Madhya Pradesh High Court
Rekha Baiya vs Girdharilal Indole on 17 January, 2019
1 F.A. No.295/2018 &
F.A. No.308/2018
The High Court of Madhya Pradesh
F.A.No.295/2018
(Smt. Rekha Baiyan Vs. Shri Girdharilal Indole)
&
F.A.No.308/2018
(Smt. Rekha Baiyan Vs. Shri Girdharilal Indole)
6
17.01.2019.
Shri B.K. Upadhyay, Advocate for the appellant.
Shri Vijay Nayak, Advocate for the respondent.
Heard.
Both appeals are filed by the appellant/wife. Application under Section 11 of Hindu Marriage Act, 1955 for declaring the marriage void has been filed by the wife and application under Section 9 for Restitution of Conjugal Rights has been filed by the husband before the Family Court, Hoshangabad (M.P.). Application filed under Section 11 by the wife has been dismissed while application filed under Section 9 by the husband has been allowed.
It appears that all is not well in the manner in which marriage has taken place and also the manner in which judgment has been passed by the trial Court. The acquaintance of the husband as a driver of Auto, who was taking the girl to school and thereafter as per the things that transpired on record, it is the boy with the assistance of two persons taken the girl to Arya Samaj and performed the marriage as per the custom of Arya Samaj. However, the plea of the girl is that she was taken in Auto alongwith two other persons and did not 2 F.A. No.295/2018 & F.A. No.308/2018 know about the consequence of performance of marriage at Arya Samaj Mandir and there is no consenting photographs of her. However, the respondent forcibly made her to participate in the proceedings of marriage. Accordingly, application under Section 11 was filed for dissolution of marriage. However, according to the husband as per Hindu Arya Samaj custom marriage has been solemnized, therefore it cannot be quashed, as such he filed an application under Section 9 for Restitution of Conjugal Rights.
It transpired from the record that the boy is a Auto driver, in which girl was traveling to school every day and it also appears that he was doing carpentry work. The acquietence of the girl with a boy in the adolescent age advantage of which, could have been taken by the boy, which is not known as per the plea of victim. It appears that the burden has been shifted on the girl by the trial Court, instead burden is thrown on the boy to establish the statement. Initially trial Court has committed fundamental mistake in throwing burden of the marriage. In this regard, it is pertinent to note that the Division Bench of this Court in Writ Appeal No.385/2016 alongwith other connected matters disposed of on 27.06.2017 in the case of Arya Samaj, Madhya Bharat Arya Pratinidhi Sabha Vs. State of Madhya Pradesh and Others, regarding the performance of the marriage as per the Arya Samaj custom, has held as under:-
"In the event bride and bridegroom present themselves before the management of the Arya Samaj Mandir with applications for solemnization of marriage as per Arya Samaj rites and rituals, it shall be the duty of the management to first issue notice affixing photographs of the bride and bridegroom to the parents/families of both at the declared address and also affix such notice in that behalf on the notice board of the Mandir inviting 3 F.A. No.295/2018 & F.A. No.308/2018 objections, if any, to ensure that; (i) neither party has a spouse living, (ii) neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable to 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 has been subject to recurrent attacks of insanity, (iii) declarations must contain that the marriage is not performed by fear, threat or coercion; (iv) the male has completed the age of twenty one years and the female the age of eighteen years, and (v) the parties are not within the degrees of prohibited relationship, provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship. A reasonable time of at least seven days be prescribed in the notice."
It transpired that most the ingredients of Arya Samaj is also absent. It is also pertinent to note that parents were not present. There is no notification issued by the management and also photographs were also not affixed on the notice board of bride and bridegroom and most of the fundamental aspects were also absent and moreover reasonable time of seven days notice should have been given. The order of the Family Court in dismissing the application under Section 11 appears to be without application of mind and without looking into the settled principles, as noted in the above judgment. It transpired that in usual course the familiarity developed between the girl and boy since he happens to be driver of Auto, he was taking the girl to school every day, one day conspiracy has been made of taking undue advantage of the victim who dragged her to Arya Samaj and without performing any formalities Arya Samaj also permitted marriage not according to custom, but according to the boy's wish.
4 F.A. No.295/2018 & F.A. No.308/2018It is also pertinent to note that girl is a B.Com graduate and boy is an Auto driver and later on was doing work of carpentry. Though the statement of father of the victim has been recorded and whatever she narrated to her father has been deposed before the Court and it is not that this girl has told about the marriage in advance to her father, but after three months of the incident she narrated the incident. It is not the case that it was in the knowledge of the father prior to the marriage. Moreover the order passed by the trial Court was erroneous and the application filed by the boy under Section 9 of the Hindu Marriage Act, which was allowed without application of mind. In these circumstances, all primary ingredients essential for solemnization of proper marriage has been ignored by Arya Samaj, which is all illegal and vitiated by fraud and without receiving notice and also for want of affixing photographs and as such we do not want to discuss more the way the girl has been cheated. We are of the view that there is no solemnization of marriage according to Arya Samaj and even as per the statement of victim recorded before the Court she has not even stayed for one day with the boy. It is not a valid consent given by the victim girl rather she was forced to go for marriage at the instance of boy before Arya Samaj. The evidence, which has been led by Pandit of Arya Samaj is not according to Arya Samaj custom. We are constrained to hold that the order of the Family Court suffers from illegality and irregularity. Having taken into consideration the order passed by the Division Bench of this court as noted above and further order throwing burden on victim to prove marriage is another illegality, which has been committed by the Family Court. The order of the family Court (Court below) ordering for restitution of Conjugal Rights is 5 F.A. No.295/2018 & F.A. No.308/2018 another illegality, which is liable to be set-aside in the circumstance.
In these circumstances order passed by the Family Court is bad, illegal and without application of mind. In view of aforesaid situation we allow both the appeals filed by the victim girl. We declare the marriage as nullity and set aside order of Restitution of Conjugal Rights. There shall not be any threat by boy to a victim girl. If such event occurs, it shall be brought to the notice of police, who shall take initiative to register case under Sections 363 and 425 of IPC.
We appreciate the cooperation extended by the counsel for the respondent in disposal of the matter.
(Huluvadi G. Ramesh) (B.K Shrivastava)
Judge Judge
Vin**
Digitally signed by VINOD SHARMA
Date: 2019.01.22 16:43:18 +05'30'