Delhi High Court - Orders
Pankaj Kumar vs Sonakshi Vats on 20 September, 2021
Author: Vipin Sanghi
Bench: Vipin Sanghi, Jasmeet Singh
$~13.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 91/2021 and C.M. No. 32673/2021
PANKAJ KUMAR ..... Appellant
Through: Mr. Ravinder Kumar, Advocate.
versus
SONAKSHI VATS ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 20.09.2021
1. The present appeal is directed against the ex-parte judgment and decree dated 05.01.2021 passed by the learned Judge, Family Court, Central District, Tis Hazari Courts, Delhi in H.M.A. No.1428/2017 preferred by the appellant/ petitioner under Section 12(1)(a)(d) of the Hindu Marriage Act, 1955 against the respondent.
2. At the outset, we may observe that the petition itself appears to have been instituted in a Court without territorial jurisdiction. Neither the parties were claimed to have last resided together at Delhi, nor they were married at Delhi, nor is the respondent residing in Delhi. The ground on which the jurisdiction of the Court was invoked was that the petitioner resides in Delhi. That cannot be a ground to invoke the jurisdiction of the Family Court at Delhi.
Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:21.09.2021 15:57:293. The Family Court has dismissed the aforesaid petition ex-parte, since the respondent was never served in the regular way and was served only through publication. We may also observe, at this stage, that the address of the respondent was shown as that of Sharanpur (U.P.), whereas, even according to the averments made in the petition preferred by the appellant, she was residing at Chennai. The Family Court has held that even if respondent was ex-parte, the appellant/ petitioner had to establish his case on merits.
4. The relevant discussion found in the impugned judgment, reads as follows:
"18 The petitioner in the instant case has sought annulment of his marriage with the respondent under Section 12 of the HMA. The petitioner is aggrieved by the act of respondent in getting their marriage registered with Marriage Registrar, Chennai, on 31.05.2017. He has assailed the said marriage on several grounds. Firstly it is stated that no marriage was solemnized between him and the respondent on 22.05.2017 at 6:00 PM as the petitioner was on duty on that day. He has gone on to assert that no marriage was solemnized between him and the respondent on 22.05.2017 or any other date. Secondly he has alleged that respondent was pregnant, at the time of registration of their alleged marriage, with some other person. Thirdly he claims that respondent had forced and pressurized him to visit the office of Sub Registrar by extending threats to implicate him in a rape case and getting the service of petitioner, who was working as an Airman in Air Force, terminated.
19 The petitioner has reiterated the averments made in the petition, which have been reproduced at length in foregoing paragraphs, in his affidavit Ex.PW- 1/ A. He has relied upon documents Ex.PW-I/I to Ex.PW-1/3 in his affidavit which includes his marriage certificate, copy of Adhar Card and copy of complaint dated 06.08.2017. The petitioner has also filed Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:21.09.2021 15:57:29 affidavit of his father Shri Narendra Singh, who was examined as PW-2. In his affidavit PW-2 Shri Narendra Singh has not mentioned any additional facts but has reiterated and replicated facts mentioned by petitioner in his petition and affidavit-Ex.PW-I/A. 20 The question which arises for consideration is whether in absence of written statement, the necessity of proof by the petitioner of his case to the satisfaction of the Court can be dispensed with. It is well settled that merely because respondent is absent the Court is not bound to accept the case of the petitioner as gospel truth. The plaintiff or petitioner is still bound to prove his case by preponderance of evidence. The burden of proof requires petitioner to prove that a particular fact is substantially more likely than not to be proved and to provide enough evidence that a reasonable person could expect as adequate to support a particular conclusion. The Indian Evidence Act, 1872 (hereinafter referred to as the "Evidence Act") prescribes the mode in which a person is required to discharge the · burden of proof. Section 101 of the Evidence Act prescribes that whoever desire~ any court to give judgment as to any legal right on liability, dependent on the existence of facts which he asserts, must prove that those fact exists. Further Section 102 prescribes that burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. Section 103 then provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any 'law that proof of that fact shall lie on any particular person. Further the burden of proving fact especially within knowledge of any person is upon him as per Section 106 of the Indian Evidence Act.
21 When the case put forth by the petitioner is examined on these well established principles, it is seen that petitioner has miserably failed to prove his case. In the first instance petitioner has not brought anything on record to prove that he was on duty on 22.05.2017 at 6:00 PM at the date and time of his impugned marriage with the respondent. The petitioner who claims to be working as an Airman in the Air Force had the Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:21.09.2021 15:57:29 knowledge and power to adduce best evidence regarding his being on duty on 22.05.2017 at 6:00 PM, but he has failed to do so. Further several facts mentioned by the petitioner in the petition are self contradictory. Though he claims that he had extended monetary help to respondent several times he has not placed anything on record in support of this assertion. He has stated that he had given a sum of Rs.25,000/- to respondent in November, 2014 to pursue her M.A. in Public Administration from Kurukshetra, Haryana. He then arranged for a rented accommodation in Kurukshetra, Haryana, during May and June, 2015, at the instance of respondent, since respondent wanted to have a live-in relationship with him. He also arranged for her to have spoken English classes in Delhi and later on his transfer to Air Force Station at Avadi, Chennai, he arranged for a paying guest accommodation for her and also admitted her in spoken English classes at Chennai. When respondent's classes got over in October, 2015 he arranged for her to travel back to Delhi. In May, 2016 he yet again arranged for a paying guest accommodation for respondent and her sister and also paid a sum of Rs.67,000/- towards fees and respondent's coaching for UPSC in Sankar IAS Academy in Anna Nagar. In August, 2016 petitioner found a rented accommodation for respondent and her sister at 267/29, Udhyam Colony, 18th Main Road, Anna Nagar West, Chennai, on request of the respondent, and entered into a rent agreement with the owner of the flat by paying him Rs.60,000/- as advance and Rs.8,000/- as rent. Nothing has been placed on record by petitioner to prove that he repeatedly gave monetary help to respondent, who he claims was a mere acquaintance with whom he came in contact through facebook. The self proclaimed selfless of petitioner also makes one to ponder about his motive. It is not as if the petitioner was by nature a philanthropist who generally extended help to those in need around him. He must be having other facebook friends but has not mentioned about any other person or friend or acquaintance for whom he was readily available in times of need and had helped them tide over financial difficulties. The petitioner is not forthcoming in revealing his actual motive for Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:21.09.2021 15:57:29 helping the respondent by providing her substantial financial resources and other help like arranging for accommodation etc. for her from time to time. For reasons ' best known to him he is completely silent about his corresponding expectation / arrangement with respondent, his expectation from her and / or the manner in which respondent was expected to reciprocate / return his money and / or favours taken from him by her. This by itself creates doubt if the relationship between petitioner and respondent was merely platonic as claimed by the petitioner. It is apparent that the petitioner has deliberately and willfully withheld all the documents pertaining to monetary transaction he claims to have entered into for and on behalf of respondent. 22 Further petitioner has specifically averred in Para 10 of the petition that "subsequently both sisters shifted to rented house from the hostel and the respondent till date continues to reside in the same address". For reasons best known to him he mentioned the address of Uttar Pradesh as place of residence of respondent in the memo of the parties appended to petition. The respondent was never served at the address referred to in the para IO of the petition and was ultimately served through publication in 'Dainik Jagran' having circulation in Uttar Pradesh. Despite specific averments in the para 10 of the petition that respondent was residing in a rented accommodation at House No.267/29, Udhyam Colony, 18th Main Road, Anna Nagar, Chennai, when the present petition was filed, no effort was made by the petitioner to have respondent served at the said address or to produce the documents pertaining to the said rented accommodation which he had lastly arranged for respondent, by executing a rent agreement dated 01.08.2016.
23 Further despite having averred in the petition that he was in a live-in rela6onship with respondent in May / June, 2015 and further stating in his complaint Ex.PW-1/3 that he was living in the same house with the respondent, petitioner claims that he had no sexual relations with the respondent. This stand taken by the petitioner is self contradictory. 24 Further as per petitioner he being an Airman could not Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:21.09.2021 15:57:29 moved around as and when he pleased and his movements were highly restricted. He was required to get permission of his superiors even to go out. In such a scenario it is surprising that petitioner gave no information in his office regarding his live-in relationship with the respondent or subsequent developments wherein he claims to have been forced to visit office of Sub Registrar of Marriage by respondent and her associates for registration of their marriage.
25 Though petitioner has filed affidavit of his father in support of his case, the same is not of much aid to petitioner since the entire testimony of PW-2 / Shri Narendra Singh is of hearsay nature. There is nothing mentioned in the petition or petitioner's affidavit Ex.PW-1/A that his father PW-2 / Shri Narendra Singh was privy to his affair with the respondent. Similarly PW-2 / Shri Narendra Singh has also not mentioned anything in his affidavit Ex.PW-2/A as to how he came to know of private affairs of his son / petitioner when he was neither physically present during any of the interactions between the petitioner and the respondent nor had he provided funds to petitioner to help him to extend monetary aid to the respondent. The testimony of PW-2 I Shri Narendra Singh thus does not aid the case of the petitioner in any manner. When petitioner himself has failed to bring on record documents relevant to prove his case hearsay testimony of PW-2 / Shri Narendra Singh even otherwise does not help him to prove his case in any Manner. "
5. The only submission advanced by learned counsel for the appellant is that the appellant has suffered for the last 3-4 years.
6. We are not impressed with this submission. The appellant had to establish his case on merits. The appellant has claimed that the respondent fraudulently got registered the marriage between the two under threat & coercion. The appellant was serving as an Airman with the Indian Air Force and, prima-facie, this submission of the appellant appears to be farfetched. It was for the appellant to establish the same. He did not lead any evidence Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:21.09.2021 15:57:29 to establish the same. In our view, the petition has rightly been rejected by the Family Court.
7. We do not find any merit in this appeal. The same is, accordingly, dismissed.
VIPIN SANGHI, J JASMEET SINGH, J SEPTEMBER 20, 2021 B.S. Rohella Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:21.09.2021 15:57:29