The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.73 of 2022 Akshya Mallik …. Appellant -Versus- Satyabhama Jena @ Mallick @ Suli …. Respondent Advocates appeared in this case: For Appellant: Mr. B.K. Routray, Advocate For Respondent: None CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO J U D G M E N T -------------------------------------------------------------------------- Dates of hearing : 9th January, 2024, 13th May, 2024 and 2nd July, 2024. Date of judgment : 2nd July, 2024. ---------------------------------------------------------------------------- ARINDAM SINHA, J. 1.
Legal Reasoning
Mr. Routray, learned advocate appears on behalf of appellant, who was arraigned as respondent-husband in the civil proceeding for divorce instituted by herein respondent, before the Family Court. The asserted marriage was dissolved by said Page 1 of 11 Court on judgment dated 21st January, 2022. He submits, there was no marriage. In the circumstances, there could not have been direction for dissolution of non-existent marriage nor direction for payment of permanent alimony. 2. Respondent goes unrepresented. Here we must record that there is noting dated 19th April, 2024 in order sheet, of respondent having entered appearance through learned advocate. In the circumstances, we reproduce below paragraph 3 from order dated 13th May, 2024. “Order dated 13th May, 2024 3. Mr. Routray is requested to communicate website copy of our order to Mr. Sarangi and file the acknowledgement on adjourned date.” Mr. Routray hands up website copy of our order bearing endorsement dated 26th June, 2024 made by learned advocate engaged by respondent. On query he submits, the learned advocate on receiving the order said, he will do the needful. We took extra step of requesting Mr. Routray to communicate our said order dated 13th May, 2024. The communication was made as aforesaid. In the premises, we proceed to adjudicate the appeal. MATA no.73 of 2022 Page 2 of 11 3. Appellant before us contends there was no marriage. We cannot ask him to demonstrate the negative. So we perused, inter alia, order sheet, written statement filed by appellant and evidence on affidavit filed by respondent. The order sheet reveals, the written statement was filed on 6th July, 2007 but without serving copy to respondent. The lower Court record bears the written statement itself. In it appears endorsement made on behalf of respondent that copy of it was received on 6th July itself. Thus it is clear, the copy was served subsequent to order dated 6th July, 2007, on the day itself. The inference is that respondent thus became aware of case made out by appellant. 4. We reproduce below paragraph-2 and a passage from paragraph-5 in the written statement. “2. That, this proceeding also should be dropped as the petitioner is not the legally married wife of respondent No.1 nor their marriage was solemnized on 7.7.2003 according to vaidic rites at Tahighpalpur under Mahanga P.S. nor any dowry in shape of cash and kind was given by the petitioner. 5.………In fact the petitioner has no occasion to be brought back by Babaji Charan Jena to her parents MATA no.73 of 2022 Page 3 of 11 house from the house of the respondent No.1 in October 2003 as she was never staying in the house of the respondent No.1 as his wife. The respondent No.1 had never gone to the parents house of the petitioner at any point of time nor demanded dowry of Rs.50,000/- for his training nor returned back after hurling abusing words when she refused to meet his demand.” In context of above averments, brought to notice of respondent, we perused her evidence on affidavit dated 14th October, 2011. Respondent asserted the marriage was solemnized on 7th July, 2003 at her permanent residence in Barahapur under Mahanga police station. The allegation had not been made in her petition. 5. At this juncture it is necessary to quote last paragraph from interlocutory order dated 9th August, 2006 of the Family Court.
Decision
“In the result, the petition is allowed. I direct that the defence of the OP/husband be struck off and accordingly his evidence stands expunged due to his willful disobedience of order dated 07.04.2015. Accordingly, the proceeding is to be disposed of ex- parte against the OP.” MATA no.73 of 2022 Page 4 of 11 It appears to us the direction does not preclude us from looking at cross-examination deposition dated 10th September, 2013 of respondent. She said in cross-examination, inter alia that the marriage was solemnized in month of Asadha, on a Saturday. Negotiation of it was held about 15 days prior to the marriage. One Bishnu Charan Mallick was mediator on her side but she cannot name the mediator on behalf of her husband. She also said she had not filed list of articles, which had been given at the time of marriage. She went on to name the priest and ‘kanyapita’. That there was no barber in the marriage. 6. Of the persons respondent had named, as had been present at the time of marriage, Bishnu Mallick (mediator) and Madhusudan Dash (priest) were witnesses from her side. We perused evidence on affidavit dated 29th January, 2014 of Bishnu Mallick (PW2). He did not state with whom on appellant’s side he negotiated the marriage. Moving on, we also perused evidence on affidavit dated 12th August, 2014 of Madhusudan Dash (PW4), said to be priest on respondent’s side. We reproduce below paragraphs 1 to 5 being his statements in the affidavit. MATA no.73 of 2022 Page 5 of 11 “1. That, I know the petitioner and Respondent. 2. That, marriage of the petitioner and respondent was solemnized on dated 7.7.2003 in the house of the petitioner of village-Pahigopalpur as per Hindu rites and customs. 3. That, I was the priest of their marriage. 4. That, the facts stated above are true to the best of my knowledge and belief.” (emphasis supplied) His short cross-examination appearing in deposition dated 10th September, 2015 is reproduced below. “Cross-examination by the ld counsel for the OP: 6. I know Golli OP No.2. The marriage between the parties was solemnized in the month of Asadha. I do not know Akhaya Mallick-OP No.1. I do not remember when I had sworn my affidavit filed in this case. My affidavit has been drafted as per the instruction of the petitioner. It is not a fact that I am deposing falsehood.” (emphasis supplied) MATA no.73 of 2022 Page 6 of 11 We have supplied emphasis to above reproduced evidence adduced by PW4 because we find the witness to be unreliable. He said by his evidence on affidavit, he knew respondent, meaning thereby appellant herein. In cross-examination he contradicted himself to say he did not know Akshaya Mallik- opposite party no.1. He also admitted that his affidavit had been drafted as per instruction of petitioner, respondent herein. 7. Documents tendered by respondent in the Family Court were marked as exhibit nos.1 to 4. Exhibit nos.1 to 3 are documents regarding FIR, seizure list and charge sheet. Exhibit no.4 is order dated 24th April, 2008. These documents cannot be said to be evidence on fact of marriage. The Family Court itself marked a document as exhibit no.C-1. It is salary slip of appellant. 8. From pleadings and evidence adduced by respondent and on her behalf, we are unable to conclude she alleged particulars of the marriage having had been duly solemnized and proved same at trial. That the marriage was solemnized in the house of respondent was adduced as evidence, on omission to plead. Most important, where she had been examined ahead MATA no.73 of 2022 Page 7 of 11 of the mediator on her side and she had failed to identify mediator on side of appellant, omission by the mediator (PW2) to name his counterpart on appellant’s side assumes significance. PW4 said to be the priest, cannot be relied upon. The marriage is said to have been solemnized on 7th July, 2003. Respondent having had alleged it was a negotiated marriage, she did not refer to nor produce a single photograph of the event of marriage taken place at her house or taken of the couple afterward. She having been put to notice on case of no marriage made out in the written statement, did precious little to demonstrate before the Family Court by her evidence, preponderance of probabilities was, the marriage took place. Doubts arise as can be raised in that regard. 9. Her case before the Family Court was that she stayed in her matrimonial home pursuant to solemnization of the marriage. No dowry demand was made at negotiation nor when the marriage took place. Subsequently, when dowry demand was made, she left the matrimonial home. Reproduced below are her statements extracted from deposition dated 10th September, 2013 in cross-examination, paragraph-17. MATA no.73 of 2022 Page 8 of 11 “17. … … … Prior to marriage there was no demand for dowry from the side of the husband. After 6 months of the marriage, for the first time my husband demanded dowry. … … …” It was also her case that she never went back. Having found out that appellant had remarried, she had filed police complaint. In context of her omission by herself and her party witnesses to adduce cogent evidence regarding fact of marriage, we are not impressed with her assertions that dowry demand was subsequently made. 10. Mr. Routray relies on order dated 19th April, 2024 of the Supreme Court in Transfer Petition (C) no.2043 of 2023 (Dolly Rani vs. Manish Kumar Chanchal, paragraphs 27 and 29 (SCC OnLine print). He clarifies, the reliance is to draw support for his client’s contention that there was no marriage. Relied upon paragraphs are reproduced below. “27. The Hindu Marriage Act, 1955 solemnly acknowledges both the material and spiritual aspects of this event in the married couple‟s lives. Besides providing a mechanism for registration of marriages in order to confer the status of a married couple and acknowledge rights in personam and rights in rem, a MATA no.73 of 2022 Page 9 of 11 special place is given to rites and ceremonies in the Act. It follows that the critical conditions for the solemnizing of a Hindu marriage should be assiduously, strictly and religiously followed. This is for the reason that the genesis of a sacred process cannot be a trivial affair. The sincere conduct of and participation in the customary rites and ceremonies under Section 7 of the Hindu Marriage Act, 1955 ought to be ensured by all married couples and priests who preside over the ceremony. 29. But in the instant case, the above parameters have not been followed by the parties herein. In the circumstances, we declare that the „marriage‟ dated 07.07.2021 between the parties is not a „Hindu marriage‟ having regard to the provisions of Section 7 of the Act. Consequently, the certificate issued by the Vadik Jankalyan Samiti (Regd.) dated 07.07.2021 is declared null and void. In view of the above the Certificate issued under the Uttar Pradesh Registration Rules, 2017 dated 07.07.2021 is also declared null and void.” 11. On reasons given above, we are unable to sustain findings given in impugned judgment. We reverse it on holding that from pleadings and evidence available in the record, fact of marriage could not be established by respondent. As such her petition for dissolution of the marriage ought to have been MATA no.73 of 2022 Page 10 of 11 dismissed as misconceived. Mr. Routray submits, his client had filed civil proceeding (C.P. no.421 of 2018) for declaration that there was no marriage. Respondent is not appearing in said civil proceeding, kept pending by the Family Court. We request the Family Court to expeditiously hear and dispose of appellant’s case being C.P. no.421 of 2018. 12. The appeal is allowed and disposed of. (Arindam Sinha) Judge Jyostna/Radha (M.S. Sahoo) Judge Signature Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: OHC Date: 04-Jul-2024 11:48:48 MATA no.73 of 2022 Page 11 of 11