Chattisgarh High Court
Smt Radhika vs Kedar Dubey And Another on 21 July, 2011
HIGH COURT OF CHATTISGARH BILASPUR
FAM No 150 of 2010
Smt Radhika
...Petitioners
Versus
Kedar Dubey and another
...Respondents
! Shri Sushobhit Singh counsel for the appellant
^ Shri Vineet Pandey counsel for respondent
CORAM: Honble Shri IM Quddusi J & Honble Shri Prashant Kumar Mishra J
Dated: 21/07/2011
: Judgement
J U D G M E N T
PER PRASHANT KUMAR MISHRA, J.
This appeal under Section 19(1) of the Family Court's Act, 1984 has been preferred by the appellant challenging the judgment and decree passed by the Family Court, Bilaspur in Civil Suit No. 40-A/2010 by which a declaration has been made in favour of respondent and against the appellant to the effect that the appellant/defendant is not the legally married wife of respondent/plaintiff.
(2) The facts of the case, briefly stated, are that respondent Kedar Dubey preferred a suit for declaration and permanent injunction on the pleadings inter alia that he is a Teacher in Government School and the defendant/appellant is a resident of village Bhaisda, Tahsil Janjgir. The plaintiff has four issues from his deceased wife Kaushalya and are aged between 12 to 21 years. To take care of children the plaintiff was in requirement of a lady belonging to his caste and on the recommendation of one Dwarika Singh the defendant was engaged in February 2001, however when the defendant was being brought to Bilha, her mother along with Chhotelal, Dwarika Singh, Fulsingh and Mahendrapal coerced the plaintiff to put signature on stamp paper by saying that it is necessary so that the defendant can leave plaintiff's house as and when she desires. Thereafter the defendant started residing in the plaintiff's house at Bilha.
(3) It was further stated in the plaint that after about one month, the defendant started behaving and asserting as if she is the wife of plaintiff and started treating the children arrogantly and with cruelty. When the plaintiff advised her to not to behave in this manner, she threatened of false implication in Court cases and because of this the plaintiff started residing in a separate house by leaving the defendant in his own house because she was not willing to leave the house. In the meanwhile, the defendant got included her name in the voter list by narrating her name to the Election Officer as Radhika W/o Kedar Dubey and has also succeeded in obtaining a Family Ration Card. The Ration Card was issued in spite of objection by the plaintiff that the respondent is not his wife.
(4) The defendant filed her written statement and admitted the fact about plaintiff's earlier marriage, however she denied the plaintiff's case that the defendant was engaged to look after his children and that she was not living as plaintiff's wife. According to the defendant she was earlier marriage to Suraj Prasad Tiwari and after death of her husband, she was introduced to the plaintiff by one Lata Singh W/o Satyanarayan. Plaintiff and defendant started meeting frequently and developed a love affair and thereafter they married on 21/11/2000 in Kali Temple, Bhatgaon and also executed an affidavit on 11/12/2000. She also stated that Stamp Paper was executed in front of witnesses and the plaintiff put his signature out of his own free will and was never pressurized. (5) In cross of trial plaintiff examined himself as PW- 1, Ramanand Saraswati as PW-2 whereas the defendant examined herself as DW-1, Mahendrapal as DW-2, Santosh Mishra as DW-3 and Ravishankar Sahu as DW-4. (6) On the basis of evidence on record the learned Family Court has decreed the suit to declare that the defendant is not legally married wife of the plaintiff. (7) We have heard learned counsel for the parties at length and perused the record. From the averments made in the plaint and the written statement it appears that it is an admitted position that the appellant/defendant has stayed in the house of plaintiff for about 3 to 6 months. Case of the defendant is that they were married at Kali Temple, Bhatgaon whereas PW-2 Ramanand Sarswati, who is the priest of the said Kali Temple has deposed that he has never performed any marriage of any couple in the name of Kedar Nath Dubey and Radhika Dubey on 21/11/2000 or on any other day. This witness has also stated that though he does not always remain present throughout the day in the temple yet a major function like marriage does not take place in the temple in his absence. The appellant has not produced any evidence of marriage by examining the management of the temple or the persons who were present at the time of marriage. The witnesses examined by the appellant are witnesses of the agreement executed on the non- judicial stamp and affidavit (Ex. D/2). (8) From the document Ex. D/2 it would appear that the said affidavit makes statement about the plaintiff's intention to lead his further life with the defendant as husband and wife, however, the law requires performance of a valid Hindu Marriage by taking seven steps around the fire i.e. `Saptpadi' and a valid Hindu Marriage cannot be performed by executing an affidavit. (9) It is also to be seen that in paragraph 10 of her cross examination the appellant/defendant herself has admitted that they lived for about six months and that when they had gone to Kali Temple for performing marriage the temple priest Ramanand Saraswati was not available and they came back after breaking coconut. Neither in her affidavit under Order 18 Rule 4 of C.P.C. nor in cross-examination she has stated about performing `Saptpadi' i.e. taking seven steps around the fire.
(10) In the matter of Surjit Kaur vs. Garja Singh and others reported in (1994) 1 SCC 407 the Hon'ble Supreme Court has held thus in para 12 :-
"12. Reliance placed on Charan Singh AIR 1961 Punj 301 is not correct because that will apply only if the widow were to marry the brother of the husband. But, here Gulaba Singh was a stranger. As rightly contended by the respondent, mere living as husband and wife does not, at any rate, confer the status of wife and husband. In B.S. Lokhande (1965)
2 SCR 837, it was laid down that the bare fact of the man and woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before the society as husband and wife and the society treats them as such. The following extract is useful for this purpose.
"Prima facie, the expression `whoever . marries' must mean `whoever . marries valid ly' or `whoever . marries and whose marriage is a valid one'. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife."
In the above matter of Surjit Kaur vs. Garja Singh and others (supra) has relied on its earlier judgment in the matter of Bhaurao Shankar Lokhande and another vs. The State of Maharashtra and another AIR 1965 SC 1564.
(11) Thus, to prove a valid Hindu marriage it is necessary for the party claiming performance of such marriage to prove the due performance of essentials of a valid marriage i.e. taking seven steps around fire or pleading and proving any custom prevalent in the area and performance of ceremonies in that regard, however, in the present case neither performance of `Saptpadi' is pleaded or proved nor any other custom or performance of rituals as per the said custom has been pleaded or proved.
(12) In the facts and circumstances of the case, this Court has no hesitation in holding that the appellant/defendant has failed to prove existence of a valid Hindu marriage between herself and the plaintiff/respondent and that the finding recorded by the Family Court in this regard does not suffer from any perversity or infirmity.
(13) Learned counsel for the appellant has relied on a recent judgment of the Hon'ble Supreme Court in the matter of Chanmuniya Vs. Virendra Kumar Singh Kushwaha and another reported in (2011) 1 SCC 141 to argue that the parties having resided together as husband and wife, there arises a presumption of a valid marriage between them. In this case the Hon'ble Supreme Court has held thus in para 9 to 16 :-
"9. In Lt. C.W. Campbell v. John A.G. Campbell (1867) LR 2 HL 269, also known as the Breadalbane case, the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute.
10. In the instant case both the appellant and the first respondent were related and lived in the same house and by a social custom were treated as husband and wife. Their marriage was solemnised with katha and sindur. Therefore, following the ratio of the decisions of the House of Lords, this Court thinks that there is a very strong presumption in favour of marriage. The House of Lords again observed in De Thoren v. Attorney General (1876) 1 AC 686 (HL) that the presumption of marriage is much stronger than a presumption in regard to other facts.
11. Again, in Sastry Velaider Aronegary v. Sembecutty Vaigalie (1881) 6 AC 364, it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.
12. In India, the same principles have been followed in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy AIR 1927 PC 185, in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.
13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR 1929 PC 135 the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.
14. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231, this Court held that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.
15. Further, in Badri Prasad v. Director of Consolidation (1978) 3 SCC 527, the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.
16. Again, in Tulsa v. Durghatiya (2008) 4 SCC 520, that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock."
(emphasis supplied) (14) Thus to take shelter of presumptive prove of a valid marriage the law requires a long and subsisting relation like husband and wife between the parties, however in the present case the so called relationship between the parties is only for a period of about six months and it is appellant's/defendant's own case that after few days of their living together the respondent/plaintiff started behaving indifferently and that the plaintiff thereafter started residing separately. This plea of appellant would itself establish that there is complete lack of pleading and proof about long cohabitation and living life like husband and wife.
(15) In view of the above, this Court is not able to take any different view of the matter than what has been taken by the learned Family Court while decreeing the suit in favour of respondent/plaintiff to declare that the appellant is not the legally married wife of the respondent.
(16) There is no substance in this appeal which fails and is hereby dismissed.
(17) A decree be drawn-up accordingly.
JUDGE JUDGE