Mohinder Kaur vs Major Singh

A.D. Koshal, J.—This is an appeal by Shrimati Mohinder Kaur challenging a decree for restitution of conjugal rights passed against her by Shri Raj Kumar Sharma Senior Sub-Judge. Sangrur, at the instance of Major Singh Respondent who claims to be her husband.

The proceedings were initiated by the Respondent through a petition u/s 9 of the Hindu Marriage Act containing these allegations. The Appellant was married to the Respondent in the year 1959 A.D. The muklawa ceremony was performed three years later and the parties lived and cohabited with each other at village Kahangarh till July, 1963, when the Appellant went away to her parental home at village Kakrala whereafter she never returned.

The case put forward by the Appellant was that she never married the Respondent and that, therefore, no question arose of her withdrawing from the Respondent''s society.

The pleadings of the parties gave rise to the following issues:

Whether the Petitioner was married to the Respondent ?

Whether the parties last resided as husband and wife at village Kahangarh ?

If issue No. 1 is proved, whether the Respondent has without reasonable excuse withdrawn from the society of the Petitioner ?

Relief.

After a detailed discussion of the evidence, the trial Court held that the alleged marriage stood proved and the parties last resided as husband and wife at village Kahangarh in the year 1963. It was also found that the Appellant had deserted the Respondent without any justification. All the issues were thus decided against the Appellant resulting in the impugned decree.

The first contention raised by Shri Achhra Singh, learned Counsel for the Appellant, is that the finding of the trial Court on issue No. 1 is erroneous and that no marriage between the parties was proved. This contention is without substance and after a consideration of the evidence produced by the parties, I am fully convinced that the conclusion arrived at by the trial Court in this regard is not open to any exception. In this connection reference may be made to the testimoney of only a few of the witnesses produced by the Respondent. Kehar Singh (P.W. 2) and Sucha Singh (P.W. 3) both belong to village Kakrala which is also the village where the parents of the Appellant reside. Sucha Singh (P.W. 3) is married in a family whose members are distant collaterals of the Respondent''s family. He stated that it was he who arranged the marriage between the parties and also hosted the marriage party at tea. According to him, Kehar Singh (P.W. 2) was a member of the marriage party. The wife of the witness no doubt hails from a family which has some ties of the blood with the Respondent but then that does not mean that the witness would be out to perjure himself in support of the Respondent''s case even though he is a resident of village Kakrala to which place the Appellant''s parents belong. His testimony is fully corroborated by that of Kehar Singh (P.W. 2), another resident of village Kakrala, for whom there is not the slightest reason to come to the aid of the Respondent except that the later''s case was based on truth. And then there is document Exhibit D. 1 which embodies a statement made by the Appellant herself to a Judicial Magistrate at Sangrur on the 19th of September, 1963, in proceedings brought by the Respondent against her u/s 100 of the Code of Criminal Procedure. The statement is headed:

Statement of Mohinder Kaur daughter of Jangir Singh wife of Major Singh, aged 15 years, occupation household duties, village Kakrala on S.A.

These particulars must be presumed to have been furnished by the Appellant herself to the Magistrate and not to have been taken down by him at the instance of somebody else. It is no doubt true that in. the very first sentence of her statement the Appellant claimed that she had not been married to anybody till then bat it appears that the truth had already slipped out of her mouth when questions were put to her about her name and other particulars from which her identity could be established. Document Exhibit D. 1, is, therefore, parctically a clincher against her on the point covered by issuse No. 1. In this view of the matter I need hardly go into the other evidence produced by the Respondent although I do not at all mean that that evidence is in the least unreliable or insignificant.

The evidence produced on behalf of the Appellant is worthless in view of her admission that she had appeared before the Magistrate who recorded her statement contained in Exhibit D. 1, and her denial about giving Major Singh''s name as that other husband cannot carry any conviction. The other witnesses produced by her do no doubt state that she was never married to the Respondent but then they are all closely related to her and their testimony must be regarded as that of interested witnesses which cannot be lie the trustworthy material which the Respondent was able to place at the disposal of the Court.

In view of the above discussion I hold that the finding of the trial Court on issue No. 1 is correct.

The only other point raised on behalf of the Appellant is that she was only 15 years of age at the time she made statement Exhibit D. 1, that she was no more than 11 years old at the time of her marriage and that marriage was void in view of the provisions of Clause (iii) of Section 5 of the Hindu Marriage Act. That section runs as follows:

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage ;

(ii) neither party is an idiot or a lunatic at the time of the marriage ;

(iii) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage ;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two ;

(v) the parties are not Sapindas of each other, unless the custom or usage governing each of them permits of marriage between the two ;

(iv) where the bride has not completed the age of eighteen years, the consent of her guardian in marriage, if any, has been obtained for the marriage.

The section no doubt states that if the six conditions mentioned therein are fulfilled, a marriage may be solemnized between any two Hindus. It, however, goes no further and does not lay down the consequences of any of the conditions not being fulfilled According to the learned Counsel for the Appellant. it is a necessary corollary of what the section lays down that if any of the conditions is not fulfilled in the case of a marriage, the same would be void. He, however, loses sight of what is contained in Section 11 of the Act. That section states:

Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of section 5.

Again, Clause (b) of Sub-section (1) of Section 12 enacts the consequence of a marriage being in contravention of the conditions specified in Clause (ii) of Section 5, such consequence being only that the marriage shall be voidable (and not void) and may be annulled by a decree of nullity. In so far as Clause (iii) of Section 5 is concerned, the only result that flows from its contravention is given in Section 18 and that is that a person who procures a marriage of himself or herself in such contravention shall be punishable with imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both. No other result is stated in the Act to flow from a contravention of the type now under consideration and it must be held that the Legislature never intended a contravention of Clause (iii) of Section 5 to affect the tie of marriage itself and to render the marriage either void or voidable. Had it been otherwise, the Act would certainly have made a specific provision in that behalf just as it does in the case of contraventions of Clauses (i), (ii), (iv) and (v) of Section 5 in Sections 11 and 12. The contention is, therefore, repelled.

No other point has been urged before me and in the result the appeal is dismissed with costs.