Calcutta High Court (Appellete Side)
Amitava Bhattacharya vs Smt. Aparna Bhattacharya on 4 February, 2009
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F. A. No. 389 of 2003
Amitava Bhattacharya
Versus
Smt. Aparna Bhattacharya
For the Husband-appellant: Mr. Jiban Ratan Chatterjee,
Mr. Hiranmay Bhattacharya,
Mr. Partha Pratim Roy.
For the Wife-respondent: Mr. Amitava Mukherjee,
Mr. Salil Kumar Mapdar,
Mr. Supriya Ranjan Ghosh,
Ms. Arpita Sen.
Heard on: 09.09.08, 16.09.08, 18.11.08, 27.11.08, 16.12.08 & 29.01.09.
Judgment on: 4th February, 2009.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of an applicant under Sections 24/25 of the Special Marriage Act, 1954 and is directed against the judgment and decree dated 18th March, 2002 passed by the Additional District Judge, Hooghly, in Matrimonial Suit No.424 of 1995, thereby dismissing the said application by rejecting the prayer of the appellant for declaration that the alleged marriage between the parties was null and void.
Being dissatisfied, the appellant has come up with this first appeal. The appellant filed a suit under Sections 24/25 of the Special Marriage Act in the Court of the District Judge, Hooghly which was subsequently transferred to the Court of the Additional District Judge, Hooghly. The case made out by the appellant may be summed up thus:
(a) The appellant was aged 27 years and came from a middle class family. The appellant read up to Class-X and was suffering from various ailments since his birth. He was naturally handicapped and depended on others; as a result, his education did not proceed steadily.
(b) In the year 1990, his two friends, namely, Tarun Mondal and Jaleswar Murmu, encouraged him to join as a train-hawker for selling rice in the Burdwan area. The appellant was under the impression that he would not get any job due to his infirmity of health and meagre education and, thus, started his career as a train-hawker with a capital of Rs.200/-. Such livelihood was not acceptable to the parents of the appellant who had a reputation in the locality because of the fact that the father of the appellant was in railway service. To avoid family problem, the appellant left the shelter of his parents and began to reside in a rented house at Panduah.
(c) In the year 1994, the appellant was introduced to the family of the respondent by his friends, mentioned above. The family of the respondent consisted of her mother, unmarried elder sister and only brother, the respondent being the youngest.
(d) The family of the respondent had a sympathetic mind towards the appellant and the appellant considered them as true well-wishers at the beginning. He never felt that beneath such soft behaviour of the family of the respondent, there was a poisonous object and motivation of wrongful gain.
(e) If the appellant did not visit the family of the respondent for 10 days or for a week, he was inevitably summoned through his friends. Thus, on good faith, the appellant could not avoid the visit of the house of the respondent.
(f) The brother of the respondent, namely, Subir Chakraborty, is a man of desperate nature, a habitual drunk and a man of very bad reputation in locality. The elder sister of the respondent is a strongly built lady having the habit of using blasphemous words every now and then even on a trifling matters. The mother of the respondent posed to the appellant as if she was the only well-wisher of the appellant in the world. Thus, the appellant was under an atmosphere of affection, fear and strain which he could not overcome.
(g) The respondent and her family members pressed the appellant hard to make an amicable compromise with his parents but the appellant used to turn down such advice as he thought that unless he had picked up a good business he would not return to his parents. Initially, the appellant thought that the attempt of the respondent's family to settle dispute with his parents was an innocent endeavour but later, he understood that such attempt was a motivated one for wrongful gain and they wanted to grab the money and property of the parents of the appellant.
(h) Suddenly, on 23rd August, 1995, the mother of the respondent wanted the appellant to accompany her to Chinsurah for medical treatment. The appellant on good faith and innocently agreed to accompany her to Chinsurah and consequently, the mother of the respondent told him to meet her at Chinsurah bus stand. When the appellant arrived there, some unknown persons and her eldest sister began to threaten him to sign on some papers failing which he would be brutally assaulted and taken to the police custody. The appellant was not allowed to see the papers which he was going to sign nor was the contents of those letters explained by any of the persons. After putting of such signatures, he was threatened not to disclose the incident to anybody in future and was asked to get out of the native place at Panduah as soon as it was possible. The mother of the respondent did not attend the hospital on that date and on return to Panduah, the appellant was forced to take the respondent with him as his wife in the rented house where the appellant used to live.
(i) On the following day, some unknown persons along with the sister and mother of the respondent forced the appellant to get entrance in the house of the parents of the appellant and induced him to demand a share of the house and share of income of the father as a member of the family. On refusal, the appellant was badly assaulted.
(j) The papers signed on 23rd August, 1995 were not the outcome of freewill of the appellant and the respondent and those were obtained by force, fraud and misrepresentation. No notice was served by the appellant proposing any marriage and the alleged marriage was never consummated and the appellant and the respondent never lived as husband and wife.
(k) Taking advantage of so-called marriage, the respondent and her family members began to threat the parents of the appellant as well as the appellant.
(l) The appellant never married the respondent nor had any intention to marry her. He is not physically fit to lead a conjugal life. The respondent and her family members designed the situation for some ulterior motive and to grab money and property from the father of the appellant. The appellant managed to get a copy of the so-called Marriage Certificate from the respondent and it appeared that the witness shown in the Marriage Certificate were unknown to the appellant. The purported marriage was a nullity and should be declared invalid. Hence the suit.
The suit was contested by the respondent by filing written statement thereby denying the material allegations made in the plaint and the defence of the respondent may be summarised thus:
(1) The appellant was a friend of Subir Chakraborty, the elder brother of the respondent, and used to come very often at the residence of the respondent's mother at Jaipur Road, Panduah, for sale of rice as in the year 1994 the appellant used to sell rice at different houses of the locality.
In course of such business, intimacy grew between the appellant and the respondent and the appellant proposed to the respondent and her mother that he would marry the respondent and the respondent went to the appellant's father as per request of the appellant. All the members of the appellant's family knew that the appellant would marry the respondent. (2) As per proposal and arrangement made by the appellant, on June 21, 1995, the respondent's mother and the elder sister went to Inchhura Kalibari at about 6:30 p.m. and found the appellant and his sister, Minu Banerjee, were present there. In Inchhura Kalibari, the priest, viz. Sri Sasanka Sekhar Bandopadhyay had conducted the marriage between the appellant and the respondent on that date and all the rites and ceremonies for Hindu marriage had been performed. After the marriage, the appellant took the respondent to his rented room at Kharaji Para, Panduah and the appellant and the respondent lived there as husband and wife for about two months.
(3) Thereafter, as per proposal of the appellant, the marriage between the appellant and the respondent was registered on 23rd August, 1995. (4) It was absolutely false that by practising fraud the signature of the appellant was taken on some blank papers.
At the time of hearing, the appellant, his father and his sister deposed in support of the appellant while the respondent, her mother, her elder sister and one Ramesh Tewari, a Marriage Registration Officer, deposed in opposing the prayer of the appellant.
As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein dismissed the suit.
Being dissatisfied, the petitioner has come up with the present appeal. At time of hearing of this appeal, the appellant filed an application under Order 41 Rule 27 of the Code of Civil Procedure for taking into consideration the deposition of the respondent and her mother given earlier in the proceedings under Sections 498A and 406 of the Indian Penal Code filed against the appellant as additional evidence. The object of the appellant was to show the contradiction in the deposition. In the earlier deposition in the criminal proceedings, both of them stated that the mother of the respondent was not present at the time of the alleged ceremonial marriage at the Kali Temple whereas in this proceeding they stated that the mother of the respondent was present. The respondent in her evidence stated in this proceeding that a notice in terms of Special Marriage Act was given whereas in the earlier proceedings she stated that no such notice was given. After hearing the learned advocates for the parties, we were of the view that such documents should be admitted as additional evidence and we allowed the certified copy of such deposition to be marked as additional evidence. We also gave opportunity to the respondent to file evidence by way of affidavit to explain such inconsistency in their deposition. Pursuant to such liberty, two supplementary affidavits have been filed, one by the respondent and the other by her mother. According to the mother of the respondent, although she in the criminal proceedings stated that she was present at the time of marriage in the Kali Temple, it was wrongly recorded that in the said proceedings that her answer was in negative. The respondent in her affidavit, tried to explain her statement made in the deposition given in the criminal proceedings to the effect that in the Kali Temple the appellant only put vermilion in her forehead but no other ceremonies were held by saying that she was put a question in cross-examination whether there was "sindur daan" which she answered in affirmative and in addition to that she was also asked whether there was any social function which she answered in negative. She stated that she was never asked any question whether there was "saptapadi" or "hom" or not and as such she had no occasion to give answer and whenever she wanted to say anything more, the learned counsel for the defence scolded her and asked her confine her answer to the question put to her.
We have taken into consideration those depositions marked as additional exhibits in this appeal and have also taken into consideration the explanation given by the respondent and her mother regarding her statement in the earlier proceedings for the purpose of disposal of this appeal.
Before entering into the merit of this appeal, we should not lose sight of the fact that the scope of investigation of the disputes in this proceeding is very limited. It appears from the certificate of marriage of the parties that the same was registered in terms of Section 15 of the Special Marriage Act recording a previous marriage alleged to have been solemnized under Hindu rites and ceremonies and thus, in accordance with Section 18 of the Act, the parties should be deemed to have been married under the Act. According to the appellant, there was no earlier marriage whatsoever in any form and that his signature was taken by practising fraud and coercion and such signatures have been utilized to represent the application for the alleged registration under Section 15 of the Act. According to him, without going through the contents of the application, he put his signature due to coercion inflicted upon him. The respondent, on the other hand, has denied such allegations and has contended that there was a marriage earlier held between the parties in a Kali temple which was duly consummated, the parties lived as husband and wife in a rented house and that the appellant consciously applied for registration of such marriage.
As mentioned earlier, the appellant has subsequently filed the present proceedings under Sections 24/25 of the Special Marriage Act for declaration that the marriage should be declared as a nullity.
As provided in sub-section (2) of Section 24 of the Act, the benefit of sub- section (1) of that Section would not be available to any marriage deemed to be solemnized under the Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15.
Therefore, in this appeal we cannot declare the so-called marriage to be nullity but our scrutiny will be limited to only to the investigation whether any of the conditions specified in clauses (a) to (e) of Section 15 of the Act has been infringed and if we find that any of such conditions has been contravened we can simply declare that the registration was of no effect.
Therefore, the question is whether condition (a) to Section 15 of the Act was satisfied. According to that condition, an earlier ceremony of marriage should be performed between the parties and that they had been living together as husband and wife ever since till the registration.
After hearing the learned counsel for the parties and after going through the materials on record including the additional evidence taken in this Court by way of production of the certified copies of the deposition of the respondent and her mother in the earlier criminal proceedings and also their explanation to the alleged inconsistent stance taken in the earlier proceedings given by way of affidavit before this Court, we find that the mother of the respondent has altogether denied that she made any statement in the criminal proceedings that she was not present at the time of marriage. According to her, such statement was wrongly recorded and she did not know about her such statement. In the subsequent civil proceedings she claimed to have been present at the time of the alleged marriage on June 21, 1995. The respondent herself in her evidence before the Criminal Court never alleged that her mother was present at the time of marriage in the Kali Temple and she admitted in her cross-examination that apart from putting vermilion, no other ceremony was performed. She has tried to get out of such statement by way of her explanation given in this appeal by stating that no question was put to her about performance of "hom" or "saptapadi" and as such, she had no occasion to make such statement. In our opinion, the explanations of both the respondent and her mother are on the face of it a lame explanation. They never applied before the Criminal Court for correction of wrong recordings of their deposition and no reasonable person would believe such explanation to be genuine. It is, therefore, apparent that the story of presence of the mother of the respondent at the time of alleged marriage at Kali Temple is a concocted one. Similarly, the essentials of a valid Hindu marriage have not been performed as would appear from the deposition of the respondent in the criminal proceedings and it is apparent that she is now trying to improve her version. Even no independent person of the locality has come forward to depose in order to support the statement of the respondent that after the alleged marriage, the parties resided together as husband and wife in a rented house mentioned in the written statement nor was Sunil Saha examined to prove the allegation that they were residing in his house as a tenant after the marriage. Even, although the defence is that the registration took place in the office of the D.W.-4 near Chinsurah bus stand, the marriage registration officer, the D.W.-4, in whose office the marriage was registered under the Special Marriage Act, himself admitted that his office was situated at Chandannagore where the registration had taken place. We, thus, find substance in the contention of the appellant that his signature was taken at the bus stand of Chinsurah by force and such paper was used for the purpose of showing registration of a so-called earlier marriage at the office of the D.W.-4 at Chandannagore. Even the respondent or her mother or her sister did not mention in their evidence that the marriage was registered at the office of D.W.-4 at Chandannagore or that from Chinsurah, they went to Chandannagore but such fact came out in the evidence of D.W.-4. The Court, at this stage, can take judicial notice of the fact that Chandannagore is the next railway station after Chinsurah. It is apparent that the D.W.-4 did not care to verify properly whether the requirements of conditions mentioned in clauses (a) to (e) of Section 15 of the Act were satisfied.
It further appears from the evidence adduced by the respondent that after taking solemn affirmation she stated that she was aged 24 years on the date of deposition i.e. 24th May, 2001 whereas the alleged marriage was held on 21st June, 1995 and the same was registered on 23rd August, 1995. As pointed out by a Division Bench of this Court in the case of Monoranjan Das Gupta vs. Suchitra Ganguly and others reported in 1988(1) CHN 219, the name, parentage, residence, age and profession of a witness stated at the beginning of the deposition after taking solemn affirmation form part of his evidence and those statements are binding upon him. However, if those are recorded before taking solemn affirmation, those will not form part of evidence. Therefore, according to her own statement made in this case after taking solemn affirmation, she was aged 18 years at the time of registration of the alleged marriage. According to condition (d) mentioned in Section 15 of the Act, the parties should complete the age of twenty-one years at the time of registration of the marriage in terms of Section 15. Therefore, the requirement of condition (d) of Section 15 was also contravened.
In this case, the registration being done in contravention of clauses (a) and (d) of Section 15, the Court should have simply declared that the registration was of no effect as provided in Section 24(2) of the Act.
Once it is held that the registration was of no effect being in contravention of clauses (a) and (d) of section 15, the Matrimonial Court constituted under the provisions of the Special Marriage Act dealing with an application under Section 24 of the Act loses its jurisdiction to grant any relief even under Section 25 of the Act for the simple reason no "deemed marriage"
under the Act has been proved to in existence in terms of Section 18. The opening phrase of Section 25 gives authority to the Matrimonial Court to exercise power under that section only to the marriages which have been solemnized under the Special Marriage Act. If the registration is declared to be of no effect, the Matrimonial Court under the Act is incapable of exercising its power under Section 25. At this stage, we are quite conscious of the decision of a division bench of this court in the case of Sm. Lagna Bhattacharjee vs. Shyamal Bhattacharjee reported in AIR 1975 Cal. 6 where the said Division Bench went to the extent of holding that the provision of Section 25 of the Act is applicable only to the marriages solemnized direct under the Act but not to the "deemed marriages" within the meaning of Section 18. As in this case, we have already held that there is absence of conditions (a) and (d) of Section 15 in the facts of the present case, there cannot be even a "deemed marriage" under the Act, and consequently, we refrain from entering into the question whether the benefit of Section 25 can be availed of by the parties to a "deemed marriage" under the Act.
We, therefore, hold that in the facts of the present case, the appellant is only entitled to relief in terms of Section 24(2) of the Act by way of a declaration that the purported registration of the marriage reflected from Exht.-A is of no effect as it has been established from the materials on record that the conditions
(a) and (d) of Section 15 of the Act were absent.
The judgement and the decree passed by the learned Trial Judge are thus set aside and we pass a declaration mentioned in the preceding paragraph of this judgement. The appeal is allowed to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Rudrendra Nath Banerjee, J.)