Husband putting a Mangalsutra and put sindoor on her hair without customs under Hindu Law - Not a Legal Marriage

Hindu Marriage Act, 1955 Section 7 - Love affair between parties - Contention of wife that marriage was performed - Husband putting a Mangalsutra and put sindoor on her hair, before the idol of Lord Krishna - No proof that marriage was performed as per the customs under Hindu law - Also no proof that parties co-habitated after marriage - Held, not a legal marriage

Bombay High Court Judgments

BOMBAY HIGH COURT (D.B.)

Before :- B.P. Dharmadhikari and Mrs. Swapna Joshi, JJ.
Family Court Appeal No. 57 of 2015. D/d. 31.1.2017.

Shri Nitin s/o Omprakash Agrawal Aged about 38 years, occu: Business R/o Apartment No.303, Jagat Apartment Ravi Nagar, Nagpur. - Petitioner
Versus
Smt. Rekha w/o Nitin Agrawal (falsely claiming so) Aged about 36 years, occu: Household R/o Flat No.304, Shri Vinayak apartment, Gopalnagar, 3rd Bus Stop Nagpur22. - Respondents

For the Petitioner :- A.S. Jaiswal, senior counsel with H.R. Gadhia, Advocates.
For the Respondent :- S.G.Joshi, Advocate.

JUDGMENT
Mrs. Swapna Joshi, J. - The appellant/husband has preferred the present Appeal under section 19 of the Family Court's Act,1984 read with Section 28 of the Hindu Marriage Act 1955, being aggrieved by the judgment and order dated 1.4.2015 passed by the learned Judge, Family Court No.2, Nagpur, whereby the Petition No.A. 1087/2013 filed by the respondent/wife for restitution of conjugal rights, under section 9 of the Hindu Marriage Act has been allowed.
2. The brief facts giving rise to the Family Court Appeal are as under : The respondent was married with one Rajesh Balkrishna Deshpande in the year 1998. She has begotten two children out of the said wedlock. There was a divorce between respondent and Rajesh Deshpande on 23.8.2007. However, in the interest of children, both of them continued to stay together in the same flat situated at Gopalnagar. In the year 2011, the respondent joined Manjusha Convent, situated at Dharampeth, Nagpur, as a parttime teacher. In the same building, on the ground floor, the appellant was running a Tent house (Bicchayat Kendra). It would not be out of place to mention here that appellant is from Marwari community, whereas the respondent is Maharashtrian Brahmin. The respondent came in contact with the appellant. There was love affair between them which continued for about 6 to 7 months, inasmuch as they exchanged text messages and met each other very often. The appellant got married with respondent on 16.4.2012 by putting a Mangalsutra and applying vermillion on parting of hair, before the idol of Lord Krishna, on 3rd floor of Jagat Apartment, Ravinagar, Nagpur. Physical relations were established between the appellant and respondent since then. The appellant had sexual relations with the respondent on many occasions on the third floor as well as sixth floor of Jagat Apartment where the parents of appellant used to reside. The parents of appellant were oblivious about the said relationship between the appellant and respondent. At the relevant time, they used to stay sometimes at Hyderabad with their daughter and some time at Dubai with their son. Parents of the appellant opposed the marriage between appellant and respondent. They alleged that there was no marriage between appellant and respondent. In due course, they arranged a marriage of appellant in their own community, with a girl residing at Raipur {Chhatisgarh}. The engagement ceremony of the appellant was performed with that girl on 4.8.2013.
3. The respondent lodged a complaint against the appellant at Ambazari Police Station alleging offence of rape and cheating. It is the allegation of the respondent that the appellant has committed rape on her, on the allurement and promise of marriage. The respondent lodged a complaint with the police on 11.9.2013. The respondent lodged a complaint with the Human Rights Commission also. As the appellant started avoiding the respondent and did not keep his promise to marry respondent before the society, she filed a petition for restitution of conjugal rights, under Section 9 of the Hindu Marriage Act.
4. It is the case of the appellant that on 7.8.2013, the respondent demanded an amount of L 10 lakhs threatening to implicate him in a false case of sexual harassment. The appellant, under duress, paid an amount of L 2 lakhs on 8.8.2013 to the respondent, in order to save himself and his family members from the false report and tarnishing the reputation in the society. On the same day, the appellant received a text message from the Mobile Number of the respondent expressing her happiness over receiving the amount for which she remained grateful to him. On 9.8.2013 the respondent withdrew all the allegations against the appellant, by giving in writing on stamp paper of L 100/.
5. It is alleged that the respondent continued to send SMSs to the appellant After about 2/3 days, the respondent visited the shop of appellant along with her exhusbandRajesh Deshpande and demanded an amount of L 10 lakhs. She threatened to lodge report with the Police against the appellant. The appellant realised that the respondent was blackmailing him.
6. The appellant filed his written statement and denied the averments made in the petition. The appellant contended that the respondent has wrongly represented herself to be his wife, in the absence of any proof thereof. The appellant submitted that the respondent has mentioned her name as `Rekha Ashok Chandrayan' in the FIR. The FIR does not disclose that the appellantNitin is her husband. It is submitted that, in the FIR the respondent has not mentioned the date of marriage whereas, in the petition for restitution of conjugal rights, she has mentioned the date of marriage as 16.4.2012. According to the appellant, as per Section 7 of the Hindu Marriage Act, no ceremonies prevailing in the community of either of the parties, have been performed. Therefore, there is no marriage between the appellant and respondent, in the eyes of law. The appellant further contended that on 7.8.2013 the respondent had demanded L 10 lakhs from the appellant and when he expressed his inability to hand over the said amount, she got annoyed and threatened him to implicate in a false case of sexual harassment.
7. The respondent examined herself as well as Nodal Officer on her behalf. The appellant examined himself.
8. On the basis of aforesaid pleadings, the evidence led by the respective parties and after hearing both the sides, learned Judge of the Family Court recorded a finding that the respondent is entitled for decree for restitution of conjugal rights. The appellant has challenged the said judgment and decree.
9. Mr. Anand Jaiswal, learned senior counsel with Mr. Gadhia, counsel for the appellant vociferously argued that the learned Judge, Family Court erred in granting the decree of restitution of conjugal rights in favour of respondent. He further argued that there was no marital tie between the appellant and respondent. He invited our attention to the FIR (Exh.50) lodged by respondent on 11.9.2013 at Ambazari Police Station which does not disclose the date of marriage although it was an important event in the life of the respondent. Later on, the respondent came up with the date of marriage as 16.4.2012 almost one month after lodging of the FIR. Mr. Jaiswal, pointed out that the FIR reveals the name of the respondent as Rekha Chandrayan and father's name as Ashok Chandrayan. Likewise, her residential address is mentioned as Gopalnagar, Vinay Apartment, Flat No. 304. The FIR does not disclose the name of respondent in marital name i.e. appellant 's name. He further submitted that the respondent has not mentioned the customary rites or religious ceremonies of marriage performed in accordance with either Marwari community or Brahmin community. According to him, as per Section 7 of the Hindu Marriage Act, ceremonies are required to be performed like `Saptapadi' or `phere' for marriage and if it is not done, it is no marriage in the eyes of law. He further submitted that the shop of the appellant was on the ground floor of the building whereas the respondent used to attend Manjusha Convent on the above floor. Except that acquaintance there was no relationship between the parties. He submitted that once the respondent had requested the appellant for financial help of L 5000/which was extended by him, on humanitarian grounds. According to Mr. Jaiswal, on 4.8.2013, engagement of appellant was performed on which occasion, the respondent congratulated. However, all of sudden, on 7.8.2013, the respondent demanded an amount of L 10 lakhs from the appellant, threatening that he should pay the amount else, she would lodge a report with Police about sexual assault by him and his proposed marriage would be endangered. Mr. Jaiswal submitted that therefore in order to save his engagement and reputation in the society, the appellant agreed to pay an amount of L 2 lakhs to the respondent which she acknowledged, sending the text message mentioned supra. Thus, according to Mr. Jaiswal, there was no marriage between the parties and, as such, there is no question of restitution of conjugal right, as claimed by the respondent.
10. Learned counsel for the respondent, Mr. S.G.Joshi, contended that the marriage took place between the parties in front of idol of Lord Krishna, on third floor of Jagat Apartment. It is not at all the case of respondent that the marriage took place as per the customs of any of the communities to which the parties belong. According to Mr. Joshi, as there was continuous physical relationship between the parties, the trial Court rightly came to the conclusion that marriage was performed between the parties. Mr. Joshi submitted that as the appellant had admittedly handed over the amount of L 5,000/to the appellant earlier and thereafter the amount of L 2 lakhs, on demand, the said fact itself shows that certainly there was existence of relations between the parties as husband and wife. Mr. Joshi, contended that it was Gandharva marriage between the parties as the respondent was not aware of Marwari ceremonies and as she was informed by the appellant that they married as per the Marwari customs, therefore, the respondent agreed to keep physical relations with appellant. Mr. Joshi submitted that no doubt on the stamp paper of L100/the respondent withdrew the allegations against the appellant. However, it is not clear as what were the allegations exactly and this fact itself shows the relationship between the parties. Lastly, he submitted that learned Family Court has rightly passed the judgment in favour of the respondent .
11. After hearing learned counsel for both the sides and on a perusal of the original record and proceedings, the following points arise for determination:
    (1) Whether the marriage was solemnised between the parties on 16.4.2012 ? .. .. No.
    (2) Whether the appellant is entitled for quashing and setting aside the order of restitution of conjugal rights passed by the learned Judge of the Family Court? ..Yes.
    (3) What order ? .. Appeal is allowed.
12. Before proceeding with the facts and circumstances of the case, it would be necessary to go through the admitted facts in the Appeal.
It is fairly admitted that the respondent was married with one Rajesh Balkrishna Deshpande, in the year 1998. There was a divorce between Rajesh and respondent on 23.8.2007. It is not disputed that Rajesh and respondent were residing at Gopalnagar, with their two children and they stayed together even after divorce till March, 2014. It is not disputed that the respondent was serving as a Teacher in Manjusha Convent, which is situated in the building where the appellant was doing the business of Tent house. It is also not in dispute that the appellant possesses his residential accommodation on the third and sixth floors of Jagat Apartment. It is also not seriously disputed that the appellant and respondent were acquainted with each other from 2011 onwards and the respondent had visited the two flats of appellant in Jagat Apartment, to see the interior work. It is an admitted fact that the respondent had lodged a complaint against the appellant with Human Rights Commission, which was subsequently withdrawn. It is also an admitted fact that there was exchange of text messages between the parties, that too at odd hours. It is not in dispute that the respondent had acknowledged the receipt of amount of L 2 lakhs from the appellant and accordingly sent him text message expressing thanks and gratitude. It is not in dispute that the parents of the appellant were residing in Jagat Apartment and they used to reside sometimes at Hyderabad with their daughter and sometimes at Dubai, with their another son.
13. In the backdrop of the abovereferred facts, we have to examine whether there was a marriage between appellant and respondent , as per the provisions of Hindu Marriage Act. As discussed supra, a short point involved in the present Appeal is, whether there was a valid marriage between appellant and respondent as alleged, or it was a livein relationship between them. It is the specific case of the respondent that they got married as per the customs prevailing, inasmuch as the marriage took place before the idol of Lord Krishna on 16.4.2012 and as per the Hindu rites and traditions the marriage was performed at Apartment No.303, Jagat Apartment, Ravinagar, Nagpur. The appellant put vermillion mark on the forehead of the respondent and he put on Mangalsutra on her neck. The appellant also offered a garland to the respondent and as per the usages and convention, offered saree, blouse and other clothes to her. After marriage, there was a relationship between the parties as husband and wife for more than oneandahalf years. According to the respondent, she insisted for registration of marriage with Registrar of Marriages. However, there was no such registration of marriage for which, admittedly, the respondent never raised any legitimate grievance. According to the respondent, nobody was informed about the said marriage, so much so, even the parents of appellant were not aware of the said marriage as the appellant did not disclose about the said fact to them. The appellant kept on saying that as he belongs to Marwari community, huge dowry is required to be offered in the marriage and furthermore, she being Maharashtrian Brahmin, could not be accepted by his parents. The appellant, however, promised her to perform a customary marriage for the sake of society, family and friends. In her crossexamination, the respondent admitted that she knows that for solemnization of Hindu marriage, certain rituals are to be performed, those rituals may be different. She however stated that she does not know the first rites in Agrawal community is of `Dwarchar' which means mother of bride performs pooja of groom on his first arrival at the entrance gate and further does not know whether the bride and groom exchange garlands which is known as 'Varmala' and certain mantras are chanted and the bride and groom take round around the sacred fire (Saptapadi). She stated that she does not know that parents of bride gifts bride which is known as `kanyadan'. She however admitted that she had never seen such a marriage in which only two rites i.e.of Sindur and Mangalsutra are performed. The said version of the respondent clearly indicates that she was aware of the fact that in any marriage only two rites i.e. Sindoor and Mangalsutra are not performed.
14. As against this, the case of the appellant is that in Agrawal community, marriage procedure is as follows :
    1) The marriage function starts from the function known as Bhauhaath (Ganesh Pujan)
    2) Haldad Ban: the function of applying turmeric to the bride and groom at their respective places.
    3) Chakbhat a type of ritual performed for Mama by groom's mother.
According to the appellant, there was absolutely no marriage between him and respondent, as alleged by the respondent .
15. In order to verify the truthfulness or otherwise in the version of the respondent, it is necessary to go through the contents in the FIR lodged by the respondent with Ambazari Police Station, Nagpur, being No. 246/2013, on 11.9.2013. In fact, it was the complaint against the appellant u/ss. 376 and 417 of the IPC. The FIR reveals the name of the respondent as Smt. Rekha Ashok Chandrayan which was her maiden name. She had specifically stated in the complaint that she was married with Raja Balkrishna Deshpande in the year 1998. There was a divorce between them in February, 2007. However for the sake of children, they are residing together, even after divorce. The said version clarifies that respondent was residing with her exhusband on 11.9.2013, since her marriage that took place some time in 1998. If that was the case of the respondent, then there was no question of residing with appellant at Jagat Apartment, after her alleged marriage with him on 16.4.2012. As regards marriage, it is mentioned in the complaint that on one of the occasions, in the afternoon, the appellant called her on phone on the third floor to his apartment. Accordingly, she went to 3rd floor of Jagat Apartment and infront of Lord Krishna, the appellant put Sindoor on her forehead and also put Mangalsutra on her neck and declared that they were married. After two days, the respondent was called by the appellant on 6th floor of Jagat Apartment. The appellant told her to wear red saree while coming and thereafter physical relationship between the appellant and respondent were established. Significantly, the respondent deposed before the Family Court that the clothes were offered to her at the time of marriage and garland was put on. There is discrepancy in the version of respondent as regards time of offering the red saree to her. The contents in the FIR make clear that the respondent was aware that respondent was not married with the appellant and, therefore, she had mentioned her maiden name in the complaint. Moreover, the respondent never disclosed her marriage to anyone in the society, including the neighbours or relatives. No witness is examined by the respondent on her behalf. These facts establish that there was no marriage between the parties, on the date of filing the complaint.
16. Thus, after going through the testimony of the respondent as well as the appellant and on a perusal of the contents of FIR, it is vividly visible that the respondent being a divorcee who had undergone one marriage and having two kids, was certainly aware of the customs and rituals of Hindu marriage. She was no longer a young girl who would have not understood the sanctity of marriage. It is undigestable that respondent, aged about 36 years, was not aware of the rites and rituals and the ceremonies of Hindu marriage. The respondent did not succeed in proving the marriage as per the Brahmin or Marwari community. As per the provisions of Hindu Marriage Act, the marriage must be performed as per the ceremonies, rites and rituals recognised by either of the parties. Even importance is given to Saptapadi in Hindu marriage. Admittedly, no such ceremonies were performed between the parties.
17. Coming to the other part of the evidence, as far as text messages exchanged between the parties are concerned, on 20.8.2013, the respondent sent a message to the appellant, which is at Exh. 89. It reads thus
    "er cukvks eq>s viuh fcoh0 ij eq>ls dksUVDV er rksMks eq>s cl ckr djus nsrs tkoks ,d nks fjIyk; dj nks bruk Hkh ugh ns ldrs eq>s"
The next message was on 29.8.2013 at 8.42 a.m.(Exh.49), which reads thus:
    vki ls oknh lius es Hkh ugh d:axh] vkius eq>s cjckn fd;k] eq>s ikxy fd;k] ejus ds fy;s NksM] vc ;s lc vki ds lkFk d:axh] esjs vkxs fiNs dksbZ ugh jksus ds fy;sA
The third message is dated 30.8.2013 is at 3.00 p.m. (Exh. 42) which reads thus,
    fufru vkidks vkids ?kj okyks us lp es fudky fn;k gksaxk] rks Hkh eS vkils oknh djus ds fy;s rS;kj gwW0 lp es vkidks tkWc djuk pkgh,s eS fHk tkWc d:axh vkidk lkFk nqaxhA
On going through all the three text messages, it is crystal clear that there was no marriage between the parties and, all the while, the respondent kept on insisting that though the appellant did not marry with her, the relationship should be maintained between them. All the three text messages demonstrate that there was no marriage between the parties.
18. The learned Judge of the Family Court has misinterpreted all those text messages and has come to an erroneous conclusion that all the abovereferred text messages proved that there was physical relationship between the parties and there was intimacy between them and, therefore, certainly they had married with each other and it was a valid marriage. In our opinion, though there might be physical relationship, however, there was no valid marriage between the parties as per the provisions of Hindu Marriage Act. Even there was no livein relationship between them, as claimed by the respondent, as there is no cogent and convincing evidence on record to show that the parties resided together at Jagat Apartment.
19. Significantly, in order to prove her case, the respondent has not examined any witness on her behalf to show that at least the appellant and respondent stayed together in Jagat Apartment for certain period.
20. Now coming to the text message with regard to the acknowledgment of the receipt of amount of L 2 lakhs, the said message clearly indicates that the respondent had received the amount of L 2 lakhs from the appellant . According to the appellant, the said amount was paid to the respondent although she was demanding an amount of L 10 lakhs, in order to allow him to marry with the girl with whom he got engaged on 4.8.2013. According to the appellant, since he was in position to hand over the amount of L 2 lakh only, to save his engagement with the girl and the reputation of his family, he handed over the said amount to the respondent. The said fact simply indicates that there was no doubt physical relationship between the parties, however, there is no evidence to show that the parties were married with each other.
The text message at Exh.46 reads thus :
    "fufru vfer dks iqNuk eq>s nk: fiuh gS oks fiyk;sxk eq>s"
The messages at Exh. 46 and 49 are as under :
    "vkidks eq>s cnuke fg djuk gS- vki ds iqjs lekt es- vc ;s dke eS d:axh- iSls f[kykds dsl nckbZ uk vc dsl pysxh 420] 370 dh"
    "igys eq>s feyksxs\ ;k eS Mk;jsDV vWD'ku yWw0 D;ksadh fQj cqykoksxs rks Hkh feyqxha ugha"
All these above-referred messages speak volumes about the reputation and character of the respondent. Those messages never shed light on the fact that the parties were married with each other. The above facts show that neither there was a marriage between the parties nor their subsequent conduct in any manner, indicate that they were married with each other.
21. The compact discs (CDs) relied upon by the respondent nowhere indicate that there was marriage between the parties and, therefore, are not helpful to the respondent.
    Section 7 of the Hindu Marriage Act,1955 reads thus:
    "(1) A Hindu marriage may be solemmnized in accordance with the customary rites and ceremonies of either party thereto.
    (2) Where such rites and ceremonies include the saptapadi ( that is, the taking of seven steps by the bridegroom and the bride jointly before the scared fire), the marriage becomes complete and binding when the seventh step is taken."
It is also necessary to go the relevant provisions of Sections 50 and Section 114 of the Evidence Act, which are couched in the following terms :
    Sec. 50: Opinion on relationship, when relevant When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
    Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act,1869 ( 4 of 1869), or in prosecutions under sections 494, 495, 497 or 498 of the Indian penal Code (45 of 1860).
    Section 114 : Court may presume existence of certain facts: the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
22. On going through the abovesaid provisions, the existence of marriage between the appellant and respondent is not seen in the present case. Likewise, it is very difficult to presume in the present case from the conduct of the parties that there was relationship between the appellant and respondent as husband and wife.
23. Moreover, where a marriage is alleged to have been performed in accordance with any modified form of Shastric Hindu Law, it must be pleaded and proved as a custom. In the absence of a plea as to the custom, no amount of evidence can be looked into.
24. Learned counsel for the appellantappellant placed reliance upon the judgment, reported in AIR 1987 BOM 27:(Ningu Bamane and others v. Sadashiv Bamane and others) wherein it was held that Pat marriage between the parties which is recognised and approved form of marriage, it is held in that case that when a man and woman live together as husband and wife for sufficiently long time and were treated as husband and wife by friends, relatives and neighbours, there is always a presumption in favour of their marriage. The abovesaid case law is not applicable to the facts of the present case, as it is not the case of the respondent that they were teated as husband and wife by friends, relatives or neighbours. In fact, there is absolutely no evidence on record to show that the appellant and respondent stayed together in Jagat Apartment as husband and wife, apart from bare words of the respondent .
25. Learned counsel for the appellant placed reliance upon the judgment reported at 2009(4) R.C.R.(Civil) 252 : (2009) 15 SCC 184: (M.Yogendra and others v. Leelamma N. and others) wherein the issue of property was involved. Paragraph 20 of the same reads thus:
    " .....Before the court, evidence in different forms may be adduced. Information evidence may be one of them. But for the purpose of arriving at a conclusion as to whether a valid marriage has been performed or not. The court would be entitled to consider the circumstances thereof. There may be a case where the witnesses to the marriage are not available. There may also be a case where documentary evidence to prove marriage is not available. It is in the aforementioned situation, the information of those persons who had the occasion to see the conduct of the parties they may testify with regard to the information (sic opinion) they form probably the conduct of the persons concerned."
26. As already discussed, except the bare words of the respondent, there is absolutely no evidence on record to show that there was a valid marriage between the parties on 16.4.2012. It is not at all the case of the respondent that apart from appellant and respondent anybody else was present at the time of marriage. In these circumstances, it is difficult to rely upon the bare words of respondent. In fact, there was no occasion to see the conduct of the parties i.e. their behaviour as appellant and respondent in the society. There is absolutely no evidence on record to show that the parties stayed together as husband and wife and their friends and relatives presume them to be husband and wife. The respondent continued to stay with her exhusband. No evidence came on record that she stayed for a few days or at night time at Jagat Apartment. There is no evidence that neighbours treated that the respondent was the wife of the appellant. On the contrary, it is clear that society continued to recognise the respondent and Rajesh/(exhusband) as married couple. The appellant and respondent never cohabited as husband and wife at Jagat Apartment or anywhere else. The fact, however, remains that the society never recognised the appellant and respondent as a married couple.
27. In AIR 1965 SC 1564 : (Bhaurao Lokhande v. State of Maharashtra and another), it is held by the Hon'ble Apex Court the term "solemnize" means, in connection with a marriage, `to celebrate the marriage with proper ceremonies and in due form, according to the Shorter Oxford Dictionary. It therefore follows, therefore, that unless the marriage is celebrated or performed with proper ceremonies and in due form, it cannot be said to be solemnized. Thus, the ceremonies as claimed by the respondent were not prescribed by law or approved by custom and therefore the marriage does not come within the purview of Section 7 of the Hindu Marriage Act.
28. In Kochan Rani v. Mathevan Kani reported in 1971(2) SCC 345, the Hon'ble Apex Court in paragraph no.6 observed thus,
    "6.....................It is well established that in the matter of custom a party has to plead in specific terms as to what is the custom that he is relying on and he must prove the custom pleaded by him. He cannot be permitted to prove a custom not pleaded by him. In Abdul Hussain Khan v. Bibi Sona Dero AIR 1917 PC 181,the Judicial Committee observed: "It is, therefore, incumbent upon the plaintiff to allege and prove the custom on which he relies". That was also the view taken by this Court in Thakur Gokalchand v. Parvin Kumari AIR 1952 SC 231. The reason for this is rule is obvious. Anybody who puts forward a custom must prove by satisfactory evidence the existence of the custom pleaded, its continuity and the consistency with which it was observed. A party against whom a custom is pleaded must have a notice as to what case he has to meet. The opposite party apart from rebutting the evidence adduced by the plaintiff may be able to prove that the custom in question was not invariably followed. He cannot get ready with that evidence without knowing the nature of the custom relied upon by the plaintiff. Therefore all that we have to see in the present case is whether the respondent has established the custom pleaded by him. ...."
29. The learned Judge of the Family Court has wrongly shifted the burden upon the appellant. In fact, it was for the respondent to prove that the marriage was performed as per the customs under Hindu law. She has failed to prover her cohabitation with the appellant after the alleged marriage, as husband and wife. There is absolutely no iota of evidence in that regard, of the neighbours, relatives or friends of the respondent. Surprisingly, the children of the respondent were also not aware of the so called marriage between the appellant and respondent. No evidence in that regard is adduced on behalf of the respondent. The society was not knowing about the divorce between the respondent and her exhusband as they continued to stay together as husband and wife, for the sake of their children. It is interesting to note that if the respondent claimed to be legally wedded wife of the appellant, then she should have challenged the engagement of the appellant with a girl from Raipur, however, she kept mum. On the contrary, she accepted the amount of L 2 lacs from the appellant and kept mum. She also withdrew the allegations against the appellant. The behaviour of the respondent leads to the conclusion that there was no marriage between the appellant and respondent. In fact, the onus rests upon the respondent to prove that there was a valid marriage between the appellant and respondent.
30. It would be useful to refer to the judgment of this Court in case of Mr Raj Amarsingh Gulale v. Mrs.Manasi Raj Gulale, reported in 2015 (3) ALL MR 365, wherein it is held that merely because there was exchange of the calls between the parties, that does not necessarily mean that the parties were husband and wife. Those call details did not show that marriage took place between the parties.
31. In the instant case also, there are numerous phone calls between the parties. However the said fact does not necessarily indicate that there was a marriage between the appellant and respondent. Even the CDs which are relied upon by the respondent, do not show that marriage existed between the appellant and respondent.
32. In 2011(4) R.C.R.(Civil) 304 : 2011 (15) SCC 531 in case of Pallavi Bharadwaj v. Pratap Chuhan, the Hon'ble Apex Court observed that there is no document about marriage or any acceptable material relating to marriage, hence the Apex Court restored the judgment of Family Court which had held that since the marriage was not performed, there is no question of decree for restitution of conjugal rights.
33. In the instant case also, the respondent failed to prove that there was a marriage between the appellant and respondent. There is no proof to substantiate the case of the respondent in that regard. No one attended the said marriage. The alleged marriage was not celebrated with proper ceremonies. In fact, there was no marriage between the appellant and respondent, as claimed by the respondent; there was no cohabitation between the parties; they were never recognised as husband and wife by the society. Even there was no livein relationship between the parties. They never stayed under the same roof as husband and wife. There is absolutely no iota of evidence in that regard. On the contrary, evidence on record demonstrates that the respondent was residing with her exhusband and children at Gopalnagar, Nagpur. In this view of the matter, it is held that the respondent has failed to prove that she was a legally wedded wife of appellant. Hence, the point No.(1) is answered in negative.
34. As regards point No.2, since the respondent failed to prove her marriage with the appellant, there is no question of granting the prayer for restitution of conjugal rights. The Appeal is, therefore, allowed and the judgment and decree passed by the learned Judge of the Family Court is quashed and set aside.
35. Thus, in view of the fact that no marriage is proved between the parties, there is no question of granting the prayer for restitution of conjugal rights to the respondent. Hence the following order:
ORDER
36. The Appeal is allowed.
37 The judgment and decree dated 1.4.2015 passed by the learned Judge, Family Court No.2, Nagpur in Petition No. A1087/ 2013, is set aside.
No costs.
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