to Nadava community and after the solemnization of marriage as per Hindu religion and custom, the marriage was registered in Thane registration centre. She has stated that after marriage, respondent and herself lived together in a rented house at Panvel as husband and wife She has clearly stated that as it was a inter-caste love marriage, neither her parents nor the parents of the respondent attended the marriage at Sainath Mangala Karyalaya and only friends and respondent came to the marriage. However, her father for his satisfaction performed the marriage by doing Kanyadan Saptapadi and other rituals at Shiva temple as per Hindu rituals because he was not present at the time of marriage at Sainath Mangala Karyalaya. She has further stated that the respondent knowing fully well that there was a subsisting valid marriage with PW-2, has married the petitioner for the second time. She has urged that she came to know about the marriage only when she received a phone call from the petitioner. She has alleged that respondent has cheated two innocent girls by making false promises and thus played with their lives. She has produced the marriage registration certificate as Ex. P-14. The certificate issued by Sainath Mangala Karyalaya is produced as Ex. P-15. The photographs of the marriage have been also marked including the signatures found on Ex. P-15. The joint affidavit filed has been produced as Ex. P-15. The signature of PW-2 found on Ex. P-16 � photograph has been marked as Ex. P-16(a) and that of the respondent has been marked as Ex. P-16(b). She has produced her statement made before the police as Ex. P-11.

In the cross-examination, nothing is elicited to show what was the ill-will or enmity between the respondent and PW-2 which made PW-2 to come up with false allegations against the respondent. She has denied all allegations in the cross-examination imputing falsity of her version. Nothing is elicited in the cross-examination to doubt the version of PW-2 and to hold that she had cooked up a story to falsely implicate the respondent.

PW-3 has categorically stated in his evidence that marriage of his daughter took place with the respondent on 21.09.2007 in Sainath Mangal Karyalaya as per Hindu Religious traditions and custom and thereafter the marriage was registered in Thane Registration Centre. After their marriage they lived together in a rented house at Panvel as husband and wife. Re has further stated that as their marriage was inter-caste love marriage, parents of the girl and the boy had not attended the marriage at Sainath Mangal Karyalaya, therefore, he performed the marriage of her daughter with the respondent by following all the rituals of Kanyadana, Saptapadi and other rituals as per Hindu rituals in Shiva temple. He has also stated that after marriage the parents of the boy did not accept the marriage. Therefore, both of them lived separately in a rented house for sometime. Later differences arose between them and the respondent started ill-treating his daughter. He has also stated that the respondent deceived his daughter by marrying for the second time. He has alleged that the respondent has spoiled his daughter''s life.

It is thus clear from the evidence of PW-3 that he has got the marriage of the respondent and his daughter - Padmashree performed in accordance with Hindu rituals by following the customary practices of Kanyadana, Saptapadi and other rituals at Shiva Temple apart from affirming the fact that marriage performed at Sainath Mangala Karyalaya was also in accordance with the traditions and rituals. He has clearly stated that as he was not present at that time for Kanyadana, for his satisfaction, he has performed the marriage by following all rituals again in Shiva Temple. Nothing is elicited in the cross-examination to discredit this witness. It is thus clear from the evidence of PWs - 2 and 3 that marriage of the respondent with PW. 2 - Padmashree was performed by following all Hindu rituals including Kanyadana and Saptapadi.

It is not in dispute that both parties, that is, respondent and Padmashree are Hindus. There is nothing brought on record to show that any custom or ritual which was essential for performance of the marriage had not been performed, thereby rendering their marriage invalid in the eye of law. It is true that for proof of valid marriage, essential rituals required have to be shown to have been performed. In the instant case PW-3 father of the girl, Padmashree has himself deposed to the factum of performing Kanayadana, Saptpadi and all other rituals as per Hindu religious traditions and customs. PW-2 Padmashree has also stated that on both occasions, first time at Sainath Mangala Karyalaya and for the second time at Shiva Temple, her marriage with the respondent was performed by following all the rituals. In such circumstances, the contention of the counsel-for the respondent that due performance of the marriage between respondent and Padmashree - PW-2 by following all rituals has not been proved, cannot be accepted.

The Trial Court was right and justified in recording a finding holding that petitioner had successfully proved the valid celebration of marriage between the respondent and PW-2 Padmashree which had taken place by following the necessary rituals. There cannot be any dispute with regard to the fact that proof of marriage requires celebration of marriage with required ceremonies and only then it can be termed as marriage duly solemnized. Both PW-2 and PW-3 have stated that Kanyadana, Saptapadi and other rituals were performed as per Hindu traditions. No evidence is lead by the respondent to show that any other ritual which was required to be performed other than what has been spoken to by P.Ws. - 2 and 3 had not been performed. The essential ceremonies constituting valid marriage have been proved and the evidence regarding due performance of marriage according to Hindu tradition has been brought on record to establish that there was a valid marriage of the respondent with PW-2. In addition, registration of the marriage which is proved by producing registration certificate also corroborates and probablises the celebration of marriage.

Registration certificate of the marriage issued by the competent authority may not itself prove solemnization of marriage. In the instant case, solemnization of marriage has been established by the evidence of PWs - 2 and 3 and the same is probablised by the due registration of the said marriage. As per Section 8 of the Hindu Marriage Act, registration of marriage will provide proof of marriage. Hence, the cumulative effect of the evidence of PWs - 2 and 3 and the documentary evidence produced in the form of Ex. P. 1 - Marriage Certificate and the photographs produced vide Exs. P. 4 to P. 7 and the photographs of the respondent and Padmashree - PW-2 found in the certificate of registration of marriage marked as Ex. P. 14 including the affidavit produced at Ex. P. 16 which is jointly sworn to by Chetan Gopalkrishna Naik � the respondent and Padmashree Premanand Raorane - PW-2 declaring their intention to get married and that the said affidavit of marriage was executed and forwarded for registration of their marriage wherein also the photographs of respondent and PW-2 - Padmashree are found clearly establishes the link and act as supporting documents to the said affidavit. The photographs of respondent and Padmashree have been affixed to the affidavit and the same has been notarized. It contains the signatures of both of them. Except a blanket denial of the signatures no other explanation is forthcoming from the respondent regarding these documentary evidence.

RW-1 denies his signature on the affidavit. He, however, admits that the photographs found on the marriage registration certificate belongs to him. He identifies the photograph of Padmashree also. Though he alleges illicit relationship of the petitioner with a stranger, he admits that he is not in a position to state who that stranger was. Thus, it is clear from the evidence of the respondent that except denying everything he has not come up with any credible material to doubt the version of PW-1. On the other hand, his conduct of character assassination of the petitioner and denial of relationship with Padmashree makes his version totally unreliable.

The contention of the learned counsel for the petitioner - Mr. V.P. Kulkarni that the affidavit evidence submitted by way of examination-in-chief by PW-2 cannot be taken into consideration as she had stated before the Court that she had not given any information to her lawyer regarding her marriage and had not given any such instruction for preparing the affidavit is hyper technical. The affidavit is on record. She has stated that contents of the affidavit were written as per her instructions and that they were true and correct to the best of her Knowledge. She has reiterated the same even during the course of her cross-examination. She has denied a suggestion that she was falsely stating regarding her marriage with the respondent. In such circumstance, mere fact that in her cross-examination she stated that when she met the advocate, he did not ask her about the marriage would not be of any consequence. At any rate, when she categorically states that contents of the affidavit were known to her and that they were true and correct, it is too much to contend for the respondent that the entire affidavit evidence has to be discarded because she had admittedly not disclosed the details regarding her marriage to her advocate.

The other contention of Mr. V.P. Kulkarni that the certificate regarding registration of marriage cannot be received and relied as evidence to prove the marriage in the absence of one of the witnesses to registration of marriage being examined before the Court. He draws support from Section 68 of the Indian Evidence Act to support this contention. Section 68 of the Indian Evidence Act has no application for proof of due registration of marriage. For proof of valid marriage, performance and solemnization of marriage is necessary and for proof of registration of marriage, production of registration certificate is essential. It is not mandatory that for proof of due registration, valid attestation is a prerequisite. Compulsory attestation as required in the case of a Will. The same is not the requirement in law for registration of marriage. In the absence of the same, provisions of Section 68 of the Indian Evidence Act cannot be made applicable. Hence, point No. 1 is answered against the appellant.

Point No. 2:

As regards the amount of compensation awarded in a sum of Rs. 2 lakhs, we do not consider it just and proper to interfere with the judgment rendered by the Trial Court having regard to the conduct of the respondent in suppressing the factum of marriage with Padmashree and contracting another marriage with the petitioner thereby subjecting her to serious mental agony, prejudice and hardship which she has to face in future. The overall facts and circumstances as adverted to in the course of our judgment do not persuade us to interfere with the quantum of compensation awarded to the petitioner towards expenditure incurred for performance of the marriage of the petitioner with the respondent. Even assuming that there are no proper pleading and sufficient evidence for quantifying the loss suffered for the purpose of compensating the petitioner, the amount of Rs. 2 lakh awarded does not require our interference. However, having regard to the absence of any evidence placed on record in this regard, the prayer made by the petitioner seeking enhancement of compensation by filing a separate appeal in M.F.A. No. 23927/2013 also cannot be entertained. Therefore, the same deserves to be dismissed.

Thus, the findings recorded by the trial Court and the reasons assigned in support of the same are just and legal The conclusion reached by the court below logically flows from the reasons assigned. Hence, the judgment of the trial Court is just and legal and does not suffer from any perversity.

In the result and for the reasons stated above, we hold that both these appeals being devoid of merits are liable to be dismissed. Accordingly, we pass the following:

ORDER

Both the appeals are hereby dismissed. Appeal filed by the husband in M.F.A. No. 23730/2013 is dismissed with costs. M.F.A. No. 23927/2013 filed by the wife is dismissed making it clear that both parties shall bear their respective costs.