Calcutta High Court
Tapan Ranjan Das vs Smt. Jolly Das on 15 March, 1990
Equivalent citations: AIR1990CAL353, 94CWN812, I(1991)DMC60, AIR 1990 CALCUTTA 353, (1990) 1 CALLJ 361, (1991) 1 DMC 60, (1991) 1 CIVLJ 576
Author: G.N. Ray
Bench: G.N. Ray
ORDER G.N. Ray, J.
1. This appeal is directed against the judgment and decree passed by the learned Additional District Judge, 10th Court, Alipore in Matrimonial Suit No. 51 of 1987. By the aforesaid judgment and decree, the learned trial Judge allowed the application made by the plaintiff respondent Smt. Jolly Das alias Moulik under S. 25(iii) of the Special Marriage Act. The learned Judge held that the marriage between the said respondent and the appellant Tapan Ranjan Das was a nullity.
2. The case of the petitioner respondent Smt. Jolly Das alias Moulik is, inter alia, that she is a Hindu by faith and an Indian by nationality and she comes of a respectable family. Her father is a practising doctor of good repute and the appellant Tapan Ranjan Das is also a Hindu and Indian by nationality and he is aged about 42 to 45 years. It is contended by the petitioner respondent Smt. Jolly Das that the said Tapan Ranjan Das was practically unemployed and to earn his livelihood he has opened a music coaching class at his residential address. Jolly was admitted in the music coaching class of Tapan and she was known to Tapan and his family members for a long time because the said Tapan Ranjan Das had acted as a tabalchi of her elder sister when she had been learning music and song. Jolly also contended in her application under S. 25(iii) of the Special Marriage Act that Tapan also participated as a tabalchi when Jolly used to learn guitar. On 24th October, 1986, Tapan asked Jolly to go with him to Calcutta to participate in a music competition in electric guitar so that she could get a chance in All India Radio and Tapan also stated to Jolly that for such purpose she was required to fill up certain forms so that she would be called for audition by the All India Radio Authority. It is the case of Jolly that as she had implicit faith in Tapan, without any hesitation she accompanied Tapan and came to Calcutta and according to the dictation and advice of Tapan she put her signature on blank forms without going through such forms and knowing the contents thereof. Tapan also did not explain anything to her. Jolly further contended in her application that Tapan was elder than Jolly by 22/23 years and Jolly had paid respect to Tapan as he acted as her music teacher and save and except such relation there was no other relation between Jolly and Tapan. It is also the case of Jolly that on 2nd March, 1987., Tapan asked Jolly to go to his house and on enquiry she was told by Tapan that there had been a lawful marriage between Tapan and herself and as such Jolly would have to live with him as husband and wife. It is contended by Jolly that she became dumbfounded on hearing this and disclosed the matter to her mother and other family members. On 4th March, 1987 the enquiry was caused by the members of the family of Jolly and they had been to the office where Jolly was brought on 24th October, 1986 and then they came to know that there was a formal marriage between herself and Tapan under the provisions of Special Marriage Act. Jolly has alleged that Tapan had practised fraud on her and there was also coercion and inducement made by Tapan to her for signing the blank forms on the representation that such forms were necessary for the purpose of getting audition for a programme in the All India Radio. Jolly has alleged that by practising fraud, coercion and undue influence Tapan procured the signature of Jolly on the blank forms without disclosing the contents thereof and she did not give any consent to the marriage and the certificate of marriage was obtained by Tapan by practising fraud, undue influence and misrepresentation. Accordingly, the said marriage should be declared as null and void.
3. The said Matrimonial Suit No. 51 of 1987 initiated on the application under S. 25(iii) of the Special Marriage Act was contested by Tapan Ranjan Das, the appellant herein by filing written statement, inter alia, denying the allegation made in the petition. It is contended by Tapan that he is not aged 42/45 years but he is only 30/31 years old and he is not unemployed. He is permanently employed in Metal and Steel Factory as a technical hand and at that time he is getting a salary of Rs. 2,000/- per month. The Music Coaching Class at the residential house of Tapan is being run by the family members. It is also contended by Tapan that Jolly became known to him and during the period of free-mixing both of them earned mutual respect towards each other and they fell in love. As a matter of fact, Jolly herself insisted for registration of marriage and accordingly both of them went to Smt. Anita Bagchi, Marriage Officer in Calcutta on 2nd September, 1986 and requisite notices were signed by the parties. It is also contended by Tapan that Jolly deliberately suppressed the fact of signing of the notice in September, 1986. It is further contended by Tapan that by mutual consent of both parties the marriage was finally solemnised before the said Marriage Registrar on 24th October, 1986 and both the parties signed the requisite papers for registration of marriage. Tapan has disputed the allegation that any fraud, undue influence or coercion was exercised by Tapan by falsely alleging that for getting an audition in All India Radio she had to go to Calcutta and had to sign requisite papers. It is contended that such statements are absolutely false and imaginary. It is also stated by Tapan that it is also ridiculous that Jolly being an educated person could not understand the contents of the Marriage Registration forms which she had signed. Tapan has alleged that on 19th February, 1987 the father of Tapan had died and Sradh ceremony was held in March, 1987. An invitation card in connection with 'Sradh' ceremony was handed over by Tapan to the parents of Jolly. Tapan denied that he disclosed for the first time on 2nd March, 1987 to Jolly that she was his married wife. Tapan has alleged that the allegation of fraud, coercion and undue influence is absolutely false and figment of imagination and the same cannot be believed and accepted.
4. Jolly examined herself in the said proceeding and deposed to the effect that Tapan used to teach her elder sister music about 12/14 years back and in that connection he used to come to the house of Jolly. After the marriage of her elder sister he begun to teach her music and for that purpose Tapan used to come to her house. Tapan had also a School of Music at his residence where Jolly used to go to learn guitar playing and such learning of guitar in the said school started about 3 / 4 years back. She also deposed to the effect that on 24th October, 1986 Tapan took her out from her residence to Calcutta on the pretext that she would fill up forms to enable her to get a chance to get audition in the All India Radio Station. He took her to a ghar (room) in Calcutta and told her to wait there and thereafter got some forms signed by her. She put her signature without going to the contents and had signed purely at his dictation. Thereafter, she left that place. Later on, on 3rd March, 1987, probably on her way to the private tutors house, Tapan told her that she was her married wife and she should go with him to his house. She did not agree to such proposal and after returning home reported the matter to her parents. Her parents caused an enquiry and came to know that there was a registration of the marriage between herself and the respondent and they Obtained a certified copy of marriage certificate. The xerox copy of the marriage certificate was exhibited and marked Ext. 1 without any objection. She has also deposed to the effect that out of the witnesses to the said registration of marriage, she only knew Bijoy Das who used to teach her guitar playing in the said music school but she did not know any other person. She stated in her deposition that she was a student of B.A. Class in 1986. She also stated that English was not her subject in the B.A. Examination but in the previous two examinations i.e. Secondary and Higher Secondary Examinations, English was her compulsory subject. She admitted that the Marriage Certificate was written in English and she also signed in English and the Marriage Registrar Smt. Anita Bagchi also signed in English in the said certificate. She admitted in cross-examination that she had attended the marriage Ceremony of her friend Chandreyi at Belghoria but she did not know whether Chittaranjan Dutta Chowdhury was the father of Chandreyi. She also did not know the surname of Chandreyi but she had been to her house on the occasion of her marriage with her friends. She also stated that Madhu Ghosh and Swapan Bhattacharjee were some of friends with whom she attended the marriage ceremony of Chandreyi at her house but she could not say whether the said Madhu Ghosh and Swapan Bhattacharjee were also friends of Chandreyi. She had also stated that she could not remember if any joint photographs had been taken by herself and Tapan.
5. The father of Jolly also deposed on her behalf and he stated that Tapan was. engaged by him as a 'tabalchi' (tabla accompanist) to teach music to his eldest daughter. Later on Jolly also used to take lesson in music from Tapan and he worked as a tutor in his house for about 14 years and the members of the family of Jolly used to pay respect to Tapan as he was a private tutor of the daughters in the house. He was informed by Jolly and also by his wife on 3rd or 4th March, 1987 that on the way of Jollys going to her private students house, Tapan met her and proposed to marry her. The said witness, however, stated later on that Tapan told her that she had already been married to him. The certified copy of the marriage certificate was thereafter obtained by his wife with the help of his son-in-law from a Marriage Registration Office in Calcutta but he did not go to the Marriage Registration Office.
6. Tapan Ranjan Das also examined himself in the said proceeding and slated that he had married Jolly on 24th October, 1986. He signed the notice of marriage on 2nd September, 1986. He deposed to the effect that a Musical Training School was established at their residence and the petitioner used to come there to learn music i.e. playing guitar for about 10 years prior to marriage and he became acquainted with her in the said school. One Bijoy Das used to teach her guitar playing. They developed love for each other and married her by registration in 1986. Tapan stated that he is a commerce graduate of the University of Calcutta and he has also a diploma in Music. He has also deposed that he is employed in Metal and Steel Factory under the Ministry of Defence at Ichapur and at that time he was drawing a salary of more than Rs. 2,000/- per month. He also stated in his deposition that Bijoy Das, Chittaranjan Dutta Chowdhury and Manik Chakraborty were the witnesses of marriage and the date of marriage was fixed by Jolly herself and she came to the Marriage Registration Office of her own accord with full knowledge that marriage would be solemnised. She had signed the marriage registration form voluntarily out of her own will and there was no occasion for him to coerce her or to force her to sign. Tapan also stated that after marriage the couple went to the house of Bijoy Das, Manik Chakraborty, Chittaranjan Dutta Chowdhury and many others and along with Jolly he attended the marriage ceremony of the daughter of Chittarajan Chowdhury as they were invited to the said marriage. It was stated by Tapan thai Jolly had no ac-quintance with Chandreyi, the daughter of Chittarajan on any earlier occasion. Tapan also deposed to the effect that after marriage the couple went to different places on tour including Chinsura and photographs were taken at Chitra Studio. Tapan has denied that he was ever a teacher of music of either Jolly or her elder sister. He stated that he was aged 31 years and Jolly used to learn music from Sri Bijoy Das but he was not aware if Bijoy Das used to teach her at her residence. He has also stated in his deposition that Manik Chakraborty and Chittarajan Dutta Chow-dhury signed the marriage registration certificate on behalf of Tapan and Bijoy Das was a witness on behalf of Jolly. He has also stated in his deposition that Chandreyi, the daughter of Chittaranjan Dutta Chowdhury was not a student in the Musical school. He became known to Chittaranjan Babu for the first time in a Music programme in Calcutta about six years back. He stated that Chittaranjan Babu used to come to the Musical School at the residence of Tapan because he was interested in music.
7. Krishna Bahadur Giri, an employee of the Marriage Registrar, Smt. Bagchi, has also been examined on behalf of Tapan. He has stated that Tapan and Jolly put their signatures and filled the columns of the notice for the intended marriage and such notice is marked as Ext. A. They also filled up the declaration form which is exhibited as Ext. B. It has been stated by Krishna Bahadur Giri thai under the rules three sets of notices are required to be issued by the parties and besides marriage certificate there were two other notices duly signed by parties. He also stated that he did not see any party to exercise coercion or force before signing the declaration. He has also stated that before the certificate is issued the Marriage Registrar ensures about the marriage by putting questions to the parties to the effect that they have entered voluntary marriage with due consent. In cross-examination, Krishna Bahadur however stated that he had no personal knowledge about the signature of the parties or their witnesses on the declaration.
8. Chandreyi, the daughter of Chittaranjan Dutta Roy Chowdhury, has also been examined by Tapan. She has stated that Tapan is a friend of her father and she used to call him as uncle and she knew Jolly as her aunt. Her marriage look place on 7th February, 1987 and Jolly was present in her house throughout the whole day and she had been with Tapan Ranjan Das on being invited by the family of Chandreyi. Jolly did not go there with any of her friends because she was invited as wife of Tapan and friends of Jolly were not invited. She has also stated that no girl student of Naihati College attended the marriage ceremony. She has also stated that she did not invite Jolly at her marriage as her friend. Chandreyi also stated in her deposi-tion that she passed B.A. Examination in 1986 and she did not know whether Jolly was a student of B.A. Class.
9. Bijoy Das, a witness to the registration of marriage, has also been examined by Tapan and he has stated that he is a teacher giving lessons in guitar playing and he knew Jolly who was his student. He has stated that he was present at the Marriage Registration Office at the time of marriage of Jolly with Tapan on 24th October, 1987 and China Babu and Manik Chakraborty were also present at the Marriage Registration Office. He has also stated that he knew Tapan Ranjan Das because the father of Tapan used to run a Music School and he used to teach guicar in the said School. He has also stated that Tapan is a good Tabla player but he is not connected with the said Music School and he had no relation with Tapan in the profession of music. He has denied the suggestion made in the cross-examination that Jolly Das did not take him to the registration office.
10. Manik Chakraborty, another witness to the registration of marriage, has also deposed for Tapan. He has stated that he knew both Tapan and Jolly. Once he had been to see a picture in a cinema hall when Tapan Das a friend of Manik introduced Jolly to him. He has also stated that he is an employee of Calcutta Tramways and he accompanied Tapan and Jolly on 2nd September, 1986 when they had been in the Registration Office for giving notice and he has stated that he was a witness to the registration of marriage of Tapan and Jolly on 24th October, 1986.
11. Chittaranjan Dutta Chowdhury has also been examined by Tapan and he has stated that he knew Tapan for the last 6/7 years and he became acquainted with Tapan at a musical soiree. Tapans father has Musical School and he used to go to the said school as he has interest in music. He has also stated that he also knew Jolly since 1964 and they married on 24th October, 1986 at Marriage Registration Office at Sealdah and the said marriage was solemnised by taking oath. Tapan and Jolly signed the relevant registers and he also signed as a witness to the said registration of marriage and he identified his signature in the Marriage Registration form. He has also stated that after their marriage Tapan and Jolly had been to his house and they attended the marriage ceremony of his daughter Chandreyi. He has further stated that he did not invite any friend of Jolly on the occasion of marriage of his daughter but Jolly attended the marriage ceremony as a wife of Tapan. He has also stated that he was an employee of Posts and Telegraphs and is a resident of Belghoria.
12. The learned trial Judge held that under S. 25 of the Special Marriage Act, the marriage solemnised cannot be avoided by a decree of nullity on the ground that the consent of either party was obtained by coercion. The learned Judge, however, took into consideration as to whether or not the consent had been obtained by fraud as defined under Indian Contract Act. He referred to S. 17 of the Indian Contract Act which defines fraud and took into consideration of the conduct of the parties both at the time of marriage and after marriage. The learned Judge was of the view that the case of Jolly was that she accompanied Tapan and came to Calcutta and signed some blank papers on the impression that she would get a chance for audition in All India Radio. The learned Judge held that admittedly Jolly had been learning guitar in the school which was being run by the father of Tapan and it is also not disputed that they knew each other prior to the date of alleged marriage on 24th October, 1986. The learned Judge held that Jolly signed the marriage registration forms but Jolly was about 19 years old when she signed such forms and she denied that on 2nd September, 1986 she came to Calcutta and signed three notice forms expressing intention to marry. Although such notice was marked Ext. A, Tapan did not take any step to prove the notice by recalling Jolly. According to the learned Judge, Tapan should have confronted Jolly by drawing her attention also to the notice expressing intention to marry and not only to the marriage form since such notice was also signed by Jolly but no such step was taken by Tapan to the effect. The learned Judge also held that after the registration of marriage on 24th October, 1986, Jolly had been residing at her fathers house and although Tapan stated that after marriage they had been to different places on tour including Chinsurah and photographs were taken but such photographs were not exhibited. The learned Judge also noted that if Jolly was the wife of Tapan, it was the duty of Jolly to perform Shradh ceremony of Tapans father but there was no evidence that she performed such ceremony and observed rituals. The learned Judge also noted that there was no evidence to show that Tapan informed the family of Jolly about the marriage and he also did not assert his right as husband. The learned Judge was of the view that the witnesses to the marriage were all friends of Tapan. The learned Judge took serious exception for the deposition of Tapan to the effect that he was not aware whether Bijoy Das was an employee of the Music School of his father. It may be noted here that Tapan has stated that Bijoy Das comes to the School and teaches the students there and for that he takes his fees from the students. The learned Judge was of the view that as Bijoy Das used to give lessons in guitar in the School of Tapans father, the statement of Tapan that he was not aware that he was an employee of that institution must be held to be a false statement and such statement showed that Tapan was prepared to lie if necessary. The learned Judge was of the view that the conduct of the parties indicated that Tapan took Jolly to Calcutta for the purpose of signing some printed forms for the purpose of audition and having implicit faith in him, Jolly signed these papers without going through the contents and as such fraud was practised upon Jolly. In that view of the matter, the marriage was declared as null and void by the learned trial Judge.
13. Mr. Chatterjee, the learned counsel appearing for the appellant, has contended that the case, sought to be made out by the petitioner Jolly in the application for dissolution of marriage cannot be accepted on the face of the absurdity of the story alleged by her and also for various contradictions in the case sought to be made out in the application for dissolution and the case sought to be made out in her deposition and the deposition of her father. Mr. Chatterjee has contended that it is the positive case of Jolly in the application for dissolution of marriage that Jolly knew Tapan when Tapan used to assist on tabla her elder sister at the time of learning music and song and Jolly also used to go to the Music teaching School at the house of Tapan to learn guitar playing and Tapan at that time participated as a tabalchi. She did not state in her application that Tapan used to assist on tabla as a teacher in her house. But in her deposition an embellishment was made by her by stating that after marriage of her elder sister Tapan used to teach music and for that purpose he used to come to her house. In the application for dissolution of marriage she stated that on 24th October, 1986 Tapan asked her to go with him to participate in a music competition in electric guitar so that she could get a chance in All India Radio. Tapan also expressed to the petitioner that for such purpose the petitioner was to fill up certain forms so that she could be called for audition by All India Radio Authority and accotdingly without any hesitation she came to Calcutta with Tapan and according to the dictation and advice of Tapan she signed some blank forms without going through the contents thereof. In her deposition there has been a vital departure from the pleading. In her deposition Jolly has stated that on the pretext of giving her a chance of audition in All India Radio, Tapan took her to Calcutta and thereafter he took her to a 'ghar' (room) and told her to wait there and thereafter he got some papers signed by her without explaining the contents thereof. Mr. Chatterjee has very strongly contended that admittedly at the time of going to Calcutta and signing the alleged forms, Jolly was a student of B.A. Class and had sufficient education in English having passed both Secondary and Higher Secondary examination in English. He has submitted that the Court will take into consideration the falsity of the case sought to be made out by Jolly in her application and the departure made by her in her deposition. In the application, she categorically stated that on 24th October, 1986 Tapan requested Jolly to go to Calcutta to participate in a Music competition in electric guitar so that she would get a chance in All India Radio. If on such representation, Jolly was taken to Calcutta by Tapan, it was quite natural that Jolly was bound to be surprised when she was not taken to any music competition for participation in electric guitar although for such participation he was asked to come. It is reasonably expected that Jolly would cause enquiry about the proposed participation in music competition in guitar which would help her to get a chance for audition in All India Radio. But Jolly in her deposition is completely silent about the proposed music competition which was a purpose for coming to Calcutta according to her pleading. She has also stated in her deposition that she was taken to a room in Calcutta and asked to wait and then she was requested to sign some forms. Mr. Chatterjee has contended that for the purpose of solemnising marriage under the Special Marriage Act prior to marriage a notice intending to marry is required to be signed by the parties and after the statutory period of such notice, the marriage is solemnised in the presence of the Marriage Registrar who has a duty to ask the question to the parties as to whether or not the parties were voluntarily marrying and signing the declaration forms. It is also necessary that such forms are to be signed by the witnesses and marriage officer. Mr. Chatterjee has contended that Ext. 1 will show that at the top of the form for certificate of Marriage the expression Certificate of Marriage is written boldly and within bracket it is also written 'under S. 13 of Act XLIII of 1954'. It is also contended by Mr. Chatterjee that it is impossible to believe the false story sought to be made out by Jolly that at the dictation of Tapan she signed blank forms on the representation that such forms were necessary for getting audition in the All India Radio. Jolly being fairly educated and admittedly a major could immediately see on a mere look of the form which she admittedly signed that the form was a Certificate of Marriage. Mr. Chatterjee has also contended that unless the Court can come to a definite finding that the Marriage Registration Officer and all the witnesses were parties to the fraud by utilising the blank forms signed by Jolly without understanding the contents thereof for Marriage Registration Certificate, the case of Jolly cannot but be rejected by the Court. Mr. Chatterjee has also drawn the attention of the Court that in paragraph five of the application for dissolution of Marriage Jolly has pleaded that sometime on 2nd day of March, 1987 Japan came to Jollys house as usual and for the first time he asked her to go with him and on enquiry he told Jolly that there had been a lawful marriage between the parties and Jolly would have to live with him as husband and wife. Mr. Chatterjee has submitted that in the depositions of Jolly and his father there has been a departure from this case made in pleading. Jolly has stated in her deposition that:--
"Later, on 3rd March, 1987 probably on my way to the Private Tutors house, the respondent told me that I was his married wife and so I was to go with him to his house. But I did not agree to go with him and I returned home and reported the matter to my parents."
14. Mr. Chatterjee has also submitted that if Jollys evidence is to be accepted as correct it should be held that Chandreyi, the daughter of Chittaranjan Dutta Chowdhury was her friend and she was invited to attend the marriage ceremony of her friend which she had attended along with other friends. No other friend has been examined by Jolly. On the contrary, Chandreyi was examined by Tapan and Chandreyi has categorically stated that Jolly was never her friend but she being wife of Tapan who used to be treated as her uncle, was invited at her marriage and she used to call Jolly as aunt. Mr. Chatterjee has submitted that if Chandreyi was her friend and she was invited at the marriage ceremony of such friend, it will be almost impossible to believe that Chandreyi would resort to deliberate falsehood and deny that Jolly was her friend and she was not invited in her marriage as a friend along with other friends. No explanation whatsoever has been given either in the application under S. 25 or in the deposition of Jolly and her father why Chittaranjan Dutta Chowdhury, a respectable elderly gentleman and employee of Posts and Telegraphs Department and her daughter, an alleged friend of Jolly have resorted to falsehood and connived with Tapan to practice fraud on an innocent girl. Mr. Chatterjee has submitted that if Chandreyi is a friend of Jolly it is not at all expected that the father of Chandreyi will conspire against Jolly and support Tapan for an unlawful act viz. for practising fraud on a friend of his daughter only because Tapan was known to him in connection with music. On the contrary, it is the specific case of Tapan that the said Dutta Chowdhury was acquainted with him as he had love for music and he used to love both Tapan and Jolly and at his request became the witness of marriage. Such fact has been corroborated by Chandreyi in her deposition and Mr. Chatterjee has submitted that such deposition could not be shakened in cross-examination. Mr. Chatterjee has also contended that admittedly Bijoy Das was a teacher of Jolly and she used to learn lesson on guitar from Bijoy Das. Only because Bijoy Das had been teaching in the music school at the house of father of Tapan, it is highly improbable that he would depose against his own student and would stoop down to the extent of perpetrating fraud on her by conniving with Tapan to bring about a fake marriage. Mr. Chatterjee has contended that on the contrary the case sought to be made out by Tapan that Bijoy Das being the teacher of Jolly signed as witness on behalf of Jolly and such statement, in the facts of the case, appears to be highly probable and there is no reason to discard the same. Mr. Chatterjee has also contended that the witnesses to the marriage registration are all respected persons and it is highly improbable that all of them should make a conspiracy against a young girl to bring about a fake and unlawful marriage by being parties to the fraud practised on her by Tapan. Mr. Chatterjee has contended that the learned trial Judge has taken exception against Tapan for not producing the pictures stated to have been taken after marriage. He has drawn the attention of the court to the deposition of Jolly in this context. Jolly has stated in her cross-examination that she did not remember if any joint photographs had been taken of herself and Tapan. Mr. Chatterjee has contended that if there was no occasion of taking any joint photographs it can be reasonably expected that Jolly would speak in a straightforward manner by denying that there was no joint photographs taken. But she tried to avoid the truth by stating that she could not remember the fact of taking joint photographs. Mr. Chatterjee has also submitted that the case of coercion does not arise in the facts of the case because it is not the case of Jolly that she was forced to sign against her will. Jolly has tried to make out a case of misrepresentation and/or fraud. Mr. Chatterjee has contended that Jolly has miserably failed to establish any fraud. Mr. Chatterjee has submitted that it is the positive case of Jolly in the application under S. 25(iii) of the Special Marriage Act, that on 2nd March, 1987 Tapan disclosed to her at her residence where he used to come as usual that there had been a lawful marriage by and between the parties and that she would live with him as husband and wife and she narrated the incident to her parents. She and her father thereafter went to the Marriage Registration Office and came to know that there was a formal marriage by and between the parties according to the Special Marriage Act. In the deposition, the father of Jolly has stated that he did not go to the marriage registration office in Calcutta but with the help of his wife and son-in-law, he obtained the marriage registration certificate. Mr. Chatterjee has stated that at each and every step, the deposition made either by Jolly or by his father contradicts the case pleaded in the application for dissolution of marriage and the Court must hold that they have scant regard for truth and have resorted to falsehood whenever they liked to avoid the lawful marriage. Mr. Chatterjee has contended that the case of misrepresentation and fraud sought to be made out by the petitioner is so poor and contrary to the evidence on record that no Court can reasonably come to the finding that the fraud as alleged had been perpetrated on the petitioner. He has submitted that unless the Marriage Registration Officer and all the witnesses to such marriage became party to the fraud and all of them had connived for perpetration of fraud on the petitioner, the case of fraud as sought to be made out cannot but fail. In the facts of the case, such extreme case has neither been pleaded nor established by any convincing evidence. Mr. Chatterjee has, therefore, submitted that the application for dissolution should be dismissed by allowing this appeal.
15. Mr. Mukherjee, the learned counsel for the respondent, has however submitted that Jolly was a student of Tapan for taking musical lessons. Tapan was a teacher in tabla of the elder sister of Jolly and used to go to the residence of Jolly for giving accompaniment in tabla when the elder sister used to learn music. Since then Tapan was known to the members of the family. It is also the positive case of Jolly and her father that Tapan also used to assist on tabla when Jolly used to learn music. Mr. Mukherjee has contended that it is also the case of Jolly that she used to take lessons in guitar in a musical school established at the residence of Tapan. In the aforesaid circumstances, there is no manner of doubt that the relation of Tapan and Jolly was that of teacher and student. Mr. Mukherjee has also contended that when there is a fiduciary relationship between Tapan and Jolly as teacher and student, Tapan is under a legal obligation to establish beyond all reasonable doubts that there had not been any undue influence and the marriage had taken place on free and voluntary consent between the parties without any manner of undue influence and compulsion by a teacher on the student. Mr. Mukherjee has contended that Jolly was of a tender age and at the relevant time was just admitted in the B.A. Course. It is not expected that she would be conversant with the worldly life like a grown up person and it can be reasonably assumed that Tapan who is known to the family for a long time and who had acted as a teacher of Jolly in the lesson of music could exert tremendous influence on Jolly by taking advantage of the fiduciary relationship.
16. Mr. Mukherjee has referred to illustration (b) of S. 17 of the Indian Contract Act and also S. 111 of the Evidence Act. Mr. Mukherjee has contended that proof of good faith is essentially necessary in every transaction where one party is enjoying active confidence because of the fiduciary relationship. In this connection, Mr. Mukherjee has referred to an English decision made in the case of Scott (falsely called Sebright) v. Sebright, report in 1886 p. 1 : 1886-90 All ER (Reprint) 363, Mr. Mukherjee has also contended that the Marriage Registrar was not examined by Tapan and only a person stated to be an employee in the office of the Marriage Registrar was examined. In the facts of the case, evidence of Marriage Registrar was essential but for reasons best known to Tapan, Marriage Registrar was not examined. Mr. Mukherjee has also contended that all the witnesses to the registration of marriage virtually belonged to the side of Tapan. If the marriage was entered between the parties on a voluntary consent without any. influence whatsoever, it is reasonably expected that some one from the side of Jolly should have been a witness for the marriage. It will be noted that no friend of Jolly or no close relation of Jolly was witness to the registration of marriage, but all persons connected with the music school and closely associated with Tapan were the witnesses. Mr. Mukherjee has also contended that if the parties had voluntarily married and became husband and wife, it is reasonably expected that within a period of few months after the alleged marriage, there was consummation of marriage, but strangely enough, such consummation has not taken place. Mr. Mukherjee has also submitted that admittedly father of Tapan had died and if the parties had voluntarily married and accepted the position of husband and wife, Jolly should have observed the rituals during the period of mourning and should have taken part in the Sradh ceremony being a member of the family of Tapan. But there is no evidence that Jolly had observed any ritual during the period of mourning or had participated in the religious formalities of Sradh ceremony. Such behaviour is contrary to the case of voluntary marriage. Mr. Mukherjee has submitted thai the witnesses to the registration of marriage belonged to the camp of Tapan and their evidences do not deserve any credence. Mr. Mukherjee has referred to the treatise "A Selection of Legal Maxim" by Harbart Broom, (10th Edition). Referring to page 326 (Chapter VII), Mr. Mukherjee has drawn the attention to the observation in the said treatise "Marriage as understood in Christendom is the voluntary union for life of one man or one woman to the exclusion of all other. It is constituted by conjunctio animo-rium or present consent of the parties expressed under such circumstances as the law requires, so that as soon as such consent has been given, each of the parties although they do not consummate the marriage conjunc-tione corporium, nevertheless possess all the legal rights of husband or wife." Mr. Mukherjee has contended that in order to effect a valid marriage, there must be consummation or a genuine desire to consummate the marriage in near future. In the instantcase, both the elements are absent and such absence clearly points out that there was no voluntary agreement to marry and the alleged marriage was effected by perpetrating fraud on Jolly. Mr. Mukherjee has contended that the learned trial Judge considered the evidences on record and drew adverse inference very rightly against the case sought to be made out by Tapan for inconsistencies and unacceptability of such case. Mr. Mukherjee has submitted that Tapan had categorically stated that on many occasions Tapan and Jolly had been on outing as husband and wife and photographs were taken. When the factum of marriage itself was challenged by Jolly by presenting an application for dissolution of marriage, Tapan should have led convincing evidence not only about the factum of marriage but also on the subsequent conduct of the parties accepting each other as spouse. In such context, the photographs alleged to have been taken should have been produced. The learned trial Judge was, therefore, justified in drawing adverse inference against Tapan and disbelieving the case sought to be made out by him for not exhibiting the alleged photographs.
17. Mr. Mukherjee has submitted that the case reveals an unfortunate story of a young girl not capable of understanding the implication of the registration of marriage because of misrepresentation and undue influence exerted by Tapan holding a fidu-
ciary relationship of teacher. Mr. Mukherjee has also submitted that taking advantage of the fiduciary relationship and yielding considerable influence over the free thinking of Jolly, Tapan perpetrated a fraud by getting registration of marriage signed by her on false representations. Mr. Mukherjee has, therefore, contended that no interference is called for in this appeal and the appeal should be dismissed with examplary costs.
18. After considering the respective contentions of the learned counsels for the parties and considering the facts and circumstances of the case, it appears to us that the appellant Tapan was known to Jolly for a long time. Jolly admittedly went to the music school established at the residence of Tapan to learn guitar. In paragraph three of the application for dissolution of marriage, Jolly has stated that when she used to go to the music school to learn guitar, Tapan participated as tabalchi all the times. Such averment that Tapan used to assist her in Tabla at the time of learning lessons of guitar in the music school has not been specifically denied in the written statement filed by Tapan. It, therefore, may be accepted that Tapan used to assist in tabla when Jolly used to take lessons in guitar in the music school.
19. The question, however, arises for determination as to whether or not such assistance by a tabalchi at the time of taking lessons in guitar will constitute a fiduciary relationship of teacher and student between the parties. The next question requires for consideration as to whether or not undue advantage of such fiduciary relationship was taken by Tapan in effecting the registration of marriage by dominating on the free will of Jolly by making false representations.
20. It appears to us that Jolly used to take lesson in guitar from Sri Bijoy Das and Tapan had assisted at the time of such lesson by acting as tabalchi. In such circumstances, it does not appear to us that there was any direct relationship of teacher and student between Tapan and Jolly, because assistance in tabla was only incidental to the lesson in guitar and so far as the lesson in guitar is concerned, it is an admitted position that Sri Bijoy Das, one of the witnesses to the registration of marriage, was her teacher. Even if it is assumed that an accompanist in tabla in learning the lesson in guitar also assumes the role of a teacher, it does not appear to us that there is any cogent and convincing evidence to establish that Tapan misused the fiduciary relationship of teacher and student and exerted any undue influence on Jolly to give her consent to marry him. Such case has not at all been made in the pleading or in the depositions of Jolly and as such the same cannot be accepted. The cause sought to be made out by Jolly in the application for dissolution of marriage is fraud practised and misrepresentation made by Tapan in getting the forms for registration of marriage signed by her. The pleadings made in the application about fraud and misrepresentation also suffer from various contradictions appearing in the deposition of Jolly and her father. In the application for dissolution of marriage, Jolly has stated that on 24th October, 19S6, Tapan asked her to go with him to participate in a music competition in electric guitar so that she might get a chance in All India Radio. She has also stated in her application for dissolution of marriage that Tapan further expressed to her that she was to fill up certain forms so that she might be called for audition by the All India Radio Authority. Accordingly, she without any hesitation and having implicit faith, regard and respect for Tapan, her teacher, went with him and came to Calcutta and according to dictation and advice of Tapan, she put her signatures on the blank forms without going through and knowing the contents thereof and Tapan also did not explain anything save and except that she would have to appear for audition before the All India Radio Authority to get programme. It may be noted here that on 24th October, 1986 the registration of marriage had taken place before the Marriage Registration Officer in Calcutta. In the evidence she has not told that for participating in any music conference she was taken to Calcutta but it has only been stated that on the pretext that she would get a chance to get audition in the All India Radio Station, she was taken to Calcutta by Tapan on 24th October, 1986 and thereafter she was taken to a ghar1 (room) in Calcutta and there got some papers signed by her without going through the contents on such forms. Such case hardly deserves any credence. If for the purpose of participating in a music competition in electric guitar so that Jolly could get a chance in All India Radio, she was asked to go to Calcutta on 24th October, 1986, there is no manner of doubt that when she was not taken to any music competition but was only taken in a room, and not in the office of All India Radio, she should at least feel surprised and cause an enquiry as to why she had not been taken to participate in the music competition in Calcutta for which she had come. Jolly is surprisingly silent about non-participation in any music competition in Calcutta and or about any enquiry made by her about such competition. It is her positive case in her evidence that when she was taken to a room in Calcutta, she was asked to wait there and thereafter Tapan got some forms signed by her and she put her signature thereon without going through the contents and she had signed purely at his dictation and thereafter she left the place. Admittedly on 24th October, 1986, the registration of marriage had taken place and all the witnesses to the registration of marriage have stated that in their presence as witnesses, such registration had taken place. Jolly has not even stated that she had noticed other persons in the office Moreover, the form which was signed by her is an exhibit and the form is a marriage registration certificate (Ext. 1) and at the top of the said form it is printed in bold letters certificate of Marriage (under S. 13 of XLIII of 1954). Jolly being fairly educated and then reading in B.A. Class, she could easily notice on the very look on the form in which she had signed that the form was a certificate of marriage and was not in any way connected with the audition in All India Radio. Mr. Chatterjee, the learned counsel for the appellant, in our view, has very rightly contended that unless a case of connivance in perpetrating fraud on her by the Marriage Registrar and all the witnesses to the registration is made by Jolly and such case is convincingly proved by her, the case of fraud cannot but fail miserably. It appears to us that Bijoy Das was admittedly a teacher of Jolly in giving lessons in guitar. According to the case of Jolly, another witness, Chittaranjan Dutta Chowdhury is the father of her friend Chandreyi and if Jollys case is accepted, she was invited at the marriage of Chandreyi in the capacity of a friend of Chandreyi and she attended such marriage with other friends. If the case of Jolly is accepted, it becomes very difficult to proceed on the footing that the father of a friend of Jolly had conspired against Jolly in perpetrating fraud on her by effecting a fraudulent marriage and became a witness to such fraudulent marriage. Jolly has not examined any friend of her who according to Jolly also attended the marriage of Chandreyi along with her. On the contrary, the case of Tapan is that Jolly was invited in the marriage of Chandrayi, the daughter of Chittaranjan Chowdhury, only as his wife, because he was known to the family of Chittarajan Dutta Chowdhury and Chittaranjan Dutta Chowdhury was his witness to the marriage. Such case of Tapan has been corroborated both by Chittaranjan Dutta Chowdhury and also by Chandreyi herself. It It is very difficult to disbelieve the evidences of Chittaranjan and Chandreyi and to hold that Chandreyi, the friend of Jolly had also conspired against her and in a case where a fraudulent marriage was being contested by her, the friend would stoop down to such an extent as to give false evidence against her. No reason whatsoever has been given as to why Chittaranjan, father of Chandreyi and Chandreyi who, according to Jolly, is her friend would conspire against her and give false evidence. Chandreyi has specifically stated in her deposition that she was senior to Jolly and she passed B.A. Examination in 1986 and she did not know if Jolly was a student of B.A. Class. She has stated that she knew Jolly as wife of Tapan and she used to treat her as aunt and as a wife of Tapan she was invited in her marriage ceremony. It is an admitted position that before filing an application for dissolution of marriage, certified copy of the certificate of marriage was obtained by Jolly and her father and they were aware as to who were the witnesses to the registration of marriage. It is reasonably expected that in such circumstances, Jolly in order to succeed in her application for dissolution of marriage on the ground of fraud or misrepresentation, should .have taken all reasonable care to establish that such witnesses had also connived in perpetrating fraud on her because she sought to make out a case both in her pleading and also in her evidence that at the dictation of Tapan she only signed blank papers without looking into the contents and left the place. If her case is to be accepted it must be held that the Marriage Registration Officer and alt the witnesses later on signed in her absence. Mr. Chatterjee has drawn the attention of the court to the provisions of the Special Marriage Act. It is incumbent that the Marriage Registration Officer would ensure between the contracting parties to the marriage as to whether or not they are marrying voluntarily. Unless it is accepted that the Marriage Registration Officer did not ascertain anything from Jolly, but in her absence gave false declaration and thus became a party to the fraud, the case of Jolly cannot be accepted. Bijoy Das, a teacher of Jolly and a witness of registration of marriage, has specifically stated in his evidence that at the instance of Jolly he had been to the registration office and became a witness to her marriage. It may also be poted that prior to the registration of marriage, a statutory notice of marriage is required to be given. In the instant case, there is no convincing evidence as to when and in what circumstances such notice had been signed by Jolly. She has not even referred to such notice and gave any explanation under what circumstances she had signed the same. On the contrary, there is evidence on the side of Tapan that such statutory notice had been signed by the parties some time in September, 1986 and we do not find any reason to hold that such notice was not signed in September or that such notice had also been signed by her on any misrepresentation or under any fraudulent device. It may be mentioned here that in paragraph five of the application for dissolution of marriage, Jolly has stated that sometime in second day of March, 1987, Tapan came to Jollys house as usual and for the first time asked her to go with him. On enquiry, he told her that there had been a lawful marriage between herself and Tapan and that she would have to live with Tapan as husband and wife. In the deposition, Jolly however, made a different story. She stated in her deposition to the following effect:--
"Later, on 3rd March, 1987, probably on my way to the Private Tutors house, the respondent told me that I was his married wife and so I was (o go with him to his house. But I did not agree to go with him and I returned home and reported the matter to my parents."
21. The learned trial Judge has drawn an adverse inference against Tapan for not producing the photographs stated to have been taken at times after the marriage. Jolly in her deposition, however, could not straightway deny that no photograph had been taken of herself and Tapan but only stated that she could not remember if any joint photograph had been taken of herself and Tapan. In our view, Mr. Chatterjee has very rightly contended that Jolly was not in a position to deny that such photographs had not been taken and she tried to evade the truth by stating that he could not remember the fact. If there is no occasion to take joint photograph, it is reasonably expected, particularly when the parties were contesting the factum of marriage, that Jolly would strarightway answer that no such photographs had been taken. It would have been definitely better and wiser for Tapan to produce the joint photographs and get them exhibited in the proceeding, but since there was no straightway denial of such photographs, there might be some justification for Tapan in not exhibiting the photographs.
22. So far as the consummation of marriage is concerned, it may be noted here that admittedly the registration of marriage had taken place on 24th October, 1986 and on 2nd of 3rd March, 1987 i.e. within about four months, Tapan admittedly asked Jolly to go to his house and to remain as husband and wife. It does not appear that a very long time was elapsed and the parties failed and neglected without any just cause to consummate the marriage and/or to express any intention to such consummation. It is an admitted position that within a period of four months request was made to Jolly to reside with Tapan as wife and such request was made prior to Sradh ceremony of his father. It is quite reasonable that at the time of such Sradh ceremony, the presence of the wife was necessary and therefore such request had been made.
23. We have already indicated that according to the pleading of Jolly, the factum of marriage was first disclosed on 2nd March, 1987 by Tapan when she had been to her house as usual. But in her evidence, she made a departure and stated that such disclosure was made not in her house but on her way to the private tutors house. The father of the petitioner, Jolly, has also deposed to the effect that on the way of her daughter to her private tutors house, Tapan met her and then told her that she had already been married by him. In this connection, evidence of Tapan becomes relevant. Tapan has stated that subsequent to the marriage he once went to the house of Jollys father in order to invite them to attend the Sradh ceremony of his father. Such evidence appears to be convincing and acceptable in the context of the pleading made by Jolly that in her house Tapan asked her to go to his house to live as wife because she was his married wife. It appears from the evidence of Tapan that he is a commerce graduate and is an employee of Ordnance Factory of the Government of India and is earning a salary of Rs. 2000/- at that time. There is no convincing evidence of rebuttal of such statements made by Tapan. Considering the facts, it appears to us that Tapan and Jolly were known to each other for a long time and they voluntarily decided to marry and such marriage was registered at their instance. As arranged between the parties, the witnesses to the registration of marriage had been to the Marriage Registration Office on the appointed day and got the marriage registered. Considering the facts and circumstances of the case and also the evidences adduced by the parties, we have come to the finding that prior to the registration of marriage, the parties had also signed the notices required for registration of marriage. It appears to us that when at the time of Sradh ceremony of the father of Tapan, Tapan had invited the parents of Jolly and asked Jolly to go to his house and reside as husband and wife, parents of Jolly became aware of the factum of marriage and it was only then a case of dissolution of marriage was initiated on untrue allegations of fraud and misrepresentation. It is not the case of Jolly that she had been to the Marriage Registration Office and signed the registration forms and also the statutory notices in connection therewith. But such facts had been done by her under complete influence of Tapan and she could not exercise her free volition in the matter. On the contrary, Jolly wants to make out a case that on the pretext of taking part in a music competition of guitar in Calcutta and also signing forms for getting a chance for audition in the All India Radio, she was taken to Calcutta by Tapan and at his dictates, she signed some forms without understanding the contents thereof. Such extreme case is wholly unbelievable and completely against the weight of evidences. We have already indicated that unless a case of connivance of all the witnesses to the registration of marriage and also the Marriage Registration Officer in perpetrating fraud on her can be clearly established, the story sought to be made out by Jolly cannot be accepted by any court of law. Unfortunately such case has neither been pleaded nor has been established by Jolly. Even if it is assumed that under the temporary influence of love and romance, Jolly had married Tapan under the Special Marriage Act, such marriage cannot be dissolved on the ground of fraud. It will not be proper and just to allow the application for dissolution of marriage on a false case sought to be established by Jolly that such marriage was perpetrated by resorting to misrepresentation and practising fraud on her. In our view, Jolly has deliberately suppressed the truth and has tried to make out a false case either on a second thought to get rid of the marriage or at the instance of her parents and other relations and in order to get rid of the marriage, she has deliberately resorted to false story of fraud and misrepresentation but such case is not at all acceptable in the facts of the case. In the aforesaid circumstances, we allow this appeal, set aside the judgment passed by the Court below and dismiss the application for dissolution of marriage with costs.
Pabitra Kumar Banerjee, J.
24. I agree.
25. Appeal allowed.