P.B Majmudar, J.:— This appeal is directed against the judgment and order dated 10th August, 2004, passed by the Principal Judge, Family Court, Mumbai, in Petition No. A 116/1998 by which the learned Judge of the Family Court dismissed the petition filed by the appellant for getting a decree of nullity of her marriage with the respondent, maintenance as well as for return of her articles and things as more particularly set out in Exhibit-A to the said petition.
2. The appellant was the original petitioner before the Family Court. She preferred the said petition with a prayer that the marriage solemnised on 26th April, 1987, between the appellant and respondent may be treated as null and void and the respondent may be directed to pay maintenance at the rate of Rs. 25,000/- per month.
3. It is the case of the appellant before the Family Court that her marriage with the respondent took place on 26th April, 1987 according to Hindu Vedic Rites at Shree Ganga Nagar, Rajasthan. The said marriage is not registered. There are no issues out of the said wedlock. According to the appellant, she came to Mumbai and started staying with the respondent in her matrimonial home at Goregaon, Mumbai and within a week thereafter on 2nd May, 1987, the appellant learnt about the respondent's previous marriage with one Usha Kejriwal. It is the case of the appellant that she was ousted from the matrimonial home on 24th May, 1989 and she was sent to the respondent's uncle's house at Mathura. It is further the case of the appellant that the marriage between herself and the respondent is null and void and it may be declared accordingly. The aforesaid petition was resisted by the respondent by filing his written statement. It is the case of the respondent that the respondent was never married to the appellant and their marriage had not taken place at all. According to the respondent, the petition is barred by the law of limitation as well as barred by principles of res judicata and under the provisions of Order 2 Rules 1 and 2 of the Code of Civil Procedure. On such and other grounds the petition was resisted by the respondent.
4. The learned trial Judge raised various issues arising out of the pleadings. In connection with issue No. 1 as to whether the appellant was married to respondent on 26th April, 1987 at Shree Ganga Nagar at Rajasthan, the learned trial Judge came to the conclusion that the appellant had not proved the factum of her marriage with the respondent. However, the learned Judge found that the petition is barred by law of limitation and it is also barred under the provisions of Order 2, Rules 1 and 2 of the Civil Procedure Code. Since it was held that the appellant has failed to prove the marriage between the appellant and the respondent, the said petition was rejected by the trial Court which order is impugned in this appeal at the instance of the appellant, original petitioner.
5. It is required to be mentioned that the alleged husband of the appellant, Vinod Babulal Kejriwal was given in adoption to a businessman viz. Babulal Kejriwal and his wife Smt. Ratnidevi Kejriwal. The original respondent, Vinod Babulal Kejriwal, has expired during the pendency of this appeal. His adoptive father Babulal Kejriwal expired in the year 1973 whereas Ratnidevi Kejriwal expired on 10th December, 2004. In view of the above, his natural father, Omprakash Changoiwal is brought on record. It is submitted by the learned counsel for the appellant that the property of deceased Vinod Kejriwal is being managed by the natural father of the deceased respondent. Learned counsel for the respondent submitted that since there is already a son of deceased who is alive and he being the natural heir, without bringing him on record, no relief can be given to the appellant.
6. Mr. Kankaria, learned counsel appearing for the appellant submitted that the trial Court has not properly appreciated the facts on record and has gravely erred in dismissing the petition preferred by the appellant. The learned counsel further submitted that as per the evidence on record, it is clear that the factum of marriage is already proved and, according to him, the marriage had taken place at Ganganagar, Rajasthan as per the ceremony in the community. He submitted that there are overwhelming evidence on record such as various letters received by the appellant at her in-laws place at Goregaon as well as the photographs on record to prove that the marriage has taken place coupled with the fact that after the marriage the appellant and the respondent had gone to honeymoon at Lonavala as well as the factum of passport received by the appellant wherein in the column of husband, the name of respondent has been shown. He submitted that from the evidence on record it can be inferred and presumed that the appellant and the respondent had married with each other. It is further submitted by Mr. Kankaria that the appellant and the respondent knew each other very well and from the photographs on record, the only inference which can be drawn is that the appellant and the original respondent were husband and the wife. Mr. Kankaria has taken us through the oral and documentary evidence on record. Mr. Kankaria has submitted that since the respondent had already married at the relevant time, the marriage in question is null and void and appropriate order of maintenance is required to be passed.
7. Mr. Dani, learned counsel appearing for the respondent, submitted that there is no evidence to prove the factum of marriage. He submitted that simply because the appellant and the respondent moved together, it cannot be presumed that actual marriage had taken place. It is submitted that the appellant has filed an affidavit before the C.J.M, Mathura wherein she stated in para 11 thus: “That I neither married to Mr. Vinod Kejriwal nor I ever lived as his wife “, He submitted that in fact the appellant had received Rs. 1,00,000/- with a view to see that the respondent and his other family members are not required to attend the frivolous proceedings at Mathura Court. It is submitted that no photographs regarding the marriage ceremony had been produced which clearly show that no marriage had taken place. He submitted that the appellant had obtained the passport from Lucknow on her own and that itself creates doubt about its genuineness. It is further submitted that the photographs produced hardly establish the factum of marriage. He submitted that it is no doubt true that the appellant and the respondent knew each other and their family members also knew each other. Since the respondent could not obtain divorce from his earlier wife that ultimately no marriage ceremony had taken place between the appellant and the respondent. It is submitted by Mr. Dani that the so-called letters have not been proved in the manner in which it is required to be proved. He submitted that it is not a case where the appellant and respondent lived as husband and wife at all and in such an eventuality the Court may presume the factum of marriage. It is submitted by Mr. Dani that in view of the above, the judgment and order of the trial Court is not required to be disturbed by this Court in appeal.
8. We have heard the learned counsel appearing for the parties. We have gone through the oral and documentary evidence on record and have also gone through the written submissions submitted by the appellant before the Family Court.
9. The appellant has examined herself at Exh. 41. The original respondent has examined himself at Exh. 104. There is documentary evidence on record in the form of photographs, copy of the passport, certain letters alleged to have been received by the appellant at her matrimonial house while she was staying at. Goregaon, copies of criminal complaints filed by the appellant against the original respondent, as well as the telegram received by the appellant from her relatives. We have minutely gone through the oral as well as documentary evidence adduced by the parties.
10. The principal question which requires consideration is as to whether the factum of marriage between the appellant and the respondent can be said to have been proved.
11. In her oral evidence, the appellant has stated that she got married with the respondent on 26th April, 1987 at Shri Ganganagar, Rajasthan, according to Hindu Vedic Rites. The marriage invitation card is produced at Exh. 42 and the photographs are at Exh. 43 colly. In her evidence she has stated that at the time of her marriage she was a spinster and the respondent was represented to be a bachelor. According to her, the proposal for marriage came through the husband of her paternal aunt, who was staying at Shri Ganganagar, Rajasthan. In her evidence she has stated that after the proposal was received, they went to Shri Ganganagar in February, 1987. At that time, respondent was staying there with his maternal aunt's place. Both the sides met each other and thereafter the proposal was accepted by both the sides and the marriage was fixed. She has stated that it was an arranged marriage. She has stated that the marriage was not registered. She has further stated in her examination-in-chief that more than 100 persons attended the marriage. Out of this, 60 to 70 persons were from her side. She has stated that the appellant and the respondent belong to Agarwal community. The affidavit of the priest is produced at Exh. 45. Greeting telegram received at the time of her marriage from her relative is at Exhibit-46. In her evidence she has further stated that after the marriage, the appellant and respondent resided together at Goregaon, Mumbai for two years. On 24th May, 1989, the appellant went to Mathura along with the respondent's aunt for which journey the air ticket had been booked by respondent's uncle. The said tickets are at Exh. 47 colly.
11.1 In her evidence, she has stated that the appellant and the respondent were staying along with the respondent's natural parents, adoptive mother Smt. Ratnidevi Kejriwal and others. She has stated that no reception had taken place after the marriage. The respondent had promised to have a reception later on but did not have it. She stated that initially the behaviour of the respondent was good for ten to fifteen days but thereafter his behaviour changed when the appellant came to know about his first marriage. She has stated that when she asked the respondent as to why there v/as no ceremony or function, he stated her about his first marriage and that there are certain complications and when the complications will get over, they shall disclose the marriage to the people and not before that. It is the say of the appellant that she saw a photograph of one child and a separate photograph of one old lady and subsequently on enquiry she came to know that the respondent was already married and having a child from the first marriage and that the first marriage was not dissolved and the petition was pending in the Court. In the evidence she has also stated that she was sent to Mathura in May, 1989 and after reaching Mathura she filed a case against the respondent and his family members under section 498-A of the Indian Penal Code. She has stated that respondent's uncle Kanchanlal Agarwal, who was staying in Mathura was forcing her to withdraw the said proceedings. Thereafter she filed another case against respondent's uncle under sections 323, 504 and 506 of the Indian Penal Code. She has stated that whilst she was staying in Mathura, her ornaments and articles were kept in the custody of the respondent. She has further stated that both the cases filed by her were closed by the Police at Mathura and thereafter she came to Mumbai and filed a complaint with the Goregaon Police Station. Since the Goregaon Police Station did not take any action, she filed a private complaint in the Metropolitan Magistrate's Court at Borivli, Mumbai, under sections 493, 495, 496 and 420 of Indian Penal Code. It is stated that the charges have been framed in the said matter.
11.2 Thereafter on 15th April, 1991, the appellant had filed a petition for restitution of conjugal rights in which she filed an application for expediting the hearing of maintenance application. Subsequently that petition was dismissed by the Family Court on the ground that the same was not maintainable. Appeal preferred against the said order bearing First Appeal No. 39 of 1994 was admitted by this Court. This Court vide order dated 7th September, 1994 granted maintenance to the appellant at the rate of Rs. 4,000/- per month. The copy of the order is at Exhibit-49. Being aggrieved, the respondent carried the matter before the Supreme Court. The SLP was dismissed on 12th December, 1994. The copy of the order of the Supreme Court is at Exh. 50. She has stated that the appeal preferred by the appellant was dismissed vide order dated 24th July, 1997. The said order is at Exh. 51. In view of the same she has stated that she has filed the present proceedings for declaring the marriage as null and void. She submitted that in the said proceedings she has also applied for interim maintenance and this Court vide order dated 12th January, 1999 granted interim maintenance at the rate of Rs. 4,000/- per month. Writ petition against this order filed by the respondent got dismissed vide order dated 17th February, 1999, a copy whereof is at Exh. 52. The appellant has produced certain letters which are at Exhs. 56 to 65. The appellant has also produced two telegrams sent by the respondent to the appellant which are at Exh. 66 Colly. The appellant also produced certificate issued by Inspector General of Police, Lucknow, letter written by one Mallick to Mr. Vinod Gupta, passport issued to her after her marriage, certificate issued by D.I.G, affidavits of her paternal aunt and her son at Exhibits 68 to 73. In her evidence she has stated that she had also filed proceedings restraining the respondent from marrying again and that in spite of the injunction order, respondent married with one Mitu Swamy@Mitu Agarwal for which she issued notice and also filed contempt proceedings.
11.3 In her cross-examination she has admitted that she has done M.A in Psychology and B.Ed She has stated that her father was Senior Prosecuting Officer at Police Training College, Muradabad. She has stated that the Mangni ceremony took place on 5th March, 1987 at Shree Ganga Nagar at her uncle's place. She stated that she cannot exactly remember when the date of marriage was confirmed. She has admitted in the cross-examination that she had not seen any invitation card of the marriage printed by the respondent's side. She has admitted that the time of marriage is not mentioned in the marriage invitation card printed on the appellant's side. She has also stated that she has not seen the marriage invitation card wherein the time of marriage is not mentioned. She stated that she was not knowing the respondent's full name but he was only knowing that he is Vinod Kejriwal.
11.4 She has also stated in her cross-examination that she cannot give any reason why in the invitation card, the time of the marriage ceremony is not mentioned but the time of the musical programme is mentioned. She has also stated that about 500 invitation cards were printed and all cards were distributed. In her cross-examination she has also stated that after the marriage, she opened a Bank Account with the State Bank of India, Gorghar Branch and that the said account was opened in the name of Smt. Ranjana Agarwal. She has admitted the fact that she has given her residential address in the Bank as 178-B, Calcutta Railway Colony, Gorakhpur. She has stated that subsequently the said account was transferred to Alambaug Branch, Lucknow in November, 1988. She, in her cross-examination, mentioned that the uncle of the respondent gave her demand draft of Rs. One lakh and the said demand draft was deposited in her account in April, 1991. In paragraph 15 of the cross-examination, she has admitted that she had filed a complaint at Kotwali Police Station, Mathura under section 498-A, Indian Penal Code against the respondent, his natural parents and his sister in August, 1989. She has also stated that the police had closed the said case and she got this information sometime in February/March, 1990. She denied the suggestion that she gave any writing to Kotwali Police Station, Mathura in her own handwriting to withdraw her complaint.
11.5 In paragraph 16 of the cross-examination she has stated that she obtained Indian passport after her marriage as she wanted to go out of India on tour. She has stated that she had applied for and got the passport in 1988. She denied the suggestion that she manipulated the passport Exh. 70 to create a record that she was married to the respondent. In her cross-examination she has admitted that the Inspector General of police Mr. C.K Mallick, Lucknow was a personal friend of her father and her family members. In paragraph 34 of the cross-examination, her attention was invited to her evidence recorded on 4th September, 2001 in C.C No. 72.W/200 in Metropolitan Magistrate's 26th Court at Borivli. She has also admitted that she stayed in Mathura from 26th May, 1989 till last week of September, 1989 and that during her stay over there she had visited one Mr. S.N Singh at his residence, who was the D.S.P of Mathura. In para 35 she has stated that on and from 26th April, 1987, she had given her name as Ranjana Kejriwal in all communications and documents. In para 40 she has admitted that she did not recollect the address of the priest who had solemnised her marriage with the respondent and that she had not included the name of the priest in the list of witnesses. In the cross-examination she has stated that the muhurt time of her marriage was between 7 p.m and 9 p.m and during that period the religious ceremonies were performed such as Feras around sacred fire, chanting of mantras, etc. She has also stated that she did not have the photographs or negatives of the religious ceremonies performed including exchange of garlands, taking feras around the sacred fire, etc. There was video shooting of the marriage ceremony. She stated that she did not have the cassettee.
12. The respondent was examined at Exh. 104. He has stated that he got married with Usha on 24th May, 1983. He has one son out of the said wedlock viz. Vishal. In his cross-examination, he has denied that he got married with the Appellant on 26th April, 1987 at Shri Ganga Nagar. The said witness admitted having shown Exh. 43 having 51 photographs. Regarding photographs at Exh. 42, he has stated that the same were taken in 1987 when he had gone to Lucknow for sight seeing. He has admitted the fact about the complaint filed by the appellant against him in Mathura in 1989 which according to him was subsequently settled. The said witness has stated that in a complaint filed by the appellant before the Metropolitan Magistrate's Court at Borivli, he applied to the Court to call for documents from Mathura Police and that the said documents were produced by Mathura Police.
12.1 In paragraph 41 of the cross-examination, he admitted that his wife Usha Kejriwal had also filed a complaint against him under section 494 of the Indian Penal Code. He admitted the fact that his father gave an amount of Rs. 12,50,000/- to Usha. The said witness has also been extensively cross-examined.
13. Aforesaid is the only oral evidence adduced by the parties. The documentary evidence contains various photographs, passport obtained by the appellant, so-called marriage invitation card, affidavit of the priest, various letters received by the appellant, telegram alleged to have been received by the appellant at the time of her marriage, etc. Before the Family Court, written arguments were also submitted by the appellant.
14. So far as the photographs at Exh. 43 are concerned, it is the say of the respondent that the said photographs were taken at Lucknow when he had gone to Lucknow for sight seeing. None of the photographs indicates that actual marriage ceremony had taken place. So far as the wedding invitation at Exh. 42 is concerned, nowhere it prescribes the exact time when the marriage is to take place. It is interesting to note that no marriage card of the respondent is produced on record, though it is the say of the appellant that the respondent had also printed the wedding cards. The appellant has not examined a single witness to prove that any of them had received the invitation for marriage. Even though the invitation cards were printed at a particular place, no person from the printing press is examined to prove that more than 500 cards were printed for the said marriage from the side of the appellant. It is the say of the appellant that the photographs of the marriage function were with the respondent and the respondent has destroyed the same. It is required to be noted that as per the say of the appellant, there was a common photographer and videographer who was in charge of taking photographs and video of the marriage ceremony. Learned counsel for the appellant submitted that the videographer who had taken the photographs was not examined, even though there was a common photographer of the appellant and the respondent. No details regarding the ceremony has been produced on record. In short, the photographs on record are not the photographs of the actual marriage ceremony. This fact is even admitted by the appellant in her cross-examination. It is also required to be noted that if genuine marriage had taken place between the appellant and the respondent, there was no reason for the appellant to go to Lucknow to obtain passport and even in the passport the permanent address at Lucknow is shown. If the appellant was the wife of the respondent, naturally her permanent address would be that of her matrimonial address at Goregaon, Mumbai. Learned counsel for the respondent has submitted that simply because in the column regarding name of the husband, respondent's name is written, that itself would not prove that the marriage had taken place. On the basis of the information supplied by the appellant as stated in her passport application that the passport is issued at Lucknow to the appellant.
15. It is also required to be noted that if really the appellant and respondent had gone to Lonavala for honeymoon after the marriage, the presence of the other relatives at Lonavala is difficult to believe. The said aspect strengthens the case of the respondent to the effect that they had merely gone to Lonavala for picnic with the family members of the respondent. Learned counsel for the respondent has submitted that it is no doubt true that the appellant and her family members were desirous of having marriage with the respondent but that was possible only after the first marriage of the respondent is dissolved by decree of divorce. Till then they continued to meet each other. The actual marriage had never taken place as considerable time has passed till the respondent obtained divorce. Appellant thereafter filed a police complaint at Mathura. That was the first step taken by the appellant against the respondent. Learned counsel for the respondent has pointed out that the so-called telegram received, regarding congratulations cannot be said to have been proved as the author of the said telegram has not been examined and such documents are produced only to create evidence of marriage.
16. We have considered the entire evidence in great detail and after going through the same, we are of the considered opinion that the evidence on record do not establish that the actual marriage had taken place between the parties. Even the so-called passport produced by the appellant hardly inspires any confidence to establish the factum of marriage. The appellant has not examined any independent witness like her mother or brother to point out that they were present at the time of the marriage. Considering the totality of the evidence on record, we are of the opinion that the averments which she has given in her affidavit are correct to the effect that even though parties decided to marry earlier but since the respondent could not get divorce and ultimately the marriage talks could not materialise and she in fact had taken Rupees One lakh, there is no reason as to why and for what purpose she had received Rupees One lakh from the respondent. The Appellant has not examined any witness staying in the neighbourhood of her matrimonial home at Goregaon to establish that the appellant and respondent stayed together as husband and wife. The evidence on record hardly proves that the appellant and respondent had stayed even for a day as husband and wife. Simply because there are some photographs taken and that they knew each other very well itself cannot be a decisive factor for coming to the conclusion that both of them have married. Considering the said aspect, in our view, it is not possible for us to accept the say of the appellant that the marriage between the appellant and the respondent had taken place. It is not possible for us to hold that the marriage between the appellant and the respondent had taken place.
17. It is required to be noted that the appellant had filed a petition for restitution of conjugal rights. The trial Court dismissed the said petition holding that the petition for conjugal rights filed by the appellant is not maintainable. Being aggrieved by the said order, the appellant had preferred an appeal. The appellate Court held that the application for restitution of conjugal rights could be maintained only against the wife or the husband as the case may be when their marriage was a legal marriage. Simply because interim maintenance was granted to the appellant by this Court itself is no ground for coming to the conclusion that the factum of marriage is proved as that was not the issue in question in those proceedings. As regards the certificate of marriage at Exhibit-45 is concerned, the signature of priest is put in such a manner at the bottom that it creates a doubt about its genuineness. Since the priest was not examined, as according to the appellant he had expired, the certificate cannot be said to have been proved at all. The factum of receiving Rs. One lakh from the respondent is admitted by the appellant. It is required to be noted at this stage that as per the affidavit filed by the appellant before the Court of C.J.M, Mathura wherein her photograph is also finding place, she has stated in paragraph 4 onwards as under:—
“4. That at one stage both Mr. Vinod Kejriwal and myself came closer with each other to such an extent that we expressed over desire to marry.
5. That it was decided between me and Mr. Vinod Kejriwal that we both will marry but the marriage would be solemnized only after the divorce suit between Mr. Vinod Kejriwal and his wife Mrs. Usha V. Kejriwal is decided and decreed and they are judicially separated with each other and cease their relations as husband and the wife.
6. That the proceedings of divorce suit referred above between Vinod Kejriwal and Mrs. Usha Vinod Kejriwal are still pending and was not likely to be decided soon.
7. That since I have already completed 20 years of age, I could not resist to marry. I proposed Mr. Vinod Kejriwal to carry with me as the divorce suit may take a long period to be decided but Sri Vinod Kejriwal refused to marry me until and unless he gets divorce from his wife Mrs. Usha. This caused great annoyance, depression and frustration to me.
8. That having felt annoyed, frustrated and disgusted, I consulted some of my relations who advised me to lodge reports against Sri Vinod Kejriwal and his family members with an impression that under that coercion and pressure Vinod Kejriwal would definitely agree to marry me, and that is why I lodged one report on 8-8-1989 in P.S Kotwali, Mathura on the basis of which report bearing No. 371 was prepared and on the basis of which case under section 498-A, Indian Penal Code was registered in Cr. No. 558/89. This case is pending under investigation at Mathura.
9. That again on account of ill advise I lodged another report against Mr. Kanchan Lal Agrawal on 3-9-89 on the basis of which a case was registered under section 323/504/506, Indian Penal Code. In Cr. No. 553-A/89.
10. That as a matter of fact all the allegations made by me in the aforesaid two reports one against Sri Vinod Kumar Kejriwal, Sri Om Prakash, Smt. Shashi and Smt. Ajita relating to case under section 498-A and Sri Kanchanlal Agarwal relating to case under section 323/504/506, Indian Penal Code are totally false and baseless.
11. That I neither married to Mr. Vinod Kejriwal nor I ever lived as his wife.
12. That neither Sri Vinod Kejriwal nor his father, mother and sister ever demanded any dowry or harassed me or meted out any sort of cruel behaviour to me in this regard.
13. That Sri Kanchan Lal never beat or abused or intimidated me. I have also never lived at the residence of Sri Kanchan Lal in Seth Bara, Mathura.
14. That to sum up all the allegations were levelled against Sri Vinod Kejriwal, his family members or relative and Kanchan Lal were falsely made on account of ill advise to me.
15. That I discussed the above matter with my uncle Mr. Tarachand Agrawal R/o Sri Ganga Nagar who has intervened in the matter and on account of his new advise I hereby decide to withdraw the above mentioned two complaints.
16. That since Sri Vinod Kejriwal had ones upon agreed to marry me but subsequently be refused to marry and thereby I remained deprived of leading married and sexual life for a long time I had to suffer a lot and to compensate my sufferings Sri Vinod Kejriwal has paid me a sum of Rs. 1,00,000/- (Rs. One lac) through Bank Draft dated 4-12-89 No. 26/3251 Book No. 1823289 drawn on Bank of India, Lucknow Branch, which I have received.
17. That I have severed my all connections with Mr. Vinod Kejriwal and in future also I shall not claim to have any relation with Mr. Vinod Kejriwal.
18. That I will neither claim nor I shall be entitled to get any money from Sri Kejriwal in future.
19. That I have assured Sri Vinod Kejriwal that in future I would never take any recourse or any sort of legal action in any Court of law of the country against Sri Vinod Kejriwal.
20. That now Sri Vinod Kejriwal would be free to marry any other girl of his choice or he may continue to live with his wife Smt. Usha to which I shall never be entitled to object”.
18. The learned counsel for the appellant denied that any such affidavit was sworn by the appellant as, according to him, the original copy of the affidavit is not produced but only a photo copy of the affidavit is produced. It is not in dispute that the appellant has also accepted Rs. One lakh from the respondent.
19. Considering the aforesaid aspect, though we are in agreement with the submission of the learned counsel for the appellant that in a given case even if there is no actual proof of marriage, still the Court can presume the factum of marriage, if the parties have stayed together as husband and wife for a long time. However, considering the evidence on record as well as considering the facts and circumstances of the case, we are of the opinion that the factum of marriage between the appellant and the respondent cannot be said to have been proved at all. The appellant could have examined independent witnesses or witnesses from the nearby locality to prove the factum of marriage. Simply because the appellant and the respondent might have visited various places together is no ground to come to the conclusion that they were husband and wife. Even the invitation card produced by the appellant creates doubt as no person who has received the invitation has been examined. Regarding obtaining of passport is concerned, the appellant could have shown the address of the matrimonial house in the passport i.e Goregaon, Mumbai. The learned counsel for the appellant has also submitted that he is not in a position to point out as to why the said address has not been shown in the passport. Learned counsel for the appellant is not in a position to state as to why it was felt necessary to obtain passport from Lucknow even though the parties were residing at Mumbai and the permanent address of the passport is shown that of her brother at Lucknow. In our view, void marriage stands on a different footing than the one where there is no marriage at all. In the instant case, considering all the facts and circumstances, the factum of marriage cannot be said to have been proved at all. Even in the invitation card produced, the time of the marriage is not mentioned. Even the videographer who had video-recorded the marriage function has not been examined and no negatives of the photographs are produced on record. It is also not possible for us to believe that after the marriage the appellant and respondent had gone to Lonavala for honeymoon with other family members. Normally, at the time of honeymoon only the husband and wife goes together and no other family members would accompany.
20. At this stage, reference may be made to the decisions cited at the Bar by the learned counsel appearing for the parties.
21. Mr. Kankaria, learned Counsel for the appellant has relied upon a decision of the Punjab and Haryana High Court in the case of Dayal Singh v. Bhajan Kaur, AIR 1973 Punjab and Haryana 44 wherein it has been held that in a case where the marriage is declared as void under section 11 of the Hindu Marriage Act, petition for maintenance under section 25 of the Act is maintainable. The learned counsel further relied on the decision of this Court in the case of Govindrao Ranoji Musale v. Sou. Anandibai Govindrao Musale, 1977 Mh.L.J 144 : 1976 Vol. LXX1-X, Bom.L.R page 73 wherein it has been held that where a Hindu woman whose marriage has been declared null and void is entitled to maintenance from her former spouse. He also relied upon the decision of the Supreme Court in the case of Badri Prasad v. Dy. Director of Consolidation, (1978) 3 SCC 527 : AIR 1978 SC 1557 wherein it is held that if a man and a woman living as husband and wife for about 50 years, strong presumption arises in favour of wedlock and proof as to factum of marriage by examining the priest and other witnesses not necessary. Learned counsel also relied upon the decision of this Court in the case of Shantaram Tukaram Patil v. Dagubai Tukaram Patil, 1987 Mh.L.J 179 wherein it is held that even if marriage is void a woman has right of maintenance against her husband and such right can be enforced not only in proceeding under section 25 of the Hindu Marriage Act but also in any other proceedings where validity of marriage is determined. Such right can be enforced not only during the lifetime of husband but also after his death against husband's property. Mr. Kankaria has relied upon a decision of this Court in the case of Subhash Popatlal Shah… v. Smt. Lata Subhash Shah…., 1993 (1) Mh.L.J 923 : 1994 Divorce and Matrimonial Cases page 491 wherein it has been held that where a marriage has been performed by a priest in a temple who chanted mantras and applied tilak and both garlanded each other, the marriage was said to be consummated. If saptapadi was not one of the items of the marriage ceremony undertaken by the parties in the said case, the marriage between the parties cannot be said to be illegal and invalid. The learned counsel for the appellant pressed into service another decision of a single Judge of this Court in the case of Sushila Viresh Chhadva… v. Viresh Nagshi Chhadva…., 1996 (1) Mh.L.J 288 wherein it has been held that claim for maintenance pendente lite cannot be denied on the ground that the marriage was void ipso jure or was voidable. Reference is also made to the decision of this Court in the case of Prabhubhai Ranchhodbhai Tailor… v. Mrs. Bhartiben Prabhubhai Tailor…., 2004 (3) Mh.L.J 487 wherein it has been held that when the husband and wife had cohabited for about 18 years and two children were born out of the said wedlock, the wife is entitled to claim maintenance from the husband. Mr. Kankaria also referred to the decision of the Supreme Court in the case of Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga, 2005(1) Supreme Todays, Part 4-2005(1) pg. 155 wherein it is held that in case of null and void marriage, the wife is entitled to maintenance after it is held that the marriage was a nullity. It has been held that the expression ‘at the passing of any decree’ as has been used in section 25 includes a decree of nullity of marriage. Reference is also made to the decision of the learned single Judge of this Court in the case of Gangubai Bhagwan Kolhe v. Bhagwan Bandu Kolhe, 2007 (3) Mh.L.J 223 wherein it has been held that the order of maintenance in favour of wife is a liability not only against the husband but also against the husband's property. Relying upon the same, it is argued by the learned counsel for the appellant that the appellant would be entitled to recover the amount of maintenance out of the property left by the respondent. Learned counsel for the appellant lastly relied upon the judgment of the Supreme Court dated 14th November, 2008, in the case of Komalam Amma v. Kumara Pillai Raghavan Pillai, delivered in SLP (C) No. 3670 of 2005 to substantiate his say that a widow who is entitled to maintenance may sue, inter alia, for a charge on a specific portion of her husband's estate for her maintenance and residence. Relying upon the same, learned counsel for the appellant submitted that the appellant is entitled to receive the amount from the estate of the deceased. The learned counsel for the appellant has cited other judgments on the point that even if the marriage is declared as void, the wife is entitled to get maintenance.
22. Mr. Dani, learned counsel for the respondent, on the other hand, relied upon a decision of the Supreme Court in the case of Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC 562 : AIR 1971 SC 1865 wherein it has been held that mere marking of a document as an exhibit does not dispense with its proof. Relying upon the same, Mr. Dani submitted that simply because the documents are exhibited, it cannot be said that the contents are also proved.
23. So far as the facts of the present case are concerned, the factum of marriage is the real issue which is required to be decided in the appeal. Considering the oral and documentary evidence which we have discussed above, in our view, it cannot be said that the appellant has proved the factum of her marriage with the original respondent. Considering the aforesaid aspects of the matter, in our view, it cannot be said that the trial Court has committed any error in coming to the conclusion that the factum of marriage is not proved. We, therefore, confirm the finding of the trial Court insofar as the question of factum of marriage is concerned.
24. If the marriage is not proved, naturally the appellant is not entitled to the relief of maintenance as prayed for in the petition. Even otherwise, if the factum of marriage is proved, then also the son of the original respondent has not been joined. Mr. Dani, learned counsel for the respondent submitted that the natural father, after giving the appellant in adoption, cannot be said to be legally bound to maintain the appellant even if the factum of second marriage is proved. Even otherwise, the claim of the appellant is only for maintenance and she has not even joined the heirs of deceased respondent and the natural father is joined who cannot have any say after the respondent was given in adoption. In our view, considering the facts and circumstances, the prayer for maintenance as prayed for by the appellant cannot be granted.
25. At this stage, the learned counsel for the respondent submitted that even though the appellant and the original respondent might have moved together for some time with the hope that ultimately they will be able to marry and since the family members of the appellant and the original respondent knew each other very well, respondent is willing to pay to the appellant Rs. 15 lakhs by way of full and final settlement of all her claims on sympathetic and humanitarian grounds provided the appellant accepts the said amount by withdrawing all pending cases filed against the respondent and his family members from time to time. It is submitted that the respondent is willing to deposit the said sum before the Registry of this Court within eight weeks from today. The appellant can withdraw the same on condition that she should file an undertaking that she will withdraw all the pending cases filed against the respondent and his family members. In view of this, we are of the opinion that though the factum of marriage is not proved, yet in case the appellant withdraws all proceedings and if an undertaking to that effect is filed before the Registry of this Court within a period of three months from today, she may be permitted to withdraw the said amount, but before such withdrawal, the Registry shall see to it that the undertaking as stated above is given and copy of the same is given to the respondent. It is clarified that in case no such undertaking is filed within the stipulated period of three months, the amount so deposited by the respondent shall be returned to the respondent.
26. In view of the above, the Appeal is dismissed. In view of the dismissal of the appeal, nothing survives in Civil Application Nos. 190 of 2007 and 268 of 2007 and the same are accordingly disposed of.
Appeal dismissed.
Comments