Karnataka High Court
Smt Channamma D/O Late Neelkanthappa ... vs Sri Bellappa S/O Shivasharnappa Police ... on 20 March, 2013
Equivalent citations: 2015 (1) AKR 460
Bench: D V Shylendra Kumar, Huluvadi G Ramesh
R
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
Dated this the 20th day of March, 2013
Present
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
&
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Miscellaneous First Appeal 31987 / 2011 (FC)
Between:
Smt Channamma, 18 yrs
D/o LateNeelkanthappa hachetti
Student, R/o Nadavinhalli
Gulbarga Appellant
(By Sri S V Deshmukh & S B Patil, Adv.)
And:
Sri Bellappa, 21 yrs
S/o Shivasharnappa Police Patil
Agriculturist, R/oTonasalli (S)
Chittapur Tq, Gulbarga Respondent
(By Sri Syed Nazar Hussain & B K Patil, Adv.)
The First Appeal is filed under S.19(1) of the Family Court Act
praying to set aside the judgment and decree dated 11.8.2011 in OS
36/2010 by the Family Court Judge, Gulbarga.
2
The First Appeal coming on for hearing this day, D V Shylendra
Kumar J., delivered the following:-
JUDGMENT
This miscellaneous first appeal under S.19(1) of the Family Court Act is by the plaintiff in OS 36/2010 on the file of the District Judge, Family Court at Gulbarga who had filed the suit for a declaration that her marriage said to have taken place with the defendant on 3.5.2010 is a nullity and consequentially to restrain the defendant from interfering with the private life of the plaintiff having come to be dismissed by the trial court.
The appeal is on several grounds inter alia urging that the trial court has not appreciated the evidence on record in the proper perspective; the trial court has not appreciated the back ground in which the so called marriage and other related motions have been gone through; the appellant had been kidnapped even during her minority and kept in bondage till she completed the minority period. Later on, under threat and coercion, made to go through the motions of exchanging the garland with the defendant in a temple on 3.5.2010; that the appellant had never given her consent to the marriage but had been obtained under threat and coercion, all motions had 3 been carried under threat; ever since she was kidnapped on 12.2.2010 even when she was a minor by the defendant, she was under constant threat, coercion and mental pressure and agony, she did not have any free state of mind or will and the so called marriage having been performed even while she was still under the custody of the defendant and relatives and parents, marriage is not a marriage in the eye of law and that it is a nullity and therefore, the trial court should have appreciated such circumstance and should have decreed the suit as prayed for and dismissal of the suit is bad in law.
After the first hearing, we had asked the parties to be present before the Court and they have appeared before this Court today.
We have questioned the appellant if she is ready and willing to join the respondent husband but, while totally opposing the suggestion, she has narrated that she was all along being threatened and coerced to give consent, that she has not voluntarily given free consent to the marriage, she was made to yield to the pressure of the defendant, threatened and coerced that unless she agrees to their demand, the respondent defendant would 4 cause harm to her mother and therefore, she has stated before the Court that she is not willing and the marriage should be dissolved so that she is freed from the bondage, threat and coercion that she continues to face from the defendant even now. She also stated, unless marriage is declared a nullity, defendant even now would forcibly take away the appellant/plaintiff and put her back to bondage and captivity, etc. The appellant's mother has also come and she has also indicated that they are under constant threat and coercion from the respondent and his people.
Respondent who is also present before the Court, on the other hand, stated that he has not forced the appellant and she had volunteered to come and get herself married with him . As at that time she was still a minor, he was advised to wait till she attains majority and therefore, got the marriage solemnised in a temple on 3.5.2010. Therefore, the marriage is valid and she cannot be given relief as sought for.
The plaint averments in the suit was in the narration of the facts starting with, plaintiff was a student studying in Vivekananada Higher Primary High School, Ravoor, Chittapur, Gulbarga District. Because of the 5 threat and attitude of the defendant who was a distant relative, she had to discontinue her studies. On the day when she had been to her maternal uncle's place at Tonasalli, a place where the defendant also resides, the defendant visited the house on 12.2.2010 at about12.00 p.m. and informed her that her mother had asked him to take her to their place at Nadivinalli and on such pretext, took her out of the house, kidnapped her and ever since kept her in captivity continuously for several months. She was made to go through the motions of marriage, exchange garlands by taking her to a temple on 3.5.2010 when she had attained majority; at that time of marriage she was not capable of giving any valid consent because of the mental tension and threat she was subjected to and a case under S.366A, 109 r/w S.34, IPC had been registered at Shahabad Police Station against the defendant on the complaint of the plaintiff's mother. No valid marriage had taken place between the plaintiff and the defendant, the marriage certificate which was obtained by getting the marriage registered before the Sub-Registrar, Gulbarga was also one prepared under threat and coercion and she was forced to sign the papers there. Marriage was never solemnized on 3.5.2010 as claimed by the defendant. Registration of marriage on 17.5.2010 was also with equal threat, coercion and force and 6 not voluntary act of the plaintiff and the defendant and his relatives used people force and muscle power to coerce the plaintiff to live with the defendant as a wife. In such circumstance, she managed to come back to her mother's place and has approached the Court for relief by filing a suit for declaring that the marriage is not a marriage in the eye of law. Plaintiff is not the legally wedded wife of the defendant and for consequential injunction restraining the defendant from interfering with the private life of the plaintiff.
Defendant contested the suit, filed his written statement, denied the plaint averments, denied all allegations of threat and coercion used by him against the plaintiff. Pleaded that the plaintiff was a consenting party to the marriage and it is at her request, parties went to the office of the Sub- Registrar and got the marriage registered subsequently on 17.5.2010. The suit filed by the plaintiff is not her voluntary act but, on pressure from her mother and other relatives, there was no cause of action to sue, the plaintiff was always ready and willing to discharge her matrimonial obligation to the defendant but it was the mother and other relatives who did not permit her to do so and therefore, prayed for dismissal of the suit. 7
Learned trial judge examined the pleadings and framed the following issues:
1 Whether the plaintiff proves that the defendant has forcibly married her on 3.5.2010?
2 Whether the plaintiff proves that the defendant had forcibly brought her to Gulbarga and forced her to sign on marriage registration application and photos and got the marriage registered by using force and threat on her:
3 Whether the plaintiff proves that the defendant has given threat to the plaintiff for illegal cohabitation? 4 Whether the plaintiff proves that there arose a cause of action to file the suit?
5 Whether the plaintiff is entitled to the relief of declaration as prayed For?
6 Whether plaintiff is entitled to the relief of permanent injunction as prayed for?
7 What decree or order?
On behalf of the plaintiff, she got herself examined as PW1 and mother Anusaya W/o late Neelkanthappa deposed as PW 2. Documentary evidence comprised of Ex.P1 - certified copy of the complaint, Ex.P2 - certified copy of the FIR; Ex.P3 - memorandum of marriage application form, Ex.P4 - Certification of registration of Hindu Marriage, Ex.P5 - bail 8 bond, Ex.P6 - certified copy of order sheet in Crl.Misc.23/2010; Ex.P7 - attested copy of receipt issued by Sri Siddeshwar Devasthan, Solapur, Ex.P8 - attested copy of certificate issued by head master, Govt. Higher Primary School, Nadivinhalli.
On behalf of the defendant, while he deposed as DW 1, one Shivanand was examined as DW 2 claiming to be a friend of defendant. Documentary evidence comprised of Ex.D1 - certified copy of order sheet in Crl.Misc.23/2010, Ex.D2 certified copy of declaration form, Ex.D3 - certified copy of letter addressed to PSI, Shahabad, Ex.D4 - certified copy of the letter, Ex.D5 to 8 - postal receipts, Ex.D9 - certified copy of memo with affidavit, Ex.D10-11 - certified copy of photos, Ex.D12 - CD, Ex.D- 12(a-g) - photos and Ex.D-13 - progress card.
Learned trial judge purporting to appreciate the evidence on record answered all issues in the negative and dismissed the suit. It is against this order of dismissal, the present appeal by the plaintiff. 9
In the wake of the parties not willing to come to any amicable settlement either for joining or for agreeing the suit to be decreed, we have heard Sri Deshmukh, learned counsel for the appellant and Sri B K Patil, learned counsel for the respondent.
The main contention urged by Mr Deshmukh, appellant's counsel is, learned trial judge failed to appreciate the evidence in the proper perspective, the plaintiff in her deposition was consistent both in the examination in chief as well as cross-examination, that she had been kidnapped as a minor, she had been continuously threatened, forced and coerced into going through the motions of marriage, she was never having any free will or mind, she was in a state of mental sock and threat and the marriage in such a state of mind can never be said to be a marriage with a consenting party. The consent obtained for a marriage by kidnapping a person while she was still a minor, keeping her in captivity, threatening her and subjected her to coercion and pressure and getting the marriage performed is nothing short of a forced marriage in continuation of captivity act and therefore, no free consent and should be necessarily declared as a void marriage, is the submission of the counsel for the appellant. 10
On the other hand, submission of Sri B K Patil, counsel for the respondent is that, appellant plaintiff having not made good any of the circumstance or the situation in which the conditions of solemnising a valid marriage in terms of S.5 of the Hindu Marriage Act having not been followed, there is no way for the court declaring such a marriage was a void marriage within the scope of S.11 of the Act. The contravention of conditions (i), (iv), (v) of S.5 was never made good by the plaintiff and therefore, the trial court has rightly dismissed the suit.
On the other hand, Sri Deshmukh, appellant's counsel urged that this is a clear case of violation of condition (ii) of S.5(ii) of the Act and therefore, the marriage can be declared as voidable or void within the scope of S.12(1)(c) of the Hindu Marriage Act.
In the wake of the grounds urged and submission made at the Bar, the point that arises for consideration in this appeal is as to whether the judgment and decree of the trial court dismissing the suit is sustainable or 11 any interference is called for in exercise of appellate jurisdiction of this Court.
We have looked into the judgment, perused the records and re- appraised the evidence on record. In so far as evidence on record is concerned, the evidence of the plaintiff / PW 1 will be of paramount importance and is crucial. In the examination in chief of the plaintiff, evidence in support of the plaint averments and the factum of the plaintiff having been kidnapped on 12.3.2010 at about 12.00 p.m. from her house by the defendant misrepresenting her that she has been asked to go to her mother's place and he has been asked to take her to her mother's place, is reiterated. It is not in dispute that at that time, plaintiff was a minor as on 12.2.2010. Even as per the defendant/respondent, her date of birth in terms of the school leaving certificate can be accepted as 1.5.1992.
It is also a fact that as per the deposition of PWs 1 and 2, a complaint had been lodged on 16.2.2010 about the kidnapping on 12.2.2010 at the Shahabad Police Station and a case had been registered against the defendant and members of the family of the defendant for offences 12 punishable under S.364 A and other sections of IPC as per Ex.P1. Plaintiff remained in the captivity of the defendant ever since her kidnapping on 12.2.2010. Both at the time of marriage said to have been performed on 3.5.2010 and also at the time of registration of marriage before the sub- registrar on 17.5.2010, it was much later she had been sent to the Women Protection Cell at Gulbarga as per the direction of the JMFC at Chittapur and was handed over to the custody of the mother thereafter.
On these facts there is no dispute by the parties. The main dispute is relating to the assertion on the part of the defendant that the plaintiff had voluntarily and freely consented for her marriage with the defendant though she was, no doubt, with the defendant all along but the plaintiff was threatened, it was not voluntary and freely but by coercion and threat. This aspect has to be resolved only looking into the background and the circumstances and the conduct of the parties. Apart from the examination in chief, we have perused the cross-examination of PW 1 wherein according to the defendant, many admissions have been elicited with regard to the performance of the marriage, with regard to her signing the papers and documents and these facts weighed very heavily in the mind of 13 the learned Judge of the trial court to answer all issues against the plaintiff for dismissal of the suit.
In fact, counsel for the respondent has placed heavy reliance on the answers elicited during the cross-examination of the plaintiff wherein she has made clear admission about the marriage having taken place, about her exchanging garland with the defendant, about her attending the office of the Sub-Registrar and signing the Register there. It is also the submission of Sri Patil, respondent's counsel that the plaintiff had also admitted the consummation of marriage by pointing out to the answers in the cross- examination about the ceremonies performed which are usually performed on the nuptial night and therefore, it should betaken that the plaintiff had admitted that the marriage had been consummated.
We have carefully examined the evidence of plaintiff both during chief examination and the cross examination. An incisive and careful examination of the answers elicited in the cross-examination admitting some of the events that took place whether on 3.5.2010 or 17.5.2010 indicates that the plaintiff who was a minor at the time of kidnapping, who 14 had been subjected to force, pressure and threats and who was in a mental state of shock and dazed condition, could never have given free and voluntary consent either for the marriage or for registration of the marriage. Even in the cross-examination while no doubt narrates the events as they had happened, it does not amount to an admission that she has voluntarily consented or was a willing party to all that. Narrating the events as having taken place is one thing. Whether that fact had taken place with the voluntary act of the party or because of threat or coercion and because of circumstances is totally another aspect. In fact, the answers elicited in the cross-examination very clearly shows that she has never given her consent freely, she was all along being threatened and coerced and she was not a consenting party to the marriage. What she has admitted is the factum of those motions having gone through whether the ceremonies relating to exchanging garland or later taking her signature before the Sub-Registrar on several documents etc. It is a fact that she has signed and it is a fact that she had exchanged the garland but it was not a voluntary act but because of threat and coercion is what she has emphatically and consistently maintained throughout her cross examination.
15
It is unfortunate the learned Judge of the trial court lost sight of the fact that the plaintiff had been kidnapped while she was still a minor, she was never allowed her freedom, the defendant waited till she attained the age of majority, forcibly took her to go through the motions of marriage and also registration of the marriage later and has got evidence prepared to show that the marriage has taken place.
The guardian of the plaintiff, her mother had lodged a complaint about kidnapping even while she was a minor and a criminal case had been registered. The mental state of a minor in law has to be taken as one not capable of giving consent to any act, if a minor is taken in that state by threat, force or coercion, just because she attains majority certain acts are forcibly made to be carried out by her, it cannot be said that it is a voluntary, consenting act of a major.
In the background in which the events have taken place, we are afraid that her mental status cannot be above that of a minor particularly, the act of forcible kidnapping, act of forcible confinement or custody by the defendant/respondent and further threats and coercion to make her go 16 through the motions of marriage, we are of the opinion, a situation of this nature is almost identical, with the provisions of S.12(1)(c) of the Act when the consent of the appellant was obtained by force for the purpose of going through the ceremony of exchange of garland in a temple and also for subsequent registration of the marriage.
S.12(1)(c) - Voidable marriages 1 Any marriage solemnised, whether before or after the commencement of this Act shall be voidable and may be anulled by a decree of nullity on any of the following grounds, namely,
(a) .....
(b) ....
(c) That the consent of the petitioner, or where the consent
of the guardian in marriage of the petitioner was
required under S.5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act,1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.
The marriage if not declared as a void marriage definitely becomes a voidable marriage at the option of one of the parties who was subjected 17 to such fraud and coercion and in this case, at the option of the plaintiff whose case has all along been that she has been coerced to go through the motions, that she never gave her consent freely or voluntarily but, it was obtained under threat and force. The evidence of the plaintiff both in her chief examination and cross-examination has been consistently shown to be one of a consent having obtained by force and threat. In fact, in the cross- examination, the defendant's counsel has elicited such answers adverse to the defendant and that binds. Also, she has consistently said that her consent was not free, it was obtained under force and threat.
For the purpose of declaring a marriage as voidable marriage, it is the evidence of the party who complains that his or her consent has been obtained by force, by fraud that is important and the other evidence is not very material for such purpose.
While the evidence of the plaintiff is to that effect, we have satisfied ourselves by examining the evidence of the plaintiff both in chief examination and cross examination by thoroughly looking into the same, the demeanor of the parties who have appeared before us today for the 18 purpose of finding the possibility of any amicable settlement also indicates that the plaintiff has all along been resisting the acts of the respondent, that she was never a willing and consenting party to the marriage and that it was the defendant and his people who had used threat and coercion and in fact, had kidnapped the plaintiff from her uncle's place on 12.2.2010 that too when she was still a minor.
At this stage, it is submitted by respondent's counsel Sri Patil that in the criminal case, respondent defendant has already been acquitted and the State had carried the matter in appeal and therefore, this observation may come in the way of the defense of the accused person in the appeal of the State and could harm or affect his interest there. We make it clear that appreciation of evidence in a civil matter is on the principle of preponderance of probabilities and particularly, having regard to the background of the case after examination as to whether a valid marriage had taken place or otherwise and the criminal act has not been gone into in appeal nor by the trial court in the suit of the plaintiff and that proceedings may go on independently and these observations cannot have any bearing or binding effect on the criminal case.
19
In the result, we answer the point formulated by us in favour of the appellant. We hold that the judgment passed by the trial court is not sustainable and is accordingly, set aside.
Appeal is allowed. Suit of the plaintiff is decreed declaring that the marriage said to have been performed or solemnised on 3.5.2010 is not a valid marriage in the eye of law, no valid marriage took place between the appellant and the respondent / plaintiff and defendant in the suit and therefore, no consequence of the relationship of husband and wife between the parties sustains.
At this stage, Sri Patil, respondent's counsel has also brought to our notice that the respondent had filed a petition for restitution of conjugal rights and it was allowed. We are afraid it cannot be of any consequence in view of the fact we have declared that the marriage itself is not a valid marriage and it is voided at the instance of the appellant plaintiff and therefore, no other consequence can follow on the premise that the marriage had taken place between the parties.
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Judgment passed by the trial court dismissing the suit is set aside. Suit is decreed in the above terms. We make no order as to costs in this case.
Sd/-
Judge Sd/-
Judge An