The Family Court held and rightly so that it was
not possible to believe the case of the appellant that his signatures
were fraudulently obtained on the marriage registration certificate and
the notice of intended marriage as had it been so the appellant would
have surely lodged a complaint in the Police Station to that effect or at
least issued a notice to the respondent immediately after 30/01/2009.
It is necessary to note that the appellant is an educated person and
had also admitted that he used to sign documents only after reading
and perusing them. It is, therefore, most unlikely that he would have
signed on the marriage registration certificate without knowing the
contents of the documents. The appellant cannot deny his signature
on the marriage registration certificate on a flimsy ground that the
signature of the appellant on that certificate is in English whereas on
the notice of intended marriage the signature appears to be in Marathi.
We have perused both the documents. Both the documents bear the
photographs of the appellant. The appellant has signed both the
documents. The signatures of the appellant as well as the respondent
on one of the documents are in English and on the other document
both of them have signed in Marathi. This cannot be a ground for
holding that the appellant has not signed on the marriage registration
certificate. The Family Court has rightly considered the evidence of the
clerk from the SubRegistrar's office, examined on behalf of the
respondent that on 30/01/2009 the appellant and the respondent were
married to each other in the office of the SubRegistrar. We find
nothing in the cross examination of either the respondent or the clerk
from the office of the SubRegistrar to falsify the case of the
respondent. In fact, the admissions of the appellant in his cross
examination falsifies his case that fraud was played on him by the
father of the respondent. The admission of the appellant that he was
taken to the office of the Registrar of Marriages for signing the
documents, his admission that he was educated up to 10th Standard
and he did not sign on any documents without reading and
understanding them and his further admission that he had never
lodged any report or initiated any action against the father of the
respondent for the fraud practiced on him falsifies his case that fraud
was played on him by the father of the respondent. The submission
made on behalf of the appellant that there is non compliance of the
mandatory provisions of Section 12 of the Special Marriage Act, 1954
and, therefore, the marriage, if any, is liable to be declared as null and
void is liable to be rejected for the simple reason that the appellant has
not raised a plea in this regard in the petition. It is not pleaded by the
appellant that the marriage, if any, was null and void as the parties to
the marriage had not said that they took each other as their lawful wife
and husband. Since the issue sought to be raised on behalf of the
appellant is not a pure issue of law and is a mixed issue of law and
facts, the same cannot be considered for the first time in the first
appeal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.270/2012
Naresh S/o Mangaldas Mehune,
...VERSUS...
Sangeeta D/o Gendlal Kambhale,
CORAM : SMT. VASANTI A. NAIK &
A. B. CHAUDHARI, JJ.
DATED : 08.08.2012
Citation; 2012(7)ALL M R 549
By this appeal, the appellant challenges the judgment passed by
the Principal Judge, Family Court, Nagpur on 15/09/2011, dismissing a
petition filed by the appellant under Section 25 of the Special Marriage
Act, 1954 for grant of a decree of nullity of marriage.
Few facts giving rise to the appeal are stated thus
The appellant filed a petition against the respondent under
Section 25 of the Special Marriage Act, 1954 for grant of a decree of
nullity of marriage. It was pleaded by the appellant in the petition that
he was an agricultural labourer residing with his father, who owned 5
acres of land in village Patgowari. It was pleaded that the respondent
is also a resident of the same village and her father is a known criminal
and is also facing trials. With a view to extract money, the father of the
respondent had played fraud on several villagers of Patgowari and with
a view to dupe the appellant, the father of the respondent brought the
appellant to Nagpur on 30/01/2009 on the pretext that he had to sign as
a witness on certain documents. However, the appellant later on
realised that the signatures of the appellant were obtained for the
marriage registration by playing fraud on the appellant. It was pleaded
that at no point of time, the appellant had married the respondent. It
was further pleaded that the alleged marriage with the respondent was
never consummated. According to the appellant, one of the friends of
the appellant's father made an enquiry about the marriage of the
appellant with the respondent on 03/06/2009 and it is only then that the
appellant became aware that fraud had been played on him and
instead of getting his signatures on the documents as a witness, his
signatures were obtained for the registration of his marriage. The
appellant pleaded that with a view to legalise the marriage, the father
of the respondent namely Gendlal lodged a false complaint in the
Police Station, Ramtek alleging that the appellant had failed to attend a
reception hosted by Gendlal after the solemnization of the marriage
because a demand of rupees two lakhs made by him was not fulfilled
by Gendlal. In the aforesaid background, the appellant sought a
decree of nullity of marriage.
The respondent filed the written statement and resisted the claim
of the appellant. It was admitted that the parties resided in the same
village. It was specifically denied that the father of the respondent was
a known criminal and was facing trials. According to the respondent,
the marriage was not registered at Ramtek as the appellant desired to
get it registered at Nagpur, as his family members did not desire that
the parties should get married and had opposed the marriage of the
appellant with the respondent. It was pleaded that after their marriage,
the parties resided together in the house of her father for some time.
The marriage was consummated. It was pleaded that the appellant
declined to lead the marital life with the respondent only because of the
opposition from his family members. The respondent sought for the
dismissal of the petition.
On the aforesaid pleadings of the parties, the Family Court
framed the issues and on a consideration of the evidence tendered by
the parties, by the judgment dated 15/09/2011, dismissed the petition
filed by the appellant. Being aggrieved by the dismissal of the petition
for grant of a decree of nullity of marriage, the appellant has preferred
the present first appeal.
Shri A.S.Chandurkar, the learned counsel for the appellant,
submitted that the Family Court was not justified in dismissing the
petition filed by the appellant without considering whether the marriage
was solemnized as required under the provisions of the Special
Marriage Act, 1954. It is submitted on behalf of the appellant that the
provisions of Section 12 of the Special Marriage Act, 1954 are
mandatory and the marriage shall not be complete and binding on the
parties, unless each party says to the other in the presence of the
Marriage Officer and three witnesses that he or she takes the other to
be the lawful wife or husband. According to the learned counsel for the
appellant, since this was not done in the instant case, the so called
marriage allegedly performed on 30/01/2009 was not complete and
binding on the parties. It is submitted that the Family Court failed to
consider the material omissions and contradictions in the documents at
Exhibits40 and 41. According to the learned counsel, in Exhibit40, it is
mentioned by the respondent that the marriage took place in the
presence of family members of the appellant, whereas in Exhibit41
there is an omission in regard to this material fact. It is then submitted
on behalf of the appellant that the Family Court failed to consider that
the appellant had not signed on the certificate of marriage or the notice
of intended marriage as one of the signatures was in Marathi whereas
the other signature was in English. According to the learned counsel, it
is because of Gendlal that the respondent being thrust on the petitioner
as his legally wedded wife though the appellant was never married to
the respondent. The learned counsel relied on the judgment in the
case of Nirmal Dass Bose v. Km.Mamta Gulati reported in AIR 1997
Allahabad 401 to substantiate his submission that the provisions of
Section 12 of the Special Marriage Act, 1954 are mandatory and if the
parties do not state that they take each other as their lawful husband or
wife, the marriage would be null and void.
Shri Gaikwad, the learned counsel for the respondent, supported
the judgment passed by the Family Court and submitted that the
Family Court had rightly considered the documentary evidence on
record as also the admissions of the appellant in his crossexamination
to hold that the appellant had not proved his case that the signatures of
the appellant were fraudulently obtained on the marriage registration
forms though the appellant was made to understand that he was to
sign as a witness on certain deeds. It is submitted that since the
appellant and the respondent were in love with each other and since
the parents of the appellant were opposed to their marriage, at the
behest of the appellant, the marriage was registered at Nagpur. It is
submitted that the Family Court has rightly considered the admission of
the appellant in his crossexamination that he had not filed any
complaint in the Police Station and/or had not taken any action against
the respondent for fraudulently obtaining his signatures on the
documents for registration of the marriage. According to the learned
counsel, the respondent had examined a clerk from the SubRegistrar's
office to prove the marriage and on the basis of the documents proved
by him, the Family Court rightly believed the case of the respondent
that the appellant and the respondent were legally married on
30/01/2009. According to the learned counsel, the Family Court has
rightly appreciated the material evidence on record to hold that the
appellant was not entitled to a decree of nullity of marriage and hence
the first appeal is liable to be dismissed.
On hearing the learned counsel for the parties and on a perusal
of the original record, it appears that the following points arise for
determination in this first appeal.
1) Whether the Family Court was justified in dismissing
the petition for grant of a decree of nullity of
marriage ?
2) What order ?
To answer the aforesaid points for determination, it would be
necessary to peruse the evidence on record.
The appellant had examined himself and the respondent
examined herself and the clerk from the office of the SubRegistrar,
where the marriage was registered. The appellant has reiterated the
facts pleaded in the petition in his evidence on affidavit and has stated
that he had not married the respondent on 30/01/2009 and his
signatures were obtained fraudulently for marriage registration. It is
stated that the appellant was brought to Nagpur by Gendlalthe father
of the respondent on the pretext that his signatures were required as a
witness on certain documents. It is also stated that since the father of
the appellant owned substantial properties, the respondent's father had
a plan to get one of his three daughters married to the appellant. He
stated that he had no knowledge that he had performed the marriage
with the respondent by signing on the documents in the office of the
SubRegistrar. The appellant admitted in his crossexamination that he
was educated up to the 10th Standard and that he used to sign on
documents only after reading and understanding them. He further
admitted that he did not know that he had signed on the notice of
intended marriage on 23/12/2008. He also admitted that on 30/01/2009
he was taken to the office of the Registrar of Marriages at Nagpur. The
appellant admitted that he did not know that the father of the
respondent arranged the reception for celebrating the marriage in
Shree Gayatri Shaktipeeth at Nagpur on 03/06/2009. The appellant
then admitted that he had not reported to any Police Station after
30/01/2009 that his signatures were forcibly obtained by the
respondent and her parents for marriage registration. Till date,
according to the appellant, he had not reported to any Police Station
and he had also not issued any legal notice to the respondent on the
ground that the marriage was performed by committing fraud on the
appellant. The appellant, however, denied the suggestion that the
photograph of the appellant and the respondent as husband and wife
was photographed at Rajni Studio. He further denied the suggestion
that at the instance of his parents, he tried to avoid the marriage.
The respondent entered into the witness box and stated about
the performance of the marriage on 30/01/2009. She stated that her
father had spent huge amount for hosting the marriage reception on
03/06/2009 but the appellant did not attend the same due to the
opposition from his family members. It was stated that the appellant
had demanded an amount of rupees two lakhs as a condition
precedent for attending the reception and since that amount could not
be paid by the respondent's father, the appellant failed to attend the
reception and a false petition was filed. She admitted in her cross
examination that the parents of the appellant were not present at the
time of marriage. Nothing was brought out from the crossexamination
of the respondent to disbelieve her case in the examinationinchief.
Apart from examining herself, the respondent also examined a clerk
from the office of the SubRegistrar. He stated that the marriage of the
appellant and the respondent was solemnized on 30/01/2009. He
produced the original register containing the certificate of marriage in
the Court. The marriage registration certificate as well as the notice of
the intended marriage dated 31/12/2008 were proved by this witness.
There was nothing in the crossexamination of this witness to falsify his
case in the examinationinchief.
On a consideration of the oral evidence of the parties and the
documents placed by the respondent on record, the Family Court came
to the conclusion that the appellant and the respondent were married
on 30/01/2009. The Family Court held that the appellant had failed to
prove that the signatures of the appellant were fraudulently obtained on
the marriage registration certificate. On a reading of the evidence of
the parties, it appears that the parties were married to each other on
30/01/2009 and the marriage was registered at Nagpur as the parties
were in love and the parents of the appellant were opposed to the
marriage. The Family Court held that the respondent was successful
in proving that the appellant had suppressed the fact of performance of
marriage from his family members and hence, the marriage was
registered at Nagpur. The Family Court held and rightly so that it was
not possible to believe the case of the appellant that his signatures
were fraudulently obtained on the marriage registration certificate and
the notice of intended marriage as had it been so the appellant would
have surely lodged a complaint in the Police Station to that effect or at
least issued a notice to the respondent immediately after 30/01/2009.
It is necessary to note that the appellant is an educated person and
had also admitted that he used to sign documents only after reading
and perusing them. It is, therefore, most unlikely that he would have
signed on the marriage registration certificate without knowing the
contents of the documents. The appellant cannot deny his signature
on the marriage registration certificate on a flimsy ground that the
signature of the appellant on that certificate is in English whereas on
the notice of intended marriage the signature appears to be in Marathi.
We have perused both the documents. Both the documents bear the
photographs of the appellant. The appellant has signed both the
documents. The signatures of the appellant as well as the respondent
on one of the documents are in English and on the other document
both of them have signed in Marathi. This cannot be a ground for
holding that the appellant has not signed on the marriage registration
certificate. The Family Court has rightly considered the evidence of the
clerk from the SubRegistrar's office, examined on behalf of the
respondent that on 30/01/2009 the appellant and the respondent were
married to each other in the office of the SubRegistrar. We find
nothing in the crossexamination of either the respondent or the clerk
from the office of the SubRegistrar to falsify the case of the
respondent. In fact, the admissions of the appellant in his cross
examination falsifies his case that fraud was played on him by the
father of the respondent. The admission of the appellant that he was
taken to the office of the Registrar of Marriages for signing the
documents, his admission that he was educated up to 10th Standard
and he did not sign on any documents without reading and
understanding them and his further admission that he had never
lodged any report or initiated any action against the father of the
respondent for the fraud practiced on him falsifies his case that fraud
was played on him by the father of the respondent. The submission
made on behalf of the appellant that there is non compliance of the
mandatory provisions of Section 12 of the Special Marriage Act, 1954
and, therefore, the marriage, if any, is liable to be declared as null and
void is liable to be rejected for the simple reason that the appellant has
not raised a plea in this regard in the petition. It is not pleaded by the
appellant that the marriage, if any, was null and void as the parties to
the marriage had not said that they took each other as their lawful wife
and husband. Since the issue sought to be raised on behalf of the
appellant is not a pure issue of law and is a mixed issue of law and
facts, the same cannot be considered for the first time in the first
appeal. In any case, the respondent did not have notice about the
aforesaid submission which is sought to be made for the first time in
the first appeal. So also, we find that there is no material contradiction
in the documents at Exhibits40 and 41 as canvassed on behalf of the
appellant. Even if there is any omission, it is so insignificant and
irrelevant that it would have no bearing on the issues involved in the
case. The judgment in the case of Nirmal Dass Bose v. Km.Mamta
Gulati reported on AIR 1997 Allahabad 401 and relied on by the
learned counsel for the appellant cannot be made applicable to the
facts of this case in the absence of any pleadings in regard the non
compliance of the mandatory provisions of Section 12 of the Special
Marriage Act, 1954.
We find that the Family Court has considered the evidence in a
just and reasonable manner and the approach of the Family Court
deciding the Hindu marriage petition is absolutely just. There is no
reason to interfere with the judgment of the Family Court in this first
appeal.
In the result, the first appeal is dismissed with no order as to
costs.
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