M. Srinivas Rao vs Janaki

Tapash Mookherjee, J.

The present appeals are both against a common judgment dated 27.02.2012 passed in Mat. Suits No. 552/2007 and 538/2007 heard analogously, in the Court of Additional District Judge, 1st Fast Track Court, Paschim Medinipur. The Mat Suit No. 552/2007 was a Suit under Section 25 of the Special Marriage Act, 1954 filed by Smt. Janaki, hereinafter described as the Respondent against Sri M. Srinivas Rao hereinafter described as the Appellant and the Mat. Suit No. 538/2007 filed by the aforesaid Appellant was for restitution of conjugal rights under Section 22 of the Special Marriage Act, 1954. The Mat Suit No. 552/2007 has been decreed on contest while the Mat. Suit No. 538/2007 has been dismissed on contest.

The facts leading to the present appeals in short, are as follows:-

The Mat. Suit No. 552/2007 was filed by the Respondent in which she alleged that the Appellant was her next-door neighbour and she used to get all kinds of assistance from him in respect of filling in forms, affixing photographs thereupon and compliance with other formalities as well, for the purpose of admission in educational institutions and in that way intimacy developed between them. It has been further alleged by the Respondent that sometimes in the month of May, 2006 the Appellant obtained her signatures on some printed forms on the plea that those forms were required for the purpose of her admission in some institution for higher study and because of trust and good faith she signed on all those forms without being aware of their contents. Subsequently the Appellant again came to her and informed that she required to meet a person who was in-charge of the educational institution where she would be admitted in. Again on blind faith she accompanied the appellant to a house at Kharagpur town where some persons including a brother of the Appellant were found present. Thereafter she was taken before an unknown person who was introduced by the Appellant before her to be an officer having authority to allow her admission in an educational institution and on asking by the said unknown person and the Appellant as well, she put her signatures in printed forms without having any opportunity to go through the contents of the forms and subsequently the other persons found present also entered the room and thereafter all of them left for their respective homes. It has been further alleged by the Respondent in her Suit that she passed her Senior Secondary School Examination in April, 2007 and thereafter when she asked the Appellant for necessary arrangements for her admission in the institution for higher study, she received a cool response from the Respondent for which she was surprised and when she asked for the reason of such unexpected behavior, the Appellant disclosed that he was in deep love with her and they were already married. So, she should try for acceptance of their marriage by her family. The Respondent has further alleged in her Suit that after hearing such words from the Appellant she disclosed the matter before her parents and her parents asked the Appellant for cancellation of the registration of the marriage but when the respondent refused to do so she realised that she was cheated and a victim of fraud by the Appellant and hence she filed the Suit for declaration that her alleged marriage with the Appellant was a nullity and the marriage certificate dated 23.06.2006 was an illegal and void document.

The Appellant contested the Suit by the Respondent. The Appellant himself also filed the Mat Suit No. 538/2007 against the Respondent praying for a decree for restitution of his conjugal rights. In both the Suits it was the claim by the Appellant that he never cheated or defrauded the Respondent and the Respondent herself signed on the marriage registration forms etc. voluntarily and in her own willingness and consent after knowing the subject matter of the forms very well. It has been further alleged by the Appellant in both the Suits that after their marriage the Respondent lived with him in his house for several months but subsequently because of continuous interference and instigation by his mother-in-law, the Respondent had left his house without his consent and without any valid legal cause. The Appellant further claimed that he was always ready to continue the conjugal life with the Respondent and he is still willing to take back the Respondent in his home to live a happy conjugal life. The Respondent also contested the Suit filed by the Appellant for restitution of conjugal rights.

Both the Suits were tried analogously. Both the parties adduced oral as well as documentary evidence. Considering the cases of the parties and the evidence produced, the Trial Court passed decree in the Petitioner''s Suit being Mat. Suit N. 552/2007 and in consequence dismissed the Respondent''s Suit, i.e., Mat. Suit No. 538/2007.

Being aggrieved by and dissatisfied with the aforesaid judgments in two Suits the Appellant M. Srinivas Rao has filed both the appeals, as the judgment and order passed by the Trial Court in both the Suits have gone against him.

Mr. Hiranmoy Bhattacharyya argued that the Trial Court passed decree in the Respondent''s Suit due to wrong interpretation of the provision in Section 25(i) of the Special Marriage Act, 1954 and also considering a point which was not there in the pleadings nor raised by any of the parties during evidence. Mr. Sabyasachi Bhattacharyya appearing for the Respondent supported the judgments of the Trial Court and he cited a decision reported in Jolly Das (Smt) alias Moulick Vs. Tapan Ranjan Das, .

The Title Suit No. 552/2007 has been filed by the Respondent under Section 25 of the Special Marriage Act, 1954 for a decree of nullity of her alleged marriage with the Appellant. It is the Respondent''s case in the Suit that the Appellant is her next-door neighbour and as such she used to get all necessary arrangements from him whenever required for the purpose of her admission in any institution and in course of such co-operation a ''soft corner'' developed in her heart towards the Appellant and for such reason she always trusted the Appellant. But surprisingly, during her evidence the respondent denied having any ''soft corner'' towards the appellant at any point of time. It is further alleged by the Respondent that sometimes in the month of May, 2006 she signed on some printed forms, at the instance of the Appellant on belief that those forms were required for the purpose of her admission for higher education as represented by the Appellant and subsequently in the month of June, in that year, she was taken by the Appellant before an unknown person with a plea that the said unknown person was a person in power for the admission of her in any educational institution for higher studies and it is alleged by the Respondent that again on good faith upon the Appellant she put her signatures on some printed forms produced before her by that unknown person before whom she was taken by the Appellant. It is further alleged by the Respondent that after her passing through the Senior Secondary School Education in April, 2007 when she enquired about the arrangements for her admission for higher education as assured by the Appellant it was disclosed for the first time by the Appellant that they were married and their marriage was registered on the basis of the forms signed by them previously at Kharagpur. According to the Respondent she has been thus cheated by the Appellant and her consent for the so-called marriage was obtained by fraud and misrepresentation as she had never any opportunity to go through the contents of the forms because of the misrepresentations by the Appellant. It is the further allegation of the Respondent that since there was no valid marriage between herself and the Appellant she had never any reason to cohabit with the Appellant and on such grounds the Appellant filed the Suit for annulment of her marriage with the Appellant by a decree of nullity under Section 25 of the Special Marriage Act, 1954.

The Respondent in her oral evidence before the Trial Court tried to establish that she put her signatures in the notice as well as in the prescribed forms required for the purpose of marriage under the provisions in Special Marriage Act, 1954 because of fraud by the Appellant. Her father and some other witnesses as well, tried to support her.

Admittedly father of both the parties are the employees of the Railway and both the families reside in two Railway quarters standing side by side. There is no dispute to the fact that the parties were known to each other since long.

Respondent in her plaint alleged that as good neighbour she always received all assistance from the Appellant whenever needed for the purpose of filling in, affixing photographs on the forms and compliance with any other formality for the purpose of admission in any institution and for such reasons she had a soft corner towards the Appellant and for such reasons she signed on all the documents, in question, on good faith upon the Appellant. On the other hand, Appellant''s case in both the Suits were that because of deep love, the Respondent as well as he himself wanted to marry and for such purpose the Respondent signed on all necessary forms for the registration of their marriage.

Respondent was an adult and educated lady getting ready for her Senior Secondary School Examination at the relevant time. During her evidence she pretended that she did not know English. But from her signatures in her affidavit under Order 18 Rule 4 C.P.C. it is clear that she knows English very well. Respondent''s father is a Railway employee. The Respondent has brothers. She had a private tutor also. In the circumstances it is not understandable as to why the Respondent needed the Appellant''s assistance for the advice or for the purpose of filling in any form. The Respondent passed her Senior Secondary School Examination in the month of April, 2007. So, why should she try for her admission for any higher education in the middle of the year 2006? It should be noted that during her evidence the Respondent deviated from her stand in the plaint and raised a new case that she signed upon the forms for the purpose of admission for Computer study. A person having no knowledge in English can have nothing to do with the Computer education.

Respondent''s father Nageswar Rao (P.W.-2) tried to support his daughter but he also had no respect for the truth. At the very beginning of his cross examination he stated that he did know English and he could not read English. He is a Railway employee and from his signatures in his affidavit under Order 18 Rule 4 C.P.C. and on the deposition sheets as well, it is clear that he signed in English, and his signature is not like a man having no knowledge of English.

N. Ravi Kumar (P.W.-3) was a brother of the appellant but he deposed for the Respondent and he expressed his ignorance on all facts in issue in the Suits. His signature does appear as a witness in the marriage certificate (exhibit-2). But he denied his signature. But in concluding part of his cross examination he stated a peculiar fact that he signed on registers as the Appellant purchased some lands. He is also an educated person. So, it is not expected that he is unable to make any distinction between the office building of a Registry Office and that of a non-official marriage Officer.

In fact, none of the witnesses examined for the Respondent appears to be trustworthy.

On the other hand, the Appellant filed some letters (exhibit-1 collectively) admittedly written by the Respondent. The language of all those letters suggest that the parties were in love for long. The Respondent tried to say that she had written all those letters as per the direction of the Appellant''s mother. But why had she followed such direction of the Appellant''s mother on repeated occasions has not been explained by her.

Appellant has also produced some photographs (exhibit - 4 collectively) from which it is clear that the parties were in close intimacy. In one such photograph parties are found present in the office of the marriage officer, as submitted by the learned Advocate for the Appellant. There is no explanation for the Respondent as to how the said photographs came into existence.

Exhibit-2 is the certificate of marriage issued by the marriage officer under Section 13 of the Special Marriage Act, 1954. The presumption of validity of the document is there under Section 114(e) of the Indian Evidence Act and there is no material on record for rebuttal of such presumption. It should be mentioned that the Respondent has not alleged of any special relation between the Appellant and the marriage officer.

Having considered the evidence adduced by the parties in the Suits we have no hesitation to hold that the Respondent''s claim that she signed on all the documents of registration of marriage without knowing their contents or significance, because of fraud and misrepresentation by the appellant, are all baseless, absurd and without any logical basis as well.

The facts and the evidence produced in the case cited by Mr. Sabyasachi Bhattacharyya are not similar to the facts and evidence produced in the present case. So, the decision is of no help to the Respondent.

The Trial Court also did not accept the Respondent''s claims in the Suit that the registration of marriage between the parties was the result of fraud and misrepresentation by the Appellant on the Respondent.

The Trial Court passed decree in the Respondent''s Suit on the ground that the marriage between the parties was not consummated. The Trial Court committed a gross error in law on the point. Section 25(i) says "the marriage has not been consummated owing to the willful refusal of the respondent to consummate the marriage", it was never the case of the Respondent that their marriage could not be consummated because of the refusal of the Appellant. On the contrary it was her case that she never tried for consummation of the marriage. On the other hand it is the Appellant''s case that his marriage with the Respondent was consummated and he is still ready to take back the Respondent in his home for the continuation of their conjugal life. So, the ground under Section 25(i) of the Special Marriage Act, 1954 was not in favour of the Respondent.

The other reason for passing the decree in the Respondent''s Suit was non-compliance of Section 12(2) of the Special Marriage Act, 1954. According to the Trial Court the appellant has failed to prove that a declaration prescribed in Section 11 of the Special Marriage Act, 1954 was made by the parties which is mandatory for the completion of the registration of marriage. No such fact has been alleged by the Respondent in her plaint or during her evidence. In fact, it was never a case of the Respondent that the necessary formality for the registration of the marriage was not complied with. Since a certificate of marriage has been issued (exhibit 2) by a competent authority, it is presumed that the certificate was issued after following all the legal formalities. So, the Trial Court made out a third case against the Appellant which is not permissible in law.

It has been decided above that passing decree by the Trial Court for annulment of the marriage between the parties is not sustainable in law, as the Respondent failed to prove her claims under Section 25(i) or under Section 25(iii) of the Special Marriage Act, 1954. In result, the marriage between the parties under Special Marriage Act, 1954 stands valid. The Respondent has not offered any reason whatsoever as to why she is living in her parental home without the consent of the Appellant. In such circumstances, a decree for restitution of conjugal right may be passed in usual circumstances under Section 22 of the Special Marriage Act, 1954. But in the present case, the Respondent and the appellant married without the consent of the parents of the Respondent for which the marriage has not been accepted by the Respondent''s family. The Respondent herself is totally reluctant to live with the Appellant and the parties are fighting litigations since the year 2007. Both the parties are in their prime youth and the future of both the parties are at stake. The parties should, therefore, be left to decide themselves as to what should they do with the legal relationship which is otherwise dead in reality. We are, therefore, not inclined to pass any decree for the restitution of conjugal right exercising our discretion in favour of the Appellant, under Section 22 of the Special Marriage Act, 1954.

In view of our decisions above, the judgment and decree passed in Mat. Suit No. 552/2007 is hereby set aside and the judgment and order passed in Mat. Suit No. 538/2007 are hereby affirmed, but on different grounds. F.A.T. No. 167 of 2012 is accordingly allowed on contest and the F.A.T. No. 168 of 2012 is dismissed on contest. Parties to bear their own costs.

Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Advocates for the parties upon compliance of all formalities.