Judgment:
L.K. Mishra, J.
1. This appeal is directed against the judgment dated 21.02.2004 passed by learned Judge, Family Court, Rourkela in Civil Proceeding No. 188 of 2000 and the decree sealed and signed on 08.03.2004 by which he dismissed the suit filed by the present appellant.
2. The case of the appellant in the Court below was that she and respondent Santosh Kumar Singh were co-workers and were known to each other. As their intimacy developed, they fell in love and ultimately the respondent proposed to marry the appellant. The appellant agreed to such proposal and on 21.03.1999 marriage between them was solemnized at Dumerta Kali temple at Bondamunda with observance of all rituals and ceremonies as befitting a Hindu Marriage in presence of G. Naidu and the father of the appellant. Soon thereafter both the parties consummated their marriage in the quarter of the respondent at Bondamunda but on the next day the appellant was sent to her parent's house by the respondent who promised to take her back after some days after obtaining the consent of his parents since they were not aware of such marriage. However, the respondent never turned up to take her back. The father of the appellant went to the house of the respondent in September, 2000 but the respondent declined to take her back. The appellant also made a request to the respondent to which he refused and told that he was going to marry the daughter of one Kamal Prasad Singh and ultimately the respondent denied to take her back. Therefore, the appellant filed a suit seeking a declaration as the legally wedded wife of the respondent. Initially one Ritu Singh was arrayed as a party and injunction was sought against respondent Nos. 1 and 2 not to marry each other. However, later, Ritu Singh was deleted from the record. The respondent filed a written statement denying the case of the appellant. He pleaded that he had never married the appellant at any point of time and had no relationship with her. Initially he took a plea that he was a married person his marriage having taken place much prior to 21.03.1999. Later he amended the written statements claiming that he had married one Sobha Singh, daughter of Ramsinhasan Sharma, the said marriage having taken place at village Kurre in Jahanabad district in the State of Bihar on 24.02.1999. He took the plea that his marriage with Sobha Singh being earlier in point of time, marriage with the appellant, if at all, being a second marriage is void in the eye of law.
3. Learned Trial Court after taking the evidence vide judgment dated 07.10.2002 decreed the suit declaring the status of the appellant as the married wife of the respondent. This judgment was challenged before this Court and suffered a remand. The learned Trial Court was directed to take further evidence and to decide the case afresh. Consequently after remand, some more witnesses were examined on behalf of the appellant. However, no further evidence was adduced on behalf of the respondent. This time the learned trial Court dismissed the suit giving a finding that no marriage took place between the appellant and the respondent. However, he did not record any finding with regard to the alleged marriage between the respondent and Sobha Singh.
4. The appellant appeared in person and advanced her arguments herself upon each and every aspect of the case. She took us through the evidence, both oral and documentary. According to her, the finding of the learned Court below is not sustainable since it is based on frivolous considerations which are not sustainable in the eye of law. Her claim is that she has been able to prove the factum of her marriage with the respondent on the evidence adduced and the respondent has failed to prove his marriage with Sobha Singh. Thereafter, the appellant has prayed to set aside the judgment and decree.
5. Learned advocate for the respondent on the other hand has vehemently supported the impugned judgment. According to him, the appellant has failed to prove her alleged marriage with the respondent in view of the material contradictions appearing in the evidence. In addition he has argued that the respondent has succeeded in proving his marriage with Sobha Singh which was earlier to the time then his alleged marriage with the appellant and therefore, his marriage with the appellant, if at all, is void in the eye of law.
6. This being the first appellate Court is a Court of fact as well as of law and therefore, it is our duty to appreciate the evidence afresh if called upon to do so. We have examined the evidence adduced in this case, both oral and documentary, threadbare. The appellant who has been examined as P.W.1 has stated in her evidence that on 21.03.1999 her marriage was performed with the respondent at Dumerta Kali Temple with the help of the Purohit according to Hindu Vedic rituals. There was a 'HOMA' by the priest and thereafter her cloth was tied with the cloth of respondent and both of them went seven rounds around the sacred fire by way of performing 'Saptapadi'. The respondent put vermilion on her forehead, her palm was tied with the palm of the respondent by the Purohit and her father gave her 'Kanyadan' to the respondent. P.W.2 Ganesh Naidu has also stated that the marriage was performed between the appellant and the respondent by chanting mantras and the respondent put Mangalsutra on the neck of the appellant. P.W.3-Rambilas Ram, who is the grand father (mother's father) of the appellant, has stated that the marriage was performed by the Purohit and he took the palm of the respondent and kept the same on the palm of the appellant and both of them moved seven rounds around the sacred fire. The evidence of the priest Hari Das who has been examined as P.W.5 is also likewise. The evidence of these witnesses is disbelieved by the learned Trial Court on the ground that P.W.5 does not remember the name of the star (nakshatra) which was prevalent during the time of marriage. He has also found certain discrepancies in the evidence of witness like 'Saptapadi' has not been deposed to by P.W.5 Hari Das, putting of vermilion has not been deposed to by other witnesses etc. these discrepancies are minor in nature and do not go to the root of the case.
7. In the present case all the witnesses mentioned above have deposed in unison about the performance of marriage and P.W.1 herself has given a vivid picture including performance of 'Saptapadi'. She has not been cross-examined at all with regard to ceremonies performed in the marriage. Therefore, at present the respondent cannot be heard to say that performance of some ceremonies is doubtful and therefore the marriage should be disbelieved.
8. In the case of A.L.V.R.S.T. Verrappa Chettiar v. S. Michael reported in : AIR 1963 SC 933 at para 50 it has been laid down as follows:
Further where it is proved that the marriage was performed in fact the Court will also presume that the necessary ceremonies have been performed. See Mouji Lal v. Chandrabati 38 Ind App 122 (P.C.). This presumption has not been rebutted in this case
In the present case strong evidence is available with regard to performance of marriage between the appellant and the respondent. Therefore, it must be presumed that all the necessary ceremonies for due performance of a marriage were also performed, a little bit of discrepancy or omission notwithstanding.
9. P.W.3 Rambilas Ram claims to be the father of the appellant P.W.1 the appellant herself has also stated that her father performed 'KANYADAN' ceremony. The respondent wants to capitalize on the fact that P.W.3 is in fact not the father of the appellant and any 'Kanyadan' by him is incompetent. The evidence shows that P.W.3 had reared the appellant since her infancy and therefore, it is no wonder that he treats her as his daughter. This is also not of much significance in this case. On the other hand, 'Kanyadan' can be performed by any relative in absence of the parents or if they are incapacitated for any reason. Therefore, not much emphasis can be laid on this aspect. Another factor on which the respondent has banked is that the respondent Santosh Kumar Singh was on duty on the alleged date of marriage and had signed on the attendance register and therefore, he could not have been present at the place of marriage on the date and time alleged. This plea is full of holes. Firstly, the marriage took place on a Sunday. On the said day respondent claims to be on duty and claims that in lieu of his work he availed converted rest on some other date. However, he has offered no proof in that respect. Sunday is a rest day and rest is the rule on that day and work is an exception. Anybody who wants to prove an exception has to prove the same which has not been done in this case. In addition to that in his cross examination the respondent-R.W.1 has stated that the lunch time was from 11 AM to 1 PM. It is in evidence that the marriage took place between 11 AM till Noon. Therefore, there is no reason as to why the petitioner could not have availed the lunch hour to get married. Furthermore, it has not been proved by the respondent that once somebody attends the office he cannot go away from the same. On the other hand he has been constrained to admit that one can put back-dated signature on the attendance register even without attending the duty with the consent of the Supervisor. When the affairs are so loose the claim of the respondent that he could not have been present at the time of marriage cannot be believed. To cap it all, the very duty of the respondent as admitted by him involves meter reading in course of which every day he has to go to the field i.e. from house to house to take meter reading. Therefore, his signature in the office if at all was only for form's sake and no importance can be attached to the same. On the discussion above, we arrive at a conclusion that the marriage was validly performed between the appellant and the respondent on the date, time and place alleged and the appellant has successfully proved the same.
10. Then remains the question of marriage between the respondent and Sobha Singh. Though the respondent has pleaded the same no satisfactory proof has been led in support thereof. The respondent, who has examined himself as R.W.1 has not stated about the performance of any ceremony. The father of Sobha Singh, who has been examined as R.W.2, has merely stated that there was only exchange of Jayamala and that he did Kanyadan. Performance of 'Homa' or 'Saptapadi' has not been deposed to by any witness. D.W.3 a relative of the respondent being his sister's husband has also stated the same. Ext.2, the computerized sheet of attendance of TELCO produced and proved by P.W.6, Deputy Manager Law, Telco proves conclusively that R.W.2 was present in the plant premises from 7.07 A.M. to 6.54 P.M. on 24.02.1999 and as such could not have been present at his village Kurre to perform the 'Kanyadan' of his daughter Sova. The most telling factor is that Sobha Singh herself was not examined by the respondent in support of such marriage. It may be noted here that the respondent and Sobha Singh jointly had filed C.P. No. 114 of 2001 before the very same Court against the present appellant seeking a declaration that the present appellant is not the wife of the present respondent. Since she had joined the respondent in filing a suit against the present appellant and her father was examined as a witness in this case, non-examination of Sobha Singh herself goes against the case of the respondent. In any event, as we have mentioned above, the respondent has not been able to prove by cogent and acceptable evidence that he married Sobha Singh on any date prior to the marriage with the appellant.
11. On the discussion above, we find that the appellant has succeeded in proving her case and the respondent has failed to prove his case. We find the impugned judgment and decree thus are not sustainable which are hereby set aside. The appeal is allowed. The C.P. No. 118 of' 2001 is hereby decreed and the appellant Ranjan Kumari Singh is declared to be the wife of the respondent Santosh Kumar Singh. Parties are directed to bear their respective costs.
P.K Tripathy, J.
I agree