Gujarat High Court
Rajgor Sonalben Bhanjibhai vs Joshi Jigneshkumar Rupshibhai on 22 September, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/FA/1676/2022 ORDER DATED: 22/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1676 of 2022
==========================================================
RAJGOR SONALBEN BHANJIBHAI
Versus
JOSHI JIGNESHKUMAR RUPSHIBHAI
==========================================================
Appearance:
MR RIDDHESH TRIVEDI(6581) for the Appellant(s) No. 1
MR SMIT P VAGHELA(10653) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 22/09/2022
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is an appeal under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 where the appellant - original respondent is aggrieved by the judgment dated 29.12.2021 passed by the Family Court, Palanpur in Family Suit No. 21 of 2021 whereby the Court has directed the appellant to complete her obligations of conjugal rights within a period of three months under Section 9 of the Hindu Marriage Act.
2. The brief facts leading to the present petition are as follows:-
Page 1 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022
C/FA/1676/2022 ORDER DATED: 22/09/2022 2.1. The Family Suit No. 21 of 2021 has been filed by the respondent where he has averred that his paternal aunt (foi) is married to Ratanshi @ Ratilal who is the paternal uncle of the appellant. The parents of both the sides had got both the parties married as children and this child marriage was in presence of family members and other cast leaders. When they grew up, according to respondent, this was accepted by both the families as also both the spouses and two years before preferring of the suit, in presence of the relatives, friends, family and cast leaders, she was accepted as the wife and they continued to live as husband and wife. Three years before she was brought at Palanpur and the ceremonies of "Gruh Pravesh" (entering matrimonial home), Community Dining and also the "Kumkum" Ceremony had been performed. Respondent did not have any knowledge that the marriage was needed to be registered and therefore, under the Gujarat Marriage Registration Act, the marriage had not been registered.
2.2. In the beginning of 2020, he chose not to attend to the wedding of the younger sister of the appellant and that had hurt the ego of the family of the appellant. Father of hers had Page 2 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 raised unnecessary disputes and also had abused him.
2.3. When the respondent came to know that the appellant was willing to go to him and the parents of hers were not desirous of sending her, he preferred an application under Section 97 of the Cr.P.C. before the Court of Judicial Magistrate, Palanpur being No. 08/2021 where she refused to join the respondent and had conveyed to the Court that out of her own volition, she is at the parental home. All his efforts to bring back the wife had gone in vain. It is his serious grievance that she being her wife was not fulfilling her obligations of conjugal rights, the notice had been exchanged between the parties and there also she has given evasive reply, hence, the decree of restitution of conjugal right was sought.
2.4. The notice had been issued to the present appellant who chose not to appear as the proceedings were at Palanpur and she was apprehensive of some harassment at the hands of the respondent. Therefore, the Court ex-parte had delivered the judgment allowing the suit where the appellant is directed to go back to the respondent and conjugal rights of marriage are mandated to be restored within three months from the date of Page 3 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 decree under Section 9 of the Hindu Marriage Act.
3. The appellant therefore, is before this Court questioning this judgment. She has also made grievance that the reliance on the part of the Family Court is on the photographs and examination-in-chief of the applicant where, there is not a single evidence to show that there was a "saptpadi"
performed. According to the appellant, no marriage has taken place between the appellant and the respondent. Only engagement ceremony has been performed. It is seriously contended that the Court below has committed serious error in believing the completion of marriage. Her absence ought not to have proved anything as the onus was on the respondent to prove that the marriage had been performed. 3.1. On issuance of notice, an attempt had been made to call both the parties for they being very young and the respondent also being a lawyer practicing at Palanpur. Considering their young age and also the factum of the child marriage fixed by both the parents, we deemed it appropriate to end this dispute amicably, more particularly, as there are certain allegations made by the appellant which was serious in nature in post separation period. However, this attempt had not been Page 4 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 successful and therefore, we have chosen to hear learned advocates Mr. Riddhesh Trivedi for the appellant and learned advocate Mr. Smit Vaghela for the respondent who both along the line of their respective pleadings have fervently made their oral submissions.
3.2. Learned advocate Mr. Trivedi has relied on the following two decisions:-
(i) Lingari Obulamma vs. L. Venkata Reddy and Others [(1979) 3 SCC 80]
(ii) Santi Deb Berma vs. Kanchan Prava Devi (Smt) [1991 Supp (2) SCC 616]
4. On thus hearing both the sides and also on considering the detail submissions, what the Court finds is that the case pleaded on the part of the respondent is that the child marriage had taken place which eventually had received the consent of both the parties when they grew up and became adult. It is also the case of the respondent that the performance of the "saptpadi" was at the time when they were children. Therefore, according to him, there shall be no requirement of "saptpadi" to be repeated when they grew up. Moreover, if because of the provisions of the Child Marriage Page 5 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 Act, any challenge needs to be made on the part of the appellant, she shall need to seek a declaration to that effect from the competent Civil Court which in the instant case is missing. She has put forth her case that because of the apprehension on account of her past experiences with the respondent, she had chosen not to attend to the Court. She of course, after due issuance of the notice at no point of time had appeared nor had she sent any request to the Court concerned ventilating her grievance of the possible threat or her fearfulness.
4.1. The remedy available to the parties is also before the trial Court where the appellant can be relegated for them to ventilate their respective grievances and the Court to adjudicate upon those issues. Yet another option available for the Court is to on the strength of the material which has been adduced before the Trial Court to appreciate in the first appeal by considering the evidence that has been adduced by appreciating the same in accordance with law and to decide as to whether the Court had rightly decreed the suit in favour of the respondent or not.
5. We noticed that the issues framed are as follows:- Page 6 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022
C/FA/1676/2022 ORDER DATED: 22/09/2022 (1) Whether the plaintiff - husband proves that he is the legally wedded husband of the defendant -
wife?
(2) Whether the plaintiff - husband proves that the defendant - wife has treated him with cruelty? (3) Whether the plaintiff - husband proves that the defendant - wife has deserted him from the society without any reasonable cause as alleged in the petition?
(4) Whether the plaintiff - husband proves that the defendant - wife is living separately from him and she is liable to stay with her husband and fulfill conjugal rights of marriage?
(5) Whether the plaintiff - husband proves that he is entitled to get the decree for restitution of conjugal rights?
(6) What order and decree?
5.1. The respondent declared on oath that he originally belonged to Tharad Taluka, Pantiyasara Village. The marriage has been performed, as pleaded in the plaint, in presence of the friends, family and the other leaders of the cast while they Page 7 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 both were children. Two years before after they attend the majority, again in presence of the cast leaders, friends and family, she was brought to her matrimonial home at Palanpur where they were residing. He also has claimed to have had a marriage ceremony at Palanpur and they continued to enjoy the conjugal rights. The videographs and photographs which have been produced indicates that Sindur Ceremony, the Gruh Pravesh Ceremony and the Community Dining which is also one of the customary ways of celebrating the marriage. Though the same does not reflect the "saptpadi", as according to him, they hail from the poor financial background and therefore, they could not arrange the reception. She had received all the customary gifts and also continued to attend to other rituals.
5.2. She also visited her parents and in the year 2020 because of her sister's marriage where he could not remain present, that had given rise to the disputes between the parties and she chose not to return to her matrimonial home. The search warrant under Section 97 also had resulted into her denying to join the husband. There were no serious disputes and therefore, notice had been issued through the Page 8 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 advocate on 19.03.2021 where she has been asked to fulfill her obligations of restitution of conjugal rights whereby she was put to notice that if she failed to so do it in 15 days' time, he would be taking necessary actions.
5.3. This had been replied to by the other side on 26.03.2021 where all aspects at para 1 to 11 have been denied. It had been emphasized and reiterated that no marriage has been performed. It was only the engagement and because they could not gel as per the societal traditions, it had been decided to part the ways.
5.4. The complaint also had been lodged before the Gadh Police Station on 12.09.2019 as he continued to give threat to kill the appellant and her parents. He had taken away the Activa from her home and the complaint to that effect also had been given to the Tharad Police Station. It had been denied that she had been ever stayed with him as legally wedded wife. She is studying in the B.S.C. third year and would choose not to join him.
5.5. The Court, on taking note of all these aspects, had noticed that the appellant did not bother to remain present Page 9 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 before the Court, either by herself or through the advocate. She did not produced any legal or valid objection in regard to the maintainability of the suit, therefore, it has decided to proceed ex-parte.
5.6. On the strength of the deposition of the plaintiff, identity proof of the plaintiff, xerox of the photographs of the marriage, copy of the notice sent and the reply given by the appellant, the Court decided all the issues by answering same in affirmation.
5.7. The suit since has proceeded ex-parte against the appellant, the Court had looked into the evidence. It also took note of the fact that the marriage was solemnized in childhood and thereafter before two years the rights and rituals took place where both resided together. The photographs had supported the version. Noticing the fact that the appellant had denied the marriage but as there was no reply or evidence in the case before the Court, although she was duly served, as per the provision of the CPC, the Court held that when any fact is uncontested or proved by the plaintiff, the same can be considered as proved and therefore, the marriage of the parties has been held to have been proved, and accordingly, Page 10 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 the issue no.1 is answered in affirmation. 5.8. The issues nos. 2 to 5 being interconnected with each other, it decided all the issues in favour of the respondent that they are consistent with the documentary evidence. 5.9. The Court relied on Order VIII Rule 5 of the CPC which states that "every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading by the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission and where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint."
5.10. The Court therefore on the strength of these facts held that the appellant - wife has deserted the husband from society without any reasonable cause and was separately residing with her parents, therefore, has allowed the suit and directed to restore the conjugal rights of the marriage. 5.11. It is not in dispute that the appellant wife has not Page 11 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 contested the suit although she had been served with the notice. The Court has taken the aid of the provisions of the Civil Procedure Code and because some of the facts remain uncontested, it has found as worth proved on the strength of the affidavit of the husband coupled with some of the documents which are proved. On such evidence, the Court has recorded that the factum of the marriage and other issues raised, are duly proved. The whole reason for such finding is on the ground that the specific denial, when have not come on record as against the allegations of the facts in the plaint, then by necessary implications, they are taken as admitted.
6. According to us, there is a basic fallacy in the Court believing the factum of marriage. Whether this ex-parte deciding of the issue, would take away the responsibility of the Court to get the proof which is otherwise required under the law. Even if some of the facts alleged by the plaintiff are not contested, that would not absolve the Court of insisting on the proof of those aspects, more particularly, when it is a case of the marriage. In the pleadings itself, the respondent had insisted of this being a child marriage. According to him, his paternal aunt married to the paternal uncle of the appellant Page 12 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 and that had resulted into the child marriage being performed in presence of all concerned.
6.1. The very fact that the child marriage is not the marriage acceptable, the Court ought to have been weary of accepting this without any further proof. What was required of the Court was to insist on the proof of ceremonies of Hindu marriage. Section 7 of the Hindu Marriage Act provides thus:-
"7. Ceremonies for a Hindu marriage:-
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. State Amendments Section 7A Pondicherry: After section 7, insert the following section, namely:
(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or
(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or
(c) by the tying of the thali.
(2) (a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which the section applies solemnised after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, shall be good and valid in law.
(b) Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu law or Page 13 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to sub-section (3) all marriages to which this section applies solemnised at any time, before such commencement shall be deemed to have been, with effect on and from the date of the solemnisation of each such marriage, respectively, good and valid in law.
(3) Nothing contained in this section shall be deemed to
(a) render valid any marriage referred to in clause (b) of sub-section (2), if before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967,
(i) such marriage has been dissolved under any custom or law; or
(ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another; or
(b) render invalid a marriage between any two Hindus solemnised at any time before such commencement, if such marriage was valid at that time; or
(c) render valid a marriage between any two Hindus solemnised at any time before such commencement, if such marriage was invalid at that time on any ground other than that it was not solemnised in accordance with the customary rites and ceremonies of either party thereto:
Provided that nothing contained in this sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement. (4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) born of such marriage shall be deemed to be their legitimate child: Provided that in a case falling under sub-clause (i) or sub-
clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said Page 14 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 sub-clause (ii). [ Vide Tamil Nadu Act 21 of 1967, sec. 2 (w.e.f. 20-1-1968).]"
6.2. It is to be noted that a Hindu Marriage is solemnized in accordance with the customary rights and ceremonies of either party thereto and where such rights and ceremonies include the "saptpadi" where the bride and bridegroom take seven steps jointly before the sacred fire, the marriage becomes complete and binding when the seven step is taken.
6.3. The Court needs to take note of the fact that the parties are Hindu Brahmins by cast and the completion of marriage would necessitate to insist on the "saptpadi" to have been performed at the time when they were children ought to have put the Court to the alert.
7. In case of Lingari Obulamma vs. L. Venkata Reddy and Others [(1979) 3 SCC 80], it was an appeal by special leave preferred by the complainant against the order of Andhra Pradesh High Court acquitting the respondents who had been convicted by the Trial Court Magistrate and the Sessions Court under Section 494 IPC and sentenced to six months' rigorous imprisonment and a fine of Rs. 100/-. The complaint was filed against the respondent on the ground that Page 15 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 he was a husband and while the first marriage was subsisting, he had contracted the second marriage and was therefore guilty of the offence of bigamy as enshrined under Section 494 IPC. The short point involved in the appeal was as to whether or not the second marriage contracted by the respondent was a legally valid marriage? The High Court pointed out that under the Hindu Law, two essential ceremonies of a valid marriage are "Datta Home" and "Saptpadi." The Court found that there was absolutely no evidence to prove that any of these two essential ceremonies have been performed and therefore, the marriage was void in the eye of law. The High Court held that the conviction could not be sustained. The parties belonged to the Reddy community and therefore, it was urged that it was governed by customs and under the customs the two ceremonies mentioned by the High Court were not necessary to constitute a valid marriage. The Court held that there was no evidence to show that there was any custom amongst the Reddys which, outweighed the written text of law. The evidence of witness clearly fell short of the standard to prove this fact and therefore, the Supreme Court validated the decision of the High Court by holding that it was justified in acquitting the Page 16 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 respondent and the appeal was without any substance.
"4. In support of the appeal Mr. Rao has submitted that the High Court has taken a wrong view of law and has overlooked the fact that in the instant case, the parties belonged to the Reddy Community and were therefore governed by custom and under the custom the two ceremonies mentioned by the High Court were not necessary at all to constitute a valid marriage. The other ceremonies which were necessary under the custom had been performed according to Purohit (P.W.1). Unfortunately, however, in the state of evidence in the present case it is impossible for us to hold that the second marriage was a valid one. In the first place it has not been clearly mentioned in the complaint as to whether the parties were governed by custom in derogation of Hindu Law. Secondly, P.W. 1 stated thus:-
"Among Kapus, according to their customs each community will perform the marriage. Some Kapus have only 'Yarn Thread' instead of Mangala Sutram. I do not know what is the custom (Acharam) of the accused. There was no custom of putting sacred fire. There was no 'Agni Gundam' (Sacred fire and no going round 7 times by the bride and bridegroom). I do not know whether that is true of a secret marriage".
5. It would appear from the aforesaid statement of P.W. 1 that he had clearly stated that he does not know what is the custom of the accused. Having shown complete ignorance of the fact as to whether or not the accused was governed by custom the witness goes on to state that there was no custom of sacred fire and Saptapadi. What the witness really means is that in the second marriage which was contracted by respondent No. 1, these two ceremonies were not performed by him. Mr. Rao, however, vehemently contended that this witness proves that in the Reddy Community the custom of Saptapadi was not prevalent and it was sufficient to Page 17 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 put the 'Yarn Thread' instead of Mangal Sutra'. In our opinion when witness has frankly admitted that he does not know the custom of the accused he was incompetent to depose about the existence of any custom in the family of the accused. It is well settled that before a conviction can be recorded under section 494 the following ingredients must be proved:-
(1) That the complainant had been married to the accused;
(2) That the accused contracted a second marriage while the first marriage was still subsisting;
(3) That both the marriages were valid and strictly according to law governing the parties.
6. In the instant case there was no evidence to show that there was any custom amongst the Reddys which, outweighed the written text of law. The evidence of P. W. 1, clearly falls short of the standard to prove this fact. Mr. Rao, however, strongly relied on a decision of the Andhra Pradesh High Court in some other case to show that among the Reddy Community of Telangana area the two ceremonies mentioned above were not necessary. In the first place the decision referred to above in the case of re:
Dolgonti Raghava Reddy and Another(1) clearly shows that the Court in that case was concerned only with the Reddy Community of Telangana alone. The trial court has pointed out in its judgment that so far as accused is concerned he belongs to the Reddy Community not of Telangana area, but that of Rayalaseema area. In these circumstances the Judgment of the High Court cannot be of any avail to the appellant. Moreover, as the existence of the custom was neither mentioned in the complaint nor proved in the evidence it would be difficult for this Court to rely on the decision of the High Court which was based on the evidence, facts and circumstances of the case before it. In these circumstances we agree with the High Court that the prosecution had failed to prove that the second marriage contracted Page 18 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 by respondent No. 1 with respondent No. 4 was a valid marriage and, therefore, the High Court was fully justified in acquitting the respondents. The appeal is without any substance and is accordingly dismissed."
7.1. In yet another decision of Santi Deb Berma vs. Kanchan Prava Devi (Smt) [1991 Supp (2) SCC 616], the question again was of validity of second marriage where the parties were Hindu. The Court held that the proof of Saptpadi must be based on cogent evidence. The essential ceremonies of a valid marriage were performed cannot be deduced from letters or oral evidence of the accused and the second wife living as husband and wife. The Court held and observed thus:-
"4. Admittedly, the parties to this proceeding are all Hindus. The Additional Sessions Judge acquitted the appellant and others mainly on the ground that there was no specific evidence regarding the performance of the essential rite - namely - Saptapadi - in regard to the second marriage. The relevant portion of the finding of the Additional Sessions Judge reads thus :
From the above analysis of the prosecution evidence, it transpires that there is grave doubt as to whether the most essential ceremony of Saptapadi was duly performed.
5. The High Court on appeal preferred by the respondent while confirming the order of acquittal of the rest of the accused convicted this appellant.Page 19 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022
C/FA/1676/2022 ORDER DATED: 22/09/2022
6. The conclusion arrived at by the High Court, taking a view contrary to that of the Sessions Court is based on three letters, namely, Exts. P-6, P-7 and P-8 coupled with the oral evidence showing that both the appellants and his alleged second wife, namely, Namita Ghosh were leading a marital life as husband and wife.
7. Mr. Dutta, the learned Counsel appearing on behalf of the appellant herein assailed the impugned judgment contending that in the absence of acceptable proof that the marriage of the appellant with Namita Ghosh was celebrated or performed with proper ceremonies and in due form, it cannot be said that the marriage had been solemnised within the ambit of the provisions of the Hindu marriage Act, 1955 (hereinafter referred to as the 'Act') and that the finding of the High Court based on the three letters and the oral evidence to the effect that the appellant and Namita Ghosh were living together as husband and wife cannot in any way serve as proof of a valid marriage as per the Act, especially when there is no plea that the marriage was solemnised in accordance with the customary rites and usage which do not include Saptapadi. In other words, it is not the case of the respondent that the marriage was celebrated in accordance with the customs, dispensing with the ceremony of Saptapadi and usage applicable to the parties. In fact, the courts have proceeded on the footing that according to the parties the ceremony of Saptapadi is one of the essential requirements for constituting a valid marriage.
8. The High Court in the instant case has drawn an inference that all the ceremonies essential for a valid marriage had been performed on the strength of the three letters and the oral evidence as aforementioned. We, after going through the judgment of the High Court very carefully, are of the opinion that the High Court is not at all justified in drawing such an inference in the absence of any Page 20 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 reliable and acceptable evidence, in regard to the performance of Saptapadi. The result will be that the alleged marriage between the appellant and Namita Ghosh celebrated in defiance of the law applicable to the parties is held to be a marriage not valid in law. Hence the judgment of the High Court is not sustainable and consequently, we allow the appeal by setting aside the conviction and sentence awarded by the High Court and acquit the appellant."
8. What this Court finds in the decision of the trial Court is, the Court is drawn by the factum of the affidavit of the plaintiff so also the photographs produced by him. More than that, the absence of any participation on the part of the appellant and any denial had led the Court to hold that this uncontested oral as well as documentary evidences of the plaintiff not only would led the Court to decide ex-parte, but also, the provision of CPC would led him to hold such evidence to have been proved against the appellant. 8.1. In our opinion, the drawing of such inference in absence of any reliable and acceptable evidence of the performance of marriage which otherwise is necessary under the law has led the Court to conclude wrongly of the performance of the marriage between the parties. Resultantly, the decree passed for restitution of conjugal rights also shall need to go. Page 21 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022
C/FA/1676/2022 ORDER DATED: 22/09/2022
9. We would like to refer to the provisions of the Prohibition of the Child Marriage Act, 2006 where Section 3 provides that every child marriage, whether solemnized before or after the commencement of the Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage. The punishment for solemnizing the child marriage is of extending of rigorous imprisonment to two years and fine which may extend to one lakh rupees. Where a child contracts a child marriage, as per Section 11, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organization or association of persons who does any act to promote the marriage or permits it to be solemnized, shall be also punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees.
10. Noticing the very pleading of the child marriage would necessitate this Court, while setting aside this decree of restitution of conjugal rights, to initiate actions under the Page 22 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022 C/FA/1676/2022 ORDER DATED: 22/09/2022 Child Marriage Act against those who were in charge of both the children at the relevant point of time.
11. We could notice that the claim is made of the severing the ties with the help of the cast leaders as this is all throughout said to be an engagement and not the marriage on the part of the appellant.
12. The first appeal is allowed. The judgment and order dated 29.12.2021 passed by the Family Court, Palanpur in Family Suit No. 21 of 2021 is quashed and set aside.
13. In view of the main appeal having been disposed of, the civil application if any, also stands disposed of.
(SONIA GOKANI, J) (NISHA M. THAKORE,J) Bhoomi Page 23 of 23 Downloaded on : Sun Dec 25 02:25:18 IST 2022