S. Vijayalakshmi vs T.P. Gopakumar

Joseph Francis, J.—This appeal is filed by the petitioner in O.P.(HMA) No. 283/99 on the file of the Family Court, Kottayam at Ettumanoor. The respondent herein was the respondent in that Original Petition, which was filed by the petitioner u/s 12(1)(c) of the Hindu Marriage Act (for short, ''the Act'') for a decree of nullity of marriage. The case of the appellant is briefly as follows :

The appellant while studying for B.A. at Maharaja''s College, Kottayam and residing at St.Thomas Bethani Hostel, Kottayam, was forcibly taken to Changanachery in a Tempo Tracks owned by the appellant''s father, by the respondent and friends, to the house of one A.P.Gopalan, Assistant Sub Inspector of Police, Chenganachery Police Station, where she was forced to sign on certain documents including some pertaining to the Puzhavathukavil Bhagavathy Temple. Thereafter, she was dropped at Kottayam and threatened by the respondent to kill her if she revealed these to her parents and friends. No marriage ceremony was performed. There has been no consummation of marriage. The appellant''s father came to know that certain papers were submitted by the respondent to the Sub Registrar''s Office, Chenganacherry and the appellant submitted applications there for withdrawing the signed papers of the appellant. The appellant''s father also submitted private complaint before the Judicial First Class Magistrate Court III, Kottayam and a crime was registered against the respondent, his sister and friends. On 25.6.1999 the appellant''s father received a letter from the respondent along with a copy of the Marriage Certificate involving appellant and the respondent issued by the Sub Group Officer, Thiruvithamcore Devaswom Board, Chenganacherry, on receipt of which he realised that the respondent, his sister and friends have fabricated a marriage certificate and other documents. The appellant has not given voluntary consent for marriage with the respondent and signatures were obtained by threat and coercion and she therefore sought a decree to set aside the marriage certificate and allied documents as null and void.

Even though the respondent entered appearance before the Family Court and attended counselling, he thereafter, failed to appear in spite of specific directions for appearance and therefore, the respondent was set ex parte on 20.11.2001.

In the Family Court, petitioner was examined as PW1 and Exts.A1 and A2 were marked. DW1 was neither cross examined nor had the respondent filed written statement or tendered any evidence. The learned Family Court, on considering the evidence on record dismissed the petition on finding that the petitioner has not proved that her signature in the register of Devaswom Board was obtained by force and threat. Against that order, the petitioner filed this appeal.

In this appeal, even though notice was served on the respondent, he did not appear. Heard learned counsel for the appellant.

At the time of argument, learned counsel for the appellant made the following submissions : The Family Court ought to have seen that the respondent had been duly served in the proceeding and had entered appearance, but refused to file written statement or contest the matter, obviously because he did not refute the contentions of the appellant. The proceedings sheet in the court below would prove the fact that the respondent had wilfully abstained from appearing before the court, in spite of specific directions from the Court to appear, thereby implying that he did not want to contest the proceedings or controvert the appellant''s case. The court below erred in refusing to grant the declaration prayed for by the appellant in spite of the fact that the appellant had proved her case by tendering oral evidence, which was neither challenged by the respondent nor disputed. The appellant was not even cross-examined by the respondent. As per Section 12(1)(c) of the Act, the marriage is voidable on the ground that the consent of the petitioner has been obtained by force or fraud. In the present case, the respondent did not contest the case and has not cross-examined the petitioner, when she was examined as PW1. The respondent has not adduced any contra evidence. PW1 deposed that respondent was a driver of the vehicle owned by her father and on 24.9.1998 at about 10 a.m., while she was going to Maharaja''s College at Kottayam, the respondent and his sister forcibly took her in a car and forcibly caused her to sign certain papers at the office of Puzhavathukavil Bhagavathy Temple and threatened to kill her if she divulges the incident to anybody else and she was dropped back at Kottayam Sasthri Road. PW1 deposed that on 25.6.1999, the respondent sent Ext.A2 letter to her father along with Ext.A1 certificate showing that the marriage between herself and the respondent was conducted in the Temple on 24.9.1998. Since the testimony of PW1 remained unchallenged, it has to be held that the consent of the petitioner for marriage with the respondent, evidenced by Ext.A1 certificate was obtained by force or fraud. Therefore, we are of the view that the petitioner is entitled to get a decree of nullity of marriage on the ground of force or fraud and the Family Court was not justified in dismissing the Original Petition.

Accordingly, this appeal is allowed and the order dismissing the O.P.(HMA)283/99 on the file of Family Court, Kottayam at Ettumanoor is set aside and that Original Petition is allowed and the marriage between the petitioner and respondent is annulled by a decree of nullity. The parties are directed to suffer their respective costs in this appeal.