Sneha alias Neha vs Virendra Kumar Saini

This appeal under Section 28 of Hindu Marriage Act, 1955 has been preferred by the appellant against the judgment and decree dated

24.08.2012, passed by II Additional District Judge, Khandwa (M.P.) in Civil Suit No.05-A/2012, whereby the petition under Section 9 of Hindu

Marriage Act, 1955 for restitution of conjugal rights preferred by respondent has been allowed.

The respondent filed an application under Section 9 of Hindu Marriage Act, 1955 stating that his marriage with appellant was solemnized by

Hindu rites and religion on 19.07.2010 and both the parties have executed affidavits before the Notary in confirmation of their marriage. After

marriage the parties resided at Indore for a month thereafter the appellant went to her parents house. On 31.01.2011 the respondent met her and

then he came to know that the parents of appellant are against her marriage with respondent and they want to marry her with some other person.

Therefore, respondent moved the application for restitution of conjugal rights.

In her reply appellant denied the factum of marriage with respondent. She has averred that she is unmarried girl and had not performed marriage

with the respondent. It is further pleaded that the respondent had obtained her signatures on affidavit by playing fraud. It is prayed that she is not

the married wife of respondent, therefore, application under Section 9 of Hindu Marriage Act is liable to be dismissed.

The trial Court on the basis of pleadings of the parties framed the issues and allowed them to adduce evidence in their support. The trial Court

by passing the impugned order held that the appellant is married wife of respondent and she is living separately without any cause. In view of this

the trial Court allowed the application and passed the decree of restitution of conjugal rights in favour of respondent.

In appeal it is contended by learned counsel for the appellant that there is no reliable evidence available on record to prove the valid marriage

between the parties, therefore, the prayer for restitution of conjugal rights cannot be granted. Appellant has categorically stated that the affidavit

was signed under influence of medicine given by the respondent to her. Therefore, this document is not binding on her. The trial Court had

committed illegality on holding the appellant as legally married wife of respondent.

Heard argument and perused the record.

The burden of prove of valid marriage lies on the respondent. He has to prove that the appellant is his legally married wife than only he can claim

the decree of restitution of conjugal rights. He has to prove that the marriage was duly performed in accordance with religious rites applicable to

the form of marriage gone through. Hon''ble Apex Court in case law Bhaurao Shankak Lokhande and another Vs. State of Maharashtra and

another, AIR 1965 SC 1564 observed that unless a marriage is celebrated or performed with proper ceremonies and due form, it cannot be said

to be solemnized. There are two ceremonies essential to the validity of marriage, namely:-

(1) invocation before the sacred fire, and

(2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. It is further observed that a marriage

may be completed by the performance of ceremonies other than those referred to above, where it is allowed by the custom of the caste to which

the parties belongs. This is also followed in case law Naresh Soni Vs. State of M.P. 2017 (1) MPLJ 373.

In the present case the respondent has relied upon the affidavit said to have executed by the appellant in support of marriage, but this does not

fulfill the requirement of essential ceremonies and due form of marriage. Respondent Virendra Saini in his affidavit deposed that on 19.07.2010

after execution of the affidavit before Notary appellant went to Omkareshwar with him and before the God Omkareshwar, in the temple she

performed marriage with him as per Hindu rites and rituals. Pandit Tulsi had performed marriage ceremonies.

In support of respondent Pandit Gopal Mandloi (AW-2) deposed in his affidavit that on 19.07.2010 at Omkareshwar he had performed

marriage ceremonies of appellant and respondent before God Omkareshwar in the temple. He also deposed about ceremonies like invocation of

sacred fire and satpadi by the parties.

The appellant in her affidavit deposed that she had never gone to Omkareshwar and did not perform marriage ceremonies. Thus, she had

rebutted the testimony of respondent and his witness.

On careful examination of evidence led by both the parties, it is found that respondent Virendra Kumar in cross-examination para-10 has

categorically deposed that the affidavits (Ex.P/1 and P/2) have been executed before the Notary around 11:00 O'' clock at Khandwa and

thereafter he went to Omkareshwar alongwith appellant. This shows that the marriage ceremonies have been performed at Omkareshwar after

11:00 O'' clock on 19.07.2010. Whereas, Pandit Gopal Mandloi (AW-2) deposed that in para-4 of cross-examination and he had performed the

marriage around 09:30 am. The respondent met him around 08:30 am in the morning. This contradicts the statement of respondent.

If the respondent was at Khandwa till 11:00 O'' clock in the morning than how can his marriage be performed at Omkareshwar between 08:30

to 10:30 am on the same day. This creates doubt on testimony of respondent and his witness. There is no reliable evidence to show that the

witness Gopal Mandloi is also known as Tulsi Maharaj. This witness is a Pandit well versed with Hindu Rites and Rituals is also not proved.

Respondent has not produced any photographs of the marriage. No other witness is produced in support of marriage. In view of aforesaid fact, it

is not believable that the respondent has performed the marriage with appellant as per Hindu Rites and Rituals as enumerated above. The trial

Court on erroneous appreciation of evidence has wrongly recorded the findings that the appellant is legally married wife of respondent. It is not

proved that appellant is wife of respondent.

Consequently, the appeal is allowed. The impugned judgment and decree of restitution of conjugal rights passed by II Additional District

Judge, Khandwa, dated 24.08.2012 is hereby set-aside.