On this aspect, we have carefully gone through the
evidence and more particularly the evidence of Bhogendra Jha –
the Priest who performed the marriage ceremony (D.W.2). In his
examination-in-chief, D.W. 2 had deposed that the father of the
Respondent approached him at around 9.00 a.m. to 9.30 a.m. and
told him to perform the marriage of his daughter at Hanuman
Temple, Malad on 14th February, 2009. He has further deposed
that the Appellant and the Respondent both were present in the
Temple and five to seven persons were present from the
Appellant's side and about 10 to 12 persons were present from
the Respondent's side. He has further stated that the marriage
was completed within a period of one hour and one hour ten
minutes and he had uttered the mantras and the Appellant and
the Respondent took seven steps around the sacred fire. He has
further stated that the Appellant has not opposed the marriage.
At the time of marriage, about 150 to 200 persons were present
in the Temple as it was a Saturday. He has deposed that the
mother of the Appellant was also present and she had brought
Sindoor to the Hanuman Temple. After the marriage ceremony
was performed, both the Appellant and the Respondent left
together. In cross-examination, DW – 2 has stated that he has
performed seven pheras without any Saptapadi as he is unaware
of what is Saptapadi. However, he has categorically stated that a
bundle of agarbatti was burnt and the Appellant and the
Respondent had taken seven steps/pheras around it. He has
categorically denied that he has falsely deposed that he
performed the marriage. On going through his evidence, we do
not find any substance in the arguments canvassed by Mr
Agrawal. In his examination-in-chief as well as in the crossexamination
what is clear is that the D.W. 2 had uttered the
mantras and the Appellant and the Respondent had taken seven
pheras around the bundle of burning agarbattis (incense sticks).
Mr Agrawal was at pains to point out that walking around
burning agarbattis would not amount to taking seven pheras
around the sacred fire as mentioned in section 7 of the Hindu
Marriage Act, 1955 and therefore this clearly shows that the
marriage was not completed as required under the provisions of
the Hindu Marriage Act, 1955. We are unable to agree with this
submission. What is a sacred fire has not been defined in the Act.
The fact that there was a bundle of agarbattis that was burning
and the Appellant and the Respondent took seven pheras around
the said agarbattis is not disputed. This being the case, at least to
our mind, this would be enough to show that there was
compliance of section 7 of the Hindu Marriage Act, 1955. Merely
because the priest (D.W. 2) has stated in his cross-examination
that he has not performed Saptapadi because he was not aware of
what that is, will not carry the case of the Appellant any further.
The Act itself mentions in section 7 as to what is Saptapadi viz.
taking of seven steps by the bride-groom and the bride jointly
before the sacred fire. The fact that seven pheras were taken
around the bundle of burning aggarbattis and looking at the other
evidence (such as photographs amongst other things) which
clearly show that Sindoor was put by the Appellant on the
Respondent and he has garlanded her, we have no hesitation in
holding that all the requirements of a marriage as contemplated
under Hindu Marriage Act, 1955 were duly complied with.
Merely because they took seven pheras around the burning
aggarbattis does not mean that no seven pheras were taken
around the sacred fire as contemplated under section 7 of the
Hindu Marriage Act, 1955. This being the case, we find even this
argument of Mr Agrawal cannot be sustained and is therefore
rejected.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
FAMILY COURT APPEAL NO.154 OF 2012
IN
PETITION NO.A-739 OF 2009
Mr Samit Subhash Agarwal v/s Ms Kamlesh Lataprasad Gupta
CORAM : K.K. TATED AND
B.P. COLABAWALLA, JJ.
PRONOUNCED ON : 27 APRIL, 2018.
Citation:2018(5) MHLJ 416
Appellant – husband who was the original Petitioner before the
Family Court. This Appeal takes exception to the final order /
judgment and decree dated 10th September 2012 passed by the
IInd Family Court, Bandra, Mumbai in Petition No.A-739 of 2009
filed by the Appellant herein. This Petition No.A-739 of 2009 was
filed by the Appellant under section 12(1)(c) of the Hindu
Marriage Act, 1955. In short, the Appellant – husband sought a
decree of nullity of his marriage solemnized with the Respondent
on 14th February, 2009. To this Petition, the Respondent – wife
also filed a counter claim seeking a decree of restitution of
conjugal rights under section 9 of the Hindu Marriage Act, 1955.
By the imugned judgement and decree, the Family Court
dismissed the Petition of the Appellant – husband and allowed the
counter claim of the Respondent – wife.
2. The brief facts giving rise to the present appeal are as
under :-
(a) According to the Appellant, he found the proposal of
the Respondent through the Times of India
matrimonial column. After a few days, the
Respondent's parents met his parents and they
decided to perform the marriage of the Appellant and
the Respondent. Accordingly, an engagement
ceremony took place on 15th January 2009 at Leela
Hotel, Goregaon (East), Mumbai. Thereafter, the
marriage was fixed on 13th February 2009 at Ajanta
Marriage Hall, Goregaon (West), Mumbai.
(b) It is the case of the Appellant that according to his
community, the Respondent was required to remain
present at the said venue prior to arrival of the
Appellant to fulfill the ritual of garlanding each other.
Thereafter, reception ceremony was to take place and
performance of marriage as per vedic rites before the
sacred fire taking seven steps around it was to be
performed. On completion of all these rituals the
marriage was said to be solemnized according to the
customs prevailing in the Appellant's community.
(c) Accordingly, on 13th February 2009 the marriage
function was scheduled to begin at 8.00 p.m. It is the
case of the Appellant that his relatives went to the
marriage hall but the Respondent's parents and
relatives were not present at that time. After about
an hour, the Respondent and her relatives came to the
wedding hall. Thereafter, they started to pick up a
quarrel with the Appellant and his family members.
They started insulting by giving abuses to the
Appellant and his family members. Therefore, the
Appellant's father was deeply hurt and he suffered a
severe heart ailment and was immediately admitted
in Kapadia Nursing Home. It is in these
circumstances that the Appellant decided to postpone
the marriage for some days but the Respondent and
her family members did not show any consideration.
They continued to give abuses and threatened to take
action against the Appellant and his family members.
The Appellant therefore decided to call off the
marriage which was yet to be performed.
(d) On the next day, the Appellant received a message
from a woman who claimed to be a social worker. She
called the Appellant to meet her at Hanuman Temple
at Malad (close to the residence of the Appellant) on
14th February 2009 at about 9.30 a.m. The social
worker tried to brainwash the Appellant and
compelled him to come to the temple. She informed
the Appellant that due to the fact that the marriage
was called off the previous day, the Respondent was
suffering from low blood pressure and if he refused to
perform the marriage, he would face dire
consequences. In these circumstances, the Appellant
went to the temple and was shocked to see that the
Respondent was dressed in her best clothes as a bride.
On the other hand, the Appellant was dressed in a
most casual manner. It is the further case of the
Appellant that he was completely controlled by the
Respondent and her family members. They had called
for photographers and the media from various T. V.
channels. Thereafter, the Appellant was forced to
take photographs showing that he and the
Respondent are marrying. The Appellant was also
forced to sign on a blank form which appeared to be a
Marriage Registration Form. According to the
Appellant, though he tried to resist and avoid signing
the said Form, he was forced and was not allowed to
read the contents of the said Form. Further, it is the
case of the Appellant that though the rituals of a
Hindu Marriage were not performed, the photographs
were taken showing that the Appellant had put
Sindoor on the Respondent and they made 2-3 rounds
in a circle as if they were taking pheras around the
sacred fire. Though the Appellant was not willing to
marry the Respondent, he was forced to do so and was
made to pose for photographs showing that the
marriage had been solemnized.
(e) It is also the case of the Appellant that the Saptapadi
ceremony (taking seven rounds/steps around the
sacred fire) had not been performed. Looking to all
these facts, it is contended by the Appellant that his
so called marriage with the Respondent has taken
place by force and without his free will and consent
and is therefore a nullity under the provisions of
Hindu Marriage Act 1955. To seek this declaration,
Petition No.A-739 of 2009 came to be filed before the
Family Court at Bandra under section 12(1)(c) of the
Hindu Marriage Act, 1955.
(f) Once the summons were served upon the Respondent,
she filed her written statement (at Exh.13) contesting
the allegations made in the nullity Petition. She has
stated in her written statement that her father had
given an advertisement in the matrimonial column of
Times of India and she met the Appellant's family
members. After that, an engagement ceremony of
Appellant and Respondent was performed in January
2009 and the marriage was decided to be performed
on 13th February 2009. The marriage ceremony was
to be started from 8.00 p.m. till 11.00 p.m. on 13rd
February 2009. The marriage ceremony was
attended by nearly 400 people. After departure of the
relatives and friends, the Appellant and his family
members demanded Rs.5 lacs from the Respondent
and her family. The Respondent's father was not able
to fulfill this demand and therefore the Appellant and
his family members called off the marriage.
Therefore, the Respondent informed this incident to
the Police.
(g) After involvement of the Police, it is the case of the
Respondent that the Appellant himself expressed his
desire to marry her at Hanuman Temple which is
situated very close to his house. The Respondent
categorically denied that she invited or called any
media person as was sought to be alleged by the
Appellant. The Respondent categorically stated that
the marriage of the Appellant and the Respondent
was solemnized with the free will and consent of the
Appellant and after the wedding ceremony, the
Respondent was taken to the Appellant's house and
stayed there from 14th February, 2009 till 28th April,
2009. It is the case of the Respondent that as she was
a working lady, she was going to her office from the
residence that she was occupying with the Appellant.
It is the Respondent's case that the Appellant came
closer to the Respondent from 6th March 2009 till 28th
April 2009 and was in fact enjoying physical touch
and had twice inserted his finger in her private part.
The Respondent was hopeful that in due course of
time they would be able to lead a happy married life.
However, much to her surprise, on 28th April 2009,
the summons of Petition No.A-739 of 2009 was served
upon the Respondent at her office address.
Thereafter, when she came to her matrimonial home,
she found that it was locked. It is in these
circumstances that she went to the Police and
informed them about the same. She has alleged that
the Appellant has withdrawn himself from the
company of the Respondent without any sufficient
reason or cause and therefore prayed for dismissal of
Petition No.A-739 of 2009. On the basis of what was
stated in the written statement, a counter claim was
also filed by the Respondent – wife seeking a decree of
restitution of conjugal rights under section 9 of the
Hindu Marriage Act 1955.
(h) After pleadings were completed, the Family Court, on
28th November 2009, framed the following issues :-
ISSUES FINDINGS
“1) Does he prove that his marriage
was performed with her
without his consent ? In the Negative.
2) Does she prove that he has
withdrawn himself from her
company without sufficient
reason or cause ? In the Affirmative.
3) Whether their marriage is to
be annulled by a decree of
nullity ? In the Negative.
4) Whether she is entitled to
have a decree of restitution
of conjugal rights as a
counter claim ? In the Affirmative.
5) What order and decree As per final order.”
(i) After the issues were framed, both the parties led their
respective evidence. The Appellant examined himself
as well as his maternal aunt – Sushma Sureshkumar
Garg, his friend – Nishit Hari Dhatrak and his mother
– Madhu Subhash Agarwal. On the other hand, to
contest the claim of the Appellant and to prove her
counter claim, the Respondent examined herself and
also the priest who had performed the marriage one
Bhogendra Jha as well as one Mr. Ashish Lalji Singh.
(j) After the evidence was completed, the Family Court
heard counsel for both parties and answered the
issues framed by it as mentioned hereinabove. In a
nutshell, after going through the evidence, the Family
Court came to the conclusion that the Appellant was
unable to prove that the marriage with the
Respondent was solemnized without his consent. The
Family Court also came to the conclusion that the
Appellant – husband had withdrawn himself from the
Respondent's company without sufficient reason or
cause. The Family Court also came to the conclusion
that the marriage solemnized between the Appellant
and the Respondent on 14th February 2009 could not
annulled by decree of nullity and the Respondent was
entitled to a decree of restitution of conjugal rights.
Accordingly, in the operative part of the impugned
judgment and decree, the Family Court held as under:-
“i) The Petitioner – husband's petition claiming decree of
nullity of marriage is hereby dismissed with costs.
ii) The Respondent – wife's counter claim is decreed with
costs.
iii) The Petitioner – husband is directed to join the company
of the Respondent – wife within three months from
today.
iv) A decree be drawn up accordingly.”
(k) It is being aggrieved by this impugned judgment and
decree that the present appeal has been filed before
us.
3. In this factual backdrop, Mr Agrawal, learned counsel
appearing on behalf of the Appellant, submitted basically two
contentions before us. They are :-
(i) that the alleged marriage between the Appellant
and Respondent was not with the free will and
consent of the Appellant and therefore a nullity
in the eyes of law; and
(ii) that in any event the Saptapadi ceremony was
not performed by taking 7 steps around the
sacred fire as required under section 7 of the
Hindu Marriage Act, 1955 and therefore the
marriage could never have been said to be
completed between the Appellant and the
Respondent.
4. As far as the issue of free consent is concerned, Mr
Agrawal submitted that by virtue of what is stated in the
evidence of the Appellant, it was clear that he was forced to
marry with the Respondent. He submitted that it has been
specifically pleaded by the Appellant that if he did not show up at
the Hanuman Temple, he would face dire consequences. He was
therefore forced to go to the Hanuman Temple and was forced to
sign a blank form and which now appears to be a Marriage
Registration Form. This marriage with the Respondent was
never performed willingly and the alleged photographs that were
taken of the marriage between the Appellant and the Respondent
were taken forcefully by threatening the Appellant.
5. As far as this issue is concerned, we have carefully
gone through the evidence of the Appellant as well as that of the
Respondent. We have also gone through the analysis of the
evidence in the impugned decree and order dated 10th September,
2012. After carefully perusing the evidence on record, we are
unable to agree with Mr Agrawal that the marriage that was
solemnized between the Appellant and the Respondent was with
any force or coercion as was sought to be contended before us. It
is not in dispute that the Appellant went to Hanuman Temple on
14th February, 2009. The photographs that have been placed on
record clearly show that the Appellant garlanded the
Respondent. Another very important factor that needs to be
taken into consideration is that on 14th February 2009, after the
marriage ceremony was performed, the Appellant took the
Respondent to his residence and cohabitated as husband and wife
from the date of the marriage (14th February, 2009) till 28th
April, 2009 (when the present Petition came to be served upon
the Respondent). It is further the Respondent's testimony that
after 6th March 2009, the relationship between the Appellant and
the Respondent became normal and the Appellant was enjoying
the company of the Respondent physically by touching her
private organs. This testimony of the Respondent has not been
shattered in any way by the Appellant. If in fact the marriage
was performed by force, the question of taking the Respondent –
wife to the house of the Appellant immediately after the marriage
and thereafter cohabitating with her till 28th April, 2009 would
not arise. If in fact, the marriage was solemnized by force, there
would no question of the two persons cohabitating with each
other for so long and that too by having a physical relationship.
Looking to all these facts and the preponderance of probabilities,
we do not find anything wrong in the impugned decree under
which the Family Court has come to the conclusion that the
Appellant has been unable to prove that the marriage solemnized
between the Appellant and the Respondent was by force and
without his free will and consent. This argument of Mr Agrawal
therefore has to be rejected.
6. Mr Agrawal then submitted that in any event, the
Appellant was entitled to a decree of nullity as the marriage had
not been completed as per the provisions of section 7 of the Hindu
Marriage Act, 1955 inasmuch as the Saptapadi ceremony (i.e.
taking seven steps by the bride-groom and the bride jointly before
the sacred fire) was not performed. He submitted that the alleged
marriage of the Appellant and the Respondent was never
solemnized as per Hindu traditions and procedures. It was never
performed by any authenticated and authorized person. He was
at pains to point out that as per section 7 of the Hindu Marriage
Act 1955, it was necessary that the Saptapadi ceremony is
performed and which according to Mr Agrawal, DW – 2 (the
priest) had admitted that he had not performed any such
ceremony. Further, Mr Agrawal submitted that it was necessary
that seven steps have to be taken around the sacred fire and in
the present case, the priest (D.W. 2) had admitted that only a
bundle of incense aggarbatti sticks were burnt around which the
seven steps took place. He further submitted that the priest
(D.W. 2) was not a regular Poojari of Hanuman Temple and did
not visit the said Temple regularly. For all these reasons, Mr
Agrawal submitted that there was conclusive evidence on record
to show that the marriage between the Appellant and the
Respondent was not solemnized as per the provisions of the
Hindu Marriage Act, 1955 and in these circumstances, the
Appellant was entitled to a decree of nullity.
7. On this aspect, we have carefully gone through the
evidence and more particularly the evidence of Bhogendra Jha –
the Priest who performed the marriage ceremony (D.W.2). In his
examination-in-chief, D.W. 2 had deposed that the father of the
Respondent approached him at around 9.00 a.m. to 9.30 a.m. and
told him to perform the marriage of his daughter at Hanuman
Temple, Malad on 14th February, 2009. He has further deposed
that the Appellant and the Respondent both were present in the
Temple and five to seven persons were present from the
Appellant's side and about 10 to 12 persons were present from
the Respondent's side. He has further stated that the marriage
was completed within a period of one hour and one hour ten
minutes and he had uttered the mantras and the Appellant and
the Respondent took seven steps around the sacred fire. He has
further stated that the Appellant has not opposed the marriage.
At the time of marriage, about 150 to 200 persons were present
in the Temple as it was a Saturday. He has deposed that the
mother of the Appellant was also present and she had brought
Sindoor to the Hanuman Temple. After the marriage ceremony
was performed, both the Appellant and the Respondent left
together. In cross-examination, DW – 2 has stated that he has
performed seven pheras without any Saptapadi as he is unaware
of what is Saptapadi. However, he has categorically stated that a
bundle of agarbatti was burnt and the Appellant and the
Respondent had taken seven steps/pheras around it. He has
categorically denied that he has falsely deposed that he
performed the marriage. On going through his evidence, we do
not find any substance in the arguments canvassed by Mr
Agrawal. In his examination-in-chief as well as in the crossexamination
what is clear is that the D.W. 2 had uttered the
mantras and the Appellant and the Respondent had taken seven
pheras around the bundle of burning agarbattis (incense sticks).
Mr Agrawal was at pains to point out that walking around
burning agarbattis would not amount to taking seven pheras
around the sacred fire as mentioned in section 7 of the Hindu
Marriage Act, 1955 and therefore this clearly shows that the
marriage was not completed as required under the provisions of
the Hindu Marriage Act, 1955. We are unable to agree with this
submission. What is a sacred fire has not been defined in the Act.
The fact that there was a bundle of agarbattis that was burning
and the Appellant and the Respondent took seven pheras around
the said agarbattis is not disputed. This being the case, at least to
our mind, this would be enough to show that there was
compliance of section 7 of the Hindu Marriage Act, 1955. Merely
because the priest (D.W. 2) has stated in his cross-examination
that he has not performed Saptapadi because he was not aware of
what that is, will not carry the case of the Appellant any further.
The Act itself mentions in section 7 as to what is Saptapadi viz.
taking of seven steps by the bride-groom and the bride jointly
before the sacred fire. The fact that seven pheras were taken
around the bundle of burning aggarbattis and looking at the other
evidence (such as photographs amongst other things) which
clearly show that Sindoor was put by the Appellant on the
Respondent and he has garlanded her, we have no hesitation in
holding that all the requirements of a marriage as contemplated
under Hindu Marriage Act, 1955 were duly complied with.
Merely because they took seven pheras around the burning
aggarbattis does not mean that no seven pheras were taken
around the sacred fire as contemplated under section 7 of the
Hindu Marriage Act, 1955. This being the case, we find even this
argument of Mr Agrawal cannot be sustained and is therefore
rejected.
8. Before parting, we must mention that we have gone
through the impugned order with great detail. We find that the
impugned judgment and decree is a well written judgment and
has considered all the aspects of the matter, that require no
interference by us in Appeal. The learned Family Court has
considered entire evidence on record and in our view correctly
analyzed it and thereafter given its findings.
9. In these circumstances, we find no merit in this
Appeal. The impugned judgment and decree is upheld. This
Appeal is therefore accordingly dismissed. However, in the facts
and circumstances of the case, there shall be no order as to costs.
(B. P. COLABAWALLA, J.) (K.K. TATED, J.)
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