Punjab-Haryana High Court
Vinit Kumar Behl vs Smt. Ruchi on 4 December, 2002
Equivalent citations: (2003)134PLR270
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. This is the husband's first appeal against the order dated 15.2.1997 passed by the learned District Judge, Jind, whereby his petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter to be referred as the Act), for restitution of conjugal rights has been dismissed.
2. The appellant filed a petition under Section 9 of the Act for restitution of conjugal rights by stating that the marriage between the parties was solemnised at Jalalabad City, District Ferozepur on 8.1.1994 according to Hindu rites and ceremonies by way of "Sa-patpadi" and thus he claims that the respondent is his legally wedded wife. It is further stated that after the marriage the parties lived as husband and wife and consummated the marriage at Jalalabad, as well as at Narwana, District Jind, to which place the respondent-wife belongs. It is stated that the parties fell in love and being above the age of 18 years, they got married. However the parents of the respondents were against this marriage and they made every effort to break this marriage. The appellant and his family members are implicated in a criminal case. However, they were acquitted. While the respondent was staying with the appellant at the matrimonial home, about two months earlier to the filing of the petition, her father took her to her parental home on the pretext that her mother wanted to see her. The appellant allowed her to go and since then she has not rejoined his company. The appellant made various efforts to bring the respondent back to rejoin him but she refused. It is in these circumstances that the present petition was filed.
3. Notice was issued in the case and the respondent put in appearance before the learned District Judge. She filed her written statement in which she denied the factum of marriage being solemnised between the parties. It was also stated that the appellant had no cause of action or locus standi to file the petition. It was further stated that the appellant was estopped by his act and conduct to file the petition because he had solemnly affirmed on oath by executing an affidavit dated 30.9.1994 at Jind to the effect that the respondent was never married with him. It was stated that the appellant had filed this false and vexatious petition knowingly and intentionally just to defame, harass and also to burden the respondent with unnecessary costs of litigation. It was stated that the respondent was still unmarried and was residing at Narwana with her parents and she never lived with the appellant as his wife and never consummated the marriage or cohabited with him at Jalalabad or at Narwana. In fact, the appellant studied with the respondent as a class-mate in a Collage at Narwana in the year 1992-93 and as such both were having friendly intimacy with each other being class-mates. The parents of the respondent had engaged her with one Sanjay Jain in 1993 and their marriage was fixed for 25.2.1994. The respondent was not happy with this engagement and requested her parents to cancel the engagement. However, they refused to accede to her request. Therefore, it was just to put pressure on her parents that the respondent went with the appellant for an outing in the early morning of 8.1.1994 and visited Jalalabad, Karnal, Rohtak and then came back to Narwana on 11.1.1994. Taking undue benefit, the appellant got writings from the respondent and her signatures on some blank papers. It is in these circumstances that the appellant deposed the aforesaid affidavit dated 30.9.1994 at Jind. The affidavit was also executed by the father of the appellant on 27/28.9.1994 in this regard at Sonepat. Rattan Lal maternal uncle of the appellant also solemnly affirmed an affidavit on 30.9.1994 at Jind to the effect that no marriage was solemnised between the parties.
4. Replication was filed to the written statement wherein the stand taken in the written statement was denied and that taken in the petition was reiterated.
5. On the basis of the pleadings of the parties, the following issues were framed by the learned District Judge, Jind:-
1. Whether the marriage of the petitioner with respondent was solemnised on 8.1.1994 at Jalalabad City, District Ferozepur (Punjab) as per Hindu rites and ceremonies by way of Sapatpadi? OPP
2. If issue No, I is proved, whether the respondent has withdrawn from the society of the petitioner with reasonable cause and excuse? OPP
3. Whether there is no cause of action in favour of the petitioner? OPR
4. Whether the petitioner has no locus standi? OPR
5. Whether the petitioner has not come with clean hands and as such, not entitled to any relief? OPR
6. Whether the petitioner is estopped by his own act and conduct from filing the present petition? OPR
7. Whether the petition is false and frivolous and as such not maintainable? OPD
8. Relief.
6. Issues No. 1 and 2 were taken up together and decided against the appellant holding that no marriage was solemnised between the parties. Therefore, there was no question of the respondent withdrawing from the company of the appellant without reasonable cause. In respect of issues No. 3 and 4 it was held that in the absence of proof of marriage, the appellant had no cause of action to file the present petition and neither he has any locus standi. Insofar as issues No. 5, 6 and 7 are concerned, it was held that since the onus to prove all these issues was on the respondent and as she has failed to produce any evidence in support of any of these issues, the findings were returned against the respondent. As a result, the petition was dismissed.
7. During the pendency of the appeal in this Court, efforts were made to reach a settlement between the parties. The motion Bench on 29.5.1997 after holding proceedings in Camera and talking to the appellant observed that there does not seem to be any possibility of an amicable settlement at this stage. The appeal was admitted and ordered to be listed for hearing within six months.
8. Thereafter efforts to compromise the matter was also taken up before the Hon'ble Lok Adalat on 26.3.1999, in which it was observed:-
"We have brouched the possibility of compromise.
There are serious allegations. Even the factum of marriage is very much in dispute. There is no possibility of compromise"
9. When this appeal cam up for hearing before this Bench on 13.11.2002, the parties were directed to be present today. The parties were present in Court and the matter was discussed with their respective learned counsel. However, it was found that there was not chance of settlement. Accordingly, the appeal has been heard on merits.
10. I have heard Shri J.S. Virk, Advocate for the appellant and Shri Ashok Aggarwal, Senior Advocate, with Shri Vikram Aggarwal, Advocate, for the respondent and with their assistance gone through the record of the case.
11. The learned counsel appearing for the appellant has contended that the circumstances of the case show that the parties were indeed married and they had been living together as husband and wife and have consummated the marriage. He has further contended that the appellant did not get full and adequate opportunity to lead evidence in support of his case and, therefore, the finding has been returned against him. In any case, it was contended that there is substantial material and circumstances and record to show that a valid and legal marriage was solemnised between the parties. He has referred to the photographs produced on the record which are marked A-1 to A-8 and contends that the same clearly show that the marriage was solemnised between the parties. The said photographs even though not exhibited on the record have been admitted by the respondent in her statement recorded as RW-1. Therefore, it is contended that the admission is the best evidence and no further evidence need be looked into. He has also laid emphasis on the fact that in criminal case i.e. case FIR No. 40 dated 17.1.1994 registered for the offence under Section 365, 366, 342 and 506 IPC at Police Station City Narwana, the entire family of the appellant was acquitted by the learned Additional Sessions Judge vide judgment dated 3.10.1994 which is Ex.P-2 on the record. Besides, he has referred to the affidavits Ex.R-1, R-2 and R-3 deposed by the appellant, his father Sarwan Kumar Bahl and his maternal uncle Rattan Lal respectively in which deposition has been made to the effect that there was no marriage between the parties. On the strength of these affidavits, it is contended that in case there was no marriage, there was no need to execute such affidavits. In these circumstances the learned counsel for the appellant prays that the appeal and his petition under Section 9 of the Act be accepted after setting aside the impugned judgment and decree.
12. On the other hand, the learned counsel appearing for the respondent contended that the respondent just had acquaintance with the appellant and no marriage was ever solemnised between the parties. It was a case of momentary infatuation of a young girl during her college days. Taking advantage of this appellant is unnecessarily harassing her. With respect to the photographs, it is contended that the same have not been proved on record. Therefore, they are inadmissible in evidence and are not liable to be looked into. It is further contended that in any case the respondent had explained that the photographs were taken only to surprise her parents as she did not want to marry one Sanjay Jain with whom her parents were wanting her to get married. Besides, he contends that the marriage ceremony has not been proved and, therefore, it cannot in any case be said to be a valid marriage under the law. Therefore, he prays that the appeal be dismissed.
13. I have considered the contents urged by the respective counsel for the parties. The question that really needs to be considered is whether there has been a valid marriage between the parties. In order to prove his case, the appellant has appeared as PW-1 before the learned Trial Court and stated that the respondent is his wife and he was married to her on 8.1.1994 at Jalalabad, District Ferozepur at the house of his maternal uncle Rattan Lal Kukkar according to Hindu rites and ceremonies. He further deposed that the marriage was consummated at Jalalabad as well as Narwana and that at the time of marriage Pandit Khem Chand, Photographer and his maternal uncle Rattan Lal Kukkar, his maternal grandfather and other members of the family were present, After the marriage, the parties went to Narwana and resided as husband and wife. Then father of the respondent-wife came to their house at Narwana and took the respondent on the ground that they will bless their daughter as per their own customs prevailing in their community. Thereafter the respondent got a criminal case registered against the appellant under the pressure of her parents. In the said case besides the appellant four family members including father, mother and two maternal uncles were charge-sheeted. The police pressurised him and obtained all the love letters written by the respondent because they were class-fellows. It was also stated that the police also obtained negatives and photographs of the marriage. This was objected to being beyond the pleadings.
14. In his deposition, the appellant, however, is silent with regard to the actual ceremonies of the marriage which took place. He has though stated that the marriage was performed at the house of his maternal uncle at Jalalabad and some neighbors and maternal uncles had attended the marriage. He states that approximately 25 persons were present at the time of marriage of the parties. He also states that a Pandit and a Photographer were arranged but he does not know whether the said Pandit is still residing at Jalalabad or not. As regards the Photographer he states that he tried to contact him but he was not available. His statement was recorded in the learned trial Court on 12.9.1996 and apart from his own statement he produced no evidence. However, on the same day he made a statement that he had tried level best to bring his parents as well as maternal uncles for being produced as witnesses in the Court and they had promised to come and depose but none of them had turned up. He also stated that the Court had allowed him to sit for about 40 minutes with the respondent in order to persuade her to resume his company but the respondent had flatly refused to do so. It was then stated that in the interest of justice one more opportunity be granted for producing the evidence in the Court. In case he failed to produce the evidence on the next date of hearing, then his evidence may be deemed as closed. On his statement, the learned District Judge passed on order that it was admitted by the appellant that the respondent was not prepared to resume his company at all and that no other evidence of the appellant was present. It was further recorded that on the previous date of hearing last opportunity was granted and it was ordered that the petitioner would produce his entire evidence in the court at his own responsibility failing which his evidence would be deemed as closed. Thereafter the statement of the appellant was referred regarding that he tried his level best to bring his parents as well as maternal uncle and they promised to come but none of them had turned up. In these circumstances, the case was adjourned to 27.9.1996 and in the interest of justice, one more opportunity was granted. On 27.9.1996 no evidence of the appellant was present. The appellant made efforts to get an adjournment and an application was filed for this purpose on the ground that the counsel for the petitioner was away to Rohtak. It was further recorded that it was mentioned in the application that no witness was present and that they were not prepared to come and, therefore, summons of the witnesses should be issued. The learned District Judge after recounting the facts and opportunities availed of by the appellant in detail, ordered that the appellant was not entitled to any further opportunity as per his own statement made on 12.9.1996 and his evidence was closed.
15. The respondent in her evidence got her own statement recorded as RW-1. The statement of Sh. Puran Singh Advocate, Notary Public, Jind was recorded as RW-2 and Jitender Chowdhary as RW-3. After recording the said statements, the evidence was closed. Thereafter the appellant made a statement on 6.2.1997 that he did not want to address any arguments in the case and that the first of all his four applications moved by him on the previous date of hearing be decided. He further stated that he would address arguments in the case only after the decision of these applications. No other evidence except that mentioned in these applications was to be produced by him. Lastly that his rebuttal evidence may be treated as closed except the one mentioned in the application. The District Judge has considered the four applications in his order under appeal and observed that sufficient opportunities were granted to the appellant to produce his evidence. Summons were issued Dasti as well. The petitioner under took to produce evidence in the Court at his own responsibility but failed to do so. Vide order dated 15.2.1997 under appeal, the four applications were dismissed.
16. Learned counsel appearing for the appellant has, however, argued that the four applications ought to have been allowed and the matter is liable to be remanded to the learned trial Court for fresh decision.
17. I have considered this submission and after going through the material on record and the reasons recorded by the learned District Judge, I find that many opportunities were given to the appellant to lead his evidence. Besides, the appellant was given adequate and full opportunities to cross-examine the respondent. A detailed order was passed by learned District Judge on 27.9.1996 while closing the evidence of the appellant. Therefore, I find that the prayer of the petitioner for granting him still further opportunity to lead evidence and grant the relief in the four application is not warranted. The order sheet and more particularly the orders passed on 12.6.1996, 13.6.1996, 5.8.1996, 9.8.1996, 12.9.1996 and 27.9.1996 as also the statements of the appellant recorded on 12.9.1996 i.e. a separate statement recorded on 6.2.1997 in the trial Court clearly show that sufficient and adequate opportunities were given to the appellant, Therefore, the order of the learned District Judge dismissing the four applications is correct and is accordingly upheld,
18. Coming to the merits of the case, learned counsel for the appellant to show that there was valid marriage between the parties has laid emphasis on the statement of the respondent Ex.P-1 recorded in the criminal case, a reference to which has been made above. In the said statement the respondent appearing as PW-1 stated that she passed B. Com. Examination about two years from K.M. College, Narwana and she developed friendship with the appellant. Thereafter she got engaged for marriage with some other boy. She went with the appellant on 8.1.1994 for an outing. They went to Karnal, Rohtak, Jalalabad and then returned to Narwana. She further stated that under the pressure from the relatives and parents a case was got registered. The learned Public Prosecutor in the aforesaid criminal case at that stage got the witness declared hostile and she was allowed to be cross-examined. The learned counsel for the appellant contended that resiling of the respondent from her statement recorded by the police goes to show that she had every intention of living with the appellant. The statement of the respondent was recorded by the learned Additional Sessions Judge, Jind on 3.10.1994. However, the learned counsel for the respondent contends that probably the respondent resiled from her statement as she did not want to pursue the criminal case against the appellant and his family members and it is on this account that the appellant and Ors. were acquitted by the learned Additional Sessions Judge, Jind, for the offence attributed to them vide judgment dated 3.10.1994, which is on record as Ex.P-2. The complaint which was filed by the respondent, in fact involved the appellant and his family members. The details of the complaint on the basis of which case FIR No. 40 of 17.1.1994 for the offence under Sections 365, 366, 342, 506 IPC was registered at Police Stations Narwana has mentioned in judgment dated 3.10.1994 Ex.P-2 of the learned Additional Sessions Judge, Jind, that in pursuance of the said judgment the appellant and his other family members were acquitted.
19. I have given my thoughtful consideration to this aspect and I am of the view that mere retraction from the statement made to the police in the criminal trial in which the appellant and other family members were accused, would not go to establish the fact of marriage between the parties. It is pertinent to note that in the statement of the respondent recorded in the criminal trial and in the proceedings in the present case, the fact of her having performed Saptapdi ceremony with the appellant was not put to her. The suggestion put was, that on reaching Jalalabad her marriage was performed with the appellant as per Hindu rites and that photographs marks A-1 to A-8 were taken. This suggestion was denied. It is, however, stated by her that she is depicted in the photographs with either Vinit Kumar or other person. However, no marriage ever took place and these photographs were taken in order to put pressure on her parents to agree to cancel her proposed marriage with Sanjay Jain.
20. The question that requires to be considered is that where marriage is denied, what is the standard of proof required to prove the factum of marriage under the Act. Section 7 of the Act relates to ceremonies for a Hindu marriage and reads as under;-
"CEREMONIES FOR A HINDU MARRIAGE- (1) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (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."
A perusal of the above provision shows that to constitute a valid Hindu Marriage, there must be a solemnisation in accordance with the customary rites and ceremonies include the Saptapadi i.e. 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. Customary rites in the present case are not relevant as it is case of the appellant that the marriage was performed by way of sapatapadi. However, in view of the provisions of Section 7(2) of the Act, referred to above, saptapadi completes the marriage when seventh step is taken and then the marriage becomes complete and binding. Late Dr. Paras Diwan, a renowned scholar and jurist of Hindu Law in his work on 'Hindu Law', Second Edition, 2002 refers to the saptapadi ceremony of marriage at pages 620-621 as under;-
"The sapatadi is the most material of all the nuptial rites, and marriage becomes complete and irrevocable on the completion of the seventh steps. According to Manu: The nuptial texts are a certain rule in regard to wed-lock; and the bridal contract is known by the learned to the complete and irrevocable on the seventh step of the married pair, hand in hand after those texts have been pronounced. Other stages are to the same effect; so are the commentators and judicial pronouncements.
The last ceremony that is performed at the bride's place is known as uttaravivaha. After the completion of this ceremony by the bride is conducted in solemn procession to her husband home where several hymns are recited.
In most of the Hindu marriages performed in average Hindu homes, these ceremonies - or at least most of them-are performed at the time of the solemnisation of marriage, though only in a few marriages the sacred hymns and verses are receipted by the bride and the bridegroom. The function of recitation of hymns and sacred texts is performed by the priest officiating at the marriage. It seems to be clear that the chanting of the hymns, mantras, verses and sacred texts is not essential in modern Hindu law for the validity of a Hindu marriage.
The question is : of the above ceremonies which are absolutely essential for the valid solemnisation of a Hindu marriage under the modern Hindu law?
The answer to the above question is not simple. The judicial pronouncement do not clearly lay down which of the ceremonies are essential for the valid performance of a Hindu marriage. However, there need not be any doubt about one ceremony, viz, the saptapadi which is absolutely indispensable for the performance of a Hindu marriage by the Shastric rites."
21. This Court in Kunta Devi v. Siri Ram Kalu Ram, A.I.R. 1963 Punjab 235, where the validity of marriage was challenged even though it was alleged to be in accordance with vedic rites, it was held that there must be proof of panigraha and saptapadi ceremo nies and that there was no presumption that the essential ceremonies were performed. In the said case a petition for restitution of conjugal rights was filed by the wife against her husband. The wife was a young girl living at Ambala with her mother and brother. According to the husband, she had become pregnant from him had been having a liaison for some time previously. The case of the husband was that their marriage was solem nised accordingly to vedic rites by a Pandit of the local Arya Samaj at Dina Nagar and thereafter a male child was born. The wife in her written statement denied the allegations and stated that the husband had abducted her from Ambala against her will and took her to Gurdaspur where he somehow or the other managed to go through the bogus and false proceedings in collaboration with Arya Samaj workers. She also alleged that undue pressure was put upon her for getting her statement to which she was not a willing party. The contention was that performance of the marriage was not genuine and no relations of the parties were present. This Court after referring to the evidence and material on record observed and concluded as follows;-
"My attention was drawn to Rampiyar v. Deva Ram, A.I.R. 1923 Rang. 202, where it was held that when in a suit for restitution of conjugal rights the validity of the marriage itself is disputed it is not enough to find that the marriage and ceremonies necessary to constitute a legal marriage in the particular case were performed; the Court must find specifically what these rites and ceremonies are and whether they were performed. A similar view was taken by a Division Bench of the Calcutta High Court in Swajamoni Dasi v. Kali Kanta Das, I.L.R. 28 Cal. 37. The Court observed-
In this case the validity and legality of the marriage is one of the most essential points in issue and we cannot hold that we are entitled to presume from the mere finding that the marriage was celebrated that all the rites and ceremonies were performed. On this point, the lower Courts should have come to a distinct finding.
Reliance was placed upon Deivanai Achi v. Chidambaram Chettiar, A.I.R. 1954 Mad. 657, for the proposition that the essential elements of a marriage according to Hindu law were Panigrahana and Saptpadi. It was also stated that ceremonies are essential in the case of all the eight forms of marriage and this rule applies even to Sudras.
Section 7 of the Hindu Marriage Act lays down that where such rites and ceremonies include the Saptapadi, the marriage becomes complete and binding when the seventh step is taken. There is no proof on the record of this cases that the rite of Saptpadi, or as a matter of that, other essential rites, were performed, and I am not disposed to assume their performance from the bald statement of Pt. Dharam Pal that the marriage was according to vedic rites."
22. It is evident from the above rule laid down in Kunta Devi's case (supra) that no presumption can be drawn that essential ceremonies were performed and there must be proof of Panigrah and Saptapadi to constitute a valid marriage. In other words there has to be some material and cogent evidence on record from which an inference can be drawn that the ceremony of saptapadi for constituting a valid marriage was performed. The same cannot be deduced from the mere surrounding and attending circumstances. However, it is to be kept in mind that the standard of proof of such a marriage for the purpose of proceedings under the Act is not as strict as it required for trial for an offence of bigamy under Section 494 of the Indian Penal Code. The Court can draw inference and decide the factum of marriage on the basis of preponderance of probalities as in civil cases and not beyond a reasonable doubt as in criminal cases.
23. In the case in hand as already referred above, the appellant has primarily adverted to the statement of the respondent where she resiled from her earlier statement. Besides, he has placed strong reliance on the photographs mark A1 to A8 and stated that the respondent had admitted these photographs. In one of the photographs, it is shown that the parties are garlanding each other and in another photograph it is shown that they are sitting in front of the sacred fire and in another photograph they are standing in a manner as they were to go round the fire. The photographs in my view and as also held by the learned District Judge, are not sufficient to prove the factum of marriage, especially when the same are not exhibited and proved on record in accordance with the Evidence Act. The appellant has taken no steps to lead secondary evidence in order prove the said photographs. The photographs are not per se admissible. A Division Bench of the Bombay High Court in the case of Laxman Ganpati Khot and Ors. v. Anusuyabai and Anr., A.I.R. 1976 Bombay 264 held as follows;-
"It is only when the person who takes a photographs and develops it into a negative himself comes into the box and deposes to both these facts, that a negative become admissible in evidence. As far as the enlarged print is concerned, the position is still worse for no print or enlargement can be admitted in evidence without its negative being produced and proved in the manner indicated above."
Therefore the photographs are not to be read in evidence. The respondent appeared as RW- and stated that she had been depicted in the photographs with either the appellant or with other persons. However, she denies that such marriage ever took place. She states that the photographs were taken to put pressure on her parents to agree to the cancellation of her proposed marriage with Sanjay Jain. Therefore, the photographs in any case do not amount to proof of marriage. The so called admission can in no circumstances be constructed to be conclusive as to the factum of marriage. The photographs at the most are only a piece of evidence and the weight to be attached to them is dependent on the circumstances under which they were taken. They can be shown to be erroneous or untrue. In my view, even if there has been an admission of the photographs, the same in the circumstances noted above, do not amount of proof of marriage between the parties. There is only the statement of the appellant who appeared as PW-1 that he was married to the respondent at the house of his maternal uncle according to Hindu rites and ceremonies. His mere bald statement without any other evidence is not sufficient to hold that a marriage was solemnised between the parties. As held by this Court in Kunta Devi's case (supra) that where the marriage is disputed it is not enough to find that the marriage took place leaving it to be presumed that the rites and ceremonies necessary to constitute a legal marriage in the particular case were performed. Therefore, in the absence of cogent evidence in this regard, it is difficult to hold that the Saptapadi ceremony of marriage L.s contended by the appellant was performed so as to constitute a valid marriage between the parties.
24. The respondent, on the other hand, has denied the marriage and has produced and exhibited on record affidavits of the appellant dated 30.9.1994 Ex.R-1, of Swaran Kumar Ex.R-2 and that of Rattan Lal Ex.R-3. In all these affidavits the deponents including the appellants, have stated that no marriage was solemnised between the parties. In the face of this evidence on record, I am of the view that the appellant has failed to prove the marriage of the respondent with him. Therefore, once it is held that there is no marriage between the parties, the petition for restitution of conjugal rights is not maintainable. Consequently, the judgment and decree under appeal are affirmed and the appeals dismissed. However, the parties are left to bear their own costs.