Sushant Mukherji vs Ku. Poonam Jaiswal

T.P. Sharma, J.—By this appeal u/s 19 of the Family Courts Act, 1984 (for short ''the Act of 1984''), the Appellant/Defendant has challenged the legality & propriety of the judgment & decree dated 10-1-2008 passed by the Judge, Family Court, Camp Court Katghora, Distt. Korba in Civil Suit No. 16-A/2007, whereby & whereunder learned Judge, Family Court has declared the marriage under Sections 11 & 13 of the Hindu Marriage Act, 1955 (for short ''the Act of 1955'') null and void, and allowed the suit filed by the Respondent herein.

Judgment & decree are challenged on the ground that the Judge, Family Court was not competent to declare the marriage void on the ground of absence of will & consent which is not available under Sections 11, 12 & 13 of the Act of 1955 and thereby committed illegality.

Brief facts giving rise to this appeal, according to the pleadings of the parties (as per the suit filed by the Respondent), are that the Respondent was taking tuition from the Appellant at Korba, the Appellant was in dominating position and by misusing his position, he has taken signature of the Respondent over some papers at Arya Samaj Temple, Sakti. The Respondent objected the act of the Appellant and immediately went back to her parental house where she informed her mother & father about the same. The Respondent has never consented for marriage. On 18-2-2004 just after 15 days of the alleged marriage, an agreement was executed between the parties declaring the alleged marriage void. The Respondent is not the legally wedded wife of the Appellant and she has never married the Appellant. On the aforesaid ground, the Respondent has filed a suit for declaration of the alleged marriage null and void.

The Appellant herein has denied the allegation and specifically alleged that the Respondent is his legally wedded wife and marriage has been solemnized in Arya Samaj Temple. Parents of the Respondent forcefully took her to their house and the Respondent is not discharging her matrimonial obligations. Parents of the Respondent have forcefully obtained the signature of the Appellant over the agreement. The Appellant has also filed petition for restitution of conjugal rights.

The Appellant herein had also filed petition for restitution of conjugal rights which has been dismissed vide judgment & decree dated 10-1 -2008 passed by the Judge, Family Court, Camp Court Katghora, Distt. Korba in Civil Suit No. 17-A/2007 and against the said judgment & decree, the Appellant herein has preferred an appeal before this Court bearing First Appeal (M) No. 23/2008.

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

Counsel for the Respondent has not argued the matter.

Learned Counsel for the Appellant vehemently argued that Section 5 of the Act of 1955 does not provide any provision for taking consent from the major woman. Parties are legally married Hindu spouses and they have solemnized their marriage in the Arya Samaj Temple. The Respondent is not discharging the matrimonial obligations and on the pressure of her parents she has filed the petition for declaration of marriage null & void. The Family Court is not having jurisdiction to declare the marriage null & void in absence of any ground available u/s 11 or Section 13 of the Act of 1955.

On the basis of averments of the parties, learned Judge, Family Court has framed issues and after affording opportunity of hearing to the parties, learned Judge, Family Court has decreed the suit and declared the marriage null and void.

In order to appreciate the contentions of the parties and to decide the real controversy, we have examined the evidence adduced on behalf of the parties and pleadings available on record.

Evidence adduced on behalf of the parties reveals that marriage is not solemnized in accordance with Section 7 of the Act of 1955. Section 7 of the Act of 1955 reads as follows:

Ceremonies for a Hindu marriage--(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

In the present case, according to the pleadings and evidence of the Appellant, both the parties have married before Arya Samaj Temple, Sakti in accordance with the Hindu rituals. In para 6 of his cross-examination, the Appellant has specifically deposed that at the time of marriage at the Arya Samaj Temple, no relatives of the parties were present, he has not stated that they have observed any rituals necessary for marriage in accordance with Section 7 of the Act of 1955. He has not proved any document in support of his marriage in the Arya Samaj Temple. However, the Appellant has pleaded in para 3 of his written statement that the marriage was solemnized in accordance with the Arya Marriage Validation Act, 1937 (for short ''the Actof 1937''). The provisions contained in Section 2 of the Act of 1937 relating to validity of marriage read as follows:

Marriage between Arya Samajists not to be invalid.--Notwithstanding any provision of Hindu law, usage or custom to the contrary no marriage contracted whether before or after the commencement of this Act between two persons being at the time of the marriage Arya Samajists shall be invalid or shall be deemed ever to have been invalid by reason only of the fact that the parties at any time belonged to different castes or different sub-castes of Hindus or that either or both of the parties at any time before the marriage belonged to a religion other than Hinduism.

According to Section 2 of the Act of 1937, marriage is a contract between the parties. Marriage contracted between the Arya Samajists is valid notwithstanding any provision contrary to the Hindu law, usage or custom. No procedure has been provided in the Act of 1937 for valid marriage under the provisions of the Act of 1937.

In the Act of 1937, the Legislature has used the words ''marriage contracted'' and has not provided any custom, usage or rituals necessary for the marriage. But in Sections 5, 7, 11, 12 & 13 of the Act of 1955, the Legislature has used the words ''marriage solemnized''. In the Act of 1955, the Legislature has not used the words ''marriage contracted'', but has intentionally used the words ''marriage solemnized''. Section 7(1) of the Act of 1955 specifically provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto, which shows that observance of customary rites and ceremonies for solemnization of marriage under the Act of 1955 is sine qua non.

Section 5 of the Act of 1955 provides conditions for valid marriage. Section 5 of the Act of 1955 reads as follows:

Conditions for a Hindu marriage--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) at the time of the marriage, neither party--

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity;

(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen 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 a marriage between the two;

In Section 2 of the Act of 1937, the legislature has used the words ''marriage contracted whether before or after the commencement of this Act'' which shows that marriage is a contract under the provisions of the Act of 193 7. The word ''contract'' has been interpreted in Section 2 of the Indian Contract Act, 1872 (for short ''the Act of 1872''). Clause (h) of Section 2 of the Act of 1872 reads as follows:

An agreement enforceable by law is a contract;

According to Clause (h) of Section 2 of the Act of 1872, an agreement enforceable by law is a contract. The word ''agreement'' has also been interpreted in Clause (e) of Section 2 of the Act of 1872 which reads as, follows:

Every promise and every set of promises, forming the consideration for each other, is an agreement;

According to Section 10 of the Act of 1872, all agreements made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object are not expressly declared as void or contract. Section 10 of the Act of 1872 reads as follows:

What agreements are contracts.--All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.

In accordance with Section 10 of the Act of 1872, the free consent of parties competent to contract is sine qua non.

In the present case, both the parties are majors and are competent to contract. The Respondent has denied the case of free consent and has specifically pleaded and deposed in her evidence that the Appellant who was her tutor has administered some intoxicant to her on which she became unconscious and when she regained consciousness, she found Sindhoor on her head and on being asked, the Appellant told her that he has married her in the Arya Samaj Temple where some documents have been prepared. They have gone to the parental house of the Respondent where the Appellant informed the factum of alleged marriage to the parents of the Respondent. On 18-2-2004, both the parties executed one document Ex. P-1 which reveals that the alleged transaction between the parties was void and they have declared their alleged marriage void.

According to the case of the Appellant, the marriage was solemnized on 3-2-2004 and the alleged document for declaration of marriage void was executed by the parties on 18-2-2004 within 15 days of the alleged marriage. The Respondent has specifically deposed that from the temple they came to the house of her father and she has never gone to the house of the Appellant.

The factum of alleged document dated 18-2-2004 is admitted by the parties, though the Appellant has pleaded and deposed that parents of the Respondent have taken his forceful signature upon Ex. P-1. The Appellant has deposed in para 1 of his evidence that after the marriage on 3-2-2004, they discharged their marital obligations and on 4-2-2004 the Respondent went to her parental house.

Performance of marriage has been denied by the Respondent. Burden to prove valid marriage was on the Appellant. The Appellant has not adduced any documentary or oral evidence of the concerned authority of the Arya Samaj Temple to prove valid marriage in Arya system. Parties have not observed any rituals necessary u/s 7 of the Act of 1955. The Appellant has pleaded and deposed that the Respondent has consented for marriage, but the Respondent has specifically denied the factum of consent. Even according to the case of the Appellant, on second day of the alleged marriage, parents of the Respondent took the Respondent to their house and on 18-2-2004 i.e. on 15 day, both the parties executed agreement Ex. P-1 which reveals that they have declared their marriage void. This shows that if the evidence and pleadings of the Appellant are admitted as gospel truth, the Appellant married the Respondent on 3-2-2004, on 2nd day the Respondent left the Appellant in his house and went to her parental house, and on 18-2-2004, the document relating to declaration of marriage void was executed. These facts are sufficient to disprove the factum of consent on behalf of the Respondent. In absence of any observance of rituals in accordance with Section 7 of the Act of 1955 or observance of any custom and in absence of consent of the Respondent as required for valid contract u/s 2 of the Act of 1872, it is difficult to hold that the Appellant has married the Respondent and the Respondent is legally wedded wife of the Appellant.

In the present case, learned Judge, Family Court has declared the marriage null & void under the provisions of Sections 11 & 13 of the Act of 1955. For any declaration under Sections 11 & 13 of the Act of 1955, solemnization of marriage is sine qua non. But in the present case, marriage has not been solemnized between the parties and, therefore, any such decree of declaration of marriage void would not be legally possible. Learned Judge, Family Court has decreed the suit in accordance with the provisions of the Act of 1984. Section 7 of the Act of 1984 deals with jurisdiction of the Family Courts. Explanation (b) to Sub-section (1) of Section 7 of the Act of 1984 empowers the Family Court to declare as to the validity of a marriage or as to the matrimonial status of any person. Explanation (b) to Sub-section (1) of Section 7 of the Act of 1984 reads as follows:

Explanation--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely,--

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(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

In accordance with Explanation (b) to Sub-section (1) of Section 7 of the Act of 1984, the Family Court is competent to declare as to the validity of a marriage or as to the matrimonial status of any person. The decree of annulment of marriage passed by the Judge, Family Court is sustainable under Explanation (b) to Sub-section (1) of Section 7 of the Act of 1984.

After appreciating the evidence available on record, especially absence of consent and non-observance of any custom or rituals required u/s 7 of the Act of 1955, learned Judge, Family Court has declared the marriage null & void. Learned Judge, Family Court has declared the matrimonial status and validity of marriage of the Respondent for which he is competent under Explanation (b) to Sub-section (1) of Section 7 of the Act of 1984.

For the foregoing reasons and considering the findings & final result of declaration, we do not find any ground for interference in the judgment & decree impugned. Consequently, the appeal is liable to be dismissed and it is hereby dismissed with costs.

Advocate fees as per schedule.

Decree be drawn up accordingly.

A copy of this judgment & decree be placed in the record of First Appeal (M) No. 23/2008.