Bombay High Court
Mohan Gopichand Janabandhu vs Anita Mohan Janabandhu on 10 January, 2020
Author: S.M. Modak
Bench: Z.A. Haq, S.M. Modak
1 fca.50.14 jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FAMILY COURT APPEAL NO. 50 OF 2014
Shri Mohan S/o Gopichand Janbandhu,
Aged about 48 years, Occu. Service,
R/o 503, Ratan Apartment 2, Ganeshpeth,
Nagpur.
..... APPELLANT
... Versus ...
Smt. Anita W/o Mohan Janbandhu,
Aged 37 years, Occu. Service,
R/o C.o. D.B. Gavali, Behind Mathodist
Church, Behind VCA Ground,
Civil Lines, Nagpur.
..... RESPONDENT
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Shri K.P. Sadavarte, Advocate for the Appellant.
Shri D.A. Sonwane, Advocate for the Respondent.
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CORAM : Z.A. HAQ & S.M. MODAK, JJ.
DATED : 10/01/2020
ORAL JUDGMENT (Per : S.M. Modak, J.):
When there is a dispute about solemnization of the marriage, two factors are important. One is whether ceremonies of the marriage have been performed and second is whether both have cohabited together and recognized by the society as husband and wife. Such an issue about ::: Uploaded on - 24/02/2020 ::: Downloaded on - 16/03/2020 18:42:14 ::: 2 fca.50.14 jud validity of the marriage arises in a maintenance proceeding under Section 125 of the Code of Criminal Procedure. It may arise in a substantive marriage petition or it may arise in substantive petition for maintenance. The scope of enquiry in every such proceeding is different. This Court as well as the Hon'ble Supreme Court has dealt with the issue of validity of the marriage in many cases. Sometimes, even though the marriage is not solemnized, the Court has accepted the claim for maintenance on the basis of long cohabitation and recognition by the society. There are verdicts wherein Courts have dealt with the issue of validity of the marriage in a substantive petition under personal law.
02] In the appeal before us, we are dealing with a judgment delivered by the Family Court in a substantive petition for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. 03] It is undisputed fact that both the parties follow Buddhist religion. The provisions of the Hindu Marriage Act, 1955 are applicable to a person/follower of Buddhist religion as per Section 2 of the said Act. It is undisputed fact that both these parties have married earlier to the marriage in question but their marriage were dissolved. The marriage of the wife/respondent was dissolved on 16th January, 1997. It was by way of mutual consent whereas Pushpalata wife of the appellant- husband expired in the year 1994. There is a dispute about the performance of the marriage by the appellant with the respondent on 9th February, 1997. Section 15 of ::: Uploaded on - 24/02/2020 ::: Downloaded on - 16/03/2020 18:42:14 ::: 3 fca.50.14 jud the Hindu Marriage Act, 1955 permits divorcee for marrying again after marriage is dissolved by decree (for which there is no appeal) or against which appeal has been dismissed or not preferred.
The marriage in question is solemnized on 9 th February, 1997 whereas the mutual consent divorce of the petitioner took place on 16 th January, 1997. It means second marriage was performed prior to completion of thirty days of divorce. Learned Family Court Judge has dealt with the objection about adherence to this time limit. There is consent divorce from the first marriage of the petitioner and as such there is no question of preferring an appeal. We agree with the findings of the trial Court. Law gives option to parties to perform the marriage as per customary rites and ceremonies.
04] Section 7 of the Hindu Marriage Act, 1955 is relevant. It gives freedom to parties to perform the marriage as per their customary rites and ceremonies. This is contemplated under Section 7(1) of the Hindu Marriage Act, 1955. So we are required to assess the evidence and findings on the point of customary rites and ceremonies performed at the time of the alleged marriage.
05] The appellant relied upon the following four judgments:-
(i) Bhaurao Shankar Lokhande & Another Vs. The State of Maharashtra & Another - AIR 1965 SC 1564.
(ii) Surjit Kaur Vs. Garja Singh & Others - AIR 1994 SC 135. ::: Uploaded on - 24/02/2020 ::: Downloaded on - 16/03/2020 18:42:14 :::
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(iii) Babi w/o Jayant Jagtap Vs. Jayant Mahadeo Jagtap & Others - 1981 Mh.L.J. 614.
(iv) Abbayolla M. Subba Reddy Vs. Padmamma - AIR 1999 AP 19. In all these cases, the Court dealt with the issue of validity of the marriage on the background on which the issue was raised. In the case of Babi w/o Jayant Jagtap Vs. Jayant Mahadeo Jagtap & Others, the issue of validity of the marriage had arisen in a case filed for bigamy under Section 494 of the Indian Penal Code. So, what is important is whether the marriage in question was performed as per rites and ceremonies of the religion professed by the parties. This Court has considered what are the ceremonies performed by members of erstwhile Scheduled Caste Community converted to Buddhism. The Maharashtra State Law Commission's Ninth Report was also referred in paragraph 26. Broadly we can say that worshipping the photos of Lord Buddha and Dr. Babasaheb Ambedkar and chanting "Trisaran", "Panchashila" are customary ceremonies in a marriage of members professing Buddhism.
Whereas in the case of Surjit Kaur Vs. Garja Singh & Others, the issue had arisen in a suit for possession on the basis of title. Court refused to give recognition as of husband and wife on the basis of cohabitation. In that case, there was marriage performed in karewa form. The parties had not adduced the evidence about ceremonies required to be performed in that marriage.
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5 fca.50.14 jud Whereas in the case of Bhaurao Shankar Lokhande & Another Vs. The State of Maharashtra & Another, the issue had arisen in a bigamy case under Section 494 of the Indian Penal Code. The Hon'ble Supreme Court has interpreted the word solemnization as "to celebrate the marriage with proper ceremonies and due form".
Whereas in the case of Abbayolla M. Subba Reddy Vs. Padmamma, the wife had claimed maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 against her husband who already had a wife. The issue was about performing marriage by a lady with man already having a living wife. The provisions of conditions of valid marriage laid down under Section 5 of the Hindu Marriage Act, 1955 were considered and the claim of alleged wife was turned down. 06] Learned Family Court Judge has given sufficient opportunities to adduce evidence. The wife examined three witnesses apart from herself. Whereas the husband examined himself and five witnesses. There is evidence of witnesses who claim to have attended the marriage, whereas there is evidence of witnesses who denied solemnization of marriage as alleged. There is documentary evidence of photographs, ration card from the side of the wife, whereas the husband produced extracts from election voters' list.
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6 fca.50.14 jud 07] When the wife claims solemnization of the marriage on 9 th February, 1997 at Diksha Bhoomi, Nagpur, the husband examined Devaji Nathuji Waghmare Manager of Diksha Bhoomi to disprove the solemnization of marriage. When the wife produced two photographs showing together both the appellant and the respondent and their offsprings from the first marriage, the husband examined Vinod Atey (photographer) to show manipulation of photographs. 08] Admittedly, there is no issue from this wedlock. They cohabited together from 9th February, 1997 till 31st July, 2000. According to the appellant, respondent was working as maid in the house of the appellant. If any lady is residing with another person for 24 hours in the house, can she be considered as a maid servant or relationship is much more than that.
When we have examined the evidence of witnesses from both the sides, we find that ceremonies were performed on 9 th February, 1997 at Diksha Bhoomi.
09] It is true that the wife in her examination-in-chief and her witnesses have not deposed about the performance of ceremonies, but when the wife was cross-examined, she has stated about the performance of those ceremonies and that the husband's nephew Ramesh Janbandhu and advocate Karade recited through "Trisaran", "Panchashila". She stated ::: Uploaded on - 24/02/2020 ::: Downloaded on - 16/03/2020 18:42:14 ::: 7 fca.50.14 jud that she had worn white saree. It is true that Diksha Bhoomi organization has not issued any receipt which they generally issue when the marriage is performed at Diksha Bhoomi. But the learned Family Court Judge has considered that Diksha Bhoomi is a very huge area and marriage can be performed even without informing the authorities. This is probable because no Pandal was erected. There were only few relatives. 10] There are two witnesses from the side of the wife who had attended the marriage. One - Dr. Hema Janbandhu and another - Prakash Babasingh Kashyap. Whereas the husband examined Dinanath Janbandhu, Gulab Janbandhu and Sau. Pushpa who deposed that marriage was not solemnized. It is pertinent to note that you can give evidence about the happening of event. It is difficult to give evidence that a particular event has not taken place, that is to say to prove a negative fact. So the evidence of Gulab Janbandhu, Dinanath Janbandhu and Pushpa is not of any help to the respondent.
11] Hema Janbandhu is the wife of cousin brother of husband. She deposed that she had attended the marriage. According to the husband, this witness wanted to admit her son in Hislop College in which the respondent is working as a non-teaching staff, and he had not helped the witness Hema Janbandhu and that is why she was not having good relations with the appellant. Helping or not helping for the admission and ::: Uploaded on - 24/02/2020 ::: Downloaded on - 16/03/2020 18:42:14 ::: 8 fca.50.14 jud getting annoyed on that account are the part of life. Hema Janbandhu is not the relative of the respondent-wife but of the appellant-husband.
Learned Family Court Judge has rightly relied upon the testimony of this witness.
12] Prakash Babasingh is in dual capacity. He claims that he had attended the marriage as well as had stitched the safari of the appellant. The lacuna in the evidence of the respondent-wife, Dr. Hema Janbandhu and Prakash Babasingh Kashyap have been filled up by the appellant- husband by bringing on record the performance of ceremony of chanting of "Trisaran", "Panchashila". We are convinced about the appreciation of evidence and findings of the trial Court about solemnization of marriage. 13] Learned Family Court Judge has given more weightage to two photographs and ration card rather than election voters' list. The voters' list are at Exhibits 76 to 79. It is for the period 1995, 1998 and 1999. Alongwith the name of the appellant, name of his first wife Pushpalata is mentioned therein. The marriage in question was solemnized in the year 1997. The name of the appellant's first wife was not deleted from the voters' list though she expired in the year 1994. Can we say on the basis of these entries that she was alive in 1997. Non-inclusion of the name of the respondent in the voters' list, showing her as wife of the appellant cannot disprove the claim of the respondent-wife about her marriage with the ::: Uploaded on - 24/02/2020 ::: Downloaded on - 16/03/2020 18:42:14 ::: 9 fca.50.14 jud appellant. The list at Exhibit 76 is of 2004 i.e. after the separation of appellant and respondent. Absence of the name of the respondent-wife in the nomination form filled by the appellant-husband and given to employer, does not help the appellant because we have to consider the positive evidence. The nomination form is a document created not by third party agency but by the appellant himself.
14] The appellant had informed the rationing officer about the stay of the respondent with him and the relationship also. Initially, the name of the respondent and of her daughter from the first husband were mentioned in the ration card of the appellant at Exhibit 50. They were shown as wife and the daughter. It was orange colour card whereas white colour card was produced at Exhibit 60 through witness Rajendra Miskin Zonal Officer from Food Supply Department. Through his cross- examination, the appellant brought on record the prescribed form and normal form at Exhibits 61 & 62. The name of the respondent and her daughter were removed from the ration card. They were shown as the wife and the daughter and reason for deletion is 'shifting to Mumbai'. We believe the evidence of Zonal Officer. There is no reason for him to manipulate ration card mentioning the name of the respondent and her daughter. Exhibit 74 is a ration card produced by the appellant. It is in his name and the first wife Pushpalata and one son and mother have been ::: Uploaded on - 24/02/2020 ::: Downloaded on - 16/03/2020 18:42:14 ::: 10 fca.50.14 jud shown as family members. We do not disbelieve it as they are the natural entries.
15] We have seen the two photographs at Exhibits 48 & 49. They are produced by the respondent. Both the appellant and the respondent and their children from the first marriage are seen together. Though the appellant through witness Vinod Atey has tried to level them as manipulated photographs, it is difficult to believe his evidence. It is one thing to say that manipulation is possible by joining two photographs and making it one photograph by technology and happening of this incident in reality is another thing. We do not think that the respondent's case falls in such category of harassing an innocent husband and black-mailing him for money. These photographs seem to be taken in the normal course and is not the result of any manipulation. Learned Family Court Judge has rightly accepted them.
16] So, we find corroboration in the form of documents to show the status of the parties as husband and wife. We agree with the conclusions drawn by learned Family Court Judge. So, on the point of solemnization of marriage and cohabitation for three years, we accept the evidence of the respondent-wife and do not find any fault in the findings recorded by Family Court Judge.
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11 fca.50.14 jud 17] There is no reason to reduce the amount of maintenance of Rs. 2,000/-. Learned Family Court Judge has rightly drawn an adverse inference in producing the salary certificate by the respondent. The testimony of the respondent on the point of the income was believed. We agree with it.
18] The appellant relied upon the judgment in the case of Laxman Prasad Vs. Prodigy Electronics Ltd. & Another [AIR 2008 SC 685]. It is on the point of non-interference by the Appellate Court when the trial Court has imposed costs by exercising discretionary power. The respondent- husband was ordered to pay Rs. 2,000/- per month from the date of the order. So also he was asked to pay Rs. 2,00,000/- towards damages. It was for the purpose of causing mental agony to the wife for claiming that she was a maid servant. We do not find any reason to interfere in awarding of damages and its quantum by the learned Family Court Judge. The appellant not only levelled the respondent as a maid servant but he took every step to prove it. He examined three of his relatives to depose on the same line as that of the appellant. Even he went to the extent of examining photographer and levelling the two photographs as an outcome of trick photography. We do not deny the right of the appellant to examine witnesses but we find his claim totally ill-motivated and false. ::: Uploaded on - 24/02/2020 ::: Downloaded on - 16/03/2020 18:42:14 :::
12 fca.50.14 jud 19] Hence, no interference is warranted. We affirm the judgment of the Family Court by dismissing the appeal. We do not intend to impose additional costs on the appellant.
The appeal is dismissed.
JUDGE JUDGE
vijay
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