Tripura High Court
Smt. Sankari Debnath (Das) vs Sri Sridam Karmakar on 9 February, 2022
Bench: T. Amarnath Goud, Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
FA 05 of 2019
Smt. Sankari Debnath (Das)
D/O- Sri Jatindra Debnath,
Resident of Vill- Sataria,
P.S- R.K. Pur, Udaipur, Gomati Tripura
..........Appellant(s)
Versus
Sri Sridam Karmakar
S/O Sri Narayan Karmakar,
Badarmokam, P.S- R.K Pur,
Udaipur, Gomati Tripura
..........Respondent(s)
For Appellant(s) : Mr. P Roy Barman, Sr. Adv.
: Ms. A. Debbarma, Adv.
For Respondent(s) : Mr. A. Acharjee, Adv.
Date of hearing : 02.02.2022.
Date of pronouncement : 09.02.2022
Whether fit for reporting : YES
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order
Heard counsel for the appellant as well as for the
respondent.
[2] This is an appeal against the judgment and decree dated
08.04.2019 passed by the Judge, Family Court, Udaipur, Gomati in Case No. TS (Declaration) 2 of 2018 whereby the said Judge has observed that no valid marriage is ever solemnized between the plaintiff Sri Sridam Karmakar alias Partha (the respondent herein) and the defendant Smt. Sankari Debnath (Das) (the appellant herein) is not the Page 2 of 9 legally married wife of the plaintiff Sri Sridam Karmakar alias Partha (the respondent herein).
[3] For the sake of brevity parties are referred to as wife & husband. The genesis of the case can be rooted from the brief fact when the appellant-wife herein filed a petition in Cr.Misc FC/UIDP/54 of 2016 for claiming maintenance allowance for herself @ 12,000/- per month from her respondent-husband in the court of the Judge, Family Court, Udaipur, Gomati Tripura. The said court after examining all the prosecution witnesses and considering the monthly income of the respondent herein has allowed maintenance allowance @ Rs.2000/- per month to the appellant herein by the order dated 21.02.2017. [4] Aggrieved by the order dated 21.02.2017 passed by the Judge, Family Court, Udaipur, Gomati Tripura, the respondent herein preferred a criminal revision petition being Crl.Rev.Petn 09 of 2017 in this High Court. The said revision petition was dismissed by an Oral judgment & order dated 05.07.2017 stating inter alia as follows:
"16. But again this court is not coming to a conclusion or making any declaration as to the marital status of the petitioner and the respondent. The petitioner will be at liberty to establish the marital status of the petitioner or the respondent in the proper forum in accordance with law.
17. Needless to say, if any competent Civil Court declares in contradiction to what has been observed in this judgment, the petitioner will be entitled to approach the Judge, Family court for alteration of the order of maintenance. But till then this court is not inclined to interfere with the order of maintenance. Accordingly, this petition stands dismissed subject to the observation made above."
[5] The respondent herein having the liberty as provided by the order dated 05.07.2017 for declaring the marital status between him Page 3 of 9 and the appellant herein filed a suit in the court of the Judge, Family Court, Udaipur, Gomati District, Tripura under Section 7 (IV) C of the Court Fees Act whereby the said court by the order dated impugned order dated 08.04.2019 has observed in the following manner:
"...No valid marriage is ever solemnized between the plaintiff Sri Sridam Karmakar alias Partha and the defendant Smt. Sankari Debnath (Das) and the defendant Smt. Sankari Debnath is not the legally married wife of the plaintiff Sri Sridam Karmakar alias Partha."
While conducting the proceedings the court below has examined four prosecution witnesses four defence witnesses and marked 5 exhibits and giving weightage to the argument their no documentary evidence was placed i.e. proof of marriage. The marriage performed in Temple under the control of the Government but there is no proof. Hence the case was dismissed.
[6] Aggrieved by the said order dated 08.04.2019, the appellant herein has approached this court preferring an appeal seeking to setting aside the judgment and decree dated 08.04.2019 by the Judge, Family Court, Udaipur, Gomati District, Tripura. [7] This court at this juncture feels it apposite to examine the prosecution witnesses and the defendant witnesses as deposed before the Judge, Family Court, Udaipur, Gomati District, Tripura for better understanding of the case in hand.
[8] The husband deposed himself as the PW1 before the court below. During his cross-examination he stated that on the day of his marriage his wife went to his house with police but she could not show Page 4 of 9 any proof of alleged marriage, after that he got married to Bulti Karmakar.
[9] Uttam Chandra Das (PW2), Biswajit Debnath (PW3), Sujan Sen (PW4) deposed themselves as the prosecution witnesses and nothing materials could be found except denial of the marriage in question between the wife and the husband.
[10] The wife herein deposed herself before the court below as the DW1 and stated in her cross-examination before the court below that she could not say the Bengali year when she got married. She admitted that she had not mentioned the name of the priest neither in examination-in-chief nor in the written statement. She further admitted that that she had not mentioned the name of any eye-witness of their marriage in her examination-in-chief and written statement. She also stated that Ms. Bulti Karmakar is the second wife of her husband. In 2014, the marriage between Ms. Bulti and Sridam Karmakar her husband was solemnized. On the day of marriage between the plaintiff and Bulti she informed Police. She admitted that she could not show police any document as a proof of her marriage with the husband. [11] Smt. Manju Rani Karmakar (PW2) in her examination-in- chief submitted that before 9 or 10 years the husband and the wife before the court below lived together as husband and wife in her house at Chanban. The husband informed her that he got marriage to his wife but their relationship was not accepted by his family members. So, for the time being they wanted to live in the house of DW2 as her tenant. During their stay in her house the wife became pregnant but had mis- Page 5 of 9 carriage. She became ill and was shifted to TSD Hospital, Udaipur. After the incident the husband came to her house and in her presence he convinced the wife to go with him to Sataria. After that they left her house.
[12] The court finds material in the deposition of the DW2 and also feels that when the marriage in question between the plaintiff- husband and defendant-wife was not accepted by the parents of the plaintiff had lived as tenant in the house of DW2. [13] The apex court in Tulsa and Others vs Durghatiya and Others reported in (2008) 4 SCC 520 has observed as follows:
"12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. Andrahennedige Dinohamy v Wijetunge Liyanapatabendige Balahamy. Their Lordships of 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 be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage.
13. In Mohabhat Ali Khan v. Mohd. Ibrahim Khan. Their Lordships of the Privy Council once again 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. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.
15. Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy.
Page 6 of 9[14] This court finds it apposite to extract herein below the Section 114 of the Indian Evidence Act:
114. Court may presume existence of certain facts. -- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume --
(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence;
(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particular cases;
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it: -- as to illustration (a) -- a shop-keeper has in his bill a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;
as to illustration (b) --A, a person of the highest character is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and Page 7 of 9 admits and explains the common carelessness of A and himself;
as to illustration (b) -- a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;
as to illustration (c) -- A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under A's influence; as to illustration (d) -- it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
as to illustration (e) -- a judicial act, the regularity of which is in question, was performed under exceptional circumstances;
as to illustration (f) -- the question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances; as to illustration (g) -- a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family; as to illustration (h) -- a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
as to illustration (i) -- a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.
[15] The apex court in Challamma vs Tilaga and Others reported in (2009) 9 SCC 299 observed in the following manner:
10. It is beyond any cavil of doubt that in determining the question of valid marriage, the conduct of the deceased in a case of this nature would be of some relevance. If on the aforementioned premise, the learned trial judge has arrived at a finding that the deceased Subramanya had married the first respondent, no exception thereto can be taken. A long cohabitation and acceptance of the society of a man and woman as husband and wife goes a long way in establishing a valid marriage.
11. In Tulsa v. Durghatiya [(2008) 4 SCC 520], this court held:Page 8 of 9
"11. At this juncture reference may be made to Section 114 of the Evidence Act, 1872 (in short "the Evidence Act"). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.
12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy. Their Lordships of 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 be 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 Their Lordships of the Privy Council once again laid down that:
"The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years."
14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act."
12. It is also well settled that a presumption of a valid marriage although is a rebuttable one, it is for the other party to establish the same. {See Ranganath Parmeshwar Panditrao Modi v. Eknath Gajanan Kulkarni [(1996) 7 SCC 681], and Sobha Hymavathi Devi v. Setti Gangadhara Swamy [(2005) 2 SCC 244]}. Such a presumption can be validly raised having regard to Section 50 of the Indian Evidence Act. [See Tulsa (supra)]. A heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place.
[16] DW 3 Smt. Karuna Bala Das in her examination-in-chief stated that she knows both the parties as they were neighbours. During their living together the wife became pregnant but had miscarriage. The plaintiff-husband threatened the defendant-wife to withdraw the Page 9 of 9 maintenance case. He also threatened the local people not to give evidence on behalf of the defendant-wife.
[17] In view of the above, it may be inferred in the light of the deposition of DWs 2 and 3 that as the marriage between the appellant and the respondent of the instant case was not accepted by the parents of the respondent herein, he along with the appellant lived in the house of DW2. He also appeared to have threatened the local people not to give evidence on behalf of the wife. There is no doubt that the court below has failed to appreciate the evidence as advanced by the DWs 2 and 3 in supporting the case of the appellant-wife herein. [18] In view of the observation made above and on the basis of the deposition made by the DW 2 and 3 before the court below, this court is of the view that the marriage between the appellant and the respondent did take place. The appellant is entitled to all the benefits as legally wedded wife and this court gives her liberty to take steps in accordance with law for all such reliefs.
The judgment and decree dated 08.04.2019 passed by the Judge, Family Court, Udaipur, Gomati in Case No. TS (Declaration) 2 of 2018 stands set aside.
JUDGE JUDGE Dipak