Priya Kumari … v. Sumit Kumar
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No. 322 of 2017 --- Priya Kumari … … Appellant Versus Sumit Kumar … … Respondent --- CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY : HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellant --- : M/s. Lukesh Kumar & Pradeep Kumar, Advocate For the Respondent : M/s. A. K. Sahani & Ajit Kumar, Advocate --- 16/20.04.2023 On various dates on the submission of the learned counsel for the respective parties, it appeared that the parties are ready for amicable settlement for resolving their dispute. Mr. Sahani on 18.04.2023 had submitted that his client had left contact with him for the last four dates and therefore, he is not aware as to whether he is inclined to arrive at a settlement or not. On the same date itself, submission was advanced
Legal Reasoning
examined on his behalf. There is no dispute with respect to the fact that the plaintiff and the defendant were residents of the same place when the marriage had taken place. P.W. 1 – Jugan Kumar Singh is the cousin of the plaintiff who has stated that by putting pressure upon the plaintiff, the defendant had got the marriage registered on 08.05.2014. He has further stated about the plaintiff having never stayed in the house of the defendant nor had she established physical relationship with the defendant. -5- In his cross-examination, he himself has stated that the information which was received by him was on account of the disclosure made by the mother of the plaintiff. The plaintiff has been examined as P.W. 2 and she has basically reiterated the pleadings made in the plaint with respect to her having signed the marriage papers on coercion and on fraudulent representation by the plaintiff and that she had never left the house of the plaintiff nor had established physical relationship with him. She in her evidence has also stated about the institution of a criminal case against the defendant. P.W. 3 – Rita Devi is an independent witness who has stated that she had come to know about the marriage from the mother of the plaintiff. P.W. 4 - Ramla Devi is the mother of the plaintiff and she has also reiterated what has been stated by her daughter (P.W. 2). 13. The defendant has examined himself as D.W. 1 in which he has stated that both have stayed after the marriage solemnized on 08.05.2014 as husband and wife for 8 months. He has further stated that on 24.01.2015, the father of the plaintiff had taken the plaintiff with him on the assurance to come back after 15 days, but she never came back. The defendant has denied that he had ever used force or coercion to get his marriage solemnized with the plaintiff. D.W. 2 – Dharmendra Kumar Paswan is a friend of the defendant who has more or less has supported what has been stated by the defendant himself. 14. What would appear from the evidence of the plaintiff and the defendant is that it is an admitted fact that the marriage was solemnized before the Marriage Registrar on 08.05.2014. Allegations and counter allegations have been levelled by both against each other wherein though the plaintiff has stated that the marriage was never consummated, but the defendant on the other hand has stated that they had lived together for 8 months as husband and wife and physical relationship was also established. It is also an admitted fact that prior to the institution of the suit by the plaintiff under Section 25 of the Special Marriage Act, the plaintiff had filed Dhanbad (Bhuli) P. S. Case No. 236 -6- of 2015 on 13.03.2015 making certain allegations against the defendant, but the same also on investigation ended in final form having been submitted by the Investigating Officer finding the case to be untrue. The defendant in the meantime had also instituted a suit under Section 9 of the Hindu Marriage Act being Title Matrimonial Suit No. 131 of 2015. It has rightly been considered by the learned court below that the allegations which have been made in the FIR instituted by the plaintiff and in the plaint in the present suit are at variance and not at all consistent with respect to the case lodged against the defendant. It further appears from the pleadings that no specific incident has ever been highlighted by the plaintiff to drive home the fact with respect to the coercion and fraud played by the defendant on her leading her to solemnize marriage with the defendant. The pleadings of the plaintiff and the tenor of the evidence further reveals that the present suit has been instituted primarily as a counter blast to the Title Matrimonial Suit No. 131 of 2015 instituted under Section 9 of the Hindu Marriage Act by the defendant. It would therefore appear that the issue no. 3 has rightly been decided by the learned court below in favour of the defendant and against the plaintiff. So far as the other issues are concerned, the same were also decided against the plaintiff and in favour of the defendant and we do not find any reason to interfere in the same. 15. Mr. Lukesh Kumar, learned counsel for the plaintiff – appellant in course of his argument has submitted that though the marriage was registered on 08.05.2014, but since none of the parties have cohabitated together for almost 8 years, the marriage has irretrievably broken down and therefore, in such circumstances the marriage be dissolved. In support of his contention, he has referred to the case of “K. Srinivas Rao Vs. D. A. Deepa” reported in (2013) 5 SCC 226. The following paragraphs have been highlighted by him in support of his contention: “31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband -7- or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.” 16. Although, this issue was never raised while considering the suit filed by the plaintiff under Section 25 of the Special Marriage Act and though there is no provision for grant of divorce on the ground of irretrievable break down of marriage, but since this issue has been raised, we have considered the same. 17. During the proceeding in the present First Appeal, submissions were advanced by the learned counsel for the respective parties that there is possibility of an amicable settlement as both the parties are disinclined to stay together. On various dates, the progress made in terms of the proposed settlement was intimated by the learned counsel for the respective parties, but ultimately it was submitted by the learned counsel for the defendant – respondent that he is not in touch with his client and despite repeated efforts when the same bore no positive result, this matter has been accordingly heard on merits and decided as noted above. 18. The submission of the learned counsel for the appellant with respect to the irretrievable break down of marriage seems to be contradicted by the unwillingness of the defendant – respondent in entering into an amicable settlement for separation with the plaintiff – appellant and this would conclusively prove that the defendant – respondent is not in favour of a divorce which in fact reiterates his stand which has been taken in Title Matrimonial Suit No. 269 of 2015. The conduct of the defendant therefore, does not justify the submission advanced by the learned counsel for the plaintiff – appellant with -8- respect to the marriage having broken down irretrievably and consequently this plea is also negated by us. 19. As a consequence to the discussions made hereinabove, we do not feel inclined to interfere in the judgment and decree dated 23.08.2017 and 01.09.2017 respectively passed by Sri Niraj Kumar Srivastav, learned Additional Principal Judge, Additional Family Court, Dhanbad in Title Matrimonial Suit No. 269 of 2015 and therefore, this appeal stands dismissed. (Rongon Mukhopadhyay, J) (Deepak Roshan, J.) R Shekhar Cp 2
Arguments
by Mr. Sahani that the appeal be heard on merits as there does not appear to be any chance of settlement between the parties in absence of his client. The matter could not be heard on the last occasion on account of absence of Mr. Lukesh Kumar, learned counsel appearing for the appellant. Today both learned counsel for the appellant and the learned counsel for the respondent are present and Mr. Ajit Kumar who is representing the respondent today has clearly submitted that in spite of his best efforts, the respondent could not be contacted and he has reiterated the submission advanced by Mr. Sahani on 18.04.2023 with respect to the hearing of the appeal on merit. 2. 3. Accordingly, the appeal is being heard on merits. Heard Mr. Lukesh Kumar, learned counsel for the petitioner and Mr. Ajit Kumar, learned counsel appearing for the respondents. 4. This appeal is directed against the judgment dated 23.08.2017 passed by Sri Niraj Kumar Srivastav, learned Additional Principal Judge, Additional Family Court, Dhanbad in Title Matrimonial Suit No. 269 of 2015 whereby and whereunder the suit preferred by the -2- plaintiff – appellant for a decree of nullity of her marriage under Section 25 of the Special Marriage Act has been dismissed. 5. The plaintiff being the appellant herein had preferred a suit under Section 25 of the Special Marriage Act for annulment of marriage being Title Matrimonial Suit No. 269 of 2015 in which it has been stated that the marriage of the plaintiff and the defendant was solemnized on 08.05.2014 at Dhanbad in the office of the Marriage Officer, Dhanbad. The marriage between the parties had not been consummated as it was revealed that the defendant had fraudulently by false inducement had put the plaintiff under coercion and pressure and got the fraudulent marriage registered on 08.05.2014 before the Marriage Registrar. When the plaintiff realized about the acts of the defendant and the fraud which had been committed upon her, she had initially lodged a criminal case being Dhanbad (Bhuli) P. S. Case No. 236 of 2015 under Section 420/406/34 of I.P.C. against the defendant with an allegation that the defendant was making all efforts to kidnap her and put her in fear of death. According to the plaintiff, the coercion continued on account of the defendant having filed a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act being Title Matrimonial Suit No. 131 of 2015 with false and frivolous allegations against the plaintiff. It has been stated that the plaintiff has not cohabitated with the defendant and no marital intercourse has been taken place in between the parties, but the defendant is still continuing to harass and threaten the plaintiff. According to the plaintiff therefore, the marriage between the plaintiff and the defendant being voidable be annulled by a decree of annulment of marriage for which the suit was preferred under Section 25 of the Special Marriage Act. 6. The defendant has filed a reply in which there is denial of the allegations made by the plaintiff. It has been stated therein that after marriage both the plaintiff and the defendant had stayed as husband and wife for 8 months and physical intercourse had also taken place with the consent of the parties. It has also been stated that neither the plaintiff nor the defendant had raised any objection within 30 days to the prior notice of the marriage which is an essential facet of Section 7 of the Special Marriage Act, 1954. It has also been stated that even at the time of -3- marriage, the plaintiff was explained the necessary details by the Marriage Officer, but no objection was raised by her even at that point of time. Since the parents of the plaintiff have taken away the plaintiff to their house against the wishes of the defendant, the defendant was constrained to institute a suit under Section 9 of the Hindu Marriage Act on 22.02.2015. It has been stated that the suit under Section 25 of the Special Marriage Act is a counter blast to the suit preferred by the defendant under Section 9 of the Hindu Marriage Act. 7. The issues which were framed by the learned trial court are as follows: 1. Whether the suit as framed is maintainable? 2. Whether the plaintiff has got a valid cause of action for the suit? 3. Whether the marriage of plaintiff and defendant is fit to be annulled on the ground of coercion? 4. To what other relief or reliefs the plaintiff is entitled? 8. Issue no. 3 is the focal point in deciding the suit and so far as the rest issues are concerned, the same are fringe issues which basically depends as a consequence to the findings recorded under issue no. 3. The issue no. 3 was answered against the plaintiff and in favour of the defendant and ultimately the Title Matrimonial Suit No. 269 of 2015 was dismissed by the learned Additional Principal Judge, Additional Family Court, Dhanbad vide judgment dated 23.08.2017 which is the judgment impugned to the present appeal. 9. Advancing his argument, Mr. Lukesh Kumar, learned counsel for the plaintiff – appellant has submitted that the evidences led by the plaintiff have not been properly appreciated by the learned court below. It has been submitted that since a fraud was played on the plaintiff by the defendant and since the same came to her notice, a suit was instituted by her. It has also been submitted that not even for a day the marriage between the plaintiff and the defendant was consummated. Learned counsel further submits that more than 8 years have passed since the date of marriage and none of the parties has cohabitated during the said period, the marriage has irretrievably broken down which is an added feature of the case which has not properly been considered by the learned court below. He therefore submits that the findings recorded -4- with respect to issue no. 3 by the learned Additional Principal Judge, Additional Family Court, Dhanbad is perverse and accordingly the judgment dated 23.08.2017 be set aside. 10. Countering the submission advanced by the learned counsel for the appellant, Mr. Ajit Kumar, learned counsel appearing for the defendant – opposite party has submitted that institution of the suit was basically a counter blast to the suit instituted by the defendant under Section 9 of the Hindu Marriage Act in Title Matrimonial Suit No. 131 of 2015. It has further been submitted that in fact the suit instituted by the plaintiff was not only preceded by the suit instituted by the defendant under Section 9 of the Hindu Marriage Act, but also by a criminal case being Dhanbad (Bhuli) P. S. Case No. 236 of 2015 in which also allegation of fraud and coercion was levelled against the defendant, but the allegations in the FIR and the suit instituted by the plaintiff appears to be poles apart which further indicates that for the purpose of staying separate from the defendant, the plaintiff has manufactured certain allegations which has rightly been considered by the learned court below while dismissing the Title Matrimonial Suit No. 269 of 2015. 11. We have considered the rival submissions of the parties and have also perused the lower court records. 12. The primary issue which was under consideration before the learned Additional Family Court was issue no. 3 which was with respect to consent of the plaintiff obtained under coercion by the defendant and on such ground, the marriage between the plaintiff and the defendant is fit to be annulled. The plaintiff in course of the trial has examined 4 witnesses including herself while two witnesses by the defendant were