Shakuntala Vs. Ram Dhayan Mishra - Court Judgment

Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - she further submitted that during the 'aforesaid period of 4 months, she bad sexual inter-course with him and as a result of which, she had given birth to the child. the case of the appellant is that this was so even when gauna bad been performed. it is well-known that gauna ceremony, though not a necessary part of creating a legal bond between two persons of opposite sexes is yet an important ceremony permitting the parties to live as husband and wife. it is well established that saptapadi, which had admittedly been performed, is the important marriage ceremony,'under the circumstances, the marriage becomes complete and irrevocable on completion of this ceremony. under the circumstances, the respondent would not be able to deny creation of lawful relationship of husband and wife between the parties, merely became gauna ceremony bad not been performed. in spite of it, it has to be recognised that though the bond of marriage between the parties bad been created, marriage by itself did not furnish an opportunity to the respondent to establish sexual relationship with the appellant and thereby consummate the marriage. it is well-known that a lady is not in a position to be removed from hospital on the day she delivers the child, as she remains very weak on that day.gulab c. gupta, j.1. appellant feels aggrieved by the judgment and decree dated 6-2-1991 passed by shri yakub ali, i additional district judge. shahdol in civil suit no. 2-a/1991 decreeing dissolution of marriage by a decree of divorce, and challenges legality and validity thereof in this first appeal filed under section. 28 of hindu marriage act, 1955 (hereinafter referred to as the act).2. the respondent-husband filed the present suit seeking dissolution of his marriage with the appellant held on 20th june, 1982 at shahdol. he alleged that at that time, gauna ceremony was not performed and, therefore, the appellant-wife did not accompany him to his place and continued to live with her parents. according to the plaint, because of the aforesaid, there was no consummation of marriage and yet the appellant delivered a male child on 2-6-1983 at shahdol. according to the respondent, the appellant was leading a life of adultery, which furnished him a ground for seeking divorce. the appellant in her written statement admitted that the marriage between the parties was performed, but denied that gauna was not performed. according to her, gauna was also performed, but in spite of it, she admitted that she did not accompany the respondent to his home after marriage. the appellant further admitted that she gave birth to a male-child, as alleged, but denied that the said child was not of the respondent. according to her, the respondent was, at the time of marriage, living with his uncle at shahdol. the uncle had got annoyed and driven him out of the house, as a result of which the respondent came to live in the house of the appellant and actually lived for about 4 months. she further submitted that during the 'aforesaid period of 4 months, she bad sexual inter-course with him and as a result of which, she had given birth to the child. the appellant, therefore, denied that she was living in adultery. both the parties adduced evidence in support of their case. the learned adj, on appreciation of evidence adduced by the parties, held that the appellant did not accompany the respondent to his house after marriage and even subsequently. there was no opportunity for the respondent to develop sexual relationship with her. in view of the aforesaid, the learned judge held that the child born to the appellant was not the child of the respondent. the learned judge, therefore, held that the appellant was leading a life of adultery, sufficient to dissolve the marriage. that is how the impugned-judgment and decree have been passed and are subject matter of challenge in this appeal.3. it is common ground that in case this court comes to the conclusion that the child born to the appellant on 2-6-1983 at shahdal was not the child of the respondent, the impugned-judgment and decree would be legally correct. under the circumstances, the only question requiring consideration of this court is whether evidence on record justifies the conclusion that the parties developed sexual relationship after the marriage, as a result of which the child was born to them on 2-6-1983. case of the respondent is that after the marriage, the appellant did not accompany him to his house and, therefore, there was no consummation of marriage. he has further alleged that he never had any occasion to establish sexual relationship with the appellant after marriage. as against this, the appellant in her written statement has alleged that in the month of august 1982, the respondent was driven out of his uncle's house and came to live in her house and actually lived there for about four months. during this period, she established sexual relations with him and got pregnant. that the appellant did not accompany the respondent to his house after marriage is not in dispute. the case of the appellant is that this was so even when gauna bad been performed. 'gauna' among hindus, is a ceremony, whose performance is necessary to send the bride with the bride-groom. the marriage is not considered complete, unless this ceremony is performed. according to the learned judge, it is unlikely that a bride would not be sent with the bride-groom, even after performance of gauna ceremony. such a conclusion appears to be fully justified. it is well-known that gauna ceremony, though not a necessary part of creating a legal bond between two persons of opposite sexes is yet an important ceremony permitting the parties to live as husband and wife. the very purpose of a. gauna ceremony is to send the bride with the bride-groom so that they can live together and consummate the marriage. in the instant case the bride has admittedly not been sent with the bride-groom and, therefore it would be reasonable to hold that gauna ceremony was not performed. ' in this view of the matter, the finding that gauna ceremony was not performed as recorded by the learned adj, is fully justified. this, however, in the opinion of this court, does not affect the creation of relationship of husband and wife between the parties. it is well established that saptapadi, which had admittedly been performed, is the important marriage ceremony,' under the circumstances, the marriage becomes complete and irrevocable on completion of this ceremony. it is true that this ceremony, which is essential under hindu law, may be replaced by custom. there is. however, no allegation of its replacement by a customary law. indeed, both the parties agreed that marriage had been performed and they are legally married husband and wife. that is perhaps the reason why the respondent had filed the present suit for divorce. under the circumstances, the respondent would not be able to deny creation of lawful relationship of husband and wife between the parties, merely became gauna ceremony bad not been performed. in spite of it, it has to be recognised that though the bond of marriage between the parties bad been created, marriage by itself did not furnish an opportunity to the respondent to establish sexual relationship with the appellant and thereby consummate the marriage. it is also admitted that the appellant, as a bride, never went to the home of the respondent. since in spite of the same, the child was born to the appellant on 2-6-1983, the question requiring consideration is whether it could be said to be the legitimate child of the parties the learned a.d.j. has examined the evidence in this behalf and held that the respondent never left the house of his uncle ramsumiran and never stayed in the house of the appellant. the learned counsel for the appellant has, however, criticised this conclusion as perverse and hence it deserves examination. this court having gone through the entire evidence on record, is of the opinion that the said finding is fully justified.4. appellant as d.w. 1 has stated on oath that after about a month or a month and a half, the respondent came to her house and informed that he had been removed from the house of his uncle and thereafter lived in her house for 4*5 months, during which period, he was studying. her statement to the court does not tally with her statement in the criminal court (ex. p/4). in the said court, she had submitted that the respondent came to live in her house in august, 1983 and she gave birth to the child in june, 1984, while in the witness box in the criminal court, she admitted that the said statement was incorrect. in the criminal court statement, she had further admitted that there were only 2-3 rooms in the house and 3 sisters, 4 brothers and parents lived in them. if it was such a large family, it was not possible for the parties to live separately. ram rudra prasad (d.w. 2) is the father of the appellant and has stated that after one month of marriage, the respondent came to live in his house and lived for four months. both the appellant and this witness do not allege anything against the respondent so as to justify conclusion that he was making the false statement. the statement that the respondent lived with the appellant for about 4 months is also established from the evidence of mustafa khan (d. w. 3). adityanath (d w. 4), sitasharan shukla (d.w. 5) and bhikarisingh, (d.w. 6). as against this evidence, there is evidence of respondent denying the allegation that be had any quarrel with his uncle and ever went to stay with the appellant. his uncle ramsumiran (d.w. 4) has also denied that he ever removed the respondent from his house or that the respondent ever lived with the appellant. nothing whatsoever is alleged against the uncle so as to justify his making a false statement in this behalf. if this was the only material on record and there was no other suspicious circumstances, it could legitimately be argued that the finding as recorded by the learned adj was perverse, but besides the aforesaid, there are two important circumstances, which justify the finding against the appellant.5. it is common ground that the appellant gave birth to a child at district hospital. shahdol on 2-6-1983. nasheer ali (p.w. 3) had produced record of the hospital to prove the same. the correctness of this record is not in dispute. ex p/2 is the register regarding the name of the patient admitted in the hospital. ex, p/2-c is admittedly the entry in relation to the -appellant. curiously enough, appellant is recorded as the wife of the r.r. prasad. the words 'w/o.' have been recorded in column no. 5 as also column no. 9; though 'w' is sought to be changed to 'd' in column no. 9, there is no change in it in column no. 5. to the same effect is the record in ex. p/3. ram rudra prasad, father of the appellant has tried to explain this entry by saying that it was his name. even assuming that this witness writes himself as ram rudra prasad, which is patently false, yet it is unthinkable that a father would write that his own daughter was his wife. apparently, therefore, the name of r.r. prasad is not relatable to the appellant's father and surrounds the incidence with mystery and suspicious. then, ex. p/3 would indicate that the appellant gave birth to a child at 10.00 a.m. and was taken out of the hospital with the male-child on that very day. it is well-known that a lady is not in a position to be removed from hospital on the day she delivers the child, as she remains very weak on that day. ram rudra prasad (dw 2) the father, has tried, to explain this by submitting that his wife was sick and there was small children in the house and, therefore, he was not in a position to keep his daughter in the hospital. he is, however, contradicted in this behalf by mustafa khan (d.w. 3), who had admitted that appellant's mother had come to the hospital with him, which would indicate that appellant's mother was not sick and the explanation given by the appellant's father is false. now, if every thing was beyond suspicion, i.e., the child was begotten by the appellant's husband, there was no occasion for anyone to feel guilty about the delivery, and in such a situation, the name of the father of the child would normally have been reported in the hospital, which had not been done. in such a situation, the respondent ^should have been informed and entrusted the responsibility of looking after the appellant, which was not done and instead the appellant was removed from the hospital immediately after delivery. these suspicious circumstances, create justifiable doubt in the mind of this court that the appellant and her father had been feeling guilty about the appellant's delivering the child and had acted in an abnormal manner for that reason. these two suspicious circumstances would provide a strength to the statement of the respondent that the child was not begotten by him and that he did not have an opportunity to live with the appellant. in this view of the matter, the conclusion that the child delivered by the appellant was not begotten by the respondent is fully justified, needing no interference of this court.6. in view of the discussion aforesaid, appeal fails and is dismissed. no order as to costs.