Calcutta High Court (Appellete Side)
Munmun Ghosh vs Tarun Kumar Malik on 18 November, 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. Bhaskar Bhattacharya, Acting Chief Justice
And
The Hon'ble Mr. Justice Prasenjit Mandal
F.A. No. 216 of 2008
Munmun Ghosh
Versus
Tarun Kumar Malik
For the Appellant-Wife: Mr. Shyamal Chakraborty,
Mr. Swarup Kumar Ghosh.
For the Respondent-Husband: Mr. Swatarup Banerjee,
Mrs. Nabanita Deb Roy.
Heard on: 22.10.2009 & 29.10.2009.
Judgment on: 18th November, 2009.
Bhaskar Bhattacharya, ACJ.:
This appeal is at the instance of an applicant under Section 25 of the Special Marriage Act, 1954 and is directed against a judgment and decree dated 31st March, 2008 passed by the Additional District Judge, Fourth Court, Burdwan, in Matrimonial Suit No.2 of 2008 thereby dismissing the suit on the ground that the appellant failed to prove the ingredients of Section 25 of the Special Marriage Act for getting a decree for declaration of nullity of the marriage between the parties.
Being dissatisfied, the wife has come up with the present first appeal. The appellant before us filed in the Court of District Judge, Burdwan, on 10th October, 2004 a suit, being Matrimonial Suit No.220 of 2004, under Section 25 of the Special Marriage Act for annulment of the marriage dated 19th August, 2004 held in accordance with the Special Marriage Act on the ground that the marriage between the parties was never consummated due to wilful refusal on the part of the respondent.
The case made out by the appellant in the said application was that the appellant was a student of the respondent who used to hold private coaching classes in a tutorial home. The parties had fallen in love with each other and the respondent gave her to understand that by service as a teacher and also by way of such private tuitions, he used to earn about Rs.6,000-7,000/- a month and had his own house, and would be able to live as husband and wife in peace if the appellant agreed to marry him. The appellant believed the statements of the respondent and consequently, were married on 19th August, 2004 under Section 13 of the Special Marriage Act. After marriage, the respondent asked the appellant to stay with her father with assurance that within a week, he would take her to his own house where they would start living as husband and wife. After such marriage, the respondent did not contact the appellant any further and as such, she of her own made further enquiry and came to know that the respondent had neither any house of his own nor was he a teacher of any school and in fact, he was brought up in his maternal uncle's house. Apart from private tuitions he had no further income.
In spite of knowledge of such fraud, as the appellant deeply loved the respondent, she was willing to stay as husband and wife and requested him to take her to his residence; but on 16th September, 2004 the respondent demanded a sum of Rs.2 lakh from the appellant by asking her to bring that amount of money so that he could purchase a land and construct a house and she was further told that if she was unable to procure that amount of money, it was not possible for him to stay as husband and wife with the appellant.
In view of such fact, the appellant was constrained to file the application under Section 25 of the Special Marriage Act.
The suit was contested by the respondent by filing written statement thereby denying the material allegations made in the application for annulment of marriage and according to the respondent, being fully conscious about the condition of the respondent, the appellant agreed to marry him. It was further contended that the marriage had already been consummated in the house of the father of the respondent. It was denied that he ever claimed Rs.2 lakh as falsely alleged in the application.
At the time of hearing of the suit, the appellant and her father deposed in support of the application while the respondent and two of his students, who figured as witnesses to the marriage before the Marriage Registrar, deposed in favour of the respondent.
As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein has dismissed the application on the ground that the appellant failed to prove the ingredients of Section 25 of the Special Marriage Act.
Mr. Chakraborty, the learned advocate appearing on behalf of the appellant, has strenuously contended before us that the learned Trial Judge totally overlooked the materials on record that the respondent failed to prove that the parties lived together at any point of time as husband and wife. Mr. Chakraborty points out that the respondent tried to make out a case that the parties lived together first in a rented house, then in the father's house of the respondent, and ultimately, in the house of the maternal uncle of the respondent, but neither the father nor the maternal uncle nor the landlord of the rented house gave evidence in support of such statement. Mr. Chakraborty contends that his client has specifically alleged that the husband never took her to his residence for living as husband and wife and after the marriage, he refused to accept her as wife unless an amount of Rs.2 lakh was paid.
Mr. Banerjee, the learned advocate appearing on behalf of the respondent, on the other hand, has opposed the aforesaid contentions of Mr. Chakraborty and has contended that in the facts of the present case the learned Trial Judge from the materials on record having accepted the defence version that the marriage was consummated, this Court should not interfere with the finding recorded by the learned Trial Judge based on appreciation of the evidence on record. Mr. Banerjee submits that it was preposterous to contend that even in course of two months after the love-marriage, the marriage was not consummated. He, therefore, prays for dismissal of the appeal.
Therefore, the only question that arises for determination in this appeal is whether the learned Trial Judge, in the facts of the present case, was justified in dismissing the application under Section 25 of the Act.
In order to appreciate the respective submissions of the parties it will be profitable to refer to the provisions contained in Section 25 of the Special Marriage Act which is quoted below:
"25. Voidable marriages.--Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if,--
(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or
(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or
(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872).
Provided that, in the case specified in clause (ii), the court shall not grant a decree unless it is satisfied,--
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(b) that proceedings were instituted within a year from the date of the marriage; and
(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:
Provided further that in the case specified in clause (iii), the court shall not grant a decree if,--
(a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or
(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered."
In the case before us, although the appellant alleged that consent to marriage was obtained by practising fraud regarding the financial and the wealth status of the respondent, the appellant did not press such ground and wanted to have a decree of nullity of the marriage on the ground that due to wilful refusal on the part of the respondent the marriage was not consummated.
We, therefore, proceed to consider whether, in the case before us, the appellant has been able to prove such case.
The allegation that the marriage was not consummated cannot be proved by giving any positive evidence whereas the fact that the marriage had been consummated can be proved by producing various types of positive evidence. In this case, the wife has specifically asserted that immediately after registration of the marriage she went back to her father's house and the husband assured her that he would bring her to his house for staying as husband and wife after a few days. The husband, on the other hand, contended that immediately after registration of the marriage, she took the wife first to his father's rented accommodation, and thereafter stayed with the wife in his maternal uncle's house at village Srerampore. According to the husband, about one month after the marriage, the wife's father took her back with a promise to make arrangement for social marriage.
The wife and her father have deposed specifically denying such assertion of the husband. Therefore, in this case, the husband could by producing positive evidence surely prove that after the marriage, they first went together to his father's rented accommodation where they lived as husband and wife for sometime and thereafter, they shifted to his maternal uncle's house at village Srerampore. Such fact could be easily proved by bringing the father or the landlord of the father or the other members of the family of the husband or the maternal uncle of the husband in whose house they lastly lived as husband and wife. If a newly married bride arrives at her father-in-law's house, it is customary and at the same time natural that there will be at least short ceremony by which the bride will be welcome in her matrimonial home by the female folks of the husband's family and those facts could be proved by deposition of the witnesses who were present on that occasion and could also be proved by photograph of such ceremony. In the case before us, neither the father nor the maternal uncle nor any other members of the family of the husband came forward to support the husband nor was any photograph of such ceremonial occasion after arrival of the new bride in a family was produced. Only two witnesses who were examined on behalf of the husband were those two persons who were the witnesses to the registration of the marriage and those two persons were the students of the husband. Those two persons are the resident of a different place and they also could not, in cross-examination, disclose the date when the father of the wife took her back although alleged such fact in their affidavit-in-chief. It is not even their assertion that they joined in any ceremonial occasion in the father's or the maternal uncle's house of the husband. We, therefore, find that those two witnesses, at any rate, cannot be the witnesses of consummation of marriage between the parties.
We, thus, find that the learned Trial Judge was not justified in arriving at the finding that the marriage was consummated which was based on mere surmise and conjecture and not based on any probable evidence on record. No reasonable person within the meaning of the definition of "proved" appearing in Section 3 of the Evidence Act would consider the evidence adduced on behalf of the husband as the sufficient evidence of consummation of marriage.
We, therefore, hold that in this case, after the registration of the marriage, in spite of repeated request of the wife the husband refused to take the wife to his house and consummate the marriage and, therefore, it is a fit case for grant of decree for declaration that the marriage was a nullity.
We, accordingly, set aside the judgment and decree passed by the learned Trial Judge and allow the application under Section 25 of the Special Marriage Act by declaring the marriage between the parties to be nullity on the ground that due to wilful refusal on the part of the respondent, the marriage between the parties held on 19th August, 2004 could not be consummated.
The appeal is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, ACJ.) I agree.
(Prasenjit Mandal, J.)