Gauhati High Court
Sri Hemendra Kakoti vs Miss Aparna Baruah on 28 November, 2019
Bench: Ajai Lamba, Achintya Malla Bujor Barua
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GAHC010223902018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App. 69/2018
1:SRI HEMENDRA KAKOTI
S/O SRI PUSPENDRA NATH KAKOTI
PS RAHA, PO RAHA, 782103
DIST NAGAON ASSAM
VERSUS
1:MISS APARNA BARUAH
D/O SRI JOY KANTA BARUAH
VILLAGE BAM PARBATIA
PS TEZPUR, DIST SONITPUR,ASSAM, 784150
Advocate for the Petitioner : DR. B N GOGOI
Advocate for the Respondent : MR. K SARMA
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA Date : 28-11-2019 JUDGMENT & ORDER (CAV) (AM Bujor Barua, J.) Heard Dr. B.N Gogoi, learned counsel appearing for the appellant and Mr. K. Sarma, learned counsel appearing for the respondent.
2. The appellant Hemendra Kakoti and the respondent Aparna Baruah had solemnized a marriage before the Marriage Officer, Nagaon on 29.05.2010 and accordingly the Marriage Certificate No.104 dated 29.05.2010 was issued under the Special Marriage Act, 1954.
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3. The Title Suit (M) No.42/2016 was preferred by the respondent wife in the Court of the learned District Judge, Sonitpur at Tezpur praying for a decree that the marriage between them be declared to be a nullity on the ground that the appellant husband by committing a fraud had got the marriage solemnized before the Marriage Officer. According to the respondent wife, she was required to go to Raha for undergoing a Rural Agricultural Work Experience Programme for a period of six months, which was held under the Assam Agricultural University, Jorhat. For the purpose, the brother of the respondent arranged for a rented house through the appellant and in the process she got introduced with him. The appellant introduced himself as a BCA degree holder, but as he had lost all his certificates, therefore, he could not apply for any job.
4. By presenting himself in such manner, the appellant tried to attract the respondent towards him and in the process also required her to provide him with an amount of Rs.25,000/- in order to start a business. Taking advantage of the sympathetic approach of the respondent, the appellant took some signatures of the respondent in some forms and although the respondent had put her signatures, she did not have the knowledge as to for what purpose her signatures were obtained in the forms. But nevertheless, she signed upon on a good faith.
5. In the process, the appellant compelled her to sign the marriage registration before the Marriage Officer at Nagaon and for the purpose, told her that the registration would have no effect till a marriage is solemnized in the socially acceptable manner.
6. The appellant took a stand that he had not fraudulently informed the respondent about his qualifications etc. The appellant also took a stand against the stand of the respondent that the marriage was not consummated by bringing in materials to show that they stayed together in some hotel after their marriage. He also took the stand that both of them had visited his relatives as husband and wife on several occasions. The respondent wife and her brother on the other hand, specifically denied the assertions raised by the appellant as regards the marriage and living as husband and wife.
7. The learned District Judge, Sonitpur by his judgment dated 18.08.2018 arrived at a conclusion that due to a wilful refusal on the part of the appellant, the marriage between the parties held on 29.05.2010 could not be consummated. Accordingly, the marriage between the parties was declared to be a nullity. Being aggrieved, the present appeal has been preferred.
8. The learned District Judge was also of the view that neither the appellant husband nor any member of the family came forward and led evidence either oral or photographic that the customary Page No.# 3/5 practices that are required to be performed when the bride enters the house of the bridegroom after the marriage were performed in the instant case. According to the learned District Judge, the mere evidence of DW-2 being the manager of the hotel where the appellant and the respondent lived together in a room by introducing themselves as husband and wife on the specific dates would not be sufficient to arrive at a conclusion that there was a marriage solemnized between them. Accordingly, the learned District Judge arrived at its conclusion that the marriage between the parties held on 29.05.2010 could not be consummated and as such, a decree of nullity of the marriage was awarded against the marriage solemnized under the Special Marriage Act, 1954 (for short the Act of 1954) vide the Marriage Certificate No.104 dated 29.05.2010 and the Marriage Officer, Nagaon was directed to cancel the said marriage certificate.
9. We have taken note of that the petition filed by the respondent wife Aparna Baaruah was under
Section 25(iii) of the Act of 1954 praying for a decree of nullity of the marriage solemnized on 29.05.2010 under the Act of 1954 vide Marriage Certificate No.104 dated 29.05.2010 on the ground of it having been solemnized in a fraudulent manner. Section 25 of the Act of 1954 is as under:-
"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:
Page No.# 4/5 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."
10. From the above, it is noticed that the jurisdiction to declare a marriage to be nullity under Section 25(iii) of the Act of 1954 would be available when the consent of either party to the marriage was obtained by coercion or fraud. In the instant case, we have taken note of that although the respondent wife had taken a stand that taking advantage of her sympathetic approach towards the appellant husband upon introducing himself as a BCA degree holder, who had lost all his certificates and therefore, could not apply for any job, took some signatures of the respondent in some forms and although she had put her signatures, she did not have the knowledge as to for what purpose her signatures were obtained in the forms, but in the judgment dated 18.08.2018, no conclusion was arrived at by the learned District Judge, Sonitpur as regards any such consent of the respondent wife having been obtained by the appellant husband by coercion or fraud.
11. Hence, from the said point of view, no case could be made out by the respondent wife for an annulment of the marriage under Section 25(iii) of the Act of 1954.
12. On the other hand, the learned District Judge had proceeded with the matter to determine as to whether the marriage between the parties was consummated. Although an additional issue was framed as to whether the marriage was solemnized by coercion or fraud and whether the marriage was consummated, no decision was arrived at by the learned District Judge, Sonitpur as regards the issue as to whether the marriage was solemnized by coercion or fraud. On the other hand, while deciding the additional issue, the learned Court merely arrived at its conclusion that there was no consummation of the marriage between the parties and therefore, the additional issue stood decided against the appellant husband.
13. We again take note of that Section 25(i) of the Act of 1954, provides that a marriage solemnized under the Act, may be annulled by a decree of nullity, if the marriage had not been consummated owing to the wilful refusal of the respondent to consummate the marriage. We have also taken note of that the TS(M) 42/2016 was instituted by the respondent wife under Section 25(iii) of the Act of Page No.# 5/5 1954 and the prayer therein was for a decree of nullity of the marriage for being in contravention of the provisions of Section 25(iii) of the Act of 1954.
14. Firstly, the petition for annulment of the marriage was filed by the respondent wife under Section 25(iii) of the Act of 1954, which pertains to an annulment on the ground that the consent of either party to the marriage being obtained by coercion and fraud and secondly, no evidence on record could be found being led by the respondent wife that the marriage was not consummated owing to any wilful refusal by the appellant husband to consummate the marriage.
15. From both the points of view, the conclusion arrived at by the learned District Judge, Sonitpur that there was no consummation of the marriage between the parties and hence a decree of nullity of the marriage is to be passed, is unsustainable. From the above discussion, it follows that although the suit was filed by the respondent-wife under Section 25(iii) of the Act of 1954, however, the Court below has not returned any finding that the consent of the wife was obtained by coercion or fraud as defined in the Indian Contract Act, 1872.
For the said reason, on this ground, the suit could not have been decreed, and the marriage could not have been annulled under Section 25(iii) of the Act of 1954.
So far as finding recorded by the Lower Court to the effect that marriage had not been consummated, we find no evidence available on record to enable the Lower Court to have arrived at that conclusion. There is no evidence available on record led by respondent-wife that the marriage had not been consummated owing to any wilful refusal by the appellant-husband to consummate the marriage. In such circumstance, the finding recorded by the Lower Court in this regard also is perverse, the same being without any evidence available on record.
16. For the reasons indicated hereinabove, the judgment and decree dated 18.08.2018 of the learned District Judge, Sonitpur in TS(M) No.42/2016 stands interfered with and the same is accordingly set aside.
17. The appeal is allowed as indicated above. Send back the LCR.
JUDGE CHIEF JUSTICE Comparing Assistant