Shashidhar M. vs Poornima C.

P.S. Dinesh Kumar, J—This appeal is directed against the judgment and decree dated 16.4.2014 in O.S. No. 142/2012 on the file of the IV Addl. Principal Judge, Family Court, Bengaluru, dismissing appellant''s suit for a declaration of his marriage as void.

Brief facts of the case:

Appellant''s marriage was solemnized with the respondent as per Hindu customs at Kolar on 5.3.2012. After marriage, respondent''s behaviour towards the appellant was not cordial. Further, appellant observed cut and burn injury marks on the left hand of respondent which could have been caused by a blade and cigarette stubbing. When enquired, respondent gave evasive answers stating that she had inflicted injuries herself while she was in angry mood. Not being satisfied with such answer, appellant probed into the matter to learn that the respondent was earlier married with one Ravikumar which was registered with the Sub Registrar, Anekal on 9.5.2007. In the meanwhile, respondent''s attitude towards the appellant was becoming intolerable and therefore she was sent to her parents house.

On further enquiry, appellant learnt that respondent''s father had lodged a complaint with the Police against the said Ravikumar for offences punishable under Sections 420, 468 and 496 IPC, which after investigation was registered as C.C. No. 1422/2010 on the file of VI Addl. CMM, Bengaluru. He also learnt that defendant had filed a suit in O.S. No. 110/2008 on the file of Senior Civil Judge, Anekal for a declaration that marriage certificate dated 16.5.2007 certifying registration of marriage with Ravikumar be declared void which was decreed on 18.8.2010.

Having learnt about respondent''s earlier marriage, appellant made attempts to lodge a police complaint against the respondent and her family members, but the same was not entertained by the Police. Consequently, he filed a private complaint before VII ACMM., Bengaluru in PCR No. 9958/2012 alleging offences punishable under Sections 420, 495, 120B read with 34 IPC. After investigation, charge sheet was filed and the said matter is pending adjudication in C.C. No. 16510/2012. In these circumstances, appellant filed the instant suit. Respondent contested the suit by filing a written statement and an additional written statement contending inter alia that:

(i) she has behaved with the appellant as a dutiful wife;

(ii) she was not having any wound or injury marks;

(iii) the registered marriage held with Ravikumar had been declared as null and void by the judgment and decree passed by the learned Senior Civil Judge and JMFC, Anekal.

With the above pleadings, the parties went to trial. Appellant was examined as PW. 1. 20 documents were marked on his behalf. 3 witnesses were examined on behalf of the respondent/defendant. No documents were marked on behalf of the respondent.

Based on the pleadings, the learned Family Court has framed the following issues for consideration:--

Whether the plaintiff proves that at the time of solemnization of his marriage with defendant on 05.03.2012 defendant had already married with Ravi Kumar?

Whether the plaintiff proves that as on 05.03.2012 a valid marriage was subsisting between defendant and Ravi Kumar and the defendant willfully concealing the said fact once again married with him?

Whether the defendant proves that prior to 05.03.2012 her marriage with Ravi Kumar was declared as null and void in O.S. No. 110/2008 by the Senior Civil Judge and JMFC Court, Anekal?

Whether the defendant proves that her father prior to marriage on 05.03.2012 did inform the plaintiff about her earlier marriage with Ravi Kumar?

Is there any cause of action to file the suit?

Whether the plaintiff is entitled for the relief of declaration?

What decree or order?

Issues No. 1, 3, 4 & 5 were answered in the affirmative, Issues No. 2 and 6 in the negative and ultimately the suit was dismissed by the impugned judgment and decree. Hence, this appeal.

We have heard Sri N.S. Bhat, learned Counsel for the appellant, Sri N. Srinivas, learned Counsel for the respondent and perused the material papers including the trial Court records.

Learned Counsel for the appellant made following submissions:--

(i) adverting to Ex. P17, a private complaint filed by the respondent against the appellant and others (for offences under Section 498(A) IPC and Sections 3 & 4 of Dowry Prohibition Act), he submitted that the respondent has categorically averred in paragraph - 3 of the complaint that she was married earlier;

(ii) adverting to the cross - examination of respondent as DW. 1, he submitted that respondent has categorically admitted in the cross - examination that the appellant was not informed about her previous marriage;

(iii) adverting to the cross - examination of DW. 3, he submitted that even this independent witness has categorically admitted that it was not felt necessary to inform about the previous marriage of respondent with Ravikumar.

In sum and substance, he submitted that the respondent was married with Ravikumar prior to marriage with the appellant and by the Judgment and Decree dated 18.8.2010 in O.S. No. 110/2008 only, the marriage certificate was declared as void. He attempted to make a fine distinction between declaration of marriage as void and cancellation of marriage certificate and submitted that though the certificate has been cancelled, the marriage still subsisted as there was no declaration to the effect that the previous marriage was void. He submitted that appellant is entitled for a declaration to the effect that his marriage with the respondent was void as the instant case squarely falls within the parameters of Section 11 of the Hindu Marriage Act, 1955 (''Act'' for short).

Per contra, learned counsel for the respondent submitted that by virtue of the decree in O.S. No. 110/2008, the marriage certificate was declared as void. As a matter of fact, respondent was not married with Ravikumar. Only a registration certificate came into existence by playing fraud on the respondent and the said certificate has also been declared void in law. Thus, it is the specific case of respondent that the appellant was kept informed about the earlier marriage and he had married respondent with full knowledge about her previous marriage. Respondent''s family has spent large sums of money for the marriage and given huge dowry to the appellant. Appellant is attempting to resile out of the marriage by mis-using vulnerable position of the respondent. In sum and substance, he submitted that primarily there was no marriage between the respondent and Ravikumar. At any rate, as on the date of marriage between the appellant and respondent, the marriage with Ravikumar was not subsisting. Consequently, the provisions of Section 11 of the Act are not applicable to the facts of the case and that the learned Family Court having examined the issues in extenso has rightly dismissed the instant suit. Accordingly, he prays for dismissal of this appeal.

In the light of rival contentions, the following question falls for our consideration:--

"Whether the appellant is entitled for a declaration that his marriage solemnized with the respondent on 5.3.2012 is void on the strength of pleadings and evidence on record?"

The appellant has invoked Section 11 of the Act and prayed that his marriage with the respondent be declared as void. The relevant provision reads as follows:--

"11. Void marriages.--Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], 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."

A declaration under Section 11 of the Act may be granted if there was contravention of any one of the condition specified in clause (i)(iv) & (v) of Section 5. Section 5 deals with conditions for a Hindu Marriage and mandates that a marriage may be solemnized between two Hindus, if the said conditions are fulfilled. In the instant case, we are concerned with Section 5(i).

It is the case of the appellant that as on the date of his marriage, the respondent was married with Ravikumar and this fact was kept as a secret till he unearthed the same after observing injury marks on the body of the respondent. On the other hand, the respondent''s plea is that only the registration of marriage had taken place by fraud and the same was cancelled by a judicial order pursuant to judgment and decree in O.S. No. 110/2008.

Registration of Hindu marriages is contemplated in Section 8 of the Act and the same reads as follows:--

"8. Registration of Hindu marriage.--

(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

(2) Notwithstanding anything contained in sub-Section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-Section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

(3) All rules made under this Section shall be laid before the State Legislature, as soon as may be, after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry."

A plain reading of the above provision reveals that registration is only for the purpose of obtaining a record of proof of marriage. Therefore, registration of a Hindu marriage obviously pre supposes that there was solemnization of marriage. Respondent in her cross-examination has categorically admitted that the appellant and his family members were not informed about her first marriage by admitting thus:

....... "It is true that we did not inform the plaintiff and his family members about the first marriage.".......

DW. 3, an independent witness has admitted as follows in his cross - examination:--

....... "It is true that the question of informing the plaintiff during marriage talks about the marriage of defendant with Ravikumar was not necessary.".........

Insofar as the registration of marriage is concerned, respondent has admitted her signatures on the forms. However, it is her case that Ravikumar had forcibly taken her signatures on certain papers and a joint photograph of herself and Ravikumar.

Plaint averments in O.S. No. 110/2008 filed by respondent against Ravikumar reveal that Ravikumar was a family friend; that in April 2007, he had met defendant and told her that he was in need of plaintiffs marks card for applying for loan; that he had requested her to guarantee the loan as a surety; that on 9.5.2007 Ravikumar took her forcibly in an autorickshaw along with friends to Anekal; that when they reached Anekal bus stand area, Ravikumar brought some forms and asked her to affix her signature; that she was surprised to see a joint photo of herself and Ravikumar and when questioned, Ravikumar explained that it was required as she would be a surety for the loan; that after few days Ravikumar was claiming to be legally wedded husband and expressed his intention to claim share in her property; that on 12.6.2007 her father took her to Sub-Registrar''s office and they were shocked to learn about registration of marriage; that on 16.6.2007 respondent''s father had lodged a complaint with MICO Layout Police station in Cr. No. 210/2007.

In his complaint lodged with MICO Layout Police Station in Cr. No. 210/2007 respondent''s father has stated that respondent was not talking to any one at home; that there were indications of her running away from home; that on enquiry, she had informed that on 9.5.2007 while she was returning after writing CET examination and alighted from bus at Bilekanahalli, Ravikumar and his two friends took her to Anekal in an autorickshaw and forcibly obtained her signatures; that Ravikumar was claiming himself as her husband and demanding share in the property; that she had not informed these development to her father out of fear; that he had discovered a marriage invitation card disclosing marriage of his daughter on 9.5.2007 at Ganapati Temple, Anekal. Accordingly, he had prayed for action against Ravikumar.

However, in the cross - examination, respondent has admitted that she did not write the CET examination on 9.5.2007 and also conceded that Ex. P16 an endorsement issued by the Examination Authority testifying that she had not attended the CET examination in 2007 is correct. Precisely, she has stated thus in the cross - examination:--

..... "I am not remembering my CET Examination Register Number. It is true that on 9.5.2007 I have not written the CET Examination. It is true that in Ex. P16 KEA has issued endorsement stating that I have not attended the CET Examination in 2007."............ (sic)

Thus, the material on record discloses that the registration of marriage was based on the papers duly signed by the respondent. It also emerges that the respondent, her family members and well wishers, third parties like DW. 3 did not find it necessary to inform the appellant about the previous marriage of respondent with Ravikumar.

Specific admission by the respondent that she did not write the examination on the date of registration of marriage and other attending circumstances compel us to draw an adverse inference against the respondent and lead to an irresistible conclusion that the respondent was married with Ravikumar prior to solemnization of her marriage with the appellant and the registration was the proof of her marriage with Ravikumar. We say so, because by reading the case papers in sequence, we can safely probabalise that respondent was a consenting party for registration of marriage. Further, reference to the marriage invitation card contained in the police complaint lodged by her father coupled with his apprehension that respondent was likely to run away from home and the joint photograph of respondent and Ravikumar reinforce our hypothesis that respondent had willingly married Ravikumar and thereafter the parties got the same registered. Incidents pointed out by us are incapable of being accomplished without active participation of respondent.

The next aspect is the effect of decree in O.S. No. 110/2008. What is cancelled pursuant to the said decree is the certificate of marriage. In our considered view, cancellation of certificate does not ifso facto mean that the marriage of respondent with Ravikumar stood dissolved. Therefore, we hold that as on the date of solemnization of marriage of appellant with the respondent, there existed a spouse of the respondent by name Ravikumar by virtue of her previous marriage. Consequently, there was violation of condition prescribed in Section 5(i) of the Act. As a natural corollary, the appellant shall be entitled for a decree in terms of Section 10 of the Act.

The learned Family Court, having held issues No. 1, 3 and 4 in the affirmative has answered issue No. 5 also in the affirmative by holding that appellant did not have any cause of action. Of course, the word ''No'' is missing in paragraph 15 of the judgment and we are convinced that the same is a typographical error. By reading the judgment in its entirety, it can be safely inferred that the learned Family Court meant that the appellant did not have a cause of action for the instant suit. It has further held that there is no cogent evidence to believe that the marriage between the appellant and respondent is void and accordingly dismissed the suit. In our view, this finding of the learned Family Court is perverse in view of discussion hereinabove.

In addition to the analysis of facts and our inference based on records, we are also conscious of the fact that the case on hand concerns the well being of a family involving a man and his wife. Appellant has sought for a declaration of his marriage as void on the factual premise that the respondent was already married as on the date of solemnization of his marriage. Further, respondent and DW. 3 have admitted that the appellant and his family members were not kept informed about the previous marriage. Therefore, we have not ventured to probe further with regard to compliance of Section 7 of the Act because, firstly it was contended in the pleading nor argued at the bar. We do not propose to examine it suo motu because, in our view, having learnt about the previous marriage of his wife, it would be impossible for the appellant to continue the wedlock. Discovery of previous marriage and some undisclosed mess in the life of either husband or wife would make the life of his or her partner miserable with one evocative lurking suspicion leading to the other snow balling in the wild imagination of a human brain. Resultantly lives of both parties would be ruined. In the circumstances, in our considered view, the facts of the case richly merit grant of decree as prayed for by the appellant.

In the result, we pass the following:--

ORDER

(i) Appeal is allowed;

(ii) Judgment and Decree dated 16.4.2014 in O.S. No. 142/2012 on the file of IV Addl. Principal Judge, Family Court, Bengaluru, is set aside and the marriage solemnized between the appellant and the respondent on 5.3.2012 is declared as null and void;

Registry to draw the decree accordingly.

No costs.

In view of disposal of the appeal, I.A. 1/2014 and I.A. 2/2015 filed for production of additional documents are rendered un-necessary and accordingly stand dismissed.