Smt. Maya Devi vs Kishore Verma

T.P. Sharma, J.—This appeal u/s 19(1) of the Family Courts Act is directed against the judgment & decree dated 30-1-2008 passed by the 2nd Additional Principal Judge, Family Court, Durg in Civil Suit No. 121 A/07, whereby & where under learned Additional Principal Judge, Family Court has dismissed the petition for restitution of conjugal rights filed by the Appellant herein u/s 9 of the Hindu Marriage Act, 1955.

Judgment is challenged on the ground that learned Additional Principal Judge, Family Court has erred in holding that the Appellant has converted herself into Islam and married some Muslim person namely, Syed Zuber, and thereby committed illegality.

Brief facts giving rise to this appeal, according to the pleadings of the parties, are that the Appellant & the Respondent were Hindu married spouse. After one month of her marriage, on the advice of the Respondent, the Appellant went to her maternal house for further studies where she studied B.Sc. final in the year 2002. After her examinations, a Bidai function was arranged and the Respondent took the Appellant to his house where they started marital life. After some time, some unknown person sent some letters to the Respondent levelling false allegation on the character of the Appellant. The Respondent used to discharge marital obligations. Earlier, the Respondent has also received letters condemning the character of the Appellant. Finally, the Respondent took the Appellant to her parental house and refused to take her back with him. The Respondent is not ready to keep the Appellant with him. On the basis of the aforesaid facts, petition for restitution of conjugal rights was filed by the Appellant before the Court below.

The Respondent has denied the adverse allegations and specifically pleaded that name of the Appellant is Shabnam Nisha and not Maya Devi, she has converted herself into Islam and married Syed Zuber, and when the facts came to the knowledge of the Respondent, the Respondent refused to discharge the marital obligations. The Appellant has lodged report against the Respondent for the offence punishable u/s 498A of the I.P.C., but she has withdrawn the report on the advise of the Family Advise Centre. The Appellant herself has appeared before the Marriage Officer, Durg and got her marriage registered. The Respondent is in possession of photographs relating to marriage of the Appellant with Syed Zuber. Restitution of conjugal rights between Hindu & Muslim mala-female is not possible under the law.

On the basis of the averments of the parties, issues were framed and after affording opportunity of hearing to the parties, learned Additional Principal Judge, Family Court has dismissed the petition for restitution of conjugal rights filed on behalf of the Appellant.

We have heard learned Counsel for the parties, perused the judgment impugned and record of the Court below.

Learned Counsel for the Appellant argued that the Appellant has never converted herself into Islam, she has never denied the marital relation with the Respondent, some unknown person has intentionally sent letters to the Respondent condemning the character of the Appellant, after marriage and even prior to marriage between the parties. The Respondent has not given any weightage to the said letters, but after marriage again when he received such letters, he doubted the character of the Appellant and refused to discharge the marital obligations. The Appellant has not married Syed Zuber and she has not filed any application for registration of marriage before the Marriage Officer, Durg. Photographs filed by the Respondent are not photographs of the Appellant.

On the other hand, learned Counsel for the Respondent argued that the Appellant has converted herself into Islam and she is not having good character, the Respondent received some letters relating to her character and when he came to know that the Appellant has converted herself into Islam and married Syed Zuber, he refused to discharge marital obligations with the Appellant.

In order to appreciate the contentions of the parties, we have examined the evidence adduced on behalf of the parties. In support of the pleadings of the Appellant, the Appellant has deposed in her evidence that she had married the Respondent, but some person has intentionally sent letters to the Respondent condemning her character even before her marriage, but the Respondent has not given any weightage to the said letters, however, afterwards when he received some more letters, he doubted her character and refused to discharge marital obligations with her.

Kamal Prasad Deshmukh (AW-2) - father of the Appellant, has corroborated the evidence of the Appellant and deposed that on the basis of some letters, the Respondent told him that the Appellant was married with some Muslim person, and they called the suspected person who refused the factum of marriage with the Appellant. The Respondent was trying-for second marriage which they resisted, but finally, he married another woman.

Mohd. Touhid Aalam Ashrafi (AW-3) has deposed about the procedure of conversion into Islam. He has specifically deposed that the Appellant and Syed Zuber have, not married with each other in his mosque.

Per contra, the Respondent has examined himself and has stated that he received photographs & letters relating to the character of the Appellant prior to his marriage and even after marriage, lastly when he received registration of marriage report, he reported the matter to the caste community. The Appellant has married a Muslim person and thereafter, on the customary advise, he has married another woman. The Respondent has filed the photographs Exs. D-3 to D-8.

The Appellant has examined Syed Zuber (NAW-2) who has deposed that he has married (Nikah) Maya Devi at Camp Bhilai and obtained the certificate Ex. D-9 and also got registered their marriage before the Marriage Officer, Durg and the Marriage Officer, Durg has issued certificate Ex. D-10. Syed Zuber has further deposed that the photograph Ex. D-1 bears his and the Appellant''s photo. He has filed the documents relating to age of the Appellant Exs. D-12 & D-13, affidavits Exs. D-14 & D-l 5 and photos Exs. D-16 & D-l 7. He has also deposed that after marriage, Maya Devi resided with him for five days and thereafter, she left his house. In his detailed cross-examination, Syed Zuber has admitted that he do not know the name of Moulana before whom the Appellant has converted herself into Islam. He has admitted that in the Nikahnama Ex. P-9, name of the bride is mentioned as Shabnam Nisha and not as Maya Devi.

Evidence of Syed Zuber (NAW-2) is full of suspicion. His evidence reveals that he does not know the name of Moulana before whom the Appellant has converted herself into Islam and he does not know the name of Moulana who solemnized the marriage of the Appellant with him. After marriage the Appellant stayed only for five days with Syed Zuber and the Appellant has left his house thereafter. Self-contradictory and suspicious statement of Respondent''s witness No. 2 Syed Zuber (NAW-2) is not of worth reliance, credence and safe to rely upon.

The Appellant herself has specifically admitted that before and after her marriage the Respondent has received some letters condemning her character. She has admitted her signature over the affidavit and has explained that her husband has obtained her signature under compulsion. She has admitted that she was studying with Syed Zuber but she has not converted herself into Islam or has not married Syed Zuber. She has denied the signature in the name of S. Nisha. She has also denied the fact relating to her pregnancy test. The Respondent has admitted that he has received letters & photographs.

The Appellant has denied photographs & report of pregnancy test. Entire dispute between the parties is based on some previous letters written by unknown person, factum of conversion of the Appellant into Islam, Nikah/marriage of the Appellant with one Syed Zuber, registration of marriage before the Marriage Officer and the alleged photographs which the Appellant has specifically denied. The Respondent has not adduced any evidence of the doctor or the person concerned to show that the Appellant is the lady who has been examined by the doctor relating to pregnancy test. The Respondent has also not adduced any evidence to show that by which mode he has received the alleged letters Exs. D-3 to D-6. The Respondent has not filed any negatives of the photographs and has also not examined the person who has taken the photographs. These are the documents produced by the Respondent against the Appellant which she has denied and unless the documents are proved by cogent evidence, reliance cannot be placed on the same.

According to the Respondent, the Appellant has married Syed Zuber. But evidence of Syed Zuber and his conduct are full of suspicion. According to Syed Zuber, the Appellant stayed only for five days with him and thereafter, she left his house. Syed Zuber does not know the name of Moulana before whom the Appellant converted herself into Islam and he does not know the witness & Moulana who solemnized their marriage. However, it is not disputed that the Appellant was taking tuition from Syed Zuber and Syed Zuber was having opportunity to take photographs or to commit mischief with the Appellant. Unless genuineness of letters & photographs are proved, it is difficult to hold that the Appellant was married with Syed Zuber.

In the present case, the Respondent has produced four letters alleged to have been addressed to father of the Respondent Vishnu Verma, but the Respondent has not filed the envelope or has not adduced evidence to show that by which mode his father has received the aforesaid letters. Even the Respondent has not examined his father to prove the aforesaid facts. The Respondent has not tried to inquire about the genuineness of the letters. Prima facie, Exs. D-3 to D-6 reveal that they were not written by one person. Especially, Ex. D-6 contains that the Appellant was pregnant and she has got the pregnancy aborted. It was also written in Ex. D-6 that the above facts may be verified and father of the Respondent may get examine his daughter-in-law i.e. the Appellant herein by medical expert. For the reasons best known to the Respondent, he has neither tried nor attempted to inquire about the source of letters as to from which place they were sent. The Respondent has not examined his father or has not filed the envelopes to show some genuineness of the letters that they have been received by his father through postal mode. It is not the case of the Respondent that some unknown person has written these open letters to the Respondent. The photographs have also been denied by the Appellant. The Respondent has not examined any witness who has taken the photographs and even he has not filed any negatives. In spite of having opportunity to examine the Appellant medically to prove the factum of abortion, the Respondent has not tried to examine her medically.

Evidence of the Respondent shows that he has remarried another woman. In para 2 of his evidence, the Respondent has deposed that customary divorce took place between the parties. But these substantial facts which were necessary for the maintainability of the petition have not been pleaded by the Respondent in his written statement/response. A divorcee woman cannot claim restitution of her conjugal rights and this substantial ground was available to the Respondent, but for the reasons best known to the Respondent, the Respondent has not pleaded and even has not adduced any evidence of the persons to prove such customary divorce and without waiting further he has immediately performed marriage with another woman in Choodi custom. These circumstances are sufficient to show that defence and conduct of the Respondent are not natural and full of suspicion, cleverness & selfishness.

Matrimonial ties are normally based on bona fide belief and confidence upon each other, entrustment and devotion between each other. Matrimonial ties are delicate in nature, but are not so weak to break even on trifle ground or whims & wishes of the parties and on the ground of whims & wishes by creating certain suspicion, the life and rights of any married woman/bride cannot be brushed.

After going through the entire evidence, its nature, pleadings & conduct of the parties, we are of the considered view that learned Additional Principal Judge, Family Court has not considered the material in its evidentiary value and its spirit, and thereby committed illegality.

This is a matrimonial dispute and the Judges, especially the Judges of the Family Courts, are under obligation to resolve the disputes between the parties and to consider the evidence legally admissible. But the very basis of the finding is based on the evidence not legally admissible. Therefore, the judgment & decree impugned are not sustainable under the law and the same are liable to be set aside.

Consequently, the appeal is allowed and the judgment & decree refusing the restitution of conjugal rights are hereby set aside. The case is remitted back to the Court below for providing opportunity of adducing evidence and prove the documents in accordance with law, and pass the judgment & decree afresh. Parties shall bear their own costs.

Parties are directed to appear before the Court below on 26-11-2009 for further proceeding of the case.

Record be sent immediately to the Court below.

Advocate fees as per schedule.

Decree be drawn up accordingly.