The petition has been filed under Ss. 18 and 19 of Indian Divorce Act, 1869, to pass a decree and judgment declaring that the alleged marriage of the petitioner with the respondent is null and void and for costs.
2. The facts leading to the filing of this petition may be set out as follows: The petitioner is now aged about 19 years, her date of birth being 19.4.1972 as per the transfer certificate marked as Ex. P3. She is the daughter of Mr. J. Robby and Mrs. Kethsi Bai. Admittedly they are born Christians and members of C.S.I church, Mambalam-Vide Ex. P1 certificate issued by the C.S.I Church. The petitioner was at times assisting her father. Her maternal aunt Suganthi, an unmarried lady employed as a teacher in Kilpauk used to visit the house often. She took a short term hand loan of Rs. 30,000/- from the petitioner promising repayment in seven days. When she did not repay the amount and the petitioner's father scolded her, the petitioner insisted her maternal aunt to repay the money. Suganthi offered to go to her native place in Kanyakumari, arrange the money and bring back the same to be repaid. She persuaded the petitioner to go with her for a short trip and the petitioner lent her Rs. 400/- and went with her on 6.7.1990 They arranged a car and the respondent, an acquaintance of Suganthi, recommended by her for employment under the petitioner's father, accompanied them at the instance of Suganthi. Unsuspectingly the petitioner went with them. On the way they have taken the petitioner to Mayavaram, the native place of the respondent where the petitioner was detained in a remote house under constant vigil and signatures were obtained from the petitioner under threat and after severe beatings. The petitioner was also made to sign some forms before the Registrar of Assurances allegedly purporting to register an alleged marriage and later on she was shifted to various places and ultimately to a house in Velacheri in Madras. Even there the petitioner was detained against her wish and the respondent had removed her jewellery and sold certain items. Some other items were also either sold or pledged through some relatives of the respondent. In the meantime, petitioner's father lodged a police complaint about her missing from the house and also filed a Writ Petition for the relief of habeas corpus arraying the petitioner's maternal aunt Suganthi and her relatives as respondents. They had obtained bail and the proceedings were not fruitful. On 18.1.1991, the petitioner could escape from the respondent's illegal custody and she returned to her parents. Immediately, necessary complaint was lodged by the petitioner with the Police (F.I.R 1390/90 dated 18.1.1991 marked as Ex. P-4) and the police admittedly apprehended the respondent and have even recovered the illegally sold and pledged jewellery belonging to the petitioners. Criminal proceedings are pending against the respondent in the criminal courts. Hence, the petitioner contends that no valid marriage took place between the respondent and herself and even the alleged marriage evidenced by Ex. P-2 (extract dated 26.10.1990 from the Hindu Marriage Register) is vitiated and bad in law since no such valid marriage could take place as she is a Christian and also since her consent to the alleged marriage was obtained by fraud, misrepresentation and coersion.
3. The respondent resisted the petition by filing a counter alleging that while he was in the employment of the father of the petitioner for a short while, he and the petitioner fell in love with each other, that the petitioner without his knowledge and consent ran away from the house and went to his uncle's house, that the petitioner did not listen to his persuasions and wanted to marry him, that hence he took her to Trichy on 5.8.1990, stayed in his relations house there and the marriage had taken place between them on 8.8.1990 which was attended by hundred persons, that at simple ceremony the petitioner was allegedly converted to Hinduism, that they lived together at various places and on 14.1.1991 the petitioner's father came with rowdy elements, assaulted the respondent and Took away the petitioner and then lodged false criminal proceeding against him and that there was a valid marriage between himself and the petitioner and her consent thereto was out of free volition.
4. The following 8 issues were framed by me for trial on 16.7.1991:—
“(1) Whether the petitioner was taken to the respondent's place at Mayavaram by the respondent and her maternal aunt Smt. Suganthi, by practising fraud, misrepresentation and coercion, detained there against her will and forced to sign papers, records and documents?
“(2) Whether the petitioner had left her parental house voluntarily with intent to marry the respondent as alleged by him?
“(3) Whether the petitioner was validly converted from Christianity to Hinduism?
“(3) Whether any marriage, valid and known to law took place between the parties on 8.8.1990?
“(5) Whether the registration of alleged marriage under the Tamil Nadu Hindu Marriage (Registration) Rules, 1967 is nullity or valid?
“(6) Whether the petitioner is entitled to the relief of declaration that the alleged marriage between the parties was brought about by fraud, misrepresentation and coercion and hence null and void?
“(7) whether this court has jurisdiction, the marriage not being a Christian marriage?
“(8) To what relief or reliefs the petitioner is entitled?
5. The parties went into box as P.W 1 and R.W 1 and Ex. P1 to P6 and D-1 and D-2 were marked respectively, on behalf of both parties. In the evidence, the petitioner deposed that she is a born Christian, that she went with her aunt believing her representation that they are going to Kanyakumari, that she was never converted into Hinduism, that no valid marriage took place at any time, that she was subjected to third degree methods and severe beatings, that her signatures were obtained to various documents including the application form to the Registrar and that she never consented for the marriage freely.
6. As against this, the respondent, as R.W 1 concedes that he does not even know the correct address of the petitioner's father that he does not know when he left his service, that he does not know the residential address of the petitioner, that he does not remember the names of the witnesses who signed the marriage register, that he has records when he left the service under the petitioner's father and joined P.T.C but did not produce them, that he purposely did not inform the petitioner's father about the alleged presence of the petitioner with him though he continued to serve him, that the particulars given in the extract of the marriage register are false to his knowledge but they were given so at the instance of the petitioner. He further states that he does not know whether the petitioner was converted from Christianity to Hinduism and whether she continues to be Christian, that he does not remember the marriage hall where the alleged marriage took place, that no marriage in accordance with the customs of the petitioner's community took place and that except the marriage certificate Ex. P2 there is nothing in writing to show that the marriage took place between the petitioner and the respondent.
7. In the light of the above evidence and pleadings, the controversy between the parties has to be resolved and the arguments of both sides appreciated.
8. Issues Nos. 3, 4, 5&7:— Admittedly, the petitioner is a Christian and absolutely there is no record to show that she got herself converted to Hinduism before the alleged marriage between the parties. Hence, Issue No. 3 is answered in favour of the petitioner and against the respondent.
9. The petitioner, admittedly, is a Christian and the respondent is a Hindu. If either of the parties is a Christian, it would be sufficient to invoke the jurisdiction of the Court under the provisions of the Divorce Act. This view is supported by the decision of a Special Bench of this Court in Sasivarnan v. S. Gnanasundari Kamalam A.I.R 1954 Madras 1018. In the said decision, it has been held as follows:—
“Where either of the parties to a petition for divorce is a Christian, it would be sufficient to invoke the jurisdiction of the Court under S. 2 of the Divorce Act as amended in 1927 for relief under it.”
This Court alone, in my view, is empowered to entertain an application for nullity of the marriage on the grounds stated in S. 19 of the Divorce Act. My view is also affirmed by a decision of the Special Bench of Karnataka High Court, reported
in B. Ignatius Anthoney Jayaraj,… v. Immy Margaret Florence,…. A.I.R 1978 Karnataka 69. It has been held in the above decision as follows:—
“Under Ss. 18 and 19 the District Court and the High Court have concurrent jurisdiction for entertaining a petition for nullity of marriage on the grounds stated in sub-Ss. (1) to (4) of S. 19.
So far as the decree of nullity of marriage on the ground of force or fraud is concerned, the same can be obtained only by presenting a petition to the High Court which has a residuary jurisdiction to deal with a petition for dissolution of marriage on the ground that consent of either party was obtained by force or fraud. Thus, the District Court has no jurisdiction to entertain a petition for declaration of nullity of marriage on the ground that the consent of either party to the marriage was obtained by force or fraud.”
Hence I hold that on issue No. 7 this Court alone has jurisdiction. There is also no evidence that the petitioner a Christian got convered to Hinduism. The respondent also admits in his evidence that he does not even know whether the petitioner was converted from Christianity to Hinduism and whether she continues to be a Christian.
Hence no valid marriage between the parties under the provisions between the parties under the provisions of the Hindu Marriage Act 1955 can take place between the parties and it is the admission of the respondent that except for the extract from the Hindu Marriage Register there is no other proof in writing.
10. When the factum of marriage is disputed, evidence regarding performance of marriage according to Hindu rites must be brought on record to show that there had been a valid marriage. The registration is not the sole proof of marriage in order to become a valid marriage according to Hindu rites must be brought on record to snow that there had been a valid marriage. Reference can be usefully made to the discussion of the Calcutta High Court, reported in Mousumi Chakraborty… v. Subrata Guha Roy…. 1 1991 2 C.C Cases Calcutta 401. In the said decision a Division Bench of the Calcutta High Court has held as follows:—
“In this particular case, the appellant had filed a suit stating that there had been no marriage at all between her and the respondent. On the contrary, the respondent claimed that there was a valid marriage. It is well settled principle that the burden of proof lies upon the party who substantially asserts the affirmative of the issue. The evidential burden in matrimonial case is that the burden is on the proponent, or in other words, the party who claims that there was a valid marriage, has to prove that marriage. The question is whether the production of marriage registration certificate raises a presumption and even if a presumption is there, where the same could be rebutted. S. 8 of the Hindu Marriage Act, 1955 provides Hindu Marriages registration has been introduced for the purpose of facilitating the proof of Hindu Marriage. The registration is not the sole proof of marriage in order to become a valid marriage. S. 7 of the said Act provides that the validity of a marriage will depend on observance of “customary rites and ceremonies”.
“The ceremony essential for a valid marriage prevailing in the community must be performed and if there is no valid marriage in that even there could not be any valid registration under the provisions of S. 8 of the Hindu Marriage Act, 1955.”
In my view, evidence regarding the performance of marriage according to Hindu rites must be brought on record to show that there had been a valid marriage. Unfortunately, in this particular case, from the evidence on record, it is clear that the ceremonies essential to the validity of the marriage were wholely absent. The respondent who argued that there had been a valid marriage in accordance with the Hindu rites could not even tell whether the essential ceremonies to the Hindu Marriage were performed in the alleged marriage. Again, the respondent who claims to have married the petitioner could not tell anything about the name of the witnesses who signed the marriage register. According to him, even the particulars of both himself and the petitioner given in the marriage Register are all false and they were given so only at the instance of the petitioner. It is his further evidence that he does not remember where the marriage took place. Except the marriage Certificate Ex. P2, there is no other document in writing to show that the marriage took place between the petitioner and the respondent. Hence, I hold that the registration of the alleged marriage under the Tamil Nadu Hindu Marriage (Registration) Rules 1969 is nullity and not valid. Issue No. 5 is answered accordingly.
11. The respondent also did not examine any of the witnesses who allegedly attended the alleged marriage and there is no proof before this court either oral or documentary for any such marriage. Hence, this court has to draw only an adverse inference against the respondent and the only presumption is that no such valid marriage could have ever taken place between the parties.
12. Issue Nos. and 2:— The petitioner has established that her consent to the marriage was obtained by fraud etc. The following circumstances will establish the said fact.
“(a) The petitioner alleges that she was totally against her wish taken to Mayavaram and other places including Velacheri at Madras.
“(b) She also says that she was beaten and under threat her signatures were obtained to various documents including the application for Registration of the Marriage.
“(c) the respondent pleads that his uncle at Madras, a relation Kalyana Sundaram at Trichy, his friends even the landlady at Velacheri house and neighbours allegedly knew that she was residing with the respondent voluntarily. Conspiciously none of the persons has been examined as witness.
“(d) The respondents admit that he kept the alleged presence of the petitioner with him either voluntarily or otherwise, secret from the knowledge of the parents of the petitioner though for some time he worked under the petitioner's father during that period.
“(e) The respondents also has no records to show when he went to Trichy and other places along with the petitioner, significantly he does not produce any such evidence. In such cases, this Court has to draw only an adverse inference against the respondent, and it should be presumed that the taking away of the petitioner by the respondent was much earlier on 6.7.1990 and that too, against her will as pleaded and proved by the petitioner.
“(g) In the marriage certificate all the particulars of both the parents were given falsely. The only explanation respondent offers is that the petitioner allegedly wanted him to do so. It is obvious that the respondent wanted to keep the matter secret and unknown and indicted by the petitioner's parents. Even the name and the age of the petitioner and the religion were given falsely in the extract from the marriage register and the respondent is signatory to the same.
“(h) The respondent does not possess any money even to maintain the petitioner and himself. He pledged and sold the jewels of the petitioner and admittedly after the complaint by the petitioner, the police authorities recover her jewels pledged and sold by the respondent and his relations. The only explanation offered by the respondent is that the petitioner herself wanted him to sell the jewels and he came to know about the pledging and sale of her other jewels by his relations only much late. This explanation in my view is far from truth and cannot be accepted.
“(i) The petitioner has cogently pleaded the particulars of fraud and deposed about them. Nothing has been elicited against her nor her version shaken in any manner in her cross-examination.
Again, the following circumstances, viz.,
(a) the petitioner's tender age, she being aged 18 years at that time;
(b) the respondent's wanting circumstances;
(c) the difference in religion;
(d) the difference is social circumstances and
(e) the secret manner in which the respondent wanted the alleged marriage between the petitioner and the respondent to take place at Trichy and being regisrtered at Mayavaram much later,
will clearly establish that the petitioners consent was obtained by fraud, misrepresentation and coercion for the alleged marriage. Hence, I hold that the petitioner had left her parental house not voluntarily with intent to marry the respondent as alleged by him and that the maternal aunt of the petitioner by practising fraud, misrepresentation and coercion and retained in various places against her will. Accordingly, issue Nos. 1 and 2 are also answered in favour of the petitioner and against the respondent.
Issue No. 6:— In view of the foregoing discussions, I am clearly of the view that the petitioner is entitled to the relief of declaration that the alleged marraige between herself and the respondent was brought about by fraud, misrepresentation and coercion and hence I hold that the alleged marriage is null and void.
Issue No. 8:— In the result, the petition is allowed and the marriage between the petitioner and the respondent is declared as null and void. No costs. At the time of argument, it was brought to my notice that certain criminal complaints were filed before the Crminal Courts against the respondent by the petitioner and her father. In view of this decision declaring the alleged marriage between the petitioner and the respondent as null and void the petitioner and her father may not press criminal the prosecution launched against the respondent and may withdraw the same in the interest of the parties.
KA/RR/VCS