Tripura High Court
Sri Mukul Chakma vs Sri Rabi Chakma on 22 March, 2018
Equivalent citations: AIRONLINE 2018 TRI 305
Author: S. Talapatra
Bench: S. Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
RFA 16 of 2015
1. Sri Mukul Chakma,
son of late Sunendu Bikash Chakma @ Sunendu Chakma
2. Smt. Sudipa Chakma,
wife of Sri Mukul Chakma
3. Sri Purnendu Bikash Chakma,
son of late Bipin Chandra Chakma
4. Smt. Santana Chakma,
wife of Sri Purnendu Bikash Chakma
- all are residents of village- Bashbagan,
P.O. Kumarghat, District- Unakoti, Tripura
... Plaintiff-Appellants
- Versus -
1. Sri Rabi Chakma,
son of Hengatya Chakma, resident of Shibmandir,
P.O. Kumarghat, District- Unakoti, Tripura
2. Sri Shyamal Chakma,
son of not known, resident of village- Shantipur,
P.O. Pecharthal, District- Unakoti, Tripura
3. Sri Rupadhan Chakma,
son of not known, resident of village- Shantipur,
P.O. Pecharthal, District- Unakoti, Tripura
4. Sri Bhaskar Chakma
son of Adhiyadhan Chakma,resident of village- Pongcherra
P.O. Kumarghat, District- Unakoti, Tripura.
... Defendant-Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the appellants : Mr. DK Biswas, Advocate
For the respondents : Mr. SK Deb, Sr. Advocate
Mr. S. Bhattacharji, Advocate
Date of hearing & delivery
of Judgment and Order : 22.03.2018
Whether fit for reporting : NO
JUDGEMENT AND ORDER (ORAL)
Heard Mr. DK Biswas, learned counsel appearing for the plaintiff-appellants as well as Mr. SK Deb, learned senior counsel assisted by Mr. S. Bhattacharji, learned counsel appearing for the defendant-respondents. RFA 16 of 2015 Page 1 of 5 2
2. This is an appeal under Section 96 of the CPC from the judgment dated 31.08.2015 as delivered in Title Suit no. 08 of 2014 by the Civil Judge, Senior Division, Unakoti Judicial District, Kailasahar. The suit was instituted for declaration of the status and consequential permanent injunction against the defendants from interfering with the marriage as well as from restraining them from acting in terms of the diktat they have issued for boycotting them and further for damages.
3. Briefly stated the pleaded case is that the plaintiffs no. 1 and 2 belonging to Chakma community got married themselves following their faith i.e. Buddhism which allegedly was not liked by the defendants as, such procedure for marriage is not approved by the customary laws of the Chakma community. As a result, the plaintiffs have alleged that the defendants issued diktat for not accepting the marriage, as the same cannot be recognized by the community. The plaintiffs no. 1 and 2 shall be ex- communicated by the members of the community and they will not be invited nor anyone would attend their invitation. It was a sort of a social boycott which according to the plaintiffs had damaged their social reputation and put them in a difficult situation in leading a normal social life. In that perspective, the suit was instituted seeking the reliefs which are as under:
RFA 16 of 2015 Page 2 of 5 3
(i) declaration that the plaintiffs no. 1 and 2 are married couple and their marriage dated 22.04.2013 is a valid marriage;
(ii) further declaration that the defendants have no right to challenge that the marriage as subsisting between the plaintiffs no. 1 and 2 and the communication as made by the defendants will have no effect on anyone else as those are grossly illegal;
(iii) decree for damage to the extent of Rs. 6 lakh for mental agony and suffering that the plaintiffs have suffered ;
(iv) consequential mandatory injunction has been sought against the defendants to withdraw the letters, as described in the schedule to the plaint by giving a call to ex-communicate the plaintiffs no. 1 and 2.
4. The admitted position is that the defendants did file the written statement, but thereafter they did not participate in the proceeding. As a result, the suit proceeded exparte, but the trial court by the impugned judgment dated 31.08.2015 has dismissed the suit by observing that any person who is entitled to any legal character and whose right is infringed or under threat must be active while seeking declaration of such legal character or right. Opinion of a family member of the parties to a marriage as to its existence or the relationship cannot be the sufficient evidence to prove a marriage. This observation has been made as appears from the record that the plaintiffs no. 1 and 2 who claimed to have married each other did not appear in the trial to prove their marriage. The entire burden of proving was allocated on PW- 1, the plaintiff no. 3 who is not party to the marriage. That RFA 16 of 2015 Page 3 of 5 4 apart, the other reliefs could not be granted because of the inadequacy of the evidence.
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5. Mr. DK Biswas, learned counsel appearing for the plaintiff-appellants at the outset has fairly submitted that there is inadequacy of material evidence in respect of the damage, as claimed, but the denial of the declaration is wrongful inasmuch as the plaintiff no. 3 who appeared as PW- 1 is the witness of marriage and a close relative and as such his evidence ought not have been discarded so unceremoniously and without giving any credence or credit to it.
6. From the other side, Mr. SK Deb, learned senior counsel appearing for the defendant-respondents has submitted that the plaintiffs have utterly failed to discharge the burden of proving the case to instill the confidence in the courts to grant the relief, as sought in the plaint. If the primary burden is not discharged by the person who were the party to the marriage, the other person would be a witness of solemnization. In the context or in some other contexts, their evidence would not carry any positive value whatsoever, so far the evidence of marriage between the plaintiffs no. 1 and 2 is concerned.
7. Having appreciated the grounds, as laid in this appeal, this court finds that the only question or point that is material for determination of this appeal is that whether the marriage between the plaintiffs no. 1 and 2 has been proved RFA 16 of 2015 Page 4 of 5 5 by the competent witnesses. On scrutiny of the records, this court finds that no such evidence has been laid as none except the parties in the marriage can claim or be primary witness in proof of marriage. Others may corroborate their statement, but unless the evidence by the parties in the marriage is there, no court can declare their legal character as the married couple.
8. In view of this, this court does not find any infirmity in the impugned judgment. Accordingly, this appeal stands dismissed being bereft of merit. However, this court has noticed that the certain fundamental rights of the appellants no. 1 and 2 has been interfered. For this judgment, the appellants will not be put under any impediment to approach the appropriate court for enforcement of that right to enjoy their marriage peacefully. It goes without saying that fundamental right to live peacefully as married couple, can be protected by the court of competent jurisdiction.
Send down the records after drawing up the decree in terms of the above.
JUDGE Saikat RFA 16 of 2015 Page 5 of 5