Karnataka High Court
R Kubendrappa S/O K Rudrappa vs G R Shashikala on 3 December, 2021
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL No.8965/2011 (SMA)
BETWEEN:
R KUBENDRAPPA
S/O K RUDRAPPA
(PARTY-IN-KPERSON)
B.A GRADUATE, (ARTS)
AGED ABOUT 54 YEARS
R/AT DUMMY (AT AND POST)
KOLALKERE TALUK
CHITRADURGA DISTRICT.
...APPELLANT
(BY SMT. SARASWATHI, ADVOCATE)
AND:
G.R SHASHIKALA
D/O G RUDRAPPA
AGED ABOUT 51 YEARS
B.A GRADUATE (PSYCHOLOGY)
R/AT SIRIGERE (AT AND POST)
OPP. BOYS PRIMARY SCHOOL
CHITRADURGA TALUK AND DISTRICT.
...RESPONDENT
(BY SRI B.K.S SANJAY, ADVOCATE)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 39(1) OF THE JUDGMENT AND DECREE DATED 30.06.2011
PASSED IN M.C NO.40/2009 ON THE FILE OF II ADDITIONAL SENIOR
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CIVIL JUDGE. CHITRADURGA, DISMISSING THE PETITION FILED
UNDER SECTION 25(I) (III) OF SPECIAL MARRIAGE ACT FOR DECREE
OF NULLITY.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
HEARING THIS DAY, K.S.HEMALEKHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present Miscellaneous First Appeal is filed under Section 39(1) of the Special Marriage Act, 1954, assailing the judgment and decree dated 30.06.2011 passed in M.C.No.40/2009 on the file of the II Additional Senior Civil Judge, Chitradurga, dismissing the petition filed by the appellant/husband under Section 25(i) and (iii) of the Special Marriage Act, 1954.
2. The appellant/husband (hereinafter referred to as "husband" and respondent/wife would be referred to as "wife" for the sake of brevity).
3. The husband filed a petition under Section 25(i) and (iii) of the Special Marriage Act, 1954 (hereinafter referred to as "the Act" for short), to annul the marriage solemnized on 06.08.1997, by a decree of nullity. 3 The husband pleaded that on 15.12.1985, the marriage was performed at Chitradurga as per the rites and customs prevailing in their community. After the marriage, they were living together as husband and wife at Bengaluru and out of the wedlock, they have three children, two male and one female. However, due to total incapability and serious illness of the wife, as she could not perform her marital obligations with the husband, on the advise of elders, they filed mutual consent petition for divorce under Section 13B of the Hindu Marriage Act, 1955 before the Family Court, Bengaluru, in M.C.No.488/1994 which came to be allowed by the judgment and decree dated 20.02.1995. It was further contended by the husband that on 28.01.1996, the wife along with other persons forced him to tie tali to the neck of his own sister's daughter-Latha. However, the said marriage between the husband and Latha did not last for long and that too ended up in divorce.
4. It was further contended that on 06.08.1997, the brother and sister's husband of the wife by putting 4 threat to the life of the husband performed his marriage with the wife again at the Sub-Registrar's office, Basavanagudi, Bengaluru. In this regard, the husband lodged a complaint with the Kumaraswamy Layout Police Station. Though mutual consent divorce was passed between the husband and wife, due to life threat which was put on husband, he was forced to marry the wife again. It was alleged that, on 26.06.2002, the wife along with her brother assaulted the husband with deadly weapons and caused grievous injuries and thus, the husband lodged private complaints with the Bharamasagara Police Station in C.C.No.775/2002 and C.C.No.678/2006 and they are pending for adjudication. It was further contended that since last 15 years there is no cohabitation and that the husband is residing in the same house along with the wife and due to physical and mental harassment caused by the wife, the husband filed petition seeking nullity of marriage.
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5. The wife appeared and filed her objections, specifically contending that though initially her marriage with the husband was performed on 15.12.1985, the marriage did not last long and same ended up in mutual consent divorce. She further contended that mutual consent divorce was obtained fraudulently by the husband by harassing her. The wife contended that again marriage was performed and registered in the office of the Sub- Registrar, Basavanagudi, Bengaluru, on 06.08.1997 at the request of the husband himself and therefore, prayed for dismissal of the petition.
6. The Trial Court, considering the rival contentions urged by the parties, framed the following points for consideration.
1. Whether the petitioner proved that, his consent was obtained by coercion, fraud and by putting threat to his life by respondent and her followers and performed his marriage along with respondent on 06.08.1997, accordingly this marriage is voidable marriage?
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2. Whether the petitioner is entitled for decree of nullity as prayed for?
7. The husband, in order to prove his case got examined himself as P.W.1 and examined two witnesses as P.Ws.2 and 3 and got marked the documents Exs.P.1 to P.72. The wife examined herself as R.W.1 and got marked the documents Exs.R.1 to R.10.
8. The Trial Court, on hearing the learned counsel for both the parties and on going through the materials on record, dismissed the petition filed by the husband under Section 25(i) and (iii) of the Special Marriage Act, 1954, with costs. Hence, the present appeal.
9. We have heard the learned counsel for the parties to the lis.
10. Smt.Saraswathi, learned counsel for the husband contended with vehemence that the wife is having permanent disability and she is incapable to perform her marital obligations. The marriage alleged to have been 7 registered on 06.08.1997 before the Sub-Registrar was performed by force, is obtained by fraud and coercion. In view of the mutual consent divorce passed in M.C.No. 488/1994 dated 20.02.1995, the question of remarrying the wife again and registering the said marriage on 06.08.1997 would not arise. Learned Counsel further contended that the medical reports produced by the husband clearly depicts that the wife has undergone medical test and the said medical reports were not taken into consideration while passing the impugned judgment and decree dismissing the petition filed by the husband. Learned counsel further contended that since past 15 years, the parties are living separately and there is no chance of reunion and there are criminal petitions filed by the respondent against the husband and therefore, sought to allow the present Miscellaneous First Appeal.
11. Per contra, Sri B.K.S.Sanjay, learned counsel for the wife supported the reasonings accorded and sought 8 to justify the impugned judgment and decree passed by the Trial Court.
12. In view of the rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration are:
(i) Whether the husband has proved that the marriage solemnized and registered on 06.08.1997 is a nullity in view of Section 25 (i) and (iii) of the Special Marriage Act?
(ii) Whether the impugned judgment and decree passed by the Trial Court in M.C.No.40/2009 requires any interference, in the facts and circumstances of the present case?
13. We have given are thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the papers including the original records carefully.
14. The undisputed facts in the present Miscellaneous First Appeal are that, the appellant and respondent are husband and wife and out of their wedlock 9 which was solemnized on 15.12.1985, three children were born. The marriage earlier had ended up in mutual consent divorce in M.C.No.488/1994 dated 20.02.1995. It is also not in dispute that on 06.08.1997, again, the husband married the wife and the marriage was registered in the office of the Sub-Registrar, Basavanagudi, Bengaluru, and till 2002, the appellant and respondent were residing together as husband and wife. The only allegation of the husband is that the marriage solemnized on 06.08.1997 in the office of the Sub-Registrar after the mutual consent divorce passed by the Trial Court, is performed by force, coercion and fraud and therefore, sought to nullify the marriage.
15. The provisions of Section 25 of the Special Marriage Act, 1954, read 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 willful refusal of the respondent to consummate the marriage; or 10
(ii) the respondent was at the time of the marriage pregnant by some persons 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.
PROVIDED THAT, in the case specified in Cl.(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.11
16. The provisions of Section 25(i) of the said Act depicts that the marriage has not been consummated owing to the willful refusal of the wife to consummate the marriage. In view of Section 25(i), the husband has contended that the wife was suffering from permanent physical disability and the same has been admitted by her in M.C.No.488/1994 and thus, contended that performing marriage with the wife on 06.08.1997 is a voidable marriage in view of Section 25(i) of the Act as the marriage which has not been consummated owing to the physical disability of the wife. The said contention of the husband cannot be accepted as the contention urged that there was a physical disability to perform marital obligation is not a ground to hold that the marriage is a voidable marriage or a nullity as contemplated under Section 25(i) of the Special Marriage Act. On the other hand, Section 25(i) of the said Act specifies that there should be a willful refusal of the wife to consummate the marriage. Even looking into the medical reports Exs.R-1 to R-4, which are 12 the laboratory reports produced by the husband shows that she was suffering from some ill-health, but in the report nowhere it reveals the incapability of the wife to perform her marital obligations and thus, the ground urged by the husband that the marriage is voidable as per Section 25(i) of the Special Marriage Act does not find any merit.
17. The next ground urged by the husband in his petition is to annul the marriage under Section 25(iii) of the Special Marriage Act. The proviso to Section 25(iii) (a) and (b) of the Act states as under:
"PROVIDED FURTHER THAT in the case specified in Cl.(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."13
Since the registration of the marriage is not in dispute, we need not refer to the evidence at length in that aspect. The only question is, whether the registration of marriage is obtained by fraud or coercion and conditions and limitations as contemplated under proviso to Section 25 (iii) is fulfilled.
18. In order to prove that the marriage was solemnized on 06.08.1997 before the Sub-Registrar and the said marriage was obtained by fraud, coercion and threat to his life, the husband has examined himself as PW.1 and two witnesses PW.2 and PW.3. PW.1 in his cross-examination has admitted that he had been to the Sub-Registrar Office and he has signed the register and also states the presence of witnesses from the side of his wife. The cross-examination of PW.1 clearly admitted that he has signed before the Sub-Registrar and the marriage was performed on 06.08.1997. It is also clear from the evidence of P.W.1 that from 1997 till 2002, husband was staying with the wife and only after 2002, husband has 14 made some allegations of assault and has not proved the fraud and coercion.
19. PW.2 is none other than the own brother of the husband, who could only be an interested witness. PW.3 would not support the case of the husband as he is not an eyewitness. The alleged assault according to the husband himself is that on 26.06.2002 and not on the date of registration of marriage on 06.08.1997. Though he tries to putforth his case, that he has been assaulted on that particular date, there is no satisfying evidence to impress the conscious of this Court that the consent of the husband is obtained by fraud, coercion and by giving threat to his life. The husband is an educated person. He was quiet from 1997 to 2002 and a criminal complaint came to be filed of an alleged incident which occurred on 26.06.2002. Thus, from 1997 to 2002 no complaint was lodged that there is a threat to his life and after the lapse of thirteen years, the present petition M.C.No.40/2009 was filed invoking Section 25(i) and (iii) of the Act. 15
20. Admittedly, the complaint filed by the husband is after a lapse of 10 years from the date of the registered marriage to which he pleads that his consent was obtained by force, coercion and under life threat. The alleged force, threat and assault pleaded by the husband is during the year 2002 which no way relates to the incident alleged to have been occurred on 06.08.1997 and nowhere, the husband has deposed that there was an act of threat by the wife and her relatives during his marriage on 06.08.1997. The word 'coercion' defined under Section 15 of the Indian Contract Act, 1872 reads as under:
"15. Coercion defined- 'Coercion' is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement."
Explanation: It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed."
16The word 'fraud' defined under Section 17 of the Indian Contract Act, 1872, reads as under:
"17. "Fraud" defined.--"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1 , with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:--
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it;
(4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent.
Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech."
21. In view of the proviso to Section 25(iii)(a) specifically contemplates that the Court shall not grant the 17 decree if the proceedings have not been instituted within one year after the coercion is ceased, or, as the case may be, the fraud has been discovered and also Section 25(iii)(b) contemplates that if the petitioner and the other party with their own free consent, lived as husband and wife after the coercion had ceased, or the fraud has been discovered, the Court shall not grant a decree of divorce. In view of the proviso stated supra, it is not disputed that from the year 1997 to 2002, they lived as husband and wife and only a complaint came to be filed in the year 2002 of an alleged assault and the petition annulling the marriage was filed only in the year 2009. In view of the circumstances stated above, point No.1 framed by this Court is answered in the affirmative.
22. It is also relevant to note that after decree of divorce dated 20.02.1995, the husband and wife have joined the matrimonial home and got married for the second time on 06.08.1997. Now, after prolonged years, there may be some differences between the couple. That 18 could not be a ground to nullify the marriage and in view of the same, the point No.2 raised for consideration is answered in the negative holding that the judgment and decree passed by he trial Court does not require any interference by this Court.
23. For the reasons stated above, we pass the following:
ORDER
(i) The Miscellaneous First Appeal is dismissed.
(ii) The impugned judgment and decree dated 30.06.2011, passed in M.C.No.40/2009 by the II Additional Senior Civil Judge, Chitradurga, is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE Kcm/S*