01. The appellant puts to challenge the judgment and order dated 22. 05. 2006 rendered by the learned Addl. District Judge, Dibrugarh in Title Suit (Divorce) No. 36/2001, rejecting her prayer for a decree for dissolution of marriage between the parties and for permanent alimony.
02. We have heard Mr. K. Agarwal, learned counsel for the appellant-wife and Mr. N. K. Baruah, learned counsel for the respondent-husband.
03. The pleaded versions of the parties, in brief, would essentially lay the preface for the rival contentions.
04. The appellant has averred of her marriage with the respondent according to Hindu religious rites and customs in the month of November, 1983, where after, they set up their matrimonial home at Sassoni Gaon under Naharkatia Police Station in the district of Dibrugarh. She alleged that subsequent thereto, she was subjected to torture by the respondent on the pretext of insufficient dowry and insisted on her to arrange for more from her parents. The torture mounted the delay in bearing a child contributing thereto so much so, that on 20. 04. 2006 she was driven out from the marital home, whereafter she had been residing at her parental house. A decree for divorce on the ground of cruelty and desertion, as well as for permanent alimony was thus prayed for.
05. The respondent resisted the suit by denying all allegations leveled against him. He specifically denied the factum of marriage between them and also their association and cohabitation as husband and wife in his house at Sassoni Gaon. The respondent however admitted that the parties were residents of adjacent villages and were known to each other since their school days. He further admitted of some intimacy and insistence on the part of the appellant to marry her. As the respondent was not willing to marry without the consent of his parents, he asked the appellant to wait further. As the appellant was adamant, she in the month of October, 1983 came to his house which enraged his parents and other family members. This was also not to the liking of the parents of the appellant as well and after exchange of acrimonious allegations and counter allegations by both the families, she was taken back by her parents. According to the respondent, these incidents buffeted considerable ill feelings and had serious adverse impact on his mind for which he did not marry. He stated that subsequent to the above episode all kinds of association between the parties ceased.
On the basis of the pleadings, the following issues were framed:
(1)Whether the suit is maintainable in law and facts?
(2)Whether there was a valid marriage between the petitioner and the respondent?
(3)Whether the petitioner is subjected to cruelty by the respondent and his family members?
(4)Whether the petitioner is entitled to get the decree/relief as prayed for?
(5)What other relief/reliefs, if any, the parties are entitled to?
06. Whereas, the appellant examined herself and three other witnesses namely- Shri Ghana Chetia, Shri Kumud Gogoi and Shri Rajkumar Pradhan, the respondent too, in addition to himself, produced Smti. Damyanti Gogoi, Smti. Swarnalata Gogoi and Smti. Jayamaya Gogoi as his witnesses. The learned trial Court after analyising the pleadings of the parties and the evidence on record, by the impugned judgment and order dismissed the suit. As the decision thus rendered would reveal, the learned Court below concluded that the appellant had failed to prove the solemnization of marriage between her and the respondent and therefore adjudged her not to be his legally married wife. In the face of this determination, the issue pertaining to cruelty was consequentially without further elaboration decided against her.
07. Mr. Agarwal has urged that the marriage between the parties having been proved to have been solemnized as per the custom governing them and prevalent in the village of their residences, the learned court below erred in law and on facts in determining to the contrary. The learned counsel has pleaded that it being in evidence that the marriage between the parties who belonged to the Ahom Community was performed in a truncated form but acceptable as prevalent in the locality, the finding to the contrary is per se illegal and unsustainable. Mr. Agarwal, further argued that not only in the face of the overwhelming evidence regarding the marriage, the mistake in the year thereof as originally pleaded is wholly insignificant, the appellant and her witnesses having rectified the error in their additional evidence as permitted by the Court, the same ought not to have been taken as a factor to conclude against the same. The learned counsel by referring to the evidence of the witnesses of the appellant as well as the suggestions made on behalf of the witnesses of the respondent insisted that it would be apparent therefrom that she (appellant) was present in her matrimonial home on the date of the marriage, thus establishing her pleaded case. That the appellant has been registered to be the legally married wife of the respondent in his service record as established by the extract thereof, Ext-1 is also an unimpeachable evidence of the marital relationship between the parties, he urged.
08. According to Mr. Agarwal, not only the denial of such marriage by the respondent is sufficient to inflict unbearable cruelty on the appellant, it has been established further from her evidence, as well as of her witnesses that she had been during her stay of three years in the nuptial house subjected to physical and mental torture. The learned counsel has insisted that the inaction and in difference on the part of the respondent to bring the appellant back to the matrimonial home and not performing his other matrimonial obligations without any justifiable reason amounts to desertion by him as well. According to him, having regard to the handsome income of the respondent and no other liability of his, he not having remarried, the appellant is entitled to a permanent alimony of Rs. 15 lakhs.
09. Mr. Baruah, in response, has urged that as the age of the appellant on the date of the claimed marriage was less than 18 years, even assuming that the same was otherwise proved it being in contravention Section 15(iii) of the Act, is null and void.
The appellant not having repudiated the marriage U/s . 13(2) (iv) of the Act, her suit for dissolution of marriage being not maintainable, the impugned judgment and order does not merit any interference in the present appeal he insisted.
10. The learned counsel without prejudice to the above, though, admitted that a marriage between the members of the community to which the parties belong can be validly performed by lighting two earthen lamps accompanied by necessary negotiations and a feast, there being no evidence to that effect the appellant's claim of her being the legally married wife of the respondent is misconceived. That no marriage ever was performed between the parties is also evident from the apparent mistake in the date thereof, he urged. Moreover, none of the appellant's family members having been examined in support of the rituals of the marriage an adverse presumption against it ought to be drawn U/s. 114(g) of the Indian Evidence Act, 1872. Mr. Baruah has dismissed, Ext-1 to be not based on any declaration of the respondent and thus non est in law. According to him, as the marriage is void and is non-existent, the question of divorce or permanent alimony does not arise. He has urged that the plea of cruelty and desertion as well has also not been proved.
On being queried by the Court, Mr. Baruah, has submitted on instructions that the net monthly income of the respondent presently is Rs. 20,000. 00. Mr. Agarwal by way of supplementation of his pleas has urged with reference to Section 5,11,12 and 13 of the Act that even assuming that on the date of the marriage the appellant was underaged, the same did not render it void. With reference to the Child Marriage Restraint Act, 1929(as amended), the learned counsel has insisted that the same as well does not render a marriage in contravention of Section 5(iii) of the Hindu Marriage Act, 1955 void though it prescribes penal measures therefore. Besides contending that in absence of necessary pleadings, this belated plea ought not to be entertained, Mr. Agarwal, has maintained that as the appellant has insisted on valid marriage between the parties Section 13(2) has no application to the facts of the case. He sought to support his grounds by relying on the decision of the Apex Court rendered in SHANTINATH RAMU DANOLE AND ANOTHER Versus JAMBU RAMU DANOLE AND OTHERS (1996) 11 SCC 88.
11. Prior to the appraisal of the contentious arguments, it would be apt to survey, in brief, the relevant evidence on record. The appellant as PW-1 on oath stated that the marriage between her and the respondent had taken place in the year 1983 in course of which, people were invited to a feast. She stated to have gone to her matrimonial home thereafter, where she resided for three months. She stated about the physical torture by the respondent under intoxication and also alleged mental cruelty for her failure to offer a child. She denied the respondent's plea of not having married her. In cross-examination, though she insisted that the month of her marriage was that of November, she conceded of not remembering the year. She asserted the date thereof to be 5th of Aghon and also deposed that at the marriage, people of the locality had been invited and one Thundu Hatimuria was the priest. She however added that the priest was dead. According to her, the respondent as the groom arrived at her house at about 6 p. m. in the evening alongwith three companions. She denied the suggestion that there was no marriage between them and that she had eloped with him to his house and that as it was not acceptable to both the families, she was taken back by her father. She, however admitted that their marriage was not solemnized before the sacred fire or by performing Chaklang, the related religious rite of the Ahoms. She stated that she has no income and that the respondent has monthly net earning of Rs. 20,000. 00 as an employee of the Oil India Limited. She further stated that she had instituted the suit after the death of her father and that she was in receipt of Rs. 5,000. 00 per month by way of maintenance from the respondent.
12. PW-2 Shri Gana Chetia a resident of the same locality stated to have visited the house of the appellant on the 5th day of Aghon of the year 1983 on being invited by her father, in connection with the marriage. The witness stated that on his visit, he found an assembly of 10/12 persons including one Bhola Gogoi. The witness also mentioned to have seen the respondent present as the bridegroom there. According to him, the appellant was then produced before the gathering as the bride and the couple offered obeisance as a part of the customary rituals, whereafter, following the feast they were seen off for the marital home. This witness stated that marriage in their community is solemnized by lighting two earthen lamps and the couple are required to seek blessings from the persons assembled thereat. The witness affirmed that the marriage between the appellant and the respondent was performed by following the said rituals. He also confirmed that Thundu Hatimuria was the priest who officiated the rites. He also confirmed that the appellant stayed with her husband for three months thereafter. In cross-examination, this witness stated that he too had given his daughter in marriage in the same manner. He denied the suggestion that the appellant had come to the house of the respondent by eloping with him and that as it was not acceptable to both the families, she was restored to her father's place by him(the respondent). This witness stated that the appellant had no income and that the respondent is a service holder of the Oil India Limited.
13. PW-3 Shri Kumud Gogoi endorsed the marriage between the appellant and the respondent in the year 1983. He stated that he was present at the time of the marriage and the departure of the bride to her matrimonial home. This witness stated that at the time of marriage, two earthen lamps were lighted in presence of the persons who were assembled thereat together with a few devotees from the adjacent worship place. The couple, then jointly sought blessings from the elders which was followed by a feast and thereafter they were seen off. The witness stated to have participated in the feast being a guest on behalf of the respondent. He stated that after the marriage the respondent took the appellant to his house. This witness ratified that in their village such a marriage is performed by lighting two earthen lamps and offering feast. This witness also confirmed that the appellant was without any income.
14. PW-4 Shri Raj Kumar Prodhan is an employee of the Oil India Limited, Industrial Relation Department who testified that the respondent was an employee of the Civil Engineering Department of the institution. He produced an extract of the service record of the respondent as required by the summons which he proved as Ext-1. He stated that in terms thereof that the appellant was recorded therein to be his wife showing the date of their marriage to be 21. 11. 1982. He also mentioned about the date of the said entry to be 24. 12 1982. This witness also proved the pay slip of the respondent showing his gross income to be Rs. 29,643. 43 for the month of January, 2004 as has referred to therein. In cross-examination this witness admitted of not having brought the declaration on the basis of which the entry had been made in Ext-1. He denied the suggestion that the respondent had not furnished any declaration on which Ext-1 had been prepared.
15. PW-1, 2 and 3 in their additional evidence clarified the date of marriage to be 5th of Aghon of the year 1982 and were also cross-examined on behalf of the respondent.
16. The respondent who examined himself as DW-1, denied his marriage with the appellant. He, however admitted to have known her from long before and also conceded his fondness for her. He admitted that because of his liking for her, he used to often visit her house and that it was known to both the families. He stated that while both were contemplating to marry, the appellant voluntarily came to his house which enraged both the families for which she was taken back by her father. In cross-examination, the respondent admitted his affinity for the appellant from the school days and stated that both of them belonged to the same community and therefore there was no bar for their marriage. He also stated that in contemplation of marrying her, he even went to her house alongwith Kumud Gogoi insisting for such alliance. He also admitted that the marriage in their community is solemnized by lighting earthen lamps, feast and seeking the blessings of the invitees. He admitted to be an employee of the Oil India Limited with a Service Book. He however disowned Ext-1. He admitted that the name of the appellant had been shown in the said document and that he had not taken steps to cancel the said entry.
17. DW-2 Smti. Damayanti Gogoi, mother of the respondent-husband denied the marriage as well as the appellant's stay in their house. She, however admitted that once the appellant had visited their house without informing her parents and that on due intimation he took her daughter back. In cross-examination this witness also admitted that her marriage as well had been solemnized by lighting earthen lamps and soliciting the blessings of the invitees. She also admitted that in their society marriages are performed in the same manner. She admitted that the appellant had visited their house in 1982.
18. DW-3 Smti. Swarnalata Gogoi, sister-in-law of the respondent also denied the marriage. She, however reiterated that the appellant had once come to their house without informing her parents following which there was unpleasantness between the two families and eventually she was taken back by her father. In cross-examination however she expressed her ignorance if the marriage between the parties had taken place in the house of the appellant.
19. The evidence on record as recited hereinabove, demonstrate that the marriage in the community to which the parties belong is solemnized by lighting earthen lamps, arranging feast and beseeching blessings from the assembly by offering salutations. The requirement of the performance of Chaklong by essentially lighting 101 earthen lamps, as the evidence discloses is not an indispensable requirement for a valid marriage in the locality to which the parties belong. The evidence of the witnesses on the aspect of marriage between the parties in our opinion by applying the test of preponderance of probability establishes the performance of the aforementioned rituals. The non-examination of any relation of the appellant per se in the face of the other materials on record does not weigh against this conclusion.
20. As it is on the date of the adduction of evidence of the appellant and her witnesses, her father had expired. The witnesses also stated that the priest of the marriage was also dead by then. Ext-1, which admittedly, is a part of the service record of the respondent unambiguously records the appellant to be his married wife, the date of solemnization thereof mentioned as 12 . 11. 1982. The evidence of PW-4 is unequivocal that such an entry is made on the basis of a declaration of the concerned employee. The respondent as well has referred to his bio-data disclosing the appellant to be his wife. He has conceded as well of not having taken necessary steps to cancel the said bio-data or the Ext-1.
His admission of his loving association with the appellant since his school days and their mutual consensus to marry is also supportive of the appellant's plea. The admission of the appellant's presence in the house of the respondent in the year 1982 is also a corroborative fact. It is not, unlikely that though the marriage had been solemnized in the house of the appellant, for some misunderstanding thereafter and the consequential bitterness between the families, the parties under compulsion had to distance themselves at the instance of their parents and other elders of their family. We are thus inclined to conclude having regard to the pleadings of the parties and the evidence on record that the marriage between them had been solemnized according to this religious and customary rites as prevalent in this locality but due to unfortunate developments thereafter, they had to live separately for which with the passage of time they have adopted hardened stands so much so that insistent efforts for reconciliation even by this Court during the hearing failed to effect a thaw.
21. The plea of void marriage for contravention of Section 5(iii) of the Act is to be mentioned to be rejected. Though, in terms of the aforementioned legal provision a marriage between any two Hindus can be performed if the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time thereof, any contravention of this requirement per se does not render the alliance void or voidable. The Child Marriage Restraint Act, 1929(as amended) which prescribes punishments for such contravention however does not invalidate such a marriage.
22. A plain reading of Section 11 and 12 of the Act, as well does not proclaim that infringement of Section 5(iii) thereof would ipso facto render the marriage void or voidable. Apart there from, this plea of the respondent which is based on the recorded age of the appellant on the date of recording of her evidence is otherwise unconvincing as well. Not only, the age mentioned by the appellant in course of her testimony is not on oath, there is no whiff of such a plea by the respondent in his pleadings. The view that a contravention of Section 5(iii) of the Hindu Marriage Act, 1955 does not thereby nullify the marriage finds support in the full Bench decision of the Andhra Pradesh High Court in Venkataraman vs. State AIR 1977 A. P. 43 and of the Patna High Court Rabindra Prasad vs. Sita Devi AIR 1986 Patna 128. This plea of the respondent, therefore fails.
23. The appellant in her evidence has in categorical terms stated about the physical and mental torture meted out to her by the respondent. According to her, the torture grew for her failure to bear a child, so much so, that she was ousted from the matrimonial home. This testimony of hers has not been shaken in her cross-examination. The stock reply of the respondent and his witnesses is that in absence of marriage and the appellant's stay in the matrimonial home the question of treating her with cruelty did not arise.
24. In the face of the determination of this Court that marriage had been proved, the stout and obdurate denial thereof by the respondent and his family members by itself in our estimate has the potential of causing unbearable- cruelty to the appellant. That the respondent had not taken any initiative to either normalize the situation or offer to perform his matrimonial obligations, in our comprehension also has an agonizing impact on the appellant subjecting her to cruelty with the meaning of Section 13 of the Act. His indifference in the matter when viewed in the context of a valid marriage between the parties amounts to desertion by him as well.
25. In view of the conclusions as above, we are of the unhesitant opinion that there has been a valid marriage between the parties in accordance with their custom as envisaged of Section 3(a) of the Hindu Marriage Act, 1955 and that the appellant has been able to prove the grounds of cruelty and desertion as contemplated in Section 13 thereof. She is, thus entitled to a decree for dissolution of marriage, which we hereby order.
26. The pronounced evidence available on record is that the appellant is without any source of income. The respondent as his pay-slip would reveal had a gross earning of Rs. 34,492,95 and net income of Rs. 15,176.00 in the month of March, 2004. The monthly deduction of Rs. 19,316.95 amongst others include Rs. 5,000.00 by way of maintenance payable to the appellant. If this amount is excluded, the net income of the respondent in March, 2004 would rise to Rs. 20,000.00 approximately. Six years hence, as an employee of the Oil India Limited, his pay and allowance must have substantially increased as on date. The evidence of the appellant recorded in the year, 2002 discloses that the respondent's net income then was Rs. 20,000.00 per month. On a moderate estimate, we are of the view that as on date, his net income would be Rs. 30,000. 00.
It is on record that neither of the parties has remarried. According to the respondent, presently he has his widowed sister-in-law and two nephews to look after. The deduction of Rs. 5,000. 00 from his pay and allowance on monthly basis however continues. Having regard to the conditions enumerated in Section 25 of the Hindu Marriage Act, 1955 as well as the materials on record, we are of the opinion that the appellant is entitled to a lump sum, by way of permanent alimony, which we quantify to be Rs. 3,50,000.00 (Three Lakhs Fifty Thousand). This amount however would be in addition to the sum deducted till date by way of monthly maintenance as indicated hereinabove. The respondent would take steps for payment of the amount of Rs. 3,50,000. 00 within six weeks here from. The amount in deposit towards the monthly maintenance allowance, as on date, and not released to the appellant, would be disbursed to her forthwith. Hereafter no further deduction would be made from the Respondent's salary by way of monthly allowance and the amount of permanent alimony and the unreleased deposits would be in full and final discharge of all the dues of the appellant in the present appeal.
27. On an analysis of the reasonings recorded by the learned trial Court in the above factual and legal perspectives, we find ourselves in disagreement there with . The impugned judgment and order is thus set aside. The appeal is allowed. Let a decree be prepared in terms thereof. No costs.