Chattisgarh High Court
Surabhi Singh Rajput vs Rupendra Singh Gautam on 15 February, 2023
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 148 of 2019
Surabhi Singh Rajput D/o Rishi Singh Rajput, Aged About 19 Years,
R/o Near Shitla Mandir, Ward No. 01, Pikri, Police Station Tahsil
And District Bemetara Chhattisgarh.
---- Appellant
Versus
Rupendra Singh Gautam S/o Shri K.S. Gautam, Aged About 23
Years, Caste Rajput, R/o Ward No. 06, Chikhlakasa, Police Station
Rajhara, District Balod Chhattisgarh
---Respondent
_____________________________________________________
For appellant- Shri Sanjay Patel, Advocate.
For respondent - Shri Vipin Tiwari, Advocate.
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice N.K. Chandravanshi
Judgement on Board
Per Goutam Bhaduri, J.
15/02/2023 Heard.
1. Instant appeal is by the wife against the judgement and decree dated 27/03/2019 passed by the Family Court, Bemetara, District Bemetara in Civil Suit No.29-A/2016 whereby an application preferred by the appellant/wife under Section 11 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act of 1955') to declare the marriage dated 21/04/2016 as a nullity was dismissed.
2. The appellant filed an application before the family court pleading, inter alia, that on 21/04/2016 when she went to appear in an examination 2 in the college, after examination when she came came out of examination hall/ college, the respondent came there in a car along with 8-10 people and abducted her by giving threat of life. At that time, the mental condition of the appellant was not good and she was administered certain intoxicant, so that she could be in a state of sub consciousness. It is further alleged that taking advantage of those situation, respondent obtained her signatures on certain documents and alleged marriage was said to have been performed. Thereafter, on 24/04/2016 the appellant was rescued from the custody of the respondent. It was stated that the alleged marriage dated 21/04/2016 was performed at Arya Samaj and the certificate issued by them since was not issued by the head of the institution was not valid and the marriage dated 21/04/2016 would be a nullity.
3. Per contra, the respondent/husband stated that on 21/04/2016, the appellant volunteered to join the company of respondent and without any threat, she accompanied the respondent and performed the marriage at Arya Samaj Mandir at Bhilai and marriage was performed following the rituals. It was further stated that after few days, the father of the girl came with the police people and forcefully took her away from his lawful custody. The respondent stated that though marriage was performed according to the rituals but threat was extended by the father of the girl and forcefully she was taken away on 24/04/2016. It was further stated that the marriage so performed was valid and legal, therefore application under Section 11 of 'the Act of 1955' preferred by the wife to declare the marriage as a nullity be dismissed.
3
4. The learned family court dismissed the application preferred by the wife in the back ground of the fact that no grounds have been established to declare the marriage a nullity. Hence this appeal.
5. Learned counsel for the appellant/wife would submit that the marriage was performed at Arya Samaj and the certificate issued by them is not recognized, specially when the allegation that marriage was said to have been performed under a threat and by influencing the mind of the appellant. He submits that there was no free consent. Consequently, the marriage in between the parties for want of consent be declared a nullity. He placed his reliance in the matter of Sushant Mukherji Vs. Ku. Poonam Jaiswal reported in 2010 (1) C.G.L.J. 377 (DB) and would submit that the trial court has failed to appreciate those facts, therefore instant appeal.
6. Learned counsel for the respondent/husband opposes the argument and would submit that the order passed by the learned family court is well merited, which do not call for any interference.
7. We have heard the learned counsel for the parties, perused the documents and the evidence.
8. In order to declare a marriage a nullity under Section 11 of 'the Act of 1955', it requires to be in contravention to the clauses (i), (iv) and (v) of section 5. Section 11 of 'the Act of 1955' describes 'Void marriages' which reads as follows:-
"11. Void marriages.-Any marriage solemnised after the commencement of this Act shall be null and void and may, on a 4 petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5."
9. Likewise, since the reference is made to section 5 of 'the Act of 1955' which prescribe the conditions of a Hindu marriage, it would be apt to reproduce the same which is as under:-
"5. Conditions for a Hindu marriage.--A marriage may be solemnized 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 incapable 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 bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;"
10. Reading of the section 11 and section 5 of the 'Act of 1955' would show that neither party should have a spouse living at the time of marriage 5 and the parties should not be within the degree of prohibited relationship unless the custom or usage allow such marriage and further the parties should not be sapindas to each other, unless the custom or usage permits such marriage. It is not a case of the appellant/wife that at the time of marriage, her spouse was living or they are covered within the prohibited degree of relationship or by the sapindas to each other. Therefore, section 11 of 'the Act of 1955' cannot be invoked on the bare reading of the pleading of the appellant, prima facie, to declare the marriage as a void.
11. The submission is made by the appellant that the marriage performed in the Arya Samaj and the certificate issued cannot be given a validity and the reliance is placed in the matter of Sushant Mukherji Vs. Ku. Poonam Jaiswal (supra). In order to appreciate the applicability of the said judgement, we went through the judgement passed by the division bench of this Court wherein the Court observed that the Arya Marriage Validation Act, 1937 (for brevity defined as 'Act of 1937') revolves on the word 'marriage contracted' and do not speak of any custom, usage or rituals whereas section 5, 7, 11, 12 and 13 of 'the Act of 1955' the word has been used as 'marriage solemnized'. In order to find out the applicability of it, we went through the pleading and the evidence adduced by the parties.
12. In her pleading, the appellant/wife has stated that she was put under pressure and threat of life was extended and she was abducted. Thereafter, the marriage was performed at Arya Samaj. As against this, the respondent/husband stated that she voluntarily joined his company and thereafter went to Arya Samaj Mandir at Bhilai and performed the 6 marriage according to the rituals. The certificate has also been produced as Ex.P-2 of Arya Samaj Mandir, Bhilai to support the marriage. During the evidence, by document it is proved that the marriage was performed at Arya Samaj and was entered into register. Before the marriage Ex.D-3 a declaration was given by the appellant that she is unmarried and she wanted to perform marriage with the respondent. The document Ex.D/5 is issued by a doctor to show that she was in a proper state of mind before the marriage was performed. Likewise Ex.D-7 which is an affidavit of the appellant wherein she stated that she wanted to marry the respondent. The accumulated reading of the said documents would show that the appellant had volunteered to perform the marriage without any pressure or coercion and went to Arya Samaj at her free will to do so. Therefore, the submission of the appellant that she was abducted on 21/04/2016 outside the college premises by the respondent and his friends do not appear to be acceptable, specially when she was recovered after three days on 24/04/2016 from the custody of the respondent by the father of the appellant from village is place of respondent. Mere clamping an allegation that she was abducted and was forced to marry appears to be complete after thought after the alleged marriage was performed.
13. Now turning back to the issue of validity of the marriage at Arya Samaj, the statement of the appellant would show that she at para 18 had stated that the marriage was performed at Arya Samaj Mandir Bhilai and saptpadi was performed and after saptpadi the marriage certificate was issued. The husband has stated that the marriage was performed at Arya Samaj with the free consent of the appellant. The witness DW-3 who 7 performed the marriage as pandit namely Vidhya Nidhi Shastri has stated that the marriage was performed according to the Arya Vidhi rituals and in the cross-examination at para 8 it was stated that in the rituals sankalp, kanyadan, havan, lajahome, parikrama (fere) and saptpadi all rituals were performed. He further stated that the performance of saptpadi was also entered into the register and the marriage was performed by following the rituals.
14. After the enactment of Hindu Marriage Act, 1955, the Hindu Marriage has ceased to be wholly sacrament. Section 7 of the said Act still provides that Hindu marriage shall be solemnized in accordance with the customary rites and ceremonies of either parties thereto. Sub section-(2) of section 7 of 'the Act of 1955' lays down where such rites and ceremonies include saptpadi i.e. taking of seven steps together by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and would be binding after completion of the seventh step. The statement of the appellant/wife that saptpadi was performed which is further corroborated by the statement of DW-3 the pandit who performed the marriage would lead to establish that the marriage was performed and completed and the entire ceremonies were also carried out. There is no rebuttal to such evidence of performance of rituals specially saptpadi , the factum of saptpadi was also reduced in writing which is marked as Ex.D-13. Consequently, the validity of the marriage and the ceremonies were performed according to the requirement of 'the Act of 1955'. The facts and the circumstances therefore would be different than that of reliance placed by the appellant in Sushant Mukherji Vs. Ku. 8
Poonam Jaiswal (supra) wherein the Court held that custom was not proved.
15. In view of the foregoing discussion, we are of the view that the appellant has failed to prove any grounds to say that the marriage was prohibited under the degree of clause (i), (iv) & (v) of section 5 of 'the Act 1955' and further the evidence of the parties would show the ceremonies of saptpadi having been performed jointly by the bridegroom and the bride, the marriage becomes complete.
16. During the pendency of the appeal, the parties have filed an application for compromise to declare the marriage as a nullity. The decree of nullity of the marriage cannot be passed on the consent of the parties unless it falls within the four corners of the requirement of section 11 of 'the Act of 1955'. Therefore, no decree can be granted on the consent of the parties to declare a marriage a nullity.
17. Accordingly, the appeal fails and is dismissed.
A decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) ( N.K. Chandravanshi)
Judge Judge
gouri