Raigarh, Chhattisgarh v. Tabassum Afroj D/o Sheikh Gulam Aged About 34 Years W/o Mohd. Sajid, R/o
Case Details
1 2025:CGHC:13044-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Reserved on 24-1-2025 Pronounced on 19-03-2025. FA(MAT) No. 12 of 2022 Mohd. Sajid S/o Mohd. Eqbal Aged About 44 Years Occupation Business, R/o Kolaibahal, Jamgaon, Raigarh, Police Station And Tahsil Raigarh, District- Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh ... Appellant. versus Tabassum Afroj D/o Sheikh Gulam Aged About 34 Years W/o Mohd. Sajid, R/o Madhuvanpara, Bhanupratap Colony, Kaserpara, Raigarh, District- Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh ... Respondent For appellant. For Respondent : :
Legal Reasoning
judgment of Hon’ble Division Bench of this Court in case of Neha Chandra vs. Vikash Chandra, reported in 2024 SCC Online 5 Chh. 11174 and also referred to the judgment of Hon’ble Allahabad High Court in case of Col. Manoj Kumar Gupta vs. Sangeeta, reported in 2024 AHC 37716-DB. 7. This Court has issued notice to the respondent which was duly served upon her, still no one has appeared as observed by this Court vide order dated 6-5-2022 and thereafter the matter was adjourned to 27-7-2022, 6-8-2024, and thereafter the matter was taken up for hearing on 11-9-2024 and on that day also no one had appeared before the Court, therefore, the matter was adjourned to 26-9-2024 and on that day also no one had appeared before this Court and the matter was adjourned to 6-11-2024, 17-12-2024 and on that dates also no one had appeared on behalf of respondent despite service of notice and the matter was taken up for hearing on 24-1-2025 and on that day also no one has appeared and thereafter the matter was heard and reserved for orders. 8. We have heard learned counsel for the appellant and perused the impugned order. 9. From the submission made by the appellant the point emerged for determination is ‘whether the finding recorded by the learned Family Court that the husband is unable to prove that the marriage is void, suffers from perversity or illegality warranting interference by this Court?’ 10. It is not in dispute that under Muslim Law marriage is a contract and is governed under Chapter 17 of the Mohammedan law. It is also not in dispute that for a valid marriage essential ingredients must exist; they are (I) proposal and acceptance (ijab-o-Qabool), (ii) Competent parties, (iii) consent of free will and (iv) No legal disability. Thus, for valid marriage under Muslim Law the understanding of either party is the essential sine qua non of a 6 capacity to enter into a marriage contract and if a boy or girl has attained the age of puberty and if he or she is unable to understand then there could not be any valid marriage under any circumstances. Under the the Mohammedan Law for a valid marriage the proposal and acceptance must be expressed at one meeting. The offer should be accepted by other party and there is no prescribed procedure or form for the declaration of “ijab” and “Qabool” and where there is recorded document which asserts that a marriage ceremony had in fact taken place on a particular date, prima facie, such a statement ought to be accepted unless it can be shown by independent evidence to be false. Thus, for a valid marriage under Muslim Law, these ingredients must be available. As such, it should attract all the incidents of contract as any other contracts. The rescission of a Muslim marriage therefore will entail consequences stipulated in the Contract Act. As such, the contract can be null and void if it is in violation of Sections 2-J, 14, 15, 16, 17 & 18 of the Indian Contract Act, 1872. Section 14 defines free will, Section 15 defines coercion, Section 16 defines undue influence, Section 17 defines fraud and Section 18 defines misrepresentation. The aforesaid sections are extracted as under. “2-J The section 2(j) of the Act defines a void contract as “A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable” 14. “Free consent” defined.—Consent is said to be free when it is not caused by— (1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22. Consent is said to be so caused when it would not have been given but for the existence of fraud, such coercion, misrepresentation or mistake. undue influence, 7 15. “Coercion” defined.—“Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860)or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. 16.“Undue influence” defined.—(1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another— (a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872. 17. “Fraud” defined.—“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:— (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent. Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak , or unless his silence is, in itself, equivalent to speech (a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. 8 “Misrepresentation” This is not fraud in A. (b) B is A’s daughter and has just come of age. Here, the relation between the parties would make it A’s duty to tell B if the horse is unsound. (c) B says to A—“If you do not deny it, I shall assume that the horse is sound.” A says nothing. Here, A’s silence is equivalent to speech. (d) A and B, being traders, enter upon a contract. A has private information of a change in prices which would affect B’s willingness to proceed with the contract. A is not bound to inform B. defined. 18. —“Misrepresentation” means and includes— (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; (2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him; by misleading another to his prejudice, or to the prejudice of any one claiming under him; (3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.” 11. From the above stated provisions of the Indian Contract Act, 1872, it is necessary for the husband to obtain decree of null and void marriage he has to lead such evidence before the trial Court to substantiate that one or more parties are not legally competent to enter into the contract, such as mentally incapacitated individuals, pne party intentionally deceives another party or one party unintentionally or intentionally misrepresents facts. Therefore, the husband should have placed on record the evidence to prove that the marriage was performed by committing fraud or concealing the material facts about mental disorder of the wife by placing cogent evidence on record, but from the evidence of husband it is quite vivid that he is unable to prove the case that the contract has become void as the wife was mentally disordered at the time of marriage and this fact was concealed by the parents of the wife. No such evidence was brought on record by the husband. Even from 9 Ex.P/8 it is not reflected that the wife was suffering from mental disorder before the date of marriage. The husband has also not examined any treating doctor who can highlight the behaviour or conduct of the wife to record a finding by learned Family Court that she was suffering from mental disorder. Similarly, the other witnesses examined by the husband i.e. PW/1 and PW/2 have nowhere stated that the wife was suffering from mental disorder at the time of marriage or before the date of marriage and this fact has been concealed by the parents of the wife. It is well settled position of law the parties claiming the contract to be void has to place on record the information regarding unsoundness of the wife from a trustworthy source, PW/1 and PW/3 cannot be trustworthy sources as they have nowhere contended in their evidence that they knew the wife before the marriage and she is suffering from unsoundness. 12. Learned Family Court vide impugned judgment and decree has dismissed the suit by recording its finding in para 9 to 11 and has given a finding that from the date of marriage i.e., from 29-12- 2007 to 2-9-2019 there was no medical evidence or document relating to treatment has been placed on record, therefore, adverse inference should have been drawn against the appellant. Learned Family Court has also recorded its finding that the wife remained in hospital for three days which cannot be sufÏcient to ascertain that the wife was suffering from mental unsoundness and even from the report of Police Station dated 14-11-2019 (Annexure P/’9) no inference can be drawn that the wife was suffering from mental unsoundness mind. Accordingly, it has recorded its finding that no such evidence has been brought on record which can establish that the respondent was suffering from mental disorder or 10 unsoundness mind and she has left her matrimonial house on 6- 11-2019 leaving her two daughters. The husband is unable to prove his case by placing sufÏcient material on record. 13. The alleged incident which has been narrated in the suit is not so sufÏcient to declare that the wife was suffering from mental disorder to declare the marriage as null and void. Even otherwise, it is well settled position of law that in order to declare the contract to be null and void on the ground of fraud or unsoundness mind of the other party, it has to be proved by the appellant by recording some evidence which can throw the light in issue directly. In absence of such material on record, it cannot be held that the wife is suffering from unsoundness mind and the agreement and marriage between the husband and wife deserve to be declared as null and void on this count alone. 14. Considering all the aspects of the matter, we are of the view that the learned Family Court has not committed any illegality or perversity while dismissing the suit warranting any interference by this Court. Accordingly, the instant First Appeal being devoid of merit deserves to be and is hereby dismissed. Sd/- (Rajani Dubey) Judge Sd/- (Narendra Kumar Vyas) Judge RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.03.19 19:01:08 +0530 Raju
Arguments
Mr. Suresh Tandan, Advocate. None appears despite service of notice. CORAM: Hon’ble Mrs. Justice Rajani Dubey & Hon’ble Mr. Justice Narendra Kumar Vyas. C A V Judgment 1. This is first appeal filed by the appellant/plaintiff under Section 19(1) of the Family Court Act against the judgment and decree dated 24-12-2021 (Annexure A/1) passed by the learned Family 2 Judge, Raigarh, District Raigarh (CG) in Civil Suit No. 55-A/2021 by which the suit filed by the husband/plaintiff for declaring the marriage to be null and void, has been dismissed. 2. The parties are described as per their status before the Family Court. The Appellant/plaintiff has been described as husband and respondent/defendant has been described as wife in the suit before the learned Family Court. 3. Brief facts as reflected from the record are that the husband filed a civil suit mainly contending that; A. He and his wife are Muslims and are governed by the Muslim Shariat and customs. The marriage between them was solemnized according to Muslim customs on 29/12/2007 at Madhuvanpara Bhanupratap Colony, Kaserpara, Raigarh District, Raigarh (CG). Further case of the husband is that as per Muslim law, marriage is a contract between two parties. It has been further contended that the wife was mentally deranged and insane even before the marriage, but this fact was concealed by the parents of the wife and the consent of the husband for the said contract was obtained fraudulently. It is also case of the husband that after the marriage, the wife who is mentally disturbed used to behave in a manner which would frighten the husband. She used to get angry suddenly, beat him, attempts to commit suicide by hanging herself from the fan, by attacking with a sharp weapon, etc. Despite this the husband used to perform his marital duties and from their wedlock twin daughters namely Arju Bano and Sana Bano aged 12 years respectively were born on 13/09/2008. The wife used to harass him by causing injuries to children and also assaulting them without understanding the welfare of herself and the children. 3 She used to behave with cruelty and inhumanly with the children. B. It has also been contended that the husband who is in the textile business had to stay out of the house for his business purpose, but due to the mental disorder of the wife, the husband had to take care of the children causing difÏculty to run his business. It is also case of the husband that in the month of August, 2019, the wife became completely insane and suffered from chronic brain disorder. She started behaving in such abnormal manner which was extremely aggressive and seriously injurious to life of the husband and the daughters. The daughters at all times remained in fear because of untoward incident which may be caused by the wife. C. Further case of the husband that he took the wife to Central Psychiatric Institute, Ranchi (Jharkhand) on 31/08/2019 for treatment where the wife was admitted on 02/09/2019 and her treatment continued till 05/11/2019 and she was alright after getting treatment, but despite the above, there is no change in her behaviour and started harassing the others and due to her fragmented mentality, she continued to commit dangerous acts and started doing acts with the intention of committing suicide or causing physical harm to the husband and her daughters, causing unpleasant incidents. She also started exposing her body parts in front of everyone which also started having a mental and adverse affect on the daughters of the husband and all of a sudden wife voluntarily left her matrimonial home on 06/11/2019 and was staying in her parental house. Therefore, he has filed a suit for declaring the marriage between them as null and void. 4 4. Learned Family Court issued notice to the wife for her appearance but she could not appear on 16-8-2021 due to Covid Pandemic. Therefore, learned Family has directed for publication of the notice in the newspaper and also by ordinary mode as well as by registered post. Accordingly, the notice was served on wife on 22-9- 2021 but she remained absent, therefore, the learned Family Court proceeded ex parte against the wife. 5. The husband examined himself before the learned Family Court on 23-10-2021 and examined witnesses namely Mohd. Sajid (PW/1), Ahmad Ali (PW/2), Saverat Ahmed (PW/3) and Murarilal Agrawal (PW/4) and also submitted the documents, thereafter the matter was fixed for final hearing on 24-12-2021. By the impugned judgment and decree dated 24-12-2021 learned Family Court has dismissed the suit filed by the husband. Being aggrieved by this order, the husband has preferred this First Appeal (MAT) before this Court. 6. Learned counsel for the husband would submit that the learned Family Court has committed illegality in dismissing the suit though it was ex parte proceeding and the wife has not adduced any evidence to rebut the allegation leveled by the husband, despite this fact the learned Family Court has dismissed the suit He would further submit that the learned Family Court has ignored the vital evidence adduced by the husband which clearly demonstrates that the wife was of unsound mind, there was no cross examination to it and despite clinching evidence on record, the learned Family Court has dismissed the suit. Thus, he would pray for allowing this appeal. To substantiate his submission he has relied upon the