Madras High Court
Mohan vs Kanagavalli on 1 July, 2014
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.07.2014
CORAM:
THE HONOURABLE Mrs. JUSTICE S.VIMALA
Second Appeal No.984 of 2005
Mohan ... Appellant/Defendant
-Vs-
Kanagavalli ... Respondent / Plaintiff
Prayer: Second appeal filed under Section 100 of Civil Procedure Code against the judgement and decree, dated 24.12.2003 in A.S.No.32 of 2002 before the Principal District Judge, Villupuram, confirming the judgment and decree, dated 19.10.2001 in O.S.No.370 of 2000 on the file of the Principal District Munsif, Villupuram.
For Appellant : Mr.T.L.Ram Mohan, S.C.
For Mr.M.Krishnamurthy
For Respondent : Mr.K.Govi Ganesan
---
J U D G M E N T
It hurts to love someone and not be loved in return. This is the poignant position of the plaintiff, who has been waiting to be loved by her husband, after filing the suit for declaration of her status as the wife of the defendant and for the consequential injunction.
2.Love marriage / run-away marriage between the couples inter se or between couples and parents or between couples and society are age old issues. In Indian society, still arranged marriage is the prevalent method of getting married. Still the marriage is considered to be not a relationship between two individuals but a relationship between two families. Parents often want their offspring to get married to a boy or girl of their choice. There is reluctance and opposition either by parents or by the Society, if there is intervention of caste, religion and creed and sometimes financial status. Though the parents love their offspring, yet, either out of concern and care or out of narrow considerations , they oppose such marriages. Parents believe that it is legitimate to expect the same in return for their sacrifice. Here is one such case. According to the plaintiff/wife, though the defendant/ husband was willing to accept her as his wife, still, his parents are not willing to accept her. It is claimed that she is the victim of that refusal.
3.The defendant/husband is the appellant. The plaintiff/wife, Kanagavalli filed a suit in O.S.No.370 of 2000 for declaration that she is the legally wedded wife of the defendant and also to pass an order of permanent injunction restraining the defendant from re-marrying any other girl. The suit was decreed. Challenging the same, the defendant filed the first appeal in A.S.No.32 of 2002 which was dismissed. Aggrieved over the dismissal of the first appeal, the present second appeal has been filed.
4.The second appeal was heard on the substantial question of law formulated at the time of hearing:
1.When the requirements of valid marriage in terms of Section 7- A of the Hindu Marriage Act is not proved, whether the trial Court is justified in decreeing the suit ?
2.Whether the trial Court omitted to consider the material part of the evidence of the defendant and whether the Courts below omitted to consider the important omissions in the pleadings and evidence ?
Brief Facts:
5.The plaintiff and the defendant, belonging to the same community and living in the same street, fell in love with each other. The defendant's house was next to the house of the plaintiff's uncle. During the month of June 2000, on the strength of the promise made by the defendant that he would marry the plaintiff, the plaintiff had ultimate relationship with the defendant without knowing the consequence and significance. When the defendant's parents started arranging the marriage of the defendant with somebody other than the plaintiff, the defendant informed the same to the plaintiff and suggested that both of them may go to Chennai, after getting married and stay at his uncle's residence. The plaintiff believed the words of the defendant and she went to Sundara Reddiar Rice Mill, the place at which the defendant tied the sacred 'Thali'. The marriage took place in the presence of defendant's friends on 06.09.2000 at about 9.30 p.m. Later, they travelled in a lorry to Chennai and reached the defendant's uncle's house in the early morning at 3.00 a.m. on 07.09.2000.
5.1.The entire episode was disclosed to the defendant's uncle. The defendant's parents came there at 2.00 p.m. and lambasted the plaintiff with filthy language and snatched the Thali from the neck of the plaintiff. They obtained the signature of the plaintiff in a blank paper and they took the plaintiff and dropped at her sister's house and went away. The plaintiff's parents had personal discussions with defendant's parents. But the defendant's parents did not accept the request of the plaintiff's parents. Therefore, a police complaint was preferred. Now, the defendant's parents are trying to get the defendant married to some other girl and therefore, the suit was filed.
6.The claim of the plaintiff was disputed by the defendant on the following grounds:
1.There was no cause of action for the suit;
2.There was no relationship between the plaintiff and the defendant;
3.The consummation of marriage alleged to have taken place on 06.09.2000 is false;
4.No marriage ever took place between the plaintiff and the defendant and there is no relationship of husband and wife;
5.Suit has been filed with intention to grab money from the defendant.
7.The trial Court framed issues regarding the entitlement of plaintiff with regard to declaration, injunction and costs. While decreeing the suit, the trial Court has considered the following facts and circumstances:
1.The defendant has accepted the fact that there had been a panchayat immediately after the alleged incident;
2.The complaint of the plaintiff, the consequent first information report registered coupled with the evidence of P.W.3 would prove the marriage as true;
3.An unmarried girl would not simply just like that make allegations against any male member and the plaintiff could not have taken the risk of preferring the complaint against the defendant, if there is no incident and as the saying goes 'there is no smoke without fire', there ought to have been truth in the statement of the plaintiff;
4.There is no explanation on the part of the defendant for the non-examination of his two friends;
8.The first appellate Court, while confirming the judgment and decree of the trial Court, has taken into account the following circumstances:
1.The defendant has admitted in his evidence that P.W.2, Thangarasu, is a nearby resident of him and that there is no enmity between himself and Thangarasu. Therefore, there is no necessity for P.W.2 to give false evidence against the defendant.
2.P.W.3, the Sub Inspector of police, has spoken about the complaint preferred by the plaintiff and the consequent first information report registered by him. In the complaint, what is stated is that on 06.09.2000, near Reddiar mill, defendant tied Thali to the plaintiff and this evidence was considered to be a corroborative piece of evidence;
3.Despite the suggestion that defendant has wilfully withheld the evidence of his uncle, in whose house the marriage was consummated and this conduct supports the case of the plaintiff and did not support the case of the defendant;
4.The defendant who was under a duty to assist the Court in arriving at the truth has declined to say 'yes' or 'no', but has chosen to say that he did not know. When a fact is within the special knowledge of the defendant and who would be in a position to say (with certainty and clarity), has chosen to escape from the consequences of his answer and has chosen to say that he did not know. The circumstances under which this kind of answer has been given has been discussed in detail and reliance has been placed upon that.
9.Whether the observations and findings of both the Courts below are justified or not is the issue to be considered in this second appeal.
10.The first contention of the learned counsel for the appellant is that despite the concurrent findings of fact, the second appeal is maintainable, as the trial court and the first appellate court have omitted to consider important piece of evidence which ought to have been considered and placed reliance upon evidence which ought not to have been believed at all.
10.1.Explaining the two circumstances under which even as against the finding of fact, there is a possibility of substantial question of law arising for consideration and thus, the second appeal becomes maintainable, learned counsel for the appellant relied upon the decision reported in 2000 1 CTC 359 Ishwar Dass Jain vs. Sohan Lal, whereunder it has been observed as follows:
There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. ..... The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. ... In either of the above situations, a substantial question of law can arise. 10.2.So far as this case is concerned, there is no mis-appreciation of evidence or misapplication of evidence. However, question of law has been raised with reference to validity of marriage, vis-a-vis, Section 7-A of the Hindu Marriage Act. Hence, this second appeal is maintainable.
11.The contention is that the alleged marriage did not satisfy the essential ceremonies of marriage as contemplated under Section 7-A of the Hindu Marriage Act and in the absence of any evidence regarding the same, the alleged marriage should not have been believed.
11.1.Relying upon Section 7-A of the Hindu Marriage Act and also contending that the evidence available did not prove that the marriage was solemnized either under customary rights and ceremonies of either party as required under sub-section (1) and (2) of Section 7 of the Act and that the declaration as required under Section 7A (1) (a) of the Act has not been proved, the decision reported in ILR 1995 (2) Mds. 910 Shaji vs. Gopinath is canvassed. The relevant portion reads thus:
6. A perusal of the evidence shows that there was no form of marriage gone through between the plaintiff and the defendant at any time. What all has happened is only the registration of a marriage under the provisions of the Hindu Marriage Act. Section 7 of the Hindu Marriage Act provides that a Hindu Marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the saptapadi, that is, the taking of seven steps by the Bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. 11.2.Contending that the alleged Suyamariyathai marriage was not proved as true by adducing reliable oral and documentary evidence and that there was no valid marriage in the eye of law, the decision reported in 2012-3-L.W.422 (Leelavathy vs. A.Velayutham) is relied upon.
Alleged Suyamariyathai marriage was not proved as true by adducing reliable oral and documentary evidence and also not valid in law since it is not solemnised in the presence of relatives, friends or other persons as per Section 7-A of the Hindu Marriage Act, 1955. 11.3.Contending that there is neither pleading nor evidence either new or in support of the pleadings and therefore, the alleged marriage cannot be true, the learned counsel for the appellant relied upon the decision reported in 2009-1-L.W.748 Sharmila Devi vs. S.Sridhar. It has been held thus:
Pleading of Section 7-A of the Act is not convincing because the respondents should have clearly stated in their evidence whether they exchanged rings or tied Thali, atisfying the conditions of the Seerthirutha Marriage.
12.The contentions of the learned counsel for the appellant, relying upon the above three decisions, can be answered together.
12.1.It is pointed out by the learned counsel for the appellant that in the pleadings itself it is stated that the defendant made a declaration that he would take the plaintiff as his wife; but this part of declaration is omitted to be stated in the evidence and therefore, this should be considered as material omission. On the other hand, the learned counsel for the respondent submitted that the requirements regarding declaration or tying of Thali or exchange of garland are not cumulative, but they are exclusive and if the plaintiff is able to prove either one of them, the proof is sufficient.
12.2.In order to appreciate the contentions on both sides, it is necessary to look into the provisions of Section 7-A of the Hindu Marriage Act. By Tamil Nadu Act 21 of 1967, Section 7-A was introduced in the Hindu Marriage Act. The Section reads as follows :-
"7-A Special provision regarding suyamariyathai and seerthirutha marriages (1) This Section shall apply to any marriage between any two Hindus, whether called suyamariyathai marriage or seerthirutha marriage or by any other name, solemnised in the presence of relatives, friends or other persons--
(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife, or, as the case may be, her husband, or
(b) by each party to the marriage garlanding the other or putting a ring upon any ringer or the other; or (c) by . the tying of the thali.
2. (a) Notwithstanding anything contained in Section 7, but subject to the other provisions of this Act, all marriages to Which this Section applies solemnised after and commencement of the Hindu Marriage (Madras Amendment) Act, 1967 shall be good and valid in law.
(d) Notwithstanding anything contained in Section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to Sub-section (3) all marriages to which this Section applies solemnised at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnisation of each such marriage, respectively, good and valid in law."
12.3.The 'plain meaning rule' dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute. In other words, a statute is to be read word for word and is to be interpreted according to the ordinary meaning of the language, unless a statute explicitly defines some of its terms otherwise or unless the result would be cruel or absurd. Ordinary words are given their ordinary meaning, technical terms are given their technical meaning, and local, cultural terms are recognized as applicable. The plain meaning rule is the mechanism that prevents courts from taking sides in legislative or political issues.
12.4.Legislatures often include "definitions" sections within a statute, which explicitly define the most important terms used in that statute in order to avoid ambiguity. Whenever there is ambiguity, Courts are called upon to interpret the terms. The 'plain meaning rule', also known as the 'literal rule', is one of the three rules of statutory construction, the other two are the mischief rule and the golden rule.
12.5.The plain meaning rule attempts to guide courts faced with litigation, turns on the meaning of a term not defined by the statute, or on that of a word found within a definition itself. According to the plain meaning rule, words must be given their plain, ordinary and literal meaning.
13. So far as Section 7-A is concerned, the provisions uses words, which are very plain and ordinary. Therefore, no interpretation is called for. It is enough if one of the ingredients prescribed under Section 7-A is complied with for the validity of marriage. A bare perusal of the provisions would go to show that the requirements of declaration and the exchange of garlands or tying of Thali are mutually exclusive. The evidence in this case adduced through P.Ws.1 and 2 coupled with the contemporaneous complaint preferred with regard to marriage, would show that the alleged marriage by the plaintiff is true. There are more reasons than one for the Court to accept the evidence of P.W.1, which is corroborated by the evidence of P.W.2. P.W.1 has stated about the mutual exchange of love between herself and the defendant; the assurance and promise of the defendant to marry her; her marriage with D.W.1 in the form of Suyamariyathai marriage; and the refusal of the defendant to live with her. In fact, P.W.1 would state that the defendant was willing to live with her; but his wishes are diverted by his parents. P.W.2, the friend of the defendant, has corroborated the evidence of P.W.1.
13.1.The law regulates the relationship between the parties. Thus, it controls the pattern of behaviour and it reflects the values of the Society. Law is the living organism. Sometimes, change in law precedes social changes and is even intended to stimulate the social change. However, in many cases, change in law is the result of change in social reality. The law must be responsive and adapt itself to the changes in social reality.
13.2.In Indian Society, any girl or women making allegations regarding sexual relationship are fully aware of the consequences or repercussions following out of it. She would be viewed by the Society with contempt and it will be very difficult to get a suitable groom, if the complaint by her turns out to be false. Fearing that it may be construed as reflecting her chastity also, women many times do not come out with facts regarding such relationship, even if it is true. When such being the situation, despite ostracization by the Society, if the women come forward to disclose such kind of relationship, those statements must be true.
13.3.There is a preambular promise in the Constitution to all its citizens - justice, liberty, equality and fraternity. Thus, when justice is the first promise of the Constitution, it is the bounden duty of the Court to bridge the gap between the law and the society. It is emphasized that the Court should adopt different approaches in social justice adjudication, which is always known as social context judging. The mere adversarial approach may not bring out justice when the power of both the fighting groups are not equal. It would be appropriate to quote Prof.N.R.Madhava Menon, where he speaks about the necessity for social context judging or judging by social context :
Social context judging is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. .... In such a situation, the judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication. Provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from adversarial litigation to social context adjudication is the need of the hour.
13.4.Such a necessity and the resultant pursuit as undertaken by the judiciary may not be misconstrued or misunderstood as a deviation from the established canons of impartiality as attributable to the dispensation of justice or an attempt to tilt the scales of justice, in favour of one of the parties. But, social context judging is a tool and weapon picked up by the judiciary to have a glance of what is lying remaining invisible hidden mute beneath or hidden in between the lines and to interpret it. It warrants lifting of the social veil and identify the social realities, so as to assess the truthfulness of case. Such a course would be pertinent to empower or at least tender a semblance of justice to the weaker, if not more.
14.The evidence of the defendant (D.W.1), while testifying, seems to have believed that he is clever in answering, but that has brought the cat out of the bat and has proved that the alleged marriage by the plaintiff could not be false. The important piece of evidence during which, if the defence is true, where the defendant is expected to say 'no' / would have said 'no', where he has said that he did not know, would go to show that the defendant is trying to suppress the truth before the Court. The following are the important piece of admission and denial of knowledge by the defendant in his evidence:
1.I do not know whether my next house is the house of plaintiff's uncle.
2.There are more rich people in the village than me;
3.My southern neighbour is Thangarasu. In between the house of Thangarasu and my house, there is only one temple. There is no enmity between Thangarasu and myself;
4.I do not know, my parents did not make arrangements to get me married only because I have relationship with the plaintiff for the period of two years (the answer should have been that either the parents have some other reason or the alleged reason is false.);
5.It is true that the Sundaram Reddiar Rice Mill is near to my house;
6.If it is stated that I took the plaintiff to Sundaram Rice Mill and tied Thali and thereby accepted the plaintiff as my wife, I do not know;
7.I do not know whether Thangarasu, Kandasamy and Ramesh were present at the time of tying Thali;
8.If it is suggested that I took the plaintiff on 06.09.2000 and I had sexual relationship with her at the residence of my uncle, I do not know.
14.1.There may be no difference in the pronunciation if the word 'know' is pronounced as sounding 'no'. But, here is a case where the defendant had chosen to give his answer as 'I do not know' without understanding the implication between the answer 'no' and 'I do not know'. The answer 'I do not know' declares that the defendant knows everything, but wanted to say 'I do not know', may be because he is not able to balance between his parents on one side and his conscience on the opposite side. The questions to which the defendant has answered, 'I do not know' speaks volume about the falsity of his defence and the truthfulness of the plaintiff's case. The answer 'I do not know' could not have been the answer, viewed in any perspective.
14.2.If the evidence of the plaintiff is appreciated in the social context in which she is placed and taking note of the admissions and denial made by the defendant in his evidence, as referred above, then the only conclusion would be that the case of the plaintiff is true. Both the Courts below are justified in arriving at such conclusion. Therefore, it is declared that the plaintiff is the legally wedded wife of the defendant.
15.Days of honour killing continue even now. Hon'ble Justice Markandey Katju, decrying the practice of honour killing, prevalent in regions like Uttar Pradesh, Haryana and Rajasthan, suggested severe punishments in respect of those killings. When the order of the day is such that, it is difficult for a girl to express her wishes to marry a person of her choice. In cases of love marriage, run-away marriage and fake marriages, which does not have the blessings of parents on either side, it is the girl who suffers ultimately. Life is precious and it is a gift of many things out of which there are endless possibilities and situations which can be resolved with patience, courage, confidence and right type of attitude. Endless fighting in Courts will not provide solutions for this kind of problem.
16.This is a case where there is convincing proof to show that the defendant has taken a false defence. When the defendant has taken a false defence, Section 35 of the CPC provides for award of compensatory costs only to the extent of Rs.3,000/-. But, this Court is of the view that the consequences of the false defence taken by the defendant upon the promising life of the young youth has caused extensive deterioration which cannot be compensated by money alone. The fact that the couples are living separately for several years right from the date of marriage is an admitted one. Because of the pendency of the second appeal, it appears, the maintenance proceedings are kept pending. Already, fourteen years of youth has been wasted. Therefore, it may not be appropriate to waste any more time.
16.1.Hence, the parties are hereby referred to Mediation for the purpose of resolving all the issues, after the status of the plaintiff being declared as the legally wedded wife of the defendant.
17.It is represented that the maintenance case is pending in M.C.No.14 of 2010 before the Chief Judicial Magistrate, Villupuram. The learned Magistrate ought not to have been waiting for the result of the second appeal. It is not a case where the maintenance proceedings had been stayed by the High Court. An appeal shall not operate as stay of proceedings under a decree or order appealed from, unless specifically stayed by the High Court. Merely because a decree has been appealed against, did not even compel the High Court to grant stay. Therefore, without waiting for the result of the second appeal, the learned Magistrate ought to have disposed of the maintenance application.
18.Section 125 Cr.P.C. is a measure of social justice and it has been specially enacted to protect the destitute women and children from vagrancy and it falls within the sweep of Article 15 (3) of the Constitution of India reinforced by Article 39. When the provision contemplates speedy remedy for the supply of food, clothing and shelter to the deserted wife, there is no justification on the part of the Court to have made the wife to wait. Therefore, the learned Chief Judicial Magistrate, Villupuram, is directed to dispose of the said case, not later than one month from the date of receipt of a copy of this judgment.
19.The Magistrates, who are dealing with cases under Section 125 Cr.P.C., should always take note of the proviso empowering the Court to order interim maintenance, which shall be disposed of within a period of sixty days from the date of the service of notice of the application to the opposite party. The proviso is reproduced for convenient reference:
125.Order for maintenance of wives, children and parents: -
(1) (a)...
(b) ...
(c) ...
(d) ...
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
20.The English Society of labour lawyers (Society of labour lawyers, legal services for all, justice for all, Part II (London Fabian Society, 1978) have stated like this:
A major function of the legal profession should be to assist people (to) obtain the social rights provided by law and to ensure that laws designed to reduce inequality and provide welfare payments operate as effectively as possible ... We must help the many thousands of people who do not avail themselves of their rights ....
21.Courts may be inaccessible to one or both sides of a dispute due to economic, geographic and psychological barriers. The United Nations Development Programme, in its note on 'Access to justice' published in the year 2004, added two other factors, viz., long delays in adjudication and excessive number of laws, as additional barriers to access to justice. The complex of access problems is not limited to barriers, which dissuade people from going to Court at all. We are concerned with ineffective access: disputants who voluntarily or involuntarily enter the arena, but are doomed to suffer injustice when they do. Whether they succeed in the ultimate verdict of the Court, the waiting period itself makes them suffer injustice, especially when cases of this nature like maintenance is the claim. Providing a solution through Court of law, which does not provide any solution at the expected time makes access to justice meaningless to the suffering litigant. Access to justice operates as additional burden to a litigant seeking maintenance when she has to come to Court with empty stomach and to go back with empty stomach and empty hand. The National Commission, to review the working of the Constitution, constituted in the 50th year of Independence, in its final report, suggested for incorporation of this right as fundamental right, iby incorporating Article 30A in the Constitution in the following terms:
30-A Access to Courts and Tribunals and Speedy Justice. - (1) Every one has a right to have any dispute that can be resolved by the application of law decided in fair public hearing before an independent Court, or where appropriate another independent and impartial Tribunal or forum.
(2) The right to access to Courts shall deemed to include the right to reasonably speedy and effective justice in all matters before the Court, Tribunal or other for and State shall take reasonable steps to achieve the said objective.
22.Therefore, it is expected that the trial Court should show sufficient sensitivity in rendering effective and speedy justice at least in matters where expeditious justice is inevitable.
23.In the result, the Second Appeal is dismissed with the observation indicated above. The judgement and decree, dated 24.12.2003 in A.S.No.32 of 2002 before the Principal District Judge, Villupuram, confirming the judgment and decree, dated 19.10.2001 in O.S.No.370 of 2000 on the file of the Principal District Munsif, Villupuram, stand confirmed. No costs.
01.07.2014 Index : Yes Internet : Yes sra S.VIMALA,J.
(sra) To
1.The Principal District Judge, Villupuram,
2.The Principal District Munsif, Villupuram.
3.The Section Officer, V.R.Section, High Court, Madras.
S.A.No.984 of 200501.07.2014