Madras High Court
A.Pradeep vs R.Kavitha on 26 September, 2018
Author: R.Subbiah
Bench: R.Subbiah, C.Saravanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 20.07.2018
Pronounced on : 26.09.2018
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.M.A.No.1448 of 2013
A.Pradeep .. Appellant
vs
R.Kavitha .. Respondent
This Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act 1984 to set aside the fair and decretal order dated 18.03.2011 made in M.O.P.No.89 of 2004 on the file of the Judge, Family Court, Puducherry.
For Appellant : Mr.B.Kumarasamy
For Respondent : Mr.J.Saravanavel
JUDGMENT
C.SARAVANAN The appellant/husband has filed the present appeal to set aside the fair and decretal order dated 18.3.2011 passed by the Family Court at Pondicherry in M.O.P.No.89 of 2004.(for brevity hereinafter referred to as the impugned order and the Family Court).
2. By the impugned order, the Family Court has dismissed the petition filed under Section 12(1)(c) of the Hindu Marriage Act, 1955 by the appellant to dissolve the marriage held on 01.04.2001 between the appellant and the respondent/wife at the police station.
3. Marriage is said to have taken place between the appellant and the respondent at the Reddiyarpalayam Police Station, Pondicherry in presence of elders of the respondent, the parents of the appellant and elders from their locality on 01.04.2001 and few social workers.
4. At the time of the alleged marriage on 01.04.2001 the appellant was pursuing M.Phil in physics in Pondicherry.
5. The appellant and the respondent were residing in the same locality. The respondent was a school drop out coming from a lower economic strata while the appellants family from an upwardly mobile family and was pursuing his higher studies. Appellants mother was a school teacher and the father an army personnel with the Border Security Force (BSF).
6. It appears that the respondent and the appellants sister Hemavathi were friends and the appellant got to know the respondent through his sister. The acquaintance developed between them, later developed into intimacy and they used to secretly meet each other.
7. The case of the appellant before the Family Court was that since the appellants family was educated, the respondent harboured a hope to settle in matrimony with the appellant and therefore coerced the appellant to get married with the respondent after filing a false complaint with the connivance of anti social elements by dragging the appellant and his family members to the said police station at midnight on 1.04.2001.
8. The said marriage has been questioned on the ground that same was conducted under coercion and without the important sapathapadi rituals (seven steps) contemplated under the Hindu customary practice. The marriage was therefore liable to be annulled by an order of the Court in terms of Section 12(1)(c) of the Hindu Marriage Act, 1955. The said marriage has been registered.
9. The respondent submitted that the appellant and the respondent have exchanged several love letters during their courtship days expressing their affection for each other.
10. However, on coming to know of the same, the appellants mother is said to have been furious with the appellant and warned the appellant to keep away from the respondent and advised him to pursue his higher studies and not to waste his life with the respondent.
11. This warning from the mother according to the counsel for the respondent resulted in a heated argument between the appellant and his mother and triggered events leading to the marriage between the appellant and the respondent on 1.04.2001.
12. Angered with the appellant's attitude, the appellants mother is said to have met the respondent in the market place and verbally abused and scolded her and warned her to keep away from the appellant. Appellants mother also told the respondent to destroy all the letters received from the appellant during their courtship.
13. The respondent claims to have felt humiliated and had resigned to her fate to discontinue her relationship with the appellant and destroyed alleged letters received from the appellant.
14. Thereafter, it is stated that the respondent also attempted to avoid the appellant but was unsuccessful as the appellant relentlessly pursued her despite stern warning from his mother.
15. Meanwhile, unaware of the above affair between the appellant and the respondent, the respondents family is said to have arranged for a betrothal and fixed the marriage of the respondent to be celebrated on 04.02.2001 with their distant relative Murugan.
16. Within 15 days of fixing of the marriage, the respondent lost her father. According to the respondent, the appellant however continued to pursue the respondent and made several attempts to meet her in a bid to break her the proposed marriage fixed with the said Murugan and instead promised to marry the respondent.
17. It was further alleged that though the respondent resisted the appellants overtures, the appellant persisted and few days before the proposed marriage with the said Murugan, the appellant met the respondent and gave her a 43 page letter expressing his unconditional love and affection and few days later gave her poisonous nuts, berries and leaves and asked her to consume the same to stall the marriage in bid to enact a suicide pact by both of them.
18. The appellant apparently promised to consume the poisonous ingredients himself so that the drastic step will not only force the respondents family to break the marriage fixed for the respondent on the following day with Murugan but also force the appellants family about the appellant resolve to live with the respondent.
19. To show his seriousness, the appellant is alleged to have carried thali (mangalasutra) and kumumum and said he was ready to garland her with the same.
20. Believing the appellant, the respondent allegedly gave in and consumed the nuts given by the appellant on 3.2.2001 at her house and had to be admitted to JIPMER, Pondicherry in a serious condition. The appellant however did not consume the poison himself.
21. The appellant is also said to have visited the hospital to see the respondent who was at that time battling for her life. The respondent survived the suicide bid.
22.The respondent has stated that even during that time the appellant gave hopes and expressed his remorse and love to the respondent. These events cancelled the marriage fixed between the respondent and her distant relative Murugan.
23. The entire neighbourhood came to know about the reason for the attempted suicide by the respondent and therefore overnight the appellant was allegedly taken away from the locality by his mother fearing reprisal.
24. Thereafter, there were attempts made to trace the appellant for a period of one month. Mediation is said to have taken place at the police station after tracing the appellant in presence of the appellants mother and few elderly persons from the locality. R.W.2, a social worker was also present along with people from the appellant and respondents neighbourhood. It is here the appellant tied a thali(Mangalasutra) to the respondent.
25. Though the appellants mother initially resisted, eventually agreed for a marriage ceremony to be conducted at the police station with the condition that till the appellant completes his M.Phil exam, the appellant and the respondents were not to cohabit or live together and promised a reception after the exams.
26.Under these circumstances, a ceremony of marriage was solemnized at the Police station with the appellant tying thali (mangalasutra) around the respondents neck and after the respective parties went back peacefully.
27. The respondent submits that no coercion was exercised on the appellant to tie thali (mangalsutra). Subsequently, the appellant took the respondent to his aunts house where they allegedly cohabited for three days and started their marital life.
28. However, within those three days, the appellants mother is said to have called and sternly warned the appellant to abandon the respondent and to come back to pursue his higher studies.
29. Buckling under pressure from his mother, the appellant is said to have attempted to reason out with the respondent asking her to go back to her family.
30. However, fearing being left alone and deserted by the appellant, the respondent resisted the separation. Frustrated and in a fit of anger the appellant is said to have hit the respondent with an iron pipe on her head and throttled her neck and injuring the respondent.
31. It was further alleged by the respondent that fearing reprisal and criminal action, the appellant extracted a promise from the respondent to not to reveal the real cause of injury and took her for a treatment to the government hospital at Karikallambakkam Government Hospital, which the respondent also meekly agreed.
32. It was the submission of the respondent that the appellant actually committed rape and later abetted in forcing the respondent to attempt to commit suicide and later and abandoned her. The appellant agreed for the marriage only to escape from the clutches of law after having sex with the respondent.
33. The respondent stated that these acts have caused severe stigma which cannot be compensated except by directing the appellant to lead a marital life with the respondent. Though they have not lived together after 11.8.2001, the appellant belatedly filed a petition on 21.11.2004 under Section 12(1)(c) of the Act to annul the marriage solemnized on 01.04.2001 on the ground of coercion and fear being exercised on the appellant and his family.
34. We have heard the learned counsel for the appellant and the respondent. We have also gone through the pleadings, the evidence on record both documentary and oral recorded and impugned order passed by the Family Court.
35. 43 pages love letter which is said to have been given by the appellant to the respondent containing the alleged suicide pact and expressing his unconditional love for the respondent has not been marked by the Family Court as the respondent has denied the same saying that it was not in his handwriting.
36. The Family Court has concluded that the marriage between the appellant and the respondent cannot be annulled as the appellant has not established by way of evidence of the alleged fear and cessation of alleged fear before approaching the Court in a petition under Section 12(1)(c) of the Hindu Marriage Act, 1955.
37. There is an unexplained time gap between the date of marriage on 1.4.2001 at the Police Station and the date of presentation of the above petition before the Family Court on 21.1.2004 under Section 12(1)(c) of the Act.
38. There are also no explanation for the delay in approaching the Family Court under the aforesaid provision except for the averment in para 7 of the petition that the appellants family continued to be under threat and were forced to move out of their own house after the marriage.
39. The Court has noted that the appellants failure to issue legal notice in time to the respondent on the grounds stated in the petition itself shows that the appellant had no case made out in the petition.
40. The family Court has believed the respondents version of her relationship with appellant viewed from the prism of Indian ethos. In fact, in Mohan v. Kanagavalli, 2014 SCC Online Mad 3158 : (2014) 6 CTC 677 the Court observed that:
In the 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.
41. The argument that the ceremony undergone at the Police station was forced and that there was no cohabitation between the appellant and the respondent cannot be brushed aside.
42. However, preponderance of probability shows previous intimacy between the appellant and respondent and it is in this background a simple ceremony was solemnized at the Police Station on 01.04.2001.
43. In our view, the Family Court has also rightly refused to accept the statement of the appellant that out of constant fear the appellant could not come to it earlier.
44. The fact that the appellant was already an undergraduate and has pursued later Ph.D in the Pondicherry University during the interregnum shows that he was not under any fear or threat. He has simply avoided the respondent due to family pressure and the matrimony with the respondent was not convenient to him owing to difference in the background.
45. The Family Court has also refused to believe that the marriage was held under coercion even though it was conducted in the police station at midnight.
46.Though during cross examination the appellant gave evasive replies as to how he ended up in the police station, he has not denied having undergone the ceremony at the Police station and that he tied thali(mangalsutra) to the respondent. R.W2, a social worker has also narrated the circumstances under which the appellant under took to tie the thali (Mangalasutra) to the respondent.
47. R.W.2 has deposed in his chief evidence that the appellant was agreeable to tie a marital knot (Thali) with the respondent but would not unless the appellant's mother consents to the same.
48. R.W.2 has further deposed that later the appellants mother also agreed for the appellant to undergo the ceremony of tying Thali (Mangalsutra) provided the appellant and respondent did not co-habit or lived together till the appellant completed his exams and that after his exams a marriage reception would be organised. The deposition of RW-2 has not been seriously questioned before the Family Court.
49. Whether the ceremony of tying thali (Mangalsutra) was with or without the free consent of the appellant because it took place late in the night within the portals of the police station though does raise a doubt, as a police station is not a neutral venue for conduct of any ceremony as marriages are normally solemnized in temples, houses, community halls or in a marriage halls.
50. The ceremony undergone sought to formalise a pre-existing relationship between the appellant and the respondent into a matrimony, though the Police Station is neither a place for conduct of marriage nor the officers at the police station are licensed priest to solemnize marriage.
51.The ceremony undergone at the Police station was to bring peace and solace to the respondent who was allegedly betrayed by the appellant.
52. Therefore question to be answered is whether the ceremony undergone at the Police Station can been considered as a valid marriage ceremony or not within the meaning of Section 7 of the Hindu Marriage Act, 1955 or whether any customary form of marriage had already taken place and the ceremony undergone at the Police Station merely sought to give it a semblance of formal recognition of a marriage or whether the ceremony undergone at the Police Station can be considered to a valid marriage under Section 7(A) of the Hindu Marriage Act, 1955, recognising sugamariyathai/seerthiratha marriage applicable to marriage ceremony solemnized in the State of Tamilnadu and Union Territory of Pondicherry.
53. As the ceremony undergone was not in accordance of the Hindu Customary Rituals, it cannot be said that there was solemnization of marriage within the meaning of Section 7 of the Act. Therefore, to that extent the appellants submission appears to be correct.
54. Resolution of martial dispute including brokering of peace between the young couple and their family in the Police station is of a recent phenomenon. Solemnization of ceremony like in the present case is yet another development.
55. In Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564 : (1965) 2 Cri LJ 544, the Court referred to Mulla's Hindu Law, 12th Edn., at p. 605 about Gandaharva marriage, It quoted The Gandharva marriage is the voluntary union of a youth and a damsel which springs from desire and sensual inclination. It has at times been erroneously described as an euphemism for concubinage. This view is based on a total misconception of the leading texts of the Smritis. It may be noted that the essential marriage ceremonies are as much a requisite part of this form of marriage as of any other unless it is shown that some modification of those ceremonies has been introduced by custom in any particular community or caste.At p. 615 itis stated:
(1) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the Brahma form or the Asura form, namely (1) invocation before the sacred fire, and (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire.
(2)A marriage may be completed by the performance of ceremonies other than those referred to in sub-section (1), where it is allowed by the custom of the caste to which the parties belong.
56. We have not been informed of existence of any customary practice in the State of Tamil Nadu and Union Territory of Pondicherry recognising marriage which are in gandharava form save that of the one recognised under Section 7A of the Act with which we shall shortly deal hereinafter.
57. Introduction of Section 7A to the Act was in the background of social changes that swept the stake of Tamil nadu and Union Territory of Pondicherry. The challenge to same was dismissed by this Court in A.Asuvathaman vs. Union of India and another 2015 SCC Online Mad 9765.
58. Relevant portion of the section 7-A reads as follows:
7-A. Special provision regarding Suyamariyathai and Seerthiruthamarriages. (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.
59. The title to the section suggest self respect marriage.
60.In Mohan v. Kanagavalli, (2014) 6 CTC 677, a single bench of this Court referred to Section 7-A of the Hindu Marriage Act, 1955 introduced by the Tamil Nadu Act 21 of 1967.
61.The Court heldSo 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.
62. A Division Bench of this Honble Court has however, in S.BalakrishnanPandiyan Vs. Superindentent of Police, 2014 (6) CTC 129, while dealing with a batch of habeas corpus case considered the scope of marriage solemnized in law offices and law chambers by lawyer-cum-priest and requisition of such marriages under the provision of the Tamil Nadu Registration of Marriage Act 2009.
63. The Court opined that marriage conducted in secrecy with few strangers around, be it suyamariyathai or seerthirutha form will not amount to a valid solemnisation as is required under Section 7 and 7-A of the Hindu Marriage Act, 1955. The Honble Division bench also cautioned the consequence of its ruling with the following caveat:-
a) Males may take undue advantage of this and repudiate the very marriage and abandon the girls in the lurch.
b) Girls, who were lured into it and would want to come out this quagmire, would also use this statement of law by us to get liberated from such Sham Marriages.
64. Therefore, the Honble Division Bench also observed as follows:
Our declaration of law that, marriages performed in secrecy in the office of Advocates and Bar Association Rooms cannot amount to solemnisation within the meaning of Sections 7 & 7-A of the Hindu Marriage Act, cannot be used as a sword by the males for cutting the nuptial knot in Matrimonial proceedings, but can be used only by the fairer sex to get liberated from sham marriages of this nature. We also hold that the Certificate of Solemnisation issued by Advocates will not be per se proof of Solemnisation of Marriage in a matrimonial dispute.
65.In para 41, the Court has summed up as follows:-
a) Marriage performed in secrecy in the chambers of Advocates and Bar Association Rooms, will not amount to solemnisation and only women, who are victims of such marriage can question the same in matrimonial proceedings before the appropriate Court as a question of fact.
b) No registration of marriage can be done under the Tamil Nadu Registration of Marriages Act, 2009 without the physical presence of the parties to the marriage before the Registrar, except under special circumstances after recording the reasons.
c) If a complaint is made by a party to the marriage to the Bar Council of Tamil Nadu and Puducherry against a Priest-cum-Advocate, the Bar Council shall take appropriate action in accordance with law.
d) On complaints lodged by the Registering Authorities seeking protection, the police are directed to afford sufficient protection immediately.
66. I n the present case ceremony was solemnized in the police station in presence of the family members of the appellant and respondent and persons from their locality and a social worker, who was examined as a witness.
67. This has not been questioned except to the extent that the ceremony was performed under fear and threat. Barring the deposition of the appellant, there are no other witnesses, who can substantiate the appellants version.
68. The ceremony conducted at the police station shows that it was conducted under an extraordinary circumstances in the background of the facts narrated in the foregoing paragraphs with a view to unite the appellant and the respondent in view of the resistance by the appellants mother.
69. Union pursuant to the ceremony is also said to have also consummated at the appellants maternal aunts house where the appellant and the respondent briefly stayed together after the intervention by the elders of the locality.
70. During cross examination the appellant has stated that the complaint regarding the coercive marriage was given to the police station by his father. However, neither a copy of the complaint has been filed nor the father was produced as a witness on behalf of the appellant.
71. In our view, the defence of the appellant that a marriage can take place only if all the rituals associated therewith are conducted is not available where the parties agreed to accept each others husband-and-wife and a ceremony was conducted in presence of family members and elders from the locality though at the police station during late hours of the day.
72. The appellant was an adult at that time. He has chosen the destiny of getting in ouch with the respondent despite the fact that the respondent was to be soon married and preparations were in full swing for her marriage with her relative. He interfered with the respondent and persuaded the appellant to enact a suicide pact.
73. Facts on record also show that after he came to know that the respondent had actually consumed the poisonous berry/nuts and was battling for life, he has visited the respondent at the Hospital and has shown his affection and later agreed to tie a thali to avoid legal complications arising out of his wrong advice to the respondent to commit suicide.
74. Therefore,the appellant cannot renege from the commitment given by him to the respondent after developing intimacy with the respondent and certainly not after undergoing ceremony of tying thali (Mangalasutra) in presence of family members of either side merely because at a later date he finds the matrimony with the respondent inconvenient.
75. In V Sankar Ram versus Mrs Sukanya 1997-2 law weekly 371 it was held that a party cannot plead voidability of marriage merely because the parties cannot live together for any domestic reasons.
76. Merely because parties are from a different economic and social strata ipso facto cannot compel the courts to readily infer voidability of the marriage.
77.The two witnesses produced by the respondent have categorically given statement that they were approached by the respondents mother to trace the appellant and appellants mother, as they went hiding.
78. In our view, there was a valid marriage within the means of Section 7-A of the Act between the appellant and the respondent as the ceremony was conducted in presence of the elders from the family and locality.
79. Even otherwise, the appellant ought to be challenged the marriage at the earliest within a period of one year from the cessation of the fear as is contemplated in section 12(2)(a)(i) of the Hindu Marriage Act, 1956. It is not enough for the appellant to plead that even on the date of the petition the fear continued.
80. The appellant was pursuing MPhil in physics on 1.4.2001 when the marriage was soleminzed. Later he has completed the same. On the date of the presentation of the petition before the Family Court, the appellant was pursuing his Ph.D.
81.During this period the appellant was living in Pondicherry. Further, both the parents of the appellant are educated and therefore it cannot be countenanced how the appellant and his family were living under constant fear all along.
82. There is an enormous delay in approaching the Court even if it is construed that the marriage was solemnized using threat and fear though there are no materials to substantiate the same.
83.The period of limitation begins within one year from the alleged cessation of the fear. Mere pleading that fear still continued even on the date of the petition cannot be countenanced as the appellant has made further progress in lifeduring the same period.
84. The delay in approaching the court even otherwise cannot be condoned in absence of any evidence to show that the fear continued all through the period.
85. The Division Bench of this Court in V.Raja versus Bhuvaneshwari 1997-3 Law weekly 613 dismissed the case on the ground of limitation.
86. At the same time, the decision of this Court in Premchand A versus Padma Priya 1996 (I1) CTC 622 cited by learned counsel for the respondent to state that payment of interim maintenance payment also shows existence of a valid marriage cannot be accepted as payments are made pursuant to court orders and are always without prejudice and cannot amount to admission. It merely shows that the party complied with the direction of the court.
87. The fact that the appellant chose three years to approach the court with no valid excuse itself shows that the appellant intended to accept the respondent as his lawfully wedded wife though had to abandon the in view of the mothers protest.
88. In view of the above discussion, we are of the view that there is no ground for annulling the marriage under Section 12(1)(c) of the Hindu Marriage Act, 1955.
89. Accordingly, this civil miscellaneous appeal is dismissed. No cost.
(R.P.S.J) (C.S.N.J)
.09.2018
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Speaking Order : Non Speaking Order
kkd
To
The Judge, Family Court,
Puducherry.
R.SUBBIAH,J
AND
C.SARAVANAN,J.
kkd
Pre-delivery Judgment in
C.M.A.No.1448 of 2013
26.09.2018