S. Subbulakshmi @ Sunitha vs S. Subramanian @ Saravanan on 10 October, 2018

[Cites 30, Cited by 5]

Madras High Court

S. Subbulakshmi @ Sunitha vs S. Subramanian @ Saravanan on 10 October, 2018

Equivalent citations: AIRONLINE 2018 MAD 1595

Author: R. Subbiah

Bench: R. Subbiah, P.D. Audikesavalu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 25-07-2018

Pronounced on : 10-10-2018

CORAM:

THE HONOURABLE MR. JUSTICE R. SUBBIAH
and
THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU

Civil Miscellaneous Appeal Nos.1901 and 1902 of 2017
---

S. Subbulakshmi @ Sunitha .. Appellant

Versus

S. Subramanian @ Saravanan .. Respondent

C.M.A. No. 1901 of 2017 Appeal filed under Section 28 of The Hindu
Marriage Act, 1955 against the order and decree dated 20.12.2016 passed in
HMOP No. 298 of 2014 on the file of Additional Principal Family Judge,
Coimbatore.

C.M.A. No. 1902 of 2017 Appeal filed under Section 28 of The Hindu
Marriage Act, 1955 against the order and decree dated 20.12.2016 passed in
HMOP No. 1025 of 2014 on the file of Additional Principal Family Judge,
Coimbatore.

For Appellant : Mrs. A. Arulmozhi
in both the appeals

For Respondent : Mr. S. Namasivayam
in both the appeals

COMMON JUDGMENT

R. Subbiah, J These appeals arise out of a common order dated 20.12.2016 passed in HMOP Nos. 298 and 1025 of 2014 on the file of Additional Family Judge, Coimbatore, respectively. By the said Order dated 20.12.2016, the Family Court http://www.judis.nic.in 2 dismissed HMOP No. 298 of 2014 filed by the appellant/wife herein under Section 9 of The Hindu Marriage Act for restitution of conjugal right and allowed HMOP No. 1025 of 2014 filed by the respondent-husband under Section 11 of the Hindu Marriage Act, whereby the marriage solemnised between the appellant and the respondent on 25.06.2009 was declared as null and void.

2. The respondent herein has filed HMOP No. 3 of 2014 before the Family Court, Madurai under Section 11 of The HIndu Marriage Act (in short The Act) praying to declare the marriage solemnised between him and the appellant herein on 25.06.2009 at Star Park Kalyana Mandapam, Madurai as null and void. On receipt of notice in HMOP No. 3 of 2014, the appellant herein has filed HMOP No. 298 of 2014 before the Family Court, Coimbatore, under Section 9 of The Act for restitution of conjuugal rights. During the pendency of the aforesaid Original Petitions, the appellant herein has filed Tr.CMP No. 226 of 2014 before this Court to transfer HMOP No. 3 of 2014 on the file of Family Court, Madurai to the file of Family Court, Coimbatore so as to be tried along with HMOP No. 298 of 2014 filed by her. By order dated 24.07.2014, this Court allowed the Transfer Civil Miscellaneous Petition transferring HMOP No. 3 of 2014 from the file of Family Court, Madurai to the file of Family Court, Coimbatore, so as to be tried along with HMOP No. 298 of 2014 filed by the appellant. On transfer, HMOP No. 3 of 2014 was re-numbered as HMOP No. 1025 of 2014.

3. The averments, based on which HMOP No. 3 of 2014 was filed by the respondent (HMOP No. 1025 of 2014) are that the marriage between him and the http://www.judis.nic.in appellant was proposed to be solemnised and after deliberations among the elders 3 of both sides, an engagement ceremony was performed on 04.06.2009 at Coimbatore, even though the native place of the appellant and her family is Ooty. Thereafter, on 25.06.2009, the marriage between the appellant and the respondent was solemnised at Star Park Kalyana Mandapam, Madurai as per Hindu rites and custom in the presence of elders, friends and relatives of both sides. At the time of marriage, Thali Chain worth about 5 sovereigns and Mangalya Thali worth about 1 sovereign was presented to the appellant by the parents of the respondent. As per the custom, marriage expenses to the tune of Rs.5 lakhs were spent by the father of the respondent. The marriage was also duly registered before the concerned Registrar of Marriage at Madurai. According to the respondent, after the marriage, the appellant did not evince keen interest in having sexual intercourse with him and thereby caused immense mental agony to him. When it was questioned by the respondent, the appellant replied that she is terribly tired due to the marriage ceremonies as well as subsequent events and therefore, the respondent did not take it seriously by then. After the marriage, the respondent and the appellant stayed together at the house of the respondent for a week. During such stay at Madurai, the appellant was not in her normal mood and most of the time, she kept herself aloof from the respondent and his family members. The appellant never attended to the domestic work and the respondent bonafidely believed that by passage of time, the appellant will be back to her normal behavioural pattern, as expected. At the time of marriage, the respondent was employed in London and therefore, to make necessary arrangements for getting visa to the appellant, the respondent came to Chennai along with the appellant and stayed in his sister's house. Even during such stay, the appellant exhibited improper and irrelevant http://www.judis.nic.in behaviour without any valid reasons. Thus, from the date of marriage, the 4 behaviour of the appellant was not proper, especially the appellant refused to have cohabitation with the respondent and thereby he was subjected to mental agony and hardship.

4. According to the respondent, for the purpose of getting Visa for the appellant to United Kingdom, he had taken the appellant to Apollo Hospital, Chennai on 11.07.2009 so as to enable the appellant to undergo a Master Health Check but during such check up, the appellant refused to undergo a test to ascertain possible Procancerous or Cancerous condition. The test will be done by opening the vaginal canal with a speculum (mirror like tool) for collection of cells, but it is not a virginity test. However, the appellant avoided to undergo the test for no reasons.

5. According to the respondent, on 19.07.2009, both the respondent and the appellant went to London. After reaching London on 20.07.2009, the respondent bought a new Sim card to the appellant and also provided a cell phone to her as he has to attend the office on the next day i.e., 21.07.2009. After returning from office, the respondent noticed several missed calls in the mobile phone of the appellant and the respondent contacted the number from which the calls were made. The call was attended by a person who identified himself as Stephen Vinod from Bangalore. The said Stephen Vinod also stated that he is the friend of the appellant. When the respondent wanted to enquire further, the said Stephen Vinod refused to divulge his personal details and gave evasive answer. The manner in which the said Stephen Vinod conversed with the respondent had http://www.judis.nic.in created lot of doubts in his mind about his relationship with the appellant. When 5 the respondent asked the appellant as to who the said Stephen Vinod is, the appellant got wild and scolded the respondent by using unparliamentary words and went to the extent of throwing the house hold articles against him. The respondent therefore reasonably suspected that the appellant had a relationship with the said Stephen Vinod prior to the marriage. Further, within a few days of their stay at London, the respondent noticed several messages received by the appellant in her mobile phone from the said Stephen Vinod and his sister Vilasini. According to the respondent, from the date when the appellant and the respondent came to London, the appellant refused to attend the house hold chores and nagged the respondent that she should immediately go to India and she was not willing to live with him. In such circumstances, the respondent and the appellant came back to India on 03.09.2009. After reaching India, when the father of the appellant was appraised about the phone calls and the messages that the appellant had received from one Stephen Vinod of Bangalore, the father of the appellant assured the respondent and his parents to cause enquiry into the matter and also advised the appellant to behave properly with the respondent. In fact, the father of the appellant informed the respondent that the appellant and the said Stephen Vinod knew each other from their school days and that the appellant stayed in the house of the said Stephen Vinod for some time when she was employed in Bangalore. On the basis of such explanation offered by the father of the appellant, the respondent once again left India to London on 13.09.2009 leaving the appellant in India. Subsequently, on 18.09.2009, the father of the appellant made arrangements to send the appellant to United Kingdom to revive the matrimonial life with the respondent and accordingly, the appellant joined the respondent at London. http://www.judis.nic.in However, even after reaching London, the behavioural pattern of the appellant did 6 not change and she continued to refuse cohabitation with the respondent and thereby caused acute mental agony and harassment. On 12.10.2010, the respondent and appellant came to India once again and stayed in the house of the sister of the respondent at Chennai. Subsequently, on 06.11.2010, the respondent went to United Kingdom and the appellant joined him on 23.12.2010. During the month of February 2011, the respondent and the appellant came to India once again and thereafter, the appellant refused to accompany the respondent to United Kingdom.

6. According to the respondent, the appellant's father said to have filed a complaint to the Fazer Town Police Station, Bangalore against the said Stephen Vinod and during the course of enquiry, the said Stephen Vinod had given an undertaking that he will not interfere with the matrimonial life of the respondent and the appellant. However, even thereafter, the appellant refused to accompany the respondent. The father of the respondent, suspecting foul play, deeply enquired into the matter and came to know that even before the marriage between the appellant and the respondent, the appellant married the said Stephen Vinod and lived with him at Bangalore for about 18 months and because of the compulsion made by the father of the appellant, she agreed to marry the respondent. In this context, in order to confirm the factum of such marriage between the appellant and Stephen Vinod, the father of the respondent had given a complaint to All Women Police, Tallakulam, Madurai on 26.03.2013 and based on the said complaint, the said Stephen Vinod and his sister Vilasini were called upon to attend an enquiry. During the course of enquiry, on 11.04.2013, the said Stephen Vinod had given a http://www.judis.nic.in statement stating that he knew the appellant from his school days and they loved 7 each other. He has further stated that on 15.05.2005 at Maruthamalai Murugan Temple, Coimbatore, he married the appellant and from that date, they have been living as husband and wife at Bangalore. He has also stated that the factum of marriage was also known to the father of the appellant. In order to substantiate his statement, he has also entrusted certain photographs, compact disc and other documents to the police authorities. Above all, the said Stephen Vinod had promised that he will not interfere with the marital life of the appellant and the respondent. A similar statement was also given by Vilasini, Sister of the said Stephen Vinod. According to the respondent, the aforesaid statement of Stephen Vinod and his sister Vilasini would clearly prove that even prior to the marriage between him and the appellant, the appellant married Stephen Vinod and lived with him as husband and wife for a period of 18 months. As the appellant was married to another person at the time of her marriage with him, the marriage that had taken place between him and the respondent is nothing but a nullity. Therefore, the respondent has filed the Original Petition seeking to declare the marriage solemnised between him and the appellant on 25.06.2009 as null and void.

7. Repudiating the averments made by the respondent in the Original Petition, the appellant has filed a counter affidavit stating that the marriage between her and the respondent was an arranged marriage. At the time of marriage, her parents have offered 40 sovereigns of gold ornaments, 5 sovereigns to the respondent, 2 kilograms of silver utensils, a sum of Rs.20,000/- as dowry, Rs.12,000/- for dress and Rs.20,000/- for betrothel function,. According to the appellant, at the time of engagement ceremony, the mother of the appellant was http://www.judis.nic.in working at Ooty and that her father was working in the Commercial Taxes 8 Department at Coimbatore. Taking note of the convenience of the parents of the appellant, the betrothel ceremony was performed on 04.06.2009 at Coimbatore and not otherwise, as stated by the respondent. At the time of marriage, the father of the appellant informed the father of the respondent that the appellant has received an offer of appointment from Infosys, Bangalore and after training at Mysore, she joined the said company at Bengaluru and was working there since April 2008 to September 2008. It was also stated that the appellant was staying with her schoolmate by name Vilasini, who is residing at Bangalore and that the said Vilasini is the daughter of one Anand and Sambhavi, neighbours of the family of the appellant at Ooty. It was also stated that the appellant hesitated to stay in the house of her friend Vilasini, however, her friend compelled her to stay in her house atleast as a 'paying guest', hence, the appellant half-heartedly accepted to stay in the house of her friend Vilasini. It was further represented that since the brother of Vilasini expressed his intention to marry the appellant and the appellant refused to marry him, the appellant had left their house from Bengaluru leaving some of her belongings in their house. Thus, the details with respect to the stay of the appellant at Bengaluru in the house of Vilasini, and other details of the appellant were duly disclosed to the respondent and his parents and there was no suppression of any material facts prior to the marriage. In fact, the father of the respondent also stated that it is common in these days for a male to express his inclination to marry a girl and these things need not be taken very seriously. Further, the father of the respondent also informed that earlier, a marriage alliance was fixed for the respondent with a girl by name Ishwarya and subsequently, it was found that the girl was having an affair with another man and therefore, the marriage proposal was http://www.judis.nic.in dropped. Therefore, according to the appellant, after divulging all the details about 9 the appellant to the respondent and his family members, the family of the appellant and respondent have decided to proceed with the marriage between the respondent and the appellant. While so, the question of suppression of any material facts will not arise.

8. According to the appellant, after the marriage, she lived with the respondent at Madurai for a brief period and thereafter, they proceeded to Chennai and stayed in the sister's house of the respondent. On 19.07.2009, the respondent and the appellant proceeded to Manchester, England. In other words, the initial period of the matrimonial life between the appellant and the respondent was happy and it is not correct to state that the appellant remained aloof and refused sexual intercourse with the respondent.

9. According to the respondent, on 21.07.2009, the appellant made a call to Vilasini of Bengaluru to request her to send her belongings from her house and to hand it over to her father at Ooty. Since the said call was not attended by Vilasini, it turned to be a missed call in her mobile number. It appears that on seeing the missed call, the brother of the said Vilasini called the appellant several times without knowing the time difference of 4 1/2 hours between India and United Kingdom. After seeing the calls, the respondent re-dialled the number and scolded the person who attended the said call and cautioned him not to make any such call to her. However, within a few days, the said Stephen Vinod had sent some false and ugly messages and this was informed by the appellant to the respondent. The respondent only informed the appellant not to worry about the phone calls or http://www.judis.nic.in messages and that he would take care of the same. Accordingly, the respondent 10 informed his father about the messages received in the mobile phone of the appellant and asked him to go to Bangalore to meet and enquire the said Stephen Vinod. Accordingly, when the father of the respondent went to Bengaluru to give a complaint, the police refused to take the complaint on file since the messages and phone calls were received only by the appellant and that the appellant alone is competent to give any complaint relating to the so-called harassment meted out to her by the said Stephen Vinod. While so, the allegations that the appellant scolded the respondent when he questioned her about the phone calls received in the mobile phone etc., are all concocted and not borne out of truth.

10 According to the appellant, on 04.09.2009, she reached Chennai along with the respondent and stayed in the sister's house of the respondent. During such stay, the sister of the respondent and other family members have confronted the appellant about the disturbance caused by one Stephen Vinod and she also clearly narrated as to what had really happened and cleared all their doubts. Subsequently, the respondent went to Manchester on 18.09.2009 and the appellant joined him there during the last week of September 2009.

11. It is the further case of the appellant that during last week of September 2009, in order to ensure that the said Stephen Vinod did not intervene in the marital life of the respondent and the appellant, the father of the appellant, along with the father of the respondent, went to Bengaluru and met the said Stephen Vinod. When Stephen Vinod was questioned as to why he had sent messages and made phone calls to the appellant, he informed that he has no http://www.judis.nic.in intention to disturb the marital life of the appellant and that he had sent those 11 messages only as a joke.. In fact, the said Stephen Vinod was also asked to make a call to the respondent to clear all the doubts and accordingly, the said Stephen Vinod spoke to the respondent over phone. Thereafter, there was no disturbance or commotion in the marital life between the appellant and the respondent and they were leading a happy and blissful life. The respondent had also taken the appellant to various tourist spots in England and that the marital life between them was blissful and happy.

12. It is contended by the appellant that during the course of the matrimonial relationship with the respondent, she saw some photographs of the respondent with a girl, with whom a marriage alliance was proposed for the respondent and subsequently dropped, and casually questioned him with respect to the same. This had irked the respondent and he assured the appellant to delete those photographs. From that date, the respondent questioned the appellant about her relationship with Stephen Vinod and several other questions associated with that and thereby he caused immense mental disturbance to her. Even though the appellant repeatedly explained the respondent truly and faithfully about the past, he nagged the appellant with questions which are totally irrelevant. Even on 11.10.2010, when the respondent and the appellant came to Chennai and stayed in the sister's house of the respondent, the appellant was confronted with multiple questions by her in-laws and she also politely explained them. The appellant also convinced the in-laws and asserted that she is not guilty of any pre-marital offence and they were also fully convinced with the reply given by the appellant. Subsequently, on 25.02.2011, the appellant and the respondent once again came http://www.judis.nic.in down to Chennai, India and on 06.03.2011, the respondent alone went to United 12 Kingdom leaving the appellant in India since the appellant was having Company Secretary (ACS) exams in the month of June 2011. Even though her return ticket was booked on 14.06.2011, after completing the examinations, the father of the respondent informed the appellant that during her stay, it will be desirable to give a complaint against Stephen Vinod with the Frazer Town Police Station, Bengaluru and accordingly, a complaint was given by the appellant and her statement was recorded. During the course of enquiry, the said Stephen Vinod also accepted his guilt and his statement was recorded by the Frazer Town Police Station, Bangalore. Thereafter, when the appellant requested the father of the respondent to allow her to go to Manchester, it was stated that his maternal uncle is the eldest person in the family and he has to be consulted before taking a decision in the matrimonial life between the respondent and the appellant. It was further stated that a meeting is arranged to take such a decision on 12.04.2012. Accordingly, the appellant, her parents, the parents of the respondent and other relatives participated in the meeting that took place on 12.04.2012 at Thenmalai, Tirunelveli in the house of the grand father of the respondent. In the said meeting, no decision has been made and the appellant and her family members were asked to wait for a period of two months. Even after lapse of three months, nothing was heard from the respondent and his parents. While so, on 31.08.2012, one Mr. S.S. Pillai, Ex-President of Tirunelveli Sarva Velalar Sangam came to the residence of the appellant and informed the appellant and her parents to make necessary arrangement for getting a decree of divorce by mutual consent. The appellant is staying in the residence of her parents since March 2011 anticipating that the respondent would come and take her back to the matrimonial home. On the contrary, during December 2013, a http://www.judis.nic.in complaint was given by the father of the respondent before the Thallakulam Police 13 Station, Madurai based on which the father of the appellant attended an enquiry on 21.12.2013. From that date, the father of the respondent restrained the respondent from even talking with the appellant with an intent to perform a second marriage to his son with another girl. Therefore, on 18.01.2014, the appellant has given a complaint to the All Women Police Station, Coimbatore East, Coimbatore against her parents-in-law about their restraining activities and their attempt to give their son, the respondent herein, in marriage with another girl when the marriage between the appellant and the respondent is subsisting. Thus, all the efforts taken by the appellant to rejoin the matrimonial home was prevented by the respondent and his parents. The appellant is always ready and willing to join the matrimonial company of the respondent. Therefore, the appellant prayed for dismissal of the original petition filed by the respondent for declaring the marriage solemnised between her and the respondent as a nullity.

13. Apart from the counter affidavit filed by the appellant in the HMOP No. 1025 of 2014 filed by the respondent, the appellant has also filed an HMOP No. 298 of 2014 under Section 9 of the Act. In the Petition filed in HMOP No. 298 of 2014, while reiterating the averments she made in the counter affidavit in HMOP No. 1025 of 2014, she has stated that from March 2011, she is staying along with her parents and that the parents of the respondent have remained as a stumbling block for her to get re-united with the respondent. Even on 31.12.2013, when the appellant met the father of the respondent at Tallakulam Police Station in connection with the enquiry conducted by the Police officials on the basis of the complaint given by the father of the respondent, he has openly stated that he is http://www.judis.nic.in taking steps to arrange another marriage to the respondent with a girl. On 14 19.01.2014, the appellant has also given a complaint before the All Women Police Station, Coimbatore East, Coimbatore against her parents-in-law and requested them to enquire the respondent to enable her to join him in the matrimonial home. During the course of an enquiry, the father of the respondent had made false and misleading statement about the marital life of the appellant and the respondent besides refused to divulge the date on which the respondent is likely to return to India from London. As all the attempts made by the appellant to rejoin the matrimonial home failed, she has filed the Original Petition under Section 9 of the Act for restitution of conjugal rights.

14. The Original Petition filed by the appellant under Section 9 of The Act was resisted by the respondent by filing a counter affidavit before the Family Court in which reference was made to the statement given by Stephen Vinod and his sister Vilasini before the All Women Police Station, Tallakulam, Madurai on 11.04.2014 admitting the marriage between the said Stephen Vinod with the appellant herein and the fact that they lived together as husband and wife for about 18 months. By making reference to the said statement of Stephen Vinod, the respondent herein would contend that at the time of his marriage with the appellant, she was the wife of the above said Stephen Vinod and therefore, the marriage solemnised between him and the appellant is a nullity. The parents of the appellant as well as the appellant suppressed the earlier marriage of the appellant with the above said Stephen Vinod and performed the marriage between the appellant and the respondent. Since the appellant was the wife of another man at the time of the marriage between him and the appellant, the marriage is void and therefore, the http://www.judis.nic.in question of restituting the conjugal rights will not arise. Hence, the respondent 15 prayed for dismissal of the Original Petition filed by the appellant for restitution of conjugal rights.

15. Before the Family Court, common evidence was let in by the appellant and the respondent in HMOP No. 1025 of 2014 and HMOP No. 298 of 2014. On behalf of the respondent, the respondent examined himself as PW1, his father was examined as PW2, the Inspector of Police attached to All Women Police Station, Thallakulam was examined as PW3, Stephen Vinod was examined as PW4 and his sister Vilasini was examined as PW5. On behalf of the respondent, Exs. P1 to P9 were marked. On behalf of the appellant, the appellant examined herself as RW1. Exs. R1 to R17 were marked. Besides the above documentary evidence, Exs. X1 to X4 were marked before the Family Court through PW3, Inspector of Police, All Women Police Station, Thallakulam, Madurai.

16. The Family Court, upon analysing the oral and documentary evidence, concluded that at the time of marriage between the appellant and the respondent, the marriage between the appellant and the said Stephen Vinod, PW4 was subsisting and therefore, the marriage between the appellant and the respondent is a nullity and allowed HMOP No. 1025 of 2014 filed by the respondent by declaring that the marriage that had taken place between the appellant and the respondent on 25.06.2009 is null and void. Consequently, the Family Court held that the appellant is not entitled for the relief of restitution of conjugal rights and dismissed HMOP No. 298 of 2014 filed by her. Aggrieved by the above said Order passed by the Family Court, the appellant is before this Court with these Civil Miscellaneous http://www.judis.nic.in Appeals.

17. The learned counsel appearing for the appellant/wife would contend that the marriage between the appellant and the respondent was solemnised on 25.06.2009 and after the marriage, the appellant and the respondent led a happy and blissful married life. The appellant went to Manchester, United Kingdom and stayed with the respondent. The marriage was consummated and the appellant and the respondent came to India thrice and on all those occasion, the appellant accompanied the respondent to United Kingdom voluntarily without any hesitance. During their stay at Manchester, United Kingdom, one Stephen Vinod, PW4 falsely claimed that he married the appellant and that the appellant is his wife. The appellant denied such a statement made by PW4 and convinced the respondent and his relatives as to what made her to stay at Bengaluru in the house of Vilasini, PW5, sister of PW4. It was further stated by the appellant that Stephen Vinod and Vilasini, PW4 and PW5 are the children of Anand and Sambhavi, neighbours of the family of the appellant at Ooty and therefore, the parents of the appellant permitted her to stay at Bengaluru in the house of Anand. Notwithstanding the explanation offered by the appellant, the father of the respondent has given a complaint before the All Women Police Station, Thallakulam and during the course of enquiry, the said Stephen Vinod has falsely stated as if he married the appellant on 15.05.2015 at Marudhamalai Murugan Temple. It is based on the deposition of PW4 that he married the appellant on 15.05.2015 at Marudhamalai Murugan temple, the Family Court erroneously concluded that at the time of marriage between the appellant and the respondent, the marriage solemnised between the appellant and the said Stephen Vinod on 15.05.2015 was subsisting and that the appellant is the wife of the said Stephen Vinod. It was further concluded that the factum of marriage http://www.judis.nic.in between the appellant and the said Stephen Vinod, PW4 was suppressed by the 17 appellant and her parents and therefore, the marriage solemnised between the appellant and the respondent is void.

18. Before the Family Court, the appellant has categorically denied that she married the said Stephen Vinod. The appellant further stated that she stayed in the house of Vilasini, PW5, her childhood friend at Bengaluru and that the said Stephen Vinod is the brother of Vilasini. It was further stated by the appellant that she stayed in the house of Vilasini for a period of four months from April 2008 to September 2008 when she was employed in Bengaluru. Notwithstanding the above statement of the appellant, the Family Court was carried away by the statement of PW4, Stephen Vinod who has stated that he married the appellant on 15.05.2015 at Marudhamalai Murugan Temple. According to the counsel for the appellant, the statement of PW4 is not sufficient to hold the factum of marriage between the appellant and PW4. It is her contention that the solemnisation of marriage cannot be presumed by the Court and it has to be pleaded and proved. In the present case, except the self-serving statement of PW4, there is no evidence made available to prove the factum of marriage between the appellant and PW4. Had the marriage taken place at Marudhamalai Murugan Temple between PW4 and the appellant, as alleged, there would have been a receipt issued by the temple for solemnisation of such marriage, but no such receipt was produced by the respondent. Further, no photographs were produced to show that atleast there was exchange of garland between the appellant and PW4. Above all, PW4, in his evidence had given inconsistent deposition as to the place of marriage. In the statement, Ex.X1, recorded by the All Women Police Station, Thallakulam, PW4 http://www.judis.nic.in has stated that he married the appellant as per Hindu rites and customs on 18 15.05.2015 by exchanging garlands and by tying the thali at Marudhamalai Murugan Temple. However, in his chief examination, as PW4, before the Family Court, he deposed that on 15.05.2005, he married the appellant at the foot hill of Marudhamalai Murugan Temple in front of Aalamarathu Vinayagar Temple. Therefore, the deposition of PW4 is not trustworthy in so far as it relates to the place where the alleged marriage was solemnised between him and the appellant. Inspite of such glaring contradiction as to the place of the alleged marriage and the lack of evidence to show the solemnisation of marriage between the appellant and PW4, the Family Court placed reliance on the deposition of PW4 to conclude that there was a marriage between the appellant and PW4 without regard to the fact that it was not substantiated by the respondent through any acceptable oral or documentary evidence.

19. The learned counsel for the appellant placed reliance on Section 7 of The Act and contended that as per Section 7 of the Act, a marriage may be presumed as valid if the customary rites and ceremonies of either party to the marriage are performed prior to such marriage. Section 7 (2) of the Act prescribes that the rites and ceremonies to prove a valid Hindu marriage includes Saptapadi i.e., the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. In the present case, there is not even an iota of evidence to show that the rites and ceremonies contemplated under Section 7 of the Act have been fulfilled, leave alone the exchange of garlands between the appellant and PW4. Even though PW2, father of the respondent, in his deposition has stated that during the course of enquiry before the Inspector of Police, All Women Police Station, http://www.judis.nic.in Thallakulam PW4 had shown him some photographs to show that he married the 19 appellant, those photographs were not produced before the Family Court. In fact, PW4 in his cross-examination has admitted that there were no photographs produced before the Family Court showing the appellant and PW4 in the marriage attire or with garland. Therefore, according to the counsel for the appellant, the alleged marriage between the appellant and Stephen Vinod has not been proved in accordance with the provisions contained under The Act.

20. The learned counsel for the appellant invited the attention of this Court to the deposition of PW5, sister of PW4, who has stated that the appellant is her childhood friend and she stayed in her house while she was employed in Bengaluru. Therefore, according to the counsel for the appellant, the deposition of PW5 would clearly prove that the appellant stayed in the house of PW5 for the purpose of attending her employment at Bengaluru and it cannot be presumed that the appellant stayed in the house of PW5 as the wife of PW4. Even as per Ex.X1, during September 2009, the parents of the appellant visited the house of PW5 and collected all the personal belongings left by the appellant in their house. This was also confirmed by PW5 in her deposition. If really the appellant and PW4 were married and lived as husband and wife, the parents of the appellant would not have been permitted to collect the personal belongings of the appellant from their house. Therefore also, the learned counsel for the appellant would contend that there was no marriage solemnised between appellant and PW4, as alleged. While so, the Family Court had gone into the validity of the marriage between the appellant and the respondent but failed to consider that the alleged marriage between appellant and PW4 is void ab initio. If the alleged marriage between the appellant and PW4 http://www.judis.nic.in is valid in law, the marriage between the appellant and the respondent would be 20 void. On the other hand, if the alleged marriage between the appellant and PW4 is void, the marriage between the appellant and the respondent would be a valid marriage and it cannot be declared as null and void. In this context, the learned counsel for the appellant placed reliance on Section 5 of The Act and contended that admittedly, PW4 was a Christian at the time of marriage and the appellant was a Hindu. Even as admitted by PW4, since the appellant belonged to Hindu community, as per her wish, he agreed to solemnise the marriage as per Hindu rites and customs by exchanging garlands and by tying the thali. This, according to the counsel for the appellant is contrary to Section 2 of The Act which contemplates that the provisions contained in the Act shall be applicable only in case the groom and bridegroom are Hindus. Further, Section 5 of The Act stipulates certain conditions that are precedent for a Hindu marriage. Section 5 specifically provides that a marriage may be solemnised between any two Hindus and only if a marriage is solemnised between two Hindus, the conditions stipulated in the sub-section (i) to

(v) have to be fulfilled. Further, Section 7 of the Act contemplates certain ceremonies to be performed prior to a marriage between two Hindus and only if those ceremonies are fulfilled, a marriage can be construed as a valid marriage. In this case, even according to Stephen Vinod, PW4, he was a Christian at the time of the so-called marriage with the appellant, however, he married the appellant as per the customs and rites prevailing in the Hindu community by exchanging garlands. Therefore, the so-called marriage held between the appellant and Stephen Vinod is not a valid marriage, as per Sections 2 and 5 of The Act.

21. The learned counsel for the appellant would further contend that for http://www.judis.nic.in declaring a marriage solemnised between two Hindus, as null and void, it must be 21 shown that the conditions stipulated under sub-sections (i), (iv) and (v) of Section 5 of The Act are attracted. In the present case, the conditions laid down under Sub- section (i) (iv) and (v) are not attracted especially when the appellant and the said Stephen Vinod will not fall under any of the parameters laid down under the Act as they belonged to different community. While so, it is the duty of the Family Court to examine as to whether the alleged marriage conducted between the appellant and Stephen Vinod, PW4, is a valid marriage in accordance with Section 5 of The Act and the marriage cannot be presumed and assumed. This is more so that the appellant, in categorical terms, has denied having married Stephen Vinod. Therefore, according to the counsel for the appellant, the Family Court failed to examine the validity of the so-called marriage held between the appellant and Stephen Vinod, PW4, which resulted in miscarriage of justice.

22. In support of the above contentions, the learned counsel for the appellant relied on the decision in the case of (G. Sijala vs. M. Prabhu and another) reported in 2012 (2) MLJ 550 wherein it was held that when the appellant/wife denied the solemnisation of alleged marriage by adducing evidence, the burden is on the respondent/husband to prove the contrary. It was further held that Sapthapathi, one of the ceremonies propounded by Hindu religion and contemplated under Section 7 of The Act is mandatory to hold that a marriage between two Hindus is a valid marriage.

23. The learned counsel for the appellant also relied on the decision in the case of Sharmila Devi vs. S. Sridhar reported in (2009) (1) CTC 481 to contend http://www.judis.nic.in that to prove that there was a valid marriage, the minimum requirement of proof is 22 with respect to tying of thali or exchange of garlands or rings, as the case may be and in the absence of the proof of such ceremonies preceding a marriage, such marriage cannot be held as a valid marriage.

24. The learned counsel for the appellant also relied on the decision rendered by the Honourable Supreme Court in (Gullipilli Sowria Raj vs. Bandaru Pavani) reported in (2009) 1 Supreme Court Cases 714 to contend that marriage of a Hindu boy or girl with another person professing a different religion is void and it cannot be regarded as a valid marriage, as contemplated under the provisions contained in The Act. For the very same proposition, the learned counsel for the appellant relied on the decision of the Honourable Supreme Court in the case of (Smt. Yamunabai Anantrao Adhav vs. Anantrao Shivaram Adhav) reported in AIR 1988 Supreme Court 644.

25. The learned counsel for the appellant further placed reliance on the decision in the case of (Jerry Garman @ Geraldine @ Jayalakshmi vs. A.S. Sethuraman) reported in (2016) 2 MLJ 169 to contend that admittedly, Stephen Vinod was a Christian at the time of marriage and the appellant was a Hindu. While so, without conversion to Hindu religion by the said Stephen Vinod, the marriage solemnised by following the rites and customs prevailing in Hindu community cannot be regarded or recognised as a valid marriage.

26. The learned counsel for the appellant would further contend that after marriage, the appellant and the respondent lived together for a year between http://www.judis.nic.in 18.09.2009 and 12.10.2010 and from 23.12.2010 to 25.02.2011 and it was also 23 admitted by the respondent. Therefore, the averment of the respondent that the marriage between him and the appellant did not consummate is nothing but a falsehood. If the allegation that the marriage is not consummated is correct, the respondent would not have booked return tickets for their journey from India to Manchester twice. Further, the photographs, Ex.R1 to R3 series show that they were living together happily. According to the counsel for the appellant, only on the basis of the interference caused by Stephen Vinod, the respondent and his family members decided to snap the matrimonial tie without examining as to whether there was a valid marriage or the allegations raised by Stephen Vinod are true. Merely because Stephen Vinod has asserted that he married the appellant, it cannot be believed especially when he has not produced any photographs or any other evidence to prove the solemnisation of marriage on 15.05.2005. The appellant has categorically asserted that she was always ready and willing to join the matrimonial company of the respondent but the respondent not only avoided the company of the appellant but also sought for declaration of the marriage as null and void by placing heavy reliance on the statement given by Stephen Vinod.

27. The learned counsel for the appellant also submitted that the Court below passed the common order on 20.12.2016 and the certified copy of the said order was made ready and delivered on 13.03.2017. As per Section 28 of the Act, the time for preferring an appeal is 90 days and such period expires on 11.06.2017. Even before the expiry of the 90 days time stipulated under Section 28 of the Act, the appellant has preferred the above Civil Miscellaneous Appeals assailing the order passed by the Family Court and the copies of the memorandum of grounds of http://www.judis.nic.in appeals were also served on the counsel for the respondent/Caveator on 24 25.04.2017. However, even before the expiry of time for preferring the present appeal, the respondent herein contracted a second marriage with one Ponkumari on 23.04.2017, which is illegal and the respondent could not have contracted the second marriage even before the expiry of the limitation period. Therefore, according to the counsel for the appellant, the marriage between the respondent and one Ponkumari on 23.04.2017, even before the expiry of time for preferring the appeals, are contrary to Section 15 of the Act. The learned counsel for the appellant therefore prayed this Court to set aside the common order passed by the Family Court and to allow the Civil Miscellaneous Appeals.

28. Per contra, the learned counsel for the respondent would contend that at the time of marriage between the respondent and the appellant, the appellant was the wife of another person by name Stephen Vinod, but the factum of the marriage between the appellant and the said Stephen Vinod was suppressed by the appellant and her parents. According to the counsel for the respondent, in order to substantiate the marriage between the appellant and the said Stephen Vinod, the respondent has examined PW3, Inspector of Police attached to Thallakulam Police Station, who has deposed about the enquiry conducted by her and the statement she had recorded from Stephen Vinod about the marriage held between him and the appellant. That apart, the respondent has also examined the said Stephen Vinod as PW4 who, in categorical terms, has deposed as to the manner in which he had married the appellant. Further, Vilasini, PW5 was examined, who is the sister of PW4 and she deposed the fact that the appellant was introduced to her relatives only as the wife of Stephen Vinod and that the http://www.judis.nic.in appellant also participated in the baby shower function of PW5 along with Stephen 25 Vinod. While attending the said function, the appellant and her husband Stephen Vinod have also presented a ring to her husband. The photographs taken during the function were marked as Exs. P7, P8 and P9 before the Family Court which reveals the intimate relationship between the appellant and Stephen Vinod, That apart, PW5 has categorically stated that the appellant and her brother Stephen Vinod stayed in their house at Bangalore for about 8 months and during such stay, both the appellant and her brother stayed in the same room. The learned counsel for the respondent would further contend as per the deposition of PW4 and 5, there are two rooms in the house of PW4 at Bengaluru in which appellant and the said Stephen Vinod stayed in one room and PW5 also stayed there for some days. Thus, the deposition of PW3, PW4 and PW5 would categorically indicate the marital relationship between the appellant and Stephen Vinod, PW4, however, suppressing the same, the marriage between the appellant and the respondent was solemnised.

29. The learned counsel for the respondent would further contend that when the appellant and the respondent, soon after marriage, went to Manchester, United Kingdom, the appellant made some calls to Stephen Vinod, but he did not respond. However, after the respondent returned from the office, the said Stephen Vinod made a call to the mobile phone of the appellant and it was attended by the respondent. During the conversation, when the respondent asked Stephen Vinod as to who he is, he replied that he is the husband of the appellant. In order to confirm the version of Stephen Vinod, the father of the respondent, along with the father of the appellant met Stephen Vinod and during such meeting, Stephen Vinod http://www.judis.nic.in admitted having married the appellant on 15.05.2005. Even though an assurance 26 was given by Stephen Vinod that he will not intervene in the marital life of the appellant and the respondent, he continued to converse with the appellant through mobile phone and sent messages. Therefore, the father of the respondent had given a complaint to Tallakulam Police Station based on which an enquiry was conducted. During the course of enquiry, Stephen Vinod has furnished photographs and compact discs which would reveal that the appellant and the said Stephen Vinod lived as husband and wife and they were marked before the Family Court. Further, the deposition of Stephen Vinod would reveal that the appellant and Stephen Vinod were known to each other from their childhood and their relationship got stronger when the appellant was studying VIII Standard. The appellant also did not dispute that she stayed in the house of Stephen Vinod, however, she would assert that she stayed there as a paying guest when she was employed in Bengaluru. The period of stay of the appellant at the house of PW4 and 5 at Bengaluru, the relationship between the appellant and Stephen Vinod, PW4, during their childhood days would only suggest that they must have had intimate relationship as husband and wife, which is also established by the deposition of PW4 and 5. Even as per the deposition of PW5, she treated the appellant only as her sister-in-law, meaning thereby, she had married her brother Stephen Vinod, PW4. In any event, the marriage held between the appellant and Stephen Vinod on 15.05.2005 has been clearly spoken to by PW4, who alone is competent to reveal the same and the subsequent relationship between the appellant and Stephen Vinod was deposed by PW5. When that being so, it is clearly established that at the time of marriage between the appellant and the respondent, the appellant was the wife of Stephen Vinod, PW4 and thereby the marriage http://www.judis.nic.in solemnised between the appellant and the respondent has become a nullity. 27

30. The learned counsel for the respondent invited the attention of this Court to Section 50 of Indian Evidence Act and contend that having regard to the nature of deposition of PW4 and 5 and the other attendant circumstances established in the present case, the Court can reasonably presume the existence of marriage between the appellant and the said Stephen Vinod.

31. In support of his contention, the learned counsel for the respondent relied on the decision rendered by the Honourable Supreme Court in the case of (Badri Prasad vs. Deputy Director of Consolidation and others) reported in (1976) 3 Supreme Court Cases 527 to contend that long after the marriage between the appellant and the said Stephen Vinod, the respondent cannot be expected to produce the evidence relating to solemnisation of such marriage or evidence of Priest or any other evidence to prove the marriage and that the marriage can be presumed on the basis of the deposition of PW4 alone.

32. The learned counsel for the respondent also placed reliance on the decision of the Honourable Supreme Court in the case of (Tulsa and others vs. Durghatya and others) reported in (2008) 4 Supreme Court Cases 520 to contend that a strong presumption arises in favour of the respondent to presume that there was a marriage held between the appellant and Stephen Vinod and to substantiate the same, the respondent also examined Stephen Vinod, husband of the appellant, as PW4. When the initial presumption as to the marriage between the appellant and Stephen Vinod has been established by the respondent, it is for the appellant to rebut such presumption, but she miserably failed to do so by http://www.judis.nic.in furnishing any acceptable evidence. Therefore, it is contended that the Family 28 Court rightly presumed the marriage between the appellant and Stephen Vinod, PW4 and it needs no interference by this Court.

33. The learned counsel for the respondent also relied on the decision of the Honourable Supreme Court in the case of (S.P.S. Balasubramanyam vs. Suruttayan @ Andali padayachi and others) reported in (1992 Supplemental (2) Supreme Court Cases 304 and also the decision in the case of (Madan Mohan Singh and others vs. Rajni Kant and another) reported in (2010) 9 Supreme Court Cases 200 to contend that the fact that the appellant stayed in the house of Stephen Vinod and the deposition of PW5 that the appellant and her brother Stephen Vinod stayed in one and the same room in their house for atleast eight months would give rise to a reasonable presumption that the appellant and Stephen Vinod lived as husband and wife.

34., The learned counsel for the respondent would further contend that when the appellant had suppressed the existence of earlier marriage with Stephen Vinod, PW4, by virtue of which the marriage solemnised between the appellant and the respondent had become a nullity, the question of her readiness and willingness to join the matrimonial company of the respondent would not arise and it was rightly rejected by the Family Court.

35. The learned counsel for the respondent also submitted that on 20.12.2016, the Family Court allowed the Original Petition filed by the respondent and dismissed the Petition for restitution of conjugal rights filed by the appellant. As http://www.judis.nic.in per Section 19 (3) of The Family Court Act, an appeal can be preferred within 30 29 days of the date on which the certified copy of the Order has been obtained. In the present case, the certified copy of the order has been made ready and delivered to the parties on 13.03.2017 and that the appellant ought to have preferred an appeal as contemplated under Section 19 of the Family Court Act, on or before 12.04.2017. The present appeals were filed on 25.04.2017 and the marriage solemnised between the respondent and one Ponkumari on 23.04.2017 is proper and it was solemnised after the period of limitation for filing appeal expired. In such circumstances, the learned counsel for the respondent prayed for dismissal of the Appeals.

36. We have heard the counsel for both sides at length and perused the materials placed on record. As we have dealt with the factual aspects of the Original Petitions, against which the present appeals have arisen, in detail, we refrain ourselves from dealing with the same any further. However, certain facts which are absolutely germane and necessary alone are dealt with for the purpose of disposal of these appeals.

37. In the light of the arguments of the counsel for both sides, the following points emerge for our consideration in these appeals and they are:-

(1) Whether the marriage alleged to have been taken place between the appellant and one Stephen Vinod on 15.05.2015 at Maduramalai Murugan Temple is in accordance with Sections 2, 5 and 7 of The Hindu Marriage Act (2) Whether the solemnisation of the marriage between the appellant and one Stephen Vinod can be presumed without any primary or secondary evidence?

(3) Whether the appellant has proved that she was ready http://www.judis.nic.in and willing to join the matrimonial company of the respondent? 30

Point Nos.1 and 2:-

38. For considering the first point formulated above, it is just and essential to look into the relevant provisions of the Act and they are as follows:-

"2. Application of Act:- (1) This Act applies-

(a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prathana or Arya Samaj,

(b) to any person, who is a Buddhist, Jaina or Sikh by eligion and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the mattes dealt with herein if this Act had not been passed.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe, within the meaning of Clause 25 of Article 366 of The Constitution unless the Central Government, by notification in the official gazzette, otherwise directs (3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

"5. Conditions for a Hindu Marriage:- A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely-

                                 (i)     neither party has a spouse living at the time of the
                          marriage
                                 (ii)    at the time of the marriage, neither party-
                                 (a)     is capable of giving a valid consent to it in consequence
                          of unsoundness of mind; or
                                 (b)     though capable of giving a valid consent, has been

suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity

(iii) the bridgeroom has completed the age of (twenty one years) and the bride, the age of (eighteen years) at the time of marriage

(iv) the parties, are not sapindas of each other, unless the http://www.judis.nic.in custom or usage governing each of them permits of a marriage between the two.

7. 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 saptapati (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire) becomes complete and binding when the seventh step is taken."

39. It is evident from Section 2 of The Act that a marriage, said to have been solemnised by following the religious rights and customs of Hindu, can be recognised only if the parties to the marriage are Hindus at the time of marriage. Section 5 of the Act imposes certain conditions which are precedent for a valid marriage and one of the conditions is that neither party to a marriage has a spouse living at the time of the marriage. In other words, if neither party to the marriage has a spouse living at the time of the marriage, such marriage will not be a valid marriage and it has to be declared as a nullity. Above all, for recognising a marriage said to have been solemnised by following the Hindu customs and procedures, Section 7 of the Act specifies that such marriages have to be solemnised in accordance with the customary rites and other ceremonies and one of the ceremonies mentioned thereto in Sub-Section (2) of The Act is Saptapati, the taking of seven steps by the bridegroom and bride in front of the sacred fire. Thus, these are some of the requirements required to be satisfied to recognise a marriage said to have been solemnised between two Hindus, by following the customs and procedures governing Hindu Law.

40. Applying the provisions contained under the Act, it has to be examined as to whether the marriage said to have been solemnised between the http://www.judis.nic.in appellant and Stephen Vinod, PW4, on 15.05.2005 is a valid marriage and it can be 32 recognised, which will have the effect of nullifying the marriage solemnised between the appellant and the respondent.

41. The marriage between the appellant and the respondent in this case was solemnised on 25.06.2009 at Star Park Kalyana Mandapam, Madurai as per Hindu rites and custom in the presence of elders, friends and relatives of both sides. The marriage was an arranged marriage having been performed as per the wish of the parents of both sides. According to the appellant, even before the marriage, she had openly disclosed everything to the respondent and his parents about her employment, a short stay at Bengaluru in the house of her friend Vilasini as a paying guest, the disturbance caused by Stephen Vinod, the brother of Vilasini and her eventual resignation of her job at Bengaluru. According to the appellant, when this was informed to the respondent and his parents, they have taken it very casually by stating that it will normally happen to any one in their life and it will not be a bar or embargo for celebration of the marriage between the appellant and the respondent. Further, the respondent and his parents have also informed that earlier, the marriage of the respondent was fixed with one Aishwarya but it was subsequently dropped because it was found that the girl was having an affair with another man. Thus, according to the appellant, she had disclosed all about her to the respondent and his family members even prior to the marriage. However, after the marriage, Stephen Vinod, brother of Vilasini had made calls to her and stormed into her marital life. Even though the respondent and his family members believed the words of the appellant that she has no nexus or connection with Stephen Vinod, since he continued to disturb the marital life of the appellant, a complaint was given http://www.judis.nic.in to Tallakulam Police Station by father of the respondent and during the course of 33 an enquiry, it unfolded that the said Stephen Vinod earlier married the appellant and lived with her for sometime in Bengaluru in his house as husband and wife. According to the respondent, the appellant failed to disclose her marriage with Stephen Vinod and at the time of the marriage with him, the appellant was the wife of Stephen Vinod which made the marriage a nullity.

42. In this background, it has to be examined as to whether the respondent has established that there was a valid marriage between the appellant and Stephen Vinod, PW4. If the marriage between the appellant and Stephen Vinod was a valid marriage or it has been established that it is a valid marriage solemnised in accordance with the provisions contained under The Act, then the order passed by the Family Court has to be affirmed. On the other hand, if the evidence made available do not establish that there was a marriage between the appellant and Stephen Vinod, PW4, then the order passed by the Family Court has to be set aside.

43. In this context, the deposition of PW4, Stephen Vinod, who claimed to have married the appellant on 15.05.2005, has to be examined. PW4 in his chief- examination has deposed that he and the appellant knew each other and when he was studying IX Standard, he proposed his love to the appellant and she reciprocated it when she was studying in X Standard. He further deposed that both of them have developed their love affair even while they were pursuing higher studies. As their parents may not give their nod to the marriage, they proposed to get married and accordingly on 15.05.2005, they got married in front of the http://www.judis.nic.in Aalamarathu Vinayagar Temple at the foothill of Maruthamalai Murugan Temple by 34 tying the thali. He further deposed that they have exchanged garland.. According to PW4, their marriage was solemnised as per Hindu rites and customs by exchanging garlands and by tying Thali even though he was a Christian at the time of marriage and the appellant was a Hindu. After such marriage, he went to Ooty and stayed along with his parents and that the appellant went to Coimbatore and continued to reside with her parents. After two years of the so-called marriage, according to PW4, in the year 2007, the appellant came to Bengaluru where she got a job. Initially she stayed in the residence of his Sister and at that time, PW4 met with an accident. At the time of accident, the appellant looked after PW4 and assisted him and it was opposed by the mother of PW4 and PW5. It is at that time, PW4 informed his mother that he already married the appellant in the year 2005. As the mother of PW4 accepted their marriage, the appellant was permitted to stay in the house of PW4 along with PW5. While so, during the year 2009, the appellant's sister Nandhini came and stayed along with the appellant in the house of PW4 and PW5 in connection with her examinations. At that time, the appellant disclosed to PW4 that her father has proposed to give her in marriage. Thereafter, the appellant left for Ooty along with her Sister by informing PW4 that she will return back shortly. Thereafter, according to PW4, the appellant did not return to Bengaluru, as promised by her. When PW4 contacted the appellant over phone, she informed him that she is proceeding to United Kingdom for her further studies and that she will return back after six months. Therefore, according to PW4, he did not make any attempt to contact the appellant after she left his home.

44. In his cross-examination, PW4 admitted that he is a Roman Catholic http://www.judis.nic.in Christian by religion. As regards the manner in which PW4 married the appellant, a 35 suggestion was put to him as to whether he married the appellant at Marudhamalai Murugan Temple, as has been stated before PW3, Inspector of Police, All Women Police Station, Thallakulam and he admitted it as true that he married the appellant at Marudhamalai Murugan Temple. On the contrary, in the Chief Examination, he has stated that he married the appellant at the foothill of the Marudhamalai Murugan Temple in front of Aalamarathu Vinayagar Temple. Above all, in his cross-examination, he has agreed that he did not produce any document such as photograph or receipt issued by the temple authorities for having married the appellant. He also admitted that there is no photograph available or taken at the time when the appellant and PW4 exchanged garlands. He has also admitted that there is no one, even his close friends, witnessed the so-called marriage between him and the appellant. Therefore, this piece of deposition of PW4, in his cross- examination would clearly show that at the time of the so-called marriage, PW4 was a Roman Catholic Christian and the appellant was a Hindu. The so-called marriage solemnised between PW4 and appellant was also not registered before the competent Sub-Registrar Office. There is no evidence available to show that there were exchange of garlands. Even the close friends of the appellant or PW4 have not witnessed the so-called marriage on 15.05.2005.

45. Admittedly, PW5 was not a witness to the so-called marriage solemnised between PW4, her brother and the appellant. All that PW5 says is that the appellant is her sister-in-law as she got married to her brother, PW4. She also deposed that PW4 and the appellant participated in her marriage as husband and wife, presented a gold ring besides participated in the baby shower ceremony http://www.judis.nic.in celebrated for her child. It is needless to mention that the appellant and PW5 are 36 childhood friends and therefore, it is but natural for the appellant to have attended her marriage and the Baby Shower function. However, it cannot be construed that the appellant attended the said functions as her sister-in-law. In any event, the deposition of PW5 has no significance to be attached to prove the so-called marriage solemnised between her brother, PW4 and the appellant.

46. In this context, it would be worthwhile to refer to the decision of the Honourable Supreme Court in (Gullipilli Sowria Raj vs. Bandari Pavani @ Gullipilli Pavani) reported in (2009) 1 Supreme Court Cases 714 wherein it was held the marriage solemnised between the appellant therein, a Roman Catholic Christian and the respondent, who is a Hindu, in a temple by exchange of 'thali', in accordance with Hindu custom was a nullity and it's consequential registration before the concerned Registrar of Marriage under Section 8 of the Act could not and/or did not validate the marriage. In Para No.18 of the said Judgment, it was held by the Honourable Supreme Court as follows:-

"18. In the facts pleaded by the respondent in her application under Section 12 (1) (C) of the 1955 Act and the admission of the appellant that he was and still is a Christian belonging to the Roman Catholic denomination, the marriage solemnised in accordance with Hindu customs was a nullity and its registration under Section 8 of the Act could not and/or did not validate the same. In our view, the High Court rightly allowed the appeal preferred by the respondent herein and the Judgment and order of the High Court does not warrant any interference."

47. A similar view was taken by the Division Bench of this Court in the decision rendered in the case of (Jerry Garman @ Geraldine @ Jayalakshmi vs. A.S. Sethuraman) reported in (2016) 2 MLJ 169 wherein the Division Bench of this http://www.judis.nic.in Court has held as follows:-

"18. It is clear that the marriage took place as per Christian Marriage Act and hence, it could not be dissolved as per provisions of Section 5 of Hindu Marriages Act. It is crystal clear that for the marriage to be solemnised as per Hindu Marriage Act, both should be Hindus. In this case, it is clear that the appellant is a Christian and she has not converted to Hinduism. On the aforesaid circumstances, it is legally clear that the marriage was solemnised only under Christian Marriage Act. But, without considering it properly the Court below has passed the impugned order, which is against law and accordingly, the order of the trial Court dated 15.04.2015 passed in I.A. No. 623 of 2010 in O.P. No. 2940 of 2007 is liable to be set aside."

48. In yet another decision rendered by the Honourable Supreme Court in the case of (Deoki Panthiyara vs. Shashi Bhushan Narayan Azad and another) reported in (2013) 2 Supreme Court Cases 137, it was held as follows:-

23. We would like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent Court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of The Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the Courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance. Consequently, we hold that in the present case, until the invalidation of the marriage between the appellant and the respondent is made by a competent Court, it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and protection available under the DV Act, 2005."

49. In the present case, admittedly, at the time of so-called marriage between the appellant and Stephen Vinod, PW4, the appellant was a Hindu and Stephen Vinod was a Christian. However, as per the version of Stephen Vinod, he married the appellant by exchanging garland and by tying thali, a practice prevailing in Hindu custom and rites. Therefore, such a marriage cannot be recognised and http://www.judis.nic.in given a seal of approval by the Courts of law. Further, on appreciation of the 38 deposition of PW4 and PW5, it could be concluded that PW4 had merely tied thali in the neck of the appellant and exchanged garlands. Moreover, no one had witnessed the so-called marriage held between PW4 and appellant. The mere exchange of garland or tying of thali cannot be, at any stretch of imagination, be recognised as a valid marriage solemnised as per the customs, practice and procedures followed by Hindus. Moreover, the so-called marriage said to have taken place between PW4 and appellant on 15.05.2015 is contrary to the provisions contained under Sections 2, 5 and 7 of the Act. When PW4 was a Roman Catholic Christian and the appellant was a Hindu at the time of the so- called marriage, the said marriage solemnised by following the procedures and rites followed by Hindus is contrary to the provisions contained under the Act.

50. Above all, in the deposition of the appellant, as RW1, she has categorically denied having married Stephen Vinod on 15.05.2015. Even though the appellant was cross-examined at length, nothing could be elicited from her as regards the so-called marriage solemnised between her and PW4 on 15.05.2005. In such circumstances, the burden is on the respondent to prove that there was a marriage, much less a valid marriage held between PW4 and the appellant. However, the respondent only placed reliance on the deposition of PW4, PW5 and some photographs which were taken to show that the appellant and PW4 lived as husband and wife. In this context, useful reference can be made to the Division Bench decision of this Court in the case of (G. Sijala vs. M. Prabhu and another) reported in (2012) 2 MLJ 530 it was held as follows:-

http://www.judis.nic.in "43. Since the alleged marriage is solemnized with the customary rites and ceremonies of either party to the marriage, 39 the burden is upon the respondent to prove what are all the customs and ceremonies that were performed and more particularly, whether, to complete the marriage, the essential rite called Saptapati was performed.

44. Admittedly, the Priest (Gurukkal), who is said to have performed the marriage, was not examined. DW3, would claim that he being the elder person, the respondent requested him to conduct the marriage and he gave the Mangalsutra to the bridegroom and the respondent tied the thali. Such performance relates to a ceremony coming under Section 7-A of the Act (Suyamariathai or Seerthirutha Kalyanam). But, he would also state that the Priest lit "Oma Gundam" the sacred fire and made the bride and bridegroom to perform Saptapati. Unfortunately, such version is not corroborated by DW7.

45. The evidence of the respondent seems to be that both the ceremonies under Sections 7 and 7-A were performed.

In any event, to prove the marriage, solemnised under the Hindu rites and customs. It is mandatory to prove that Saptapati was performed.

46. The failure to examine the Priest to perform the rites would show that the marriage was not performed under Section 7 of the Act.

47. The evidence of the appellant and the respondent would show that an infatuated girl has been taken through some form of marriage. The appellant allege that the respondent had induced to come along with him and sign some documents and she denies the performance of the marriage.

48. On the other hand, the respondent would allege that the appellant had insisted for a marriage and they underwent the customary marriage, which is also registered. In any event, the appellant now wants to avoid the marriage stating that there is no marriage.

51 In the light of the above decision of the Division Bench of this Court, we reiterate that there is no evidence, even in the form of photograph, placed to show that the appellant and PW4 have exchanged garlands as a sign of, or an acknowledgment of their marriage. The solitary statement of PW4 alone cannot be sufficient to hold that there was a marriage, much less a valid marriage, between PW4 and the appellant. The statement of PW4 did not inspire our confidence for http://www.judis.nic.in many reasons. Even though PW4 claims that he married the appellant on 40 15.05.2005, soon after such marriage, he went to his house and that the appellant went to her house and resided separately for two years. Even according to PW4, only in the year 2007, when the appellant got an employment at Bengaluru, she came and stayed in his house. After staying in the house of PW4 for about 8 months, the appellant went to Ooty and stayed there along with her parents. From 2007, until 2009, PW4 did not take any steps to either contact the appellant or to rejoin her as her husband. Thus, for a continued period, PW4 remained silent without taking any steps to bring back the appellant to his home. However, after the appellant got married to the respondent, he created a trouble and asserted that the appellant is his wife. Furthermore, the conduct of Stephen Vinod, PW4, in getting married to another lady during the pendency of the present appeals would only indicate that he had stormed into the marital life of the appellant for the reasons best known to him and largely contributed to the matrimonial rift between the appellant and the respondent. On the one hand, PW4 claimed to have married the appellant and on the other hand, he did not take any steps to resume the so- called marital life with the appellant. Had PW4 really married the appellant, as alleged by him, he would not have remained silent as a mute spectator till the appellant got married to the respondent and commenced her matrimonial journey at Manchester, United Kingdom. Merely because it is alleged by PW4 that he and the appellant lived together for a certain period of time, it will not confer the status of husband to PW4. When that being so, the question of declaring the marriage solemnised between the appellant and the respondent on the ground that at the time of such marriage the appellant was the wife of PW4 will not arise. In this regard, we are fortified by the decision of the Honourable Supreme Court in the http://www.judis.nic.in decision rendered in (Bhaurao Shankar Lokhande and another vs. The State of 41 Maharashtra and another) reported in AIR 1965 Supreme Court 1564 wherein the Honourable Supreme Court had an occasion to consider the question of bigamy in the context of Section 494 of Indian Penal Code. In that decision, it was held that to prove the solemnisation of marriage under The Act, it should be proved that a marriage was solemnised with proper ceremonies and in due form. It was held therein that merely going through certain ceremonies with intention of marriage will not ipso facto make the ceremonies prescribed by law or approved by custom. In any event, in the facts and circumstances of the present case and on the basis of the evidence made available, we are not in a position to hold that there was a marriage solemnised between the appellant and PW4 and such alleged marriage will not attract the provisions contained under Section 5 (1) of The Act to declare the marriage solemnised between the appellant and the respondent as a nullity. We reiterate that a marriage cannot be presumed and it has to be pleaded and proved. A marriage cannot be merely solemnised by tying thali and by exchange of garlands, but the ceremonies which are mandatory to be followed, as required under Section 7 of The Act, has to precede a valid marriage, without which a marriage under The Act cannot be recognised. Therefore, we answer both Point Nos. 1 and 2 in favour of the appellant and against the respondent.

52. The submission of the counsel appearing for the respondent/husband that after the expiry of the time for preferring the present appeal, the respondent contracted a second marriage with one Ponkumari and that such a marriage is valid cannot be accepted in view of our answer to point Nos. 1 and 2. Furthermore, we are not inclined to go into the question of correctness or validity of the marriage http://www.judis.nic.in said to have been solemnised between the respondent and one Ponkumari. We 42 can, at best, observe that such marriage was contracted by the respondent at his own risk.

53. Point No.3:- The appellant, in the counter affidavit filed in HMOP No. 3 of 2014 filed by the respondent (HMOP No. 1025 of 2014) has categorically stated that she is inclined to join the matrimonial company of the respondent, but it is prevented by the parents of the respondent in all forms and manifestations. The appellant also stated that she had given a complaint to the Inspector of Police, Coimbatore East, complaining that the parents of the respondent herein remain as a stumbling block for her to resume her marital life with the respondent. Thus, the appellant had taken several steps to rejoin the matrimonial company of the respondent even during the pendency of the Original Petition filed by the respondent for declaring the marriage solemnised between him and the appellant as a nullity.. Notwithstanding the filing of the counter affidavit, as stated above, the appellant has also independently filed HMOP No. 298 of 2014 under Section 9 of The Hindu Marriage Act for restitution of conjugal right. Even in the deposition of the appellant before the Family Court, as RW1, she has categorically stated that she had taken several steps to rejoin the matrimonial company of the respondent, but she could not succeed in such attempts. Thus, it is evident that the appellant was always ready and willing to join the matrimonial company of the respondent. In any event, in view of our findings with respect to point Nos. 1 and 2, holding that the alleged marriage between Stephen Vinod, PW4 and the appellant cannot be recognised under The Act as it was not proved by the respondent by adducing concrete material evidence, we answer point No.3 also in favour of the appellant http://www.judis.nic.in and against the respondent.

54. In the result, the common order and decree dated 20.12.2016 passed in HMOP No. 298 of 2014 and HMOP No. 1025 of 2014 on the file of Additional Principal Family Judge, Coimbatore, are set aside. The Civil Miscellaneous Appeals are allowed. No costs. connected miscellaneous petitions are closed.

(R.P.S.J.,) (P.D.A.J.,) 10-10-2018 rsh Index : Yes To The Additional Principal Family Judge, Coimbatore.

http://www.judis.nic.in 44 R. SUBBIAH, J and P.D. AUDIKESAVALU, J rsh Pre-delivery common Judgment in CMA Nos. 1901 & 1902/2017 10-10-2018 http://www.judis.nic.in

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