Jharkhand High Court
Mayank Giri vs Divya Giri @ Divya Chowdhry on 8 August, 2018
Equivalent citations: AIR 2019 JHARKHAND 19, AIRONLINE 2018 JHA 258
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
1
Appeal from Original Decree No. 34 of 2014
(Against the judgment dated 23.01.2014 passed by the learned Principal Judge,
Family Court, Ranchi in M.T.S. No. 80 of 2008)
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Mayank Giri .....Appellant
Versus
Divya Giri @ Divya Chowdhry ......Respondent
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For the Appellant: Mr. Deepak Kumar Bharti, Advocate
For the Respondent : Miss. Srija Choudhary, Advocate
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CORAM:HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE RATNAKER BHENGRA
C.A.V. No. 20.06.2018 Delivered On 08 /08/2018
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Ratnaker Bhengra,J: Heard learned counsel for the parties.
2. This appeal is directed against the judgment dated 23.01.2014 and decree passed by Court of learned Principal Judge, Family Court, Ranchi in M.T.S. No. 80 of 2008 whereby and whereunder the suit for restitution of conjugal rights filed by the appellant ( husband) has been dismissed and counter claim of the respondent ( wife) to declare marriage null & void has been allowed.
3. The facts of the case as placed by the petitioner-husband are that the marriage of the parties was solemnized on 13.09.2007 at Thave Durga Mandir, Gopalganj, Bihar. The marriage was consummated and the respondent became pregnant of six months. The respondent was released by the order of the Chief Judicial Magistrate, Ranchi, on 19.02.2007 in Kotwali P.S. Case No. 597 of 2007, G.R. Case No. 3178 of 2007 and she was handed over to her parents and thereafter the appellant was granted Anticipatory Bail by the Hon'ble High Court of Jharkhand at Ranchi in A.B.A. No. 201 of 2008. The appellant had apprehension that the pregnancy may be aborted by the parents of his wife and the life of his wife may be put on peril. As such, the appellant wanted to take custody of his wife/respondent Divya Giri. But the parents of the respondent were not allowing her to go to the appellant. The respondent had made her statement under section 164 Cr.P.C. before Judicial Magistrate, Ranchi. The cause of action for the suit arose on 20.12.2007 when his wife/respondent was handed over to her parents and the appellant had 2 prayed that respondent may be directed for restitution of conjugal rights.
4. The respondent appeared and filed her written statement-cum- counter claim. The averments made by the appellant were denied by the respondent. It was further contended that the suit was not maintainable as at the time of alleged marriage the respondent was minor and her date of birth is 31.01.1992. On 31.08.2007 the appellant kidnapped the respondent from Gurunanak School, Ranchi, where she was studying in Class-IX. The respondent was under the forceful custody of the appellant for about 2 ½ months. She was taken to several places by the appellant and tortured mentally and physically. The father of the respondent lodged an F.I.R. bearing Kotwali P.S. Case No. 597 of 2007 under section 363, 366A/34 of the Indian Penal Code against the appellant and other persons. The respondent was threatened by the appellant that if she will not act according to his advice she will be killed including her brother and parents. Thereafter, the respondent was compelled to put her signature on several blank papers and letters. The police presented the respondent before the Court of C.J.M. Ranchi and from there she was sent to Female Home and thereafter the respondent was released in favour of her parents by the Court of C.J.M., Ranchi. Due to repeated rape committed by the appellant the respondent became pregnant but due to profuse bleeding there was miscarriage on 22.12.2007. The respondent came to know from the local Newspaper Prabhat Khabar regarding the pendency of the case and she appeared thereafter. The averments made by the appellant regarding marriage between the parties are false and baseless and the respondent was never married to the appellant nor the parents of the respondent ever gave their consent for the marriage of the respondent. As such no marriage was solemnized between the parties. The statement of the respondent was recorded under section 164 Cr.P.C. under fear and pressure put by the appellant. As such the appellant is not entitled to any decree for restitution of conjugal rights and the respondent prayed that the marriage as stated by the appellant may be declared null and void.
5. The learned family court framed following four issues for determination:-
I. Whether the suit as framed is maintainable? II. Whether marriage solemnized between the parties is valid and the respondent is the legally wedded wife of the petitioner or not? III. Whether the petitioner is entitled to a decree for restitution of conjugal rights or the respondent is entitled for declaration of the marriage 3 as nullity?
IV. Whether the petitioner is entitled to any relief or reliefs as claimed?
6. Learned family court proceeded to answer issue nos. II and III first as both these issues were related to each other and were very important. No witness had been examined on behalf of appellant, only documents were marked exhibit on behalf of the appellant and these are photographs of both the parties marked as Exhibit-1 to 1/E, certified Copy of Statement of the respondent recorded under section 164 Cr.P.C. in G.R. Case No. 3178 of 2007, Exhibit-2, the certificate of Marriage issued by Thave Temple, Gopalganj, Exhibit-3, the Xerox Copy of Newspaper cutting of Dainik Jagran dated 15th November, 2007, Exhibit-4.
7. The respondent examined altogether three witnesses in support of her case. Dilip Kumar Choudhri, R.W. 1 is the father of the respondent. He had stated in his evidence that the appellant Mayank Giri had kidnapped his daughter on 31.8.2007 and he lodged F.I.R. with Kotwali P.S. which was registered as Kotwali P.S. Case No. 597 of 2007. At that time his daughter was 15 years and 7 months old. He had further stated in his evidence that by the order of the Court the respondent/daughter was handed over to him on 20.12.2007. Then respondent told him that she was repeatedly raped by the appellant as a result she became pregnant, however due to profuse bleeding there was miscarriage. This witness has not been cross examined by the appellant and as such his entire evidence has remained unchallenged and uncontroverted.
8. Mala Choudhary, R.W. 2 is the mother of the respondent. She also stated in her evidence that her daughter was kidnapped by the appellant on 31.08.2007 and at that time the respondent was aged about 15 years and 7 months old. Thereafter, she received phone calls and threat was extended to her that the life of the father of the respondent will be taken away as the father of the appellant happens to be a big leader. She further stated in her evidence that an F.I.R. bearing Kotwali P.S. Case No. 597 of 2007 (G.R. No. 3178 of 2007) was registered and thereafter she received the respondent by the order of the C.J.M., Ranchi. She further stated in her evidence that her daughter told her that she was raped several times by the appellant as a result she became pregnant. But due to profuse bleeding there was miscarriage. In her cross examination she had stated that before the year 2007 she did not know the appellant Mayank Giri and when the case was registered she came to know about the appellant and his father.
9. R.W. 3 is Divya Giri, the respondent herself. She stated in her 4 evidence that on 31.08.2007 she was studying in Gurunanak School, Ranchi, and she was aged 15 years and 7 months. At 10 A.M., when she was to return home she was waiting for her father to come in the meantime a red coloured car came and Mayank forcibly dragged her into the car. He was also accompanied by a boy. Thereafter, the appellant caught her by her neck and threatened to kill her. She further stated that a handkerchief was put on her mouth as a result she became unconscious. Her father lodged an F.I.R. bearing Hindpiri P.S. Case No. 597 of 2007. When she regained her consciousness she found herself in a room and Mayank was talking on his phone and saying that "father work has been done". When she told Mayank that she wants to go home she was assaulted by him and told her that she will extort money from her parents. She had further stated that Mayank gave her several love letters to copy and thereafter she was asked to put her signature and then she was taken to a temple at Gopalganj. She was dragged by her hair and several photographs were taken, but, no marriage was solemnized between them. Thereafter, the father of the appellant was arrested by the police and the appellant told her to make statement that she had gone with the appellant on her own otherwise her entire family will be killed. She further stated that she was handed over to 4/5 boys who brought her to the Court and thereafter she was sent to Remand Home. On 28.11.2007 she was medically examined and she was handed over to her parents. She further stated in her evidence that the appellant and his family members have criminal back ground and are anti-social elements. In her cross examination, Para-19, she had stated that she was forced to make statement under section 164 Cr.P.C. before a Magistrate as threat was extended to her that her entire family members will be killed. However, she stated that she had not instituted any separate case to this effect. She further stated in cross examination at para 22 that she had not gone to any person voluntarily.
10. The following documents have been marked as exhibits on behalf of the respondent. These are Exhibit-A, which is the Certified Copy of F.I.R. of Kotwali P.S. Case No. 597/2007 under sections 363, 366A/34 of the I.P.C. dated 31.08.2007, Exhibit-B is the Certified Copy of Charge-sheet under the above Sections submitted against the appellant Mayank Giri and his father Kameshwar Giri, Exhibit-C is the Medical Report submitted by the Medical Board constituted for determination of the age of the respondent and her age was found between 16-17 years. Exhibit-D is the date of birth certificate issued by Gurunanak Higher Secondary School, Ranchi, in 5 which it has been stated that the date of birth of the respondent Divya Choudhary daughter of Mr. Dilip Kumar Choudhry has been recorded as 31st January, 1992, she was a student of Class-IX-A. Exhibit-E is the Birth Certificate of the respondent issued by the Department of Planning and Development, Government of Jharkhand indicating her Date of Birth as 31st January, 1992. Exhibit-F is the Certified Copy of the petition filed by the mother of the respondent before C.J.M., Ranchi, for the custody of her daughter to her. Exhibit-G is the Certified Copy of the order- sheet of A.J.C., Ranchi, dated 21.11.2007 in S.T. Case No. 275 of 2009 arising out of Kotwali P.S. Case No. 597 of 2007 by which the respondent was sent for Medical Examination, Exhibit-G/1 is the Certified Copy of the order-sheet of the same case dated 29.11.2007 for release of the vehicle, Exhibit-H is the Certified Copy of the petition of the respondent filed in the Court of C.J.M., Ranchi, praying therein that she wants to go to her parents. Exhibit-I is the Certified Copy of the deposition of the father of the respondent in S.T. Case No. 275 of 2009, Exhibit-I/1 is the Certified Copy of the deposition of the respondent made in S.T. Case No. 275 of 2009 in which she has stated that the appellant had kidnapped her and committed rape upon her. Exhibit- J is the Certified Copy of Medical report submitted by the Medical Board, Ranchi, and Exhibit-J/A is the Certified Copy of order-sheet for taking cognizance, Exhibit-K is the Copy of the petition filed under Section 216 of the Cr.P.C. for adding a charge under section 376 I.P.C.
ARGUMENT BY APPELLANT
11. Learned counsel for the appellant assailed the impugned judgment on the grounds that the learned trial court failed to consider that under section 11 of the Hindu Marriage Act, 1955, a marriage would be void only if marriage contravenes any one of the conditions specified in section 5 clauses (i) neither party has a spouse living 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 and (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. In the present case no material has been brought on record by the respondent to show that any one of the above conditions had been contravened to render the marriage as void and null as such the impugned judgment suffers from an error of law and fit to be set aside. The learned trial court failed to consider that the counter claim of the respondent was not maintainable in law and was fit to be rejected as petition under section 6 23A of the Hindu Marriage Act, 1955 (HMA for short) filed by the respondent could have been maintained only if it fulfills the following criteria: - (i) u/s 23A of HMA- that respondent is able to prove the appellant's cruelty, adultery or desertion. (ii) u/s 11 of HMA - to declare the marriage void only if it contravenes clause (i), (iv) and (v) of Sec 5 of HMA
(iii) u/s 12 of HMA- to declare the marriage voidable if criteria set out in clause (1) (a) or (b) or ( c) or (d) is not met and since the respondent has not been able to prove or establish by any iota of evidence or pleading that requirement of law as set out under section 23A or u/s 11 or u/s 12 of the HMA is fulfilled therefore there was no ground to grant any relief by way of counter claim to the respondent and as such the impugned judgment is an error of law and fit to be set aside. The learned trial court failed to consider that respondent had not filed any criminal case but the case was filed by her father, she even has not given any statement to police about rape nor her medical report shows any sign of any injury nor the respondent had even filed any separate matrimonial case for divorce or to declare the marriage void or voidable and as such the impugned judgment is an error of law and fit to be set aside. The learned trial court failed to consider that respondent had between 31.8.2007 to 18.12.2007 identified herself as Divya Giri w/o appellant Mayank Giri which is apparent from her 164 Cr.P.C. statement as well as her application dated 18.12.2007 (Exhibit-H) and ignoring such vital evidence is gross error of law and as such the impugned judgment is fit to be set aside. Learned trial court had failed to consider para 62 of R.W. -2 cross examination that the Court on 29.11.2007 had ordered the respondent to go with her parents yet she was not willing to go with them and only when she was assured that she will be allowed to return back to the appellant, then respondent after-3 weeks on 20.12.2007 went home with her parents which clearly shows that there was no force or pressure on the Respondent and she was totally acting as per own will. The learned trial court failed to consider that even after 20.12.2007 the respondent had not filed any case for rape or divorce against the appellant or given any 164 Cr.P.C. statement to retract her previous statement but after lapse of 3 years for the first time on 14.09.2010 gave statement in the criminal case that she was kidnapped and raped which was the result of revenge by the parents of respondent because on 29.4.2008 the appellant filed the suit for restitution of conjugal rights when after four months the respondent did not return to the appellant. The learned trial court failed to consider that respondent had cooked up a false story which was apparent 7 from the fact that though they had stated about miscarriage/bleeding/abortion but they did not annex a single chit of medical certificate to prove the said allegations and also though they had alleged rape but medical certificate did not mention any sign of injury or rape and even in the criminal case initially there was no charge of rape. The learned trial court also failed to consider that respondent and her witnesses in evidence on affidavit have prayed that marriage be declared illegal and same prayer had been made in written statement but what marriage they are referring to has not been described and neither they have referred to any provision of law under which they are seeking nullity of marriage and as such no relief as sought for by the respondent could have been granted and same was fit to be rejected with exemplary cost. The learned trial court failed to consider that the appellant had made out a valid case where without reasonable excuse the respondent-wife had withdrawn from the society of the appellant /husband which was mainly due to disapproval of marriage between the parties as they belonged to different castes and they had fled from home and had love marriage which is not a crime under law or under the Hindu Marriage Act, 1955. Learned trial court failed to consider that R.W. 3 Divya Choudhary @ Divya Giri was not a minor and she had attained the age of majority as she has disclosed her age to be 22 years and which is apparent from her statement recorded under section 164 of the Code of Criminal Procedure . She had married with Mayank Giri and wanted to live as his wife and as such the trial court by inviting petition for adding Section 376 IPC after 3 years shows that it is totally biased and unfair towards the appellant and as such the impugned order is fit to be set aside. The learned trial court has arrived at an erroneous finding that appellant's plaint cannot be used as a substantive piece of evidence unless corroborated by the oral evidence of the witnesses.The learned trial court's refusal to admit the statement made by the appellant by filing evidence on affidavit that statements made in plaint be read in evidence is an error in exercise of jurisdiction as same is contrary to section 14 and 16 of the Family Court Act. The finding of the learned trial court that statement made by respondent wife under section 164 Cr.P.C. cannot be used as substantive piece of evidence is erroneous, perverse and against the mandate of law as oral evidence is always superseded by documentary evidence which is given more weightage and cannot be brushed aside. The learned trial court has not relied on the photographs of marriage and newspaper cutting and has given no 8 evidentiary value to it in front of her oral statement in court that she was pressurized, raped and obeyed the advice of appellant out of fear is totally erroneous and deserves to be rejected in view of the fact that till date the respondent has not retracted her statement made under section 164 Cr.P.C. nor had she filed a separate case for rape or threat against the appellant and as such it was apparent that the respondent was changing her version for the first time in court which the trial court ought to have carefully scrutinized and ought not have given preference over the documentary evidence adduced by the appellant. The learned trial court has erred in law by rejecting evidence adduced by appellant as same is contrary to Section 14 of the Family Court Act which provides that- a family court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 and as such finding of the trial court that evidence of the appellant is not substantive piece of evidence and the oral statement of respondent has been given primacy over documentary evidence of the appellant and therefore such evidence of respondent's witness can not be sustained in law and are fit to be rejected. The learned trial court has erred in law by holding that since respondent was minor and her parents had not given any consent therefore her marriage was null and void because marriage with minor under Hindu Marriage Act is voidable and not void unless conditions as laid down under section 11 of the Hindu Marriage Act is met and as such the impugned judgment holding the marriage to be a nullity and void is against the mandate of law and deserves to be set aside. The learned trial court has committed gross error by not arriving at a conclusion that the evidence of the respondent and her witnesses was concocted and exaggerated because in the photographs the respondent was looking totally fresh, smiling and well dressed and had someone pulled her hair before taking pictures her entire makeup in the photographs would have been destroyed which was thus contrary to her statement of getting herself photographed out of fear and pressure. The learned trial court also failed to note that in the photographs the respondent was healthier than the appellant who looks weak and thin and therefore any physical assault or pressure from the side of the appellant was next to impossible rendering the oral evidence of the respondents and her witnesses fit to be disbelieved. The learned trial court has also not considered that respondent was travelling with appellant for 9 more than three months, but not at a single place she raised any alarm or tried to flee which shows that she had voluntarily and willingly joined the company of the appellant and there was no question of any abduction and force. Therefore, on the basis of section 114 of the Indian Evidence Act, her conduct clearly shows that she was a consenting party to her relationship with the appellant. Learned counsel for the appellant also argued that he was not given sufficient opportunity to adduce evidence and even to cross examine R.W. 1. One line of argument that learned counsel stressed is that the issues were recast at the last stage by the court below itself and that the appellant was not prepared for the developments because the issues were changed and the appellant was prejudiced. Counsel argued that initially his case was that respondent was his wife and was pregnant and subsequently she was forced to undergo abortion by her parents. Hence, ordinarily, burden of proof was not on himself, but on his wife. Now, after re- casting, he argued that burden of proof shifts to the appellant, now, he has to prove that she is his legally wedded wife. Learned counsel has also relied upon and cited the following judgments, to support his case: Neetu Singh vs. The State & Ors I(1999)DMC 634, Manish Singh vs. State Govt Of NCT And Ors (AIR 2006 Delhi 37), T. Sivakumar vs The Inspector Of Police ( webcopy Indian Kanoon) and Court On Its Own Motion ( Lajja Devi vs State) ( Web Copy Indian Kanoon).
ARGUMENT BY RESPONDENT
12. Learned counsel for the respondent has submitted that respondent was minor on the day on which incidences have been alleged and she was in fact kidnapped, thrashed and threatened that her parents would be killed, if she did not adhere to the demands of the appellant and his family members. When the daughter had not returned from school, then on receiving information that his daughter had been forcibly taken away by the appellant then an FIR being Kotwali P.S. Case No. 597 of 2007 (S.T. No. 275 of 2009 corresponding to G.R. No. 3178 of 2007) was lodged. The respondent only gave statement under section 164 of the Cr.P.C., under immense pressure and threat regarding harm likely to be done to her parents to the extent that they would be killed. Therefore, she agreed to make a false statements of being lawfully married and the allegations by her father were false. The photographs submitted by the appellant in the learned court below have been taken after beating and thrashing her and repeating the same threats and she posed for the said photographs. Learned counsel for the respondent further argued that there is no question 10 of marriage between the parties or remarriage because there was no marriage between the parties in the first place. The arguments regarding marriage and that the marriage is subsisting and as she has not filed a divorce case is an attempt to convert criminal case into civil dispute. Right from the inception it has been asserted in the criminal case lodged against the appellant, the issue is one of kidnapping and committing rape upon the opposite party. In such circumstance, it cannot be said that there have been any marriage between the parties at all. The so called marriage in a temple for which a Sahyog Rasi or a receipt of Rs. 51 has been brought on record is only money paid towards the construction of the temple and not paid towards the conduct of any marriage. Regarding the documentary evidence that have been relied upon by the appellants, which are exhibits 1 to 1/E, Ext.-2, Ext.-3 and Ext.-4, learned counsel submitted that exhibit 1 series pertains to photographs taken under threat that her parents would be harmed and killed and therefore those are contrived and tainted evidence. Regarding Ext.-2, which is the statement given under section 164 Cr.P.C., learned counsel submitted that she gave the statement under duress and fear with threat to her and threat to her family. Moreover, she had also in deposition stated that some boys from the appellant side was standing just outside the room when she was deposing, therefore, it was difficult for her to change the stand or say the truth before the court. Regarding Ext.-3, which is said to be certificate of marriage issued by Thave Temple, learned counsel argued that it was obtained after paying money as Sahyog Rasi of Rs. 51 and there is no other proof of marriage, such as photographs of Sat Phera (saptapadi) etc. Regarding Ext.-4, which is a copy of paper cutting of Dainik Jagaran dated 15.11.2007, it is only a newspaper cutting which is otherwise inadmissible and therefore no relevance can be attached to it. Learned counsel also argued that no oral evidence has been adduced on behalf of the appellant from his side, not even any family members. Learned counsel also argued that from the records of the court below it is apparent that appellant was given ample opportunity to adduce evidence. Appellant was represented by counsel on many dates and failure on his part to examine respondent's witnesses are due to his own fault.
13. Learned counsel for the respondent further submitted that many exhibits as many as 14 exhibits and 3 witnesses have been produced on behalf of the respondent . Amongst them are the date of birth certificate issued by the school and birth certificate issued by the Department of Planning and Development, Government of Jharkhand indicating that 11 respondent is minor, petition of respondent before learned C.J.M. praying therein that she wants to go to her parents, certified copy of depositions of opposite party in S.T. No. 275 of 2009 and petition under section 216 of the Cr.P.C. praying for adding charge under section 376 of the Indian Penal Code.
14. Learned counsel for the respondent also submitted that the appellant had alleged that marriage was a valid one and therefore it became necessary for the respondent to file a counter claim praying for decree of nullity of the alleged marriage and declaring any of the available documents related to the alleged marriage as null and void. Further , finally learned counsel submitted that the learned court below was totally within its rights to reframe the issue as it has done, particularly 2nd and 3rd issues which were reframed, which are as follows:-
1. Whether the suit as framed is maintainable?
2. Whether marriage solemnized between the parties is valid and the respondent ( O.P. herein) is the legally wedded wife of the Petitioner ( Appellant herein) or not?
3. Whether the Petitioner ( Appellant herein) is entitled to a decree for restitution of Conjugal rights or the Respondent ( O.P. herein) is entitled for declaration of the marriage as nullity?
4. Whether the Petitioner (Appellant herein) is entitled to any relief/reliefs as claimed?
15. Learned counsel for the respondent however submits , reframing of the issue and it being so done at the time of judgment does not prejudice either side of the parties because both the parties were on the same footing because neither of the parties knew that it would be reframed. Moreover, the issues as framed, in the facts and circumstances of the case, is not unrelated. Learned counsel also relied upon the case of Kanwal Ram and others V. The Himachal Pradesh Administration- reported in AIR 1966(SC) 614 and submitted that for any marriage, essential ceremonies need to be performed for which there is no evidence in the current case on hand.
CONCLUSION
16. After hearing both counsel, and on going through the records and judgments cited, what emerges is that the appellant has sought to make out a case of a valid marriage having taken place and therefore not void or easily voidable or one that can be annulled, but only under certain legal requirements. The respondent's side have, on the other hand, tried to make 12 out that she was an underage girl, forcibly kidnapped for marriage, to which later the charge of rape was also added and that in any way there was no valid marriage in the first place.
17. In the case presented before this Court, three factual aspects stand out among other aspects and will affect the outcome and they are as follows: Firstly, from the records it is clear that the girl was underage or a minor at the time of incident and secondly, there is nothing in the evidence that goes towards proving that any marriage had taken place by way of the rituals or procedures as required under Hindu marriage ceremonies. Thus on the basis of Kanwal Ram ( Supra) it is not possible to say that there was any valid marriage in the first place and hence it is void ab initio. In this case then the question of allowing the restitution of conjugal rights does not arise at all. Therefore judgment and decree of the Principal Judge,Family Court, Ranchi dated 23.1.2014 will also stand. The third aspect is the issue of consent, though appellant has said the girl was a consenting party, the respondent girl is on record to say that she was forcibly taken away and she had also sought for adding of the charge under section 376 IPC in a criminal case . Therefore, whether the respondent girl wants to go with the appellant or not also bears on the outcome of the case on hand.
18. Regarding the judgment appellant has relied upon Neetu Singh (supra), it is a case in which the girl also a minor was willing to go with the accused, in the case on hand the appellant has tried to make out a case that girl was initially a willing participant in the occurrence, the respondent girl during proceedings in trial court has denied this.
19. In Manish Singh (supra) case also the girl concerned Suman was a minor and regarding the occurrence, she had stated that she went along with Manish Singh, the appellant, on her own will and had also confirmed the factum of marriage and cohabitation with the appellant. However, subsequently, the girl started living with her parents and said she did not want to live with the appellant.
20. In T.Shivkumar (supra) a case of habeas corpus, the minor detune had appeared before the Division Bench and submitted that she had fallen in in love with the 2nd respondent for quite some time and that on knowing the same, her parents started arranging for her marriage with her maternal uncle much against her wish. Therefore, according to her, on 08.06.2011, she left the parental home on her own accord and on 12.07.2011, she married the 2nd respondent. The said marriage has been 13 accepted by the 2nd respondent and his other family members and she is not illegally detained by anybody.
21. In Court in Its Own Motion (supra) four instance were dealt with, however the common thread in all four cases were that in all these cases the girls have given the statement that they were not kidnapped but eloped with the respective persons of their own and got married with them. All the four girls maintained that the marriage was solemnized with their free consent. However, all the four girls were below 18 years when they got married, whereas there is no dispute about the ages of the boys with whom they got married as they were above 21 years of age at the time of marriage.
22. Taking the four judgments relied upon by the appellant, it is clear that the appellant's case is not on the same footing as in the cases he has cited, to the extent that though all the girls were minors, they have all said that at the time of occurrence they were all free and willing participants . In the case on hand the girl has at the proceedings at the trial court submitted that she was taken against her will and neither has she expressed any desire to live with the appellant subsequently. The case of the appellant herein is set apart from the cited judgments on the point of consent, even at the initial time of occurrence and even thereafter.
23. To address the pertinent issue in our case in the context of the cited judgments, the two judgments that have more comprehensively addressed the issue have been also relied upon by us. The cited judgments are Court in Its Own Motion, (supra) and T. Shivkumar ( supra), with the latter being a Full Bench judgment.
24. In the Court it Its Own Motion ( supra), one of the issue that was formulated and is also relevant for the case on hand was ; what is the status of marriage under Hindu Law when one of the parties to the marriage is below the age of 18 years prescribed under section 5(iii) of the Hindu Marriage Act, 1955 and section 2(a) of Prohibition of Child Marriage Act, 2006? In T. Shivkumar (supra) also one of the question formulated was: whether a marriage contracted by a person with a female of less than 18 years could be said to be valid marriage and the custody of the said girl be given to her husband, ( If he is not in custody)?
25. The Hon'ble Court in Court on Its Own Motion (supra) answered the question by considering that the marriage contracted with a female of less than 18 years or a male of less than 21 years would not be a void marriage but voidable one, which would become valid if no steps are taken 14 by such "child" within the meaning of section 2(a) of the Prohibition of Child Marriage Act, 2006 under section 3 of the said Act seeking declaration of this marriage as void. In T. Shivkumar case (supra), the Hon'ble Court answered the question as follows; "The marriage contracted by a person with a female of less than 18 years is voidable and the same shall be subsisting until it is annulled by a competent court under section 3 of the Prohibition of Child Marriage Act. The said marriage is not a valid marriage stricto sensu as per the classification but it is not invalid. The male contracting party shall not enjoin all the rights which would otherwise emanate from a valid marriage stricto sensu, instead he will enjoin only limited rights."
26. A first glance look to the answers as set out by the Hon'ble Courts aforesaid, it may occur to the mind that the claim of the appellant that he has undergone a valid marriage is correct, and his claim for restitution of conjugal rights is fully justified. That might have been possible, but for the issue of consent, all the four judgments that have been relied upon by the appellant deals with minor girls who had consented to or willingly gone along with the accused persons. In the case on hand, the respondent Divya Chowdhary has deposed and is on record that she was forcibly taken away and she was not a consenting party to the marriage which is claimed by the appellant. Appellant, has also argued that by her conduct, she had consented, however, can the court in the face of her protestations, now assume a valid marriage had taken place and restore conjugal rights to the appellant. The answer is in the negative. There is another aspect that is of some importance, and that is did a marriage actually taken place? Except for a Sahyoj Rasi, which is also not of any evidentiary value, there is no evidence, whatsoever, that any marriage had occurred as per the religious sacred rituals and ceremonies as enjoined by the Hindu religion. Thus, as per the decision in the case of Kanwal Ram(supra), it cannot be said that a marriage was ceremonially contracted. Thus, in absence of any marriage, can the appellant be restored his conjugal rights. Certainly not.
27. Based on the facts of the case on hand and in the light of the judgments that have been cited by the appellant himself, the reformulated issues, or even the earlier formulated issue can be answered. We take the issue nos. 2 and 3 as reformulated:
2. Whether marriage solemnized between the parties is valid and the respondent (O.P. herein) is the legally wedded wife of the Petitioner ( Appellant herein) or not?15
3. Whether the Petitioner ( Appellant herein) is entitled to a decree for restitution of Conjugal rights or the Respondent ( O.P. herein) is entitled for declaration of the marriage as nullity?
28. From our aforesaid reasonings made earlier, it has already been seen that the stand of the respondent has been is that she had been forcibly kidnapped, therefore there had been no consent from her side in the occurrence. Subsequently also she has repudiated going with the appellant. The case on hand is distinguished from the four judgments cited essentially on the point of consent itself, and therefore they would not be applicable here in the facts and circumstances of this case. The other circumstance which was not addressed in the four cases cited was about evidence regarding marriage rituals and ceremonies. The appellant has not produced any evidence for the rituals and ceremonies, so the conclusion is that no marriage had even taken place. Accordingly, both the aforesaid issues as framed by the Family Court was answered correctly and there is no error in it.
29. Based also on our reasoning aforesaid, the judgment and decree of the Principal Judge Family Court, Ranchi dated 23.01.2014 dismissing the suit for restitution of conjugal rights, while declaring the marriage as null and void as prayed for in the counter claim, is also upheld. Accordingly, the appeal is dismissed.
(Aparesh Kumar Singh,J) (Ratnaker Bhengra,J) Jharkhand High Court, Ranchi Dated 08 /08/2018 Sharda/ NAFR