(Appeal under Section 28 of H.M. Act against the order/decree in OP No.55 and 125 of 1993 dated 13/10/1997 on the file of the court of the 2nd Additional Subordinate Judge, kakinada)

Oral Common Judgment: (DSRV, J.)

Heard both sides.

2. Since the subject matter in both the appeals is interrelated and the order being common, we dispose of the same by this common judgment.

3. The husband is the appellant and the wife is the respondent in both appeals.

4. For the sake of convenience, the appellant and the respondent in both the appeals will be referred to as €˜the husband €™ and €œthe wife € , respectively.

5. The facts, which ware not in dispute, are that O.P.No.55 of 1993 was filed by the wife for restitution of conjugal rights while O.P.No.125 of 1993 was filed by the husband under Section 12(1)(C)of the Hindu Marriage Act, 1955 (for brevity €œthe Act € ) for a declaration that the marriage between the parties as nullity on the ground that the marriage was performed by force. O.P.No.55 of 1993 filed by the wife was decreed while O.P.No.125 of 1993 filed by the husband was dismissed. Aggrieved by the same, the present appeals have been preferred by the husband.

6. It is the contention of the husband that he belongs to a particular community and the wife belongs to another community, who live by prostitution. The brother of the wife was the friend of the husband. On 21-03-1992 when the husband was in his office on duty, the wife sent somebody and he was taken away in a car to Annavaram temple by kidnapping him; that he was unconscious while he was being shifted to Annavaram temple and after he gained consciousness he was threatened to marry the wife. All the people who were present at that time wrongfully confined him and performed the marriage, which was illegal. It is also the further contention of the husband that the said marriage was performed with the connivance of the Superintendent of Annavaram temple and some photographs were also taken on order to show that the marriage was performed between the husband and the wife. After the marriage was performed, the spouses were brought down from the temple and they were brought to Kakinada on the same day at 09-00 P.M. In fact, they were taken to the house of the wife where the husband was threatened with dire consequences if the fact of marriage was divulged to others. The husband was mentally depressed and hence he did not tell this fact to anyone till 03-04-1992 on which date he gave a report to the police, and a case in Crime No.47 of 1992 was registered against the wife and some others for the offence of kidnap and the same was numbered as C.C.No.127 of 1993 on the file of IV Additional Judicial Magistrate of First Class, Kakinada. Subsequently, the said case ended in acquittal. The wife also gave a report against the husband and his parents and a case was registered for the offence punishable under Section 498-A of the Indian Penal Code, which was numbered as C.C.No.96 of 1993. This case also ended in acquittal.

7. At this juncture itself, it is to be noted that it is the wife who gave the complaint under Section 498-A of the Indian Penal Code at the first instance and later the husband gave the complaint against the wife for the offence of alleged kidnap. The other details in this regard are not relevant since the fact of filing cases against each other for different causes and the result thereof is not in dispute.

8. The contentions of the wife are that she filed O.P.No.55 of 1993 for restitution of conjugal rights that the marriage was performed between the parties only with consent of the husband; rather the marriage was not a forced one and that after the marriage was performed on 21-3-1992, the marriage was also consummated on the same night.

9. Common evidence was recorded in O.P.No.125 of 1993. To substantiate their relative contentions, the husband examined himself as P.W.1 and another as P.W.2 and got marked Exs.A-1 to A-4 while the wife examined herself as R.W.1 and 6 others as R.Ws.2 to 7 and got marked Exs.B-1 and B-2. With the consent of both parties, Exs.X-1 to X-9 were marked. Exs.X-1 to X-7 are the photographs, Ex.X.8 is the receipt for a sum of Rs.50/- issued by Annavaram Temple while Ex.X-9 is the receipt for a sum of Rs.58/- issued by the Purohit of Annavaram Temple.

10. The Court below having gone into the entire material, including the evidence, both oral and documentary, available on record, eventually passed the impugned common order and decrees allowing O.P.No.55 of 1993 filed by the wife and dismissing O.P.No.125 of 1993 filed by the husband. Having been aggrieved by the said common order and the decrees, the present appeals are preferred by the husband.

11. The husband who was examined as P.W.1 deposed to the effect that he and his wife belong to different communities. It was admitted by him that he used to visit the house of his wife since the brother of the wife happened to be his friend; that when he was in the office on 21-03-1992, somebody came at 12-30 P.M., and when he came out there was an Ambassador car stationed outside of his office and he was taken away forcibly in the said car. This was witnessed physically by one person who was examined as P.W.2; that he was made to loose consciousness and when he again gained consciousness he found some people at Annavaram temple and he was threatened that he would be killed if he did not marry the wife and with that fear he agreed to marry the wife.

12. He further stated that the marriage was over by o4-25 P.M., and photographs were also taken. He also referred to the criminal complaints and consequential cases filed by both the parties, as referred to above.

13. It appears from the evidence of P.W.1 that the wife was a graduate and was working as a teacher in a school. In the cross-examination, however, he denied the payment of Rs.58/- to the Purohit, who performed the marriage, and the receipt given by the Purohit, which was marked as Ex.X-9. He also denied the receipt under Ex.X-8 issued by Annavaram temple, which discloses the fact that the husband himself booked the temple for the purpose of marriage. He admitted Exs.X-2 to X-9 but denied his presence in Ex.X-5.

14. P.W.2 who is a colleague of the husband deposed to the effect that some persons came to the office and asked him about P.W.1 (husband). It is very significant to note from the evidence of P.W.2 that P.W.1 (husband) did not attend the office on that day. He further deposed that he did not enquire where P.W.1 had gone. He stated that after 10 days the husband informed him about the marriage which was performed by force.

15. From a conjoint reading of the evidence adduced on behalf of the husband, it is abundantly clear that there is any amount of discrepancy between the evidence of P.W.1 and P.W.2. When it is the specific case of P.W.1 that when he was in the office at bout 12-30 P.M., on 21-03-1992 he was taken away by the men of the wife and the marriage was performed forcibly at Annavaram Temple, whereas P.W.2, who was examined on behalf of P.W.1, categorically stated that P.W.1 did not attend the office on that particular day and he did not know where P.W.1 had been. This contradiction eventhough is sole contradiction is vital and cuts across the very case of P.W.1 When P.W.1 was absent on that particular day, in the light of the evidence of P.W.2, it can safely be inferred that a story was put forth by P.W.1 that he was forcibly taken away by somebody from his office at noon on 21-03-1992 and the other events cannot also be believed. Further, Ex.X-8 and Ex.X-9 would disclose the fact that Annavaram Temple was booked for the purpose of marriage by the husband himself on payment of a sum of Rs.50/- and when the husband offered a sum of Rs.58/- to the Purohit, the same was also acknowledged by the Purohit under Ex.X-9.

16. In fact, the Purohit who performed the marriage was examined as R.W.4. He deposed in categorical terms that he performed the marriage between the husband the wife and further deposed about the details of the procedure that is to be followed for performing the marriage.

17. It is important to note here that the Purohit was not engaged by either of the party. He was the Purohit of Annavaram Temple. Therefore, the evidence of R.W.4 who was absolutely an independent witness whose services were meant for the Temple and not to anybody, need not be disbelieved. However, he stated that there was no rule that as and when some amount is given to the Purohit, receipt like Ex.X-9 shall be given. However, this statement of Purohit is not sufficient to disbelieve the evidence of the marriage. After all, when it was acknowledged by way of a receipt under Ex.X-9 issued by the Purohit, there is no specific reason put forth on behalf of the husband nor it is something unusual for the Purohit who acknowledged the receipt of a sum of Rs.58/- offered by the husband. No further details were adduced or got elicited to disprove the veracity or otherwise of the statement made by R.W.4.

18. It is to be further seen that R.W. had narrated the whole procedure and the rituals that were followed for performance of the marriage. In fact, all the essential formalities, rituals or procedure of marriage need not be established for the simple reason that the factum of marriage was never denied by the husband.

19. The whole case of the husband, as could be seen from the averments and the evidence available on records, is that only by force the marriage was performed but not with his consent.

20. Section-12 of the Hindu Marriage Act, to the extent relevant, is extracted hereunder for ready reference:

Section-12: Voidable marriages: (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:

(a) that the marriage has not been consummated owing to the impotence of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) € € € € € € € € ..

21. Sub section (i) (c) of Section-12 of the Act refers to €œforce € . But the expression €œforce € is not defined under the Act. Whether an act amounts to €œforce € or not, depends upon the facts and circumstances of each case. The other ground on which the marriage can be declared as nullity is €œfraud € .

22. These two expressions i.e., €œforce € and €œfraud € , as already found, have to be inferred from the facts and circumstances of each case.

23. In the present case, the question of €˜fraud € does not arise. Therefore, we do not intend to proceed in that direction.

24. The only question that remains for consideration is as to whether the husband has successfully proved averment made by him to the effect that force was applied for the purpose of marriage with his wife and the same was against his willingness?

25. When it was averred that force was applied, it implies that he was not willing. Therefore, the willingness or otherwise also need not be gone into. So, the only aspect for consideration is as to whether force was applied or not, for performing the marriage between the husband and the wife.

26. As already pointed out and recorded, the contradiction which was noticed by this Court between the evidence of P.W.1 and P.W.2 regarding the presence of P.W.1 in the office at 12-30 P.M., on 21-03-1992 when he was alleged to have been taken away forcibly, the evidence of P.W.1 is demonstrably false at the threshold itself. The further statement of P.W.1 that he was made unconscious till he was taken to Annavaram Temple was also not proved inasmuch as except the oral testimony of P.W.1 there was no other evidence. Apart from this, the evidence of R.W.4, which is vital, can safely be believed, who he did not also speak anything about the so-called force or fear of the husband while the marriage was being performed.

27. In view of the above, particularly in the light of the vital contrary evidence of P.W.1 and P.W.2 and the evidence of R.W.4 and also the documentary evidence of Exs.X-8 and Ex.X-9, ignoring the photographs under Exs.X-1 to X-7, we have no hesitation to disbelieve the evidence of P.W.1.

28. Another important aspect brought out on record is that it is the wife who gave the complaint to the police against the husband for the offence punishable under Section 498-A of the Indian Penal Code on 03-04-1992. Only after that, it is the husband who gave a complaint to the police against the wife and the same was registered as Crime No.47 of 1992 for the offence of kidnap. Both the cases, of course, ended in acquittal. But it is to be noted that the fact is that it is the wife who initiated criminal action against the husband first and then the husband proceeded against the wife. Even O.P.No.55 of 1992 for restitution of conjugal rights was filed by the wife on 13-07-1992 while the said O.P., was pending trial, the husband filed O.P.No.125 of 1993 for divorce on 17-03-1993 just three days before the expiry of limitation under Section-11 of the Act. Therefore, eventhough, O.P.No.125 of 1993 filed by the husband was within the period of limitation, the conduct of the husband in not filing O.P., for a declaration that the marriage as nullity, within a reasonable period or immediately after his marriage was performed, particularly when the same was allegedly by force, is by itself a manifestation that he was not coming forward with true facts.

29. For the foregoing reasons and the circumstances referred to above and also in the light of the evidence on record; we do not propose to interfere with impugned common judgment rendered by the Court below in O.P.Nos.55 of 1992 and 125 of 1993.

30. The Civil Miscellaneous Appeals fail and are liable to be dismissed.

31. In the result, both Civil Miscellaneous Appeals are dismissed confirming the common order and decrees, dated 13-10-1997, rendered by the Court below in O.P.No.55 of 1992 and O.P.No.125 of 1993. However, there shall be no order as to costs.