Harish Uppal Vs. Neera Dixit - Court Judgment

Goswamy, J.

(1) This appeal by the husband is directed against the judgment dated 21-12-1985 passed by the learned Additional District Judge, Delhi whereby his petition under Sections 11 and 12(l)(c) of the Hindu Marriage Act, 1955 as amended by Marriage Laws (Amendment Act 1976) was dismissed.

(2) The marriage between the parties was solemnized on 1-10-1979 in accordance with Hindu rites at New Delhi. After the marriage the parties cohabited as husband and wife at New Delhi. The husband filed a petition under Sections 11 and 12(l)(c) of the Hindu Marriage Act for annulment of marriage by a decree of nullity, on 30-4-1980. It is alleged in the petition that the respondent was earlier married to one Ashok Dixit and was living with him which fact was concealed from the petitioner. It is further stated that the respondent and her family had fradulently concealed the material fact from the petitioner. The only relevant paragraphs in the petition are paragraphs 4 and 5 and it would be useful to reproduce the same as complete case of the petitioner is stated in the said paragraphs :-

'(4)The petitioner submits that the respondent was earlier married to Ashok Dixit and was living with him which fact was concealed from the petitioner. The respondent and her family had fraud from the petitioner, in fact prior to the petitioner's marriage with the respondent when negotiations were being carried on between the parties' families, the petitioner had specifically inquired from the respondents father about the reason for the respondent having remained unmarried till the age of 28 years. To this, the respondent's father's reply was that the respondent in spite of family's best efforts had rejected all earlier marriage proposals. They said it is a matter of 'Sanjog' and will take place only when the time comes. The petitioner after the marriage heard the rumours regarding the earlier marriage of the respondent. The petitioner thereforee confronted the respondent on 14-3-1980 regarding the factum of earlier marriage which she could not deny and later on admitted that she was married to one Ashok Dixit. This fact was deliberately concealed by the respondent and her parents from the petitioner before marriage.

(5)The petitioner submits that had he known about the respondent's having undergone the marriage with some other man and having lived together with him as his wife or otherwise having cohabited with him. the petitioner would never have consented to the marriage with the respondent. In the circumstances, mentioned above, the consent of the petitioner with the respondent was obtained by fraud by concealing material fact and circumstances concerning the respondent it is submitted that the respondent and her parents misrepresented and concealed the facts of the previous marriage and/or relationship of the respondent with the said Ashok Dixit and by this deception on their part. the very essence of the relationship of marriage between the parties has been adversely effected. As such the marriage of the petitioner to the respondent is liable to be annulled by a decree of nullity under Section 12(1)(c) of the Hindu Marriage Act, because the consent of the petitioner to the said marriage, as stated above, was obtained by fraud as to the material facts and circumstances concerning the respondent. The respondent so far has not taken any valid divorce from the said Ashok Dixit. In view of the aforesaid facts, it is further stated that the marriage between the petitioner and the respondent is also null and void under Section 11 of the said Act and is liable to be declared so by a decree of nullity because the respondent had spouse i.e. Ashok Dixit living at the time of marriage between the petitioner and the respondent.'

(3) It is alleged that the fraud was discovered only on 14-3-1980 and as such the petition filed on 30-4-1980 was within time.

(4) The petition was opposed by the respondent-wife. In the written statement it is pleaded that the petitioner had wisely alleged the respondent as Neera Dixit, and the respondent was taking strong exception to the same. It is further stated that the allegations in the petition arc absolutely false, frivolous and vexatious to the knowledge of the petitioner and the same have been made only in order to harass the respondent. It is further stated that in fact the respondent could not fulfill the demand of the petitioner lor money and the petitioner and his mother were not satisfied with the amounts of gifts which the parents and relations of the respondent gave in marriage to the petitioner which gifts were worth about Rs. 70000.00 . It is stated that right from the beginning the petitioner started pressuring the respondent to bring at least one lac of rupees from her parents and also told the respondent that the dowry received in marriage was much below their expectation and as such he would not keep her until the respondent was able to arrange for the aforesaid funds. In absence of the same the respondent was asked to obtain divorce from court. The petitioner had further pointed out that if the father of the respondent could give heavy amounts to the elder son-in-law why were the same were not given to the younger one. He told the respondent that he did not want to keep her any more and she should obtain divorce. It is further alleged that when the parents oS' the respondent came to Delhi in October 1979 they were told plainly to take away their daughter and when the parents of the respondent decided to take her away. the petitioner changed his mind and told the parents that he would sent her later on. The respondent was being tortured systematically thereafter. She was not even allowed to use the telephone and wherever she was getting a call on the telephone someone or the other from the family the family of the petitioner would stand and hear the conversation. It is further stated that even her letters were intercepted. It is also alleged that she was not sent to Calcutta with her parents because the petitioner and his mother did not want to return the jewellery given to her in the marriage which was kept in the safe deposit vault by the petitioner. It is stated that the respondent kept on tolerating the attitude of the petitioner till 18th December, 1979 when the petitioner sent the respondent to her parents' place at Calcutta with only three bare clothes at her body and kept the entire clothes and property of the respondent with him. Thereafter the petitioner wrote a letter dated 14-1-1980 to the father of the respondent wherein vague and false allegations were made and it was stated that the respondent should not be sent back to the petitioner's house at Delhi. It is further stated that the petitioner is trying to take advantage of his own wrong by seeking the relief prayed for in the petition. It is stated that after 20.2-1980 the parents of the respondent went to certain relations of the petitioners for help and during these visits and talks it transpired that the petitioner was a previous convict and has undergone imprisonment in a dacoity case. The father of the respondent went to the petitioner and wanted to clarify these points when he was again insulted and humiliated. The respondent lodged a report with Nari Raksha Samiti in 29-2-1980 and at their request the mother on the respondent came from Calcutta and went all along to the petitioner to persuade and went all along to the petitioner to persuade him but she was also disgraced and insulted. It is further stated that the petitioner had done everything he could in order to further harass and humiliate the respondent and has gone to the extent of filing a false compliant also.

(5) On merits it has specifically been denied that the respondent was ever married to Ashok Dixit or to any other person and she never lived with any other person except the petitioner. It is also denied that during negotiations for the marriage between the two families, the question of the respondent having remained unmarried till the age of 28 years was ever raised. It is stated that the father of the respondent had told the mother of the petitioner that in spite of the best efforts of his family no suitable match for the respondent could be found and that the matrimonial alliance is a matter of 'Sanjog'. It is further stated that during the negotiations for the marriage the father of the respondent in the presence of the cousin of the petitioner and other relations did disclose to the petitioner and his mother that in 1971 Ashok Dixit son of owner of the school, where the respondent was studying, was able to get a blank form signed from the respondent saying that the same was meant for 'sent up' form for examination and the said person being the son of the owner and an official of the school was not doubted by the respondent. The same day the respondent told her mother that she was made to sign some form thereupon the father of the respondent made inquiries at the school and smelt something fishy and discussed the things with the friends there. The said mischievous person later filled up the said form as a declaration form and applied for the registration of the marriage under the Special Marriage Act. It is further stated that the respondent filed a suit for declaration that her alleged marriage with the said Ashok Dixit purported to have been registered under the Special Marriage Act, was void vide suit No. 178 of 1972. In that suit the court came to the conclusion that the registration of the so-called marriage between the parties was invalid and decreed the suit in favor of the respondent declaring that the said marriage between the respondent and Ashok Dixit was of and effect vide its judgment dated 22-11-1974. It is specifically denied that these facts were concealed from the petitioner and it is stated that the petitioner and his mother were duly informed about these facts. It is further stated that in fact the respondent was never married to any other person except the petitioner and she never lived or cohabited with any other person except the petitioner. The allegations of mis-representation and concealment off acts have been emphatically denied. It is further stated that, in fact, it is petitioner who is guilty of concealing the material facts so the effect that he was convicted by a court on the charge of dacoity and was sentenced to two years imprisonment. It is further stated that the respondent was never at the place of the petitioner on 14-3-1980 and in fact she was in Calcutta on that date and the allegations of the petitioner regarding the incident of 14-3-1980 was false. It is further stated that the present petition has been instituted by the petitioner only because the respondent had filed a petition under Section 125 Criminal Procedure Code for maintenance and in order to avoid, the maintenance the present petition had been instituted.

(7) The petitioner filed his replication. In the replication, he denied all the allegations leveled by the respondent in the written statement and re-iterated the please taken in the petition. He admitted that he had written a letter to the father of the respondent on 14-1-1980 as alleged. He also denied that he had turned out the respondent on 18-12-1979 and stated that. in fact he was not in Delhi on that date. It is further pleaded that the respondent has falsely stated that she was not in Delhi on 14-3-1980.

(8) On the pleadings of the parties, the following issues were framed:-

1. Whether the marriage between the parties solemnised on 1-10-1979 is null & null & void and is liable to be annulled by a decree of nullity? OPP.

2.Whether the marriage between the parties is voidable on account of the reasons that the consent of the petitioner was obtained by practicing fraud or by suppressing of material facts? OPP.

3.Whether the present petition is within time? OPP.

4.Relief.

(9) On consideration of the entire oral and documentary evidence and by a very well considered judgment, the learned trial Judge found issue No. 3 in favor of the petitioner and issues Nos. 1 and 2 against him. As a result of findings on issues Nos. 1 and 2, the petition was dismissed.

(10) I have been taken through the entire evidence on record and lengthy arguments were advanced. The parties have also filed their written submissions. In order to prove his case. the petitioner, besides examining himself as Public Witness 1, examined Shri Vishwa Nath, an official of the office of the Registrar of Marriages and deaths as Public Witness 2. Tara Singh an attesting witness to the declaration made by the respondent and Ashok Dixit as Public Witness 3, Ram Nagina Chaudhary and Commercial Supervisor of Mugal Sarai Railway Station, Public Witness 3, Ajay Kumar who is only a formal witness who produced the record from court of Shri N.G. Chaudhary, City Civil Court, Calcutta as Public Witness 5. Trilok Kumar as Public Witness 6, Satish Kumar as Public Witness 7 and Satish Berry as Public Witness 8. As against this evidence, the respondent examined herself as RW1 and her father as Public Witness 2. The petitioner has mainly deposed to the averments in his petition and has proved and placed on record various documents such as letters written by the respondent to him and to his mother as also the letter written by him to the father of the respondent and I shall deal with these letters at the appropriate stage. He also proved on record, the marriage certificate issued by the Calcutta Marriage Officer regarding the alleged marriage of the respondent with Ashok Dixit. The case of the petitioner in the petition is to the effect that the respondent was earlier marriage to Ashok Dixit and was living with him which fact concealed from the petitioner. It is further stated in the petition that in case the petitioner the petitioner had known about the respondent having undergone the marriage with some other person and having lived with that person as his wife or otherwise, the petitioner would never have married her. It is interesting to find that in the entire statement of the petitioner or any of his witnesses there is no mention about any marriage ceremony having been performed between the respondent and Ashok Dixit. There is also no evidence that the respondent ever lived with the said Ashok Dixit at any point of time. The reliance is placed only on the marriage certificate which, according to the petitioner, raises presumption in favor of the performance of marriage and according to the petitioner even if the marriage certificate has been declared to be null and void or has been cancelled, the same does not cancel the marriage. The petitioner proved on record as certified copy of the application in form Iv as Ex. P. 18 and identified the signatures of the respondent and Ashok Dixit on that application. He also proved certified copy of the statement of Smt. Mehta as Ex. P. 19. The certificate of marriage issued by the Marriage Officer Calcutta was proved as Ex. P. 20. There is no doubt about the fact that the certificate of marriage was issued. However, the judgment Ex. R. I passed by the City Civil Court at Calcutta discloses that the respondent had filed a suit being suit No. 178 of 1972 for declaration her marriage with Ashok Dixit purported to have been registered under Section 15 of the Special Marriage Act was void. The case of the respondent in that suit was that on the date of the purported marriage she was less than 20 years and that there was no marriage with Ashok Dixit and her and she never lived with Ashok Dixit as his wife. That suit was contested by Ashok Dixit and he was filed his written statement. However, at a later stage the suit proceeded ex parte. On consideration of the entire material on record, the learned Civil Judge recorded the findings as under :-

'FURTHER from the ex parte deposition of the petitioner as corroborated by her mother the court is satisfied that no ceremony of marriage between the petitioner and the respondent was ever performed as falsely stated in Ex. P.2 and the petitioner and the respondent never lived as husband and wife. The court is, thereforee, satisfied that the conditions mentioned in clause (a) of Section 15 of the Special Marriage Act for resignation of the marriage were not fulfillled. In the aforesaid circumstances, the court is satisfied that the registration of the so-called marriage between the petitioner and the respondent was invalid. There is no evidence of collusion between the petitioner and the respondent. Petitioner's claim to be established'.

(11) With these findings, the suit of the respondent was decreed and it was declared that the marriage certificate was of no effect as the registration was in contravention of clauses (a) and(d)of Section 15 of the Special Marriage Act. As I have already stated the contention of the petitioner-appellant before me was that even if the marriage certificate bad been declared as null and void that would not cancel the marriage between the parties. The appellant has, however, over looked the fact that there is no material on record to the effect that any marriage between the respondent and Ashok Dixit was ever performed. There is not an iota of evidence on record to show that any marriage ceremony took place. The appellant contended that il was impossible for him to prove the factum of marriage since Ashok Dixit had died before the evidence could be recorded. The appellant in his statement has furnished the residential as also the office address of Ashok Dixit. He has admitted that he had been to his residence as also to his office and had seen him writing and has thereforee identified his signatures. In case the appellant knew the residential premises of Ashok Kumar Dixit it would not have been difficult for him to procure a witness regarding the marriage, if at all, the same bad taken place Any of the relations of Ashok Dixit who would have attended the marriage could. have been produced. The only witness produced by the appellant who was present before the marriage Officer is Tara Singh Public Witness 3. He is an attesting witness to the declaration made by the respondent and Ashok Dixit in the application form for registration of marriage He also identified the signatures of the respondent and Ashok Dixie on the original form. When cross-examined he stated that he knew the respondent because she was studying in the same Instituted as his daughter was studying but his daughter and the respondent were in different classes. He had further to admit that prior to 4-10-1971 he did not know the respondent personally nor had he met her any time thereafter. He further stated that even on 4-10-1971 nobody had introduced the respondent to him. He admitted that Ashok Dixit had taken him to the office of the Marriage Officer for the purpose of attestation where he had signed and according to him nothing had expired in his presence except that he was asked to append his signatures. He further admitted that he had very close relations with Ashok Dixit and he treated him like his younger brother and son. If Tara Singh could treat Ashok Dixit as his younger brother and son the natural consequence would be that he would have known the fact that Ashok Dixit and the respondent were married and be might have even attended the marriage ceremony. However, not a suggestion to that effect was put to him in the witness box by the appellant. From his evidence it is clear that be did not even know that the respondent was married to Ashok Dixit and he has categorically stated that nothing transpired in his presence, and he was only asked to append his signatures. He even did not know the respondent personally. This statement leads me to the conclusion that in fact no marriage ever took place between the deponent and Ashok Dixit and the marriage certificate was rightly declared null and void by the City Civil Judge, Calcutta In the absence of there being any evidence regarding the marriage of the respondent with Ashok Dixit having taking place of there jiving together, the case of the appellant has to fall on this short ground. Id these circumstances, it is not ever necessary to go into the question as to whether such a fact was material and suppression of the same would be covered by Sections 11 and 12(1)(c) of the Hindu Marriage Act.

(12) Now turning to the facts of the case, in my opinion the concealment of material fact has only been used as an excuse by the appellant to get rid of the respondent. The marriage between the parties was solemnised on 1-10-1979. The parties agreed together till 18-12-!979 when the respondent went to her parents' place at Calcutta. According to the appellant, the respondent left the matrimonial house without the consent of the appellant and had taken away the entire jewellery and certain other things with her. However according to the respondent she was turned out of the house in three bare clothes by the appellant. After the respondent left the matrimonial house, the appellant on 14-1-1980 wrote a letter which is Ex. P. 5 no record to the father of the respondent. The letter reveals the mind of the appellant and it would be useful to reproduce the same. It reads as under:-

'Dear Mr. Hariih Clund,

Yourself, family and your daughter Neera (my wife) have been levelling false, mischievous and cruel allegations against me. This has greatly effected me mentally and otherwise. My peace of mind has been disturbed by your daughter's cruelty. You have tried to undermine my reputation by spreading false allegations and rumours against me along with your daughter Neera. I, thereforee, wish to convey my decision to you that I will not be able to stay with your daughter Neera (my wife). I am not going to keep your daughter Neera (my wife) with me. Please note that you or your daughter Neera should not come to my house. The blame for all this lies on you, your family and daughter Neera. This decision is irrevocable.

With kind regards.

Yours sincerely, sd/- (Harish Uppal).

(13) Immediately on receipt of that letter, the father of the respondent wrote a letter to the elder brother of the appellant bringing to his notice the letter written by the petitioner as also the fact that neither he nor his daughter had leveled any allegations against the petitioner. The correspondence was exchanged between the elder brother of the petitioner and the father of the respondent but from the material it appears that no reconciliation could take place and the respondent continued to stay with her father. The case of the petitioner is that some reconciliation did take place on 14-3-1980 and of that date the respondent was permitted to come back to the matrimonial home for some time. On the same date he received anonymous telephone call informing him about the previous marriage of the respondent with Ashok and when the respondent was confronted she had to admit the same. Accordingly the petitioner left her at the house of her uncle on the same date i.e. on 14-3-1980. In the pleadings, it is stated that the petitioner had some rumours about the previous marriage while in the statement the case has been made out that he got some anonymous telephone call while the respondent was with him on that date. The story seems to be absolutely unbelievable because after giving my careful consideration to the entire material, I am unable to believe that the petitioner had allowed the respondent to remain to him on 14-3-1980 or that any conciliation had taken place on that date. I would prefer to accept the version of the respondent that in spite of efforts made by her mother, the petitioner did not allow her to enter the house and they were thrown out. It is true that in the written statement the respondent bad stated that she was not in Delhi on 14-3-1980 while in her statement she has admitted that she was in Delhi and this fact is further corroborated from the statement of Public Witness 7. She has, however, explained that she had gone to Delhi only to attend the wedding and has explained the circumstances in which the reconciliation also failed. Judging the nature of the petitioner which is apparent from the letter Ex. P. 5. I am definitely of the opinion that the petitioner was adamant not to keep the respondent as his wife. His letter clearly indicated that his decision was irrevocable and it appears that he stuck to the same decision. It is surprising that the various allegations made in the letter Ex. P.5 have not been sub-satiated at all in the statement of the petitioner. Not a word is said about any such allegations having been made by the respondent as is imputed to her and her father in the said letter. It appears that the petitioner wanted an excuse to get rid of the respondent and he coined this excuse regarding her previous marriage with Ashok Dixit, which he has miserably failed to prove.

(14) Admittedly there were negotiations for the marriage between the parties and the negotiations were in the presence of the mother of the petitioner and the elder brother of the petitioner was also directly involved as being a common relation. Surprisingly the petitioner has not chosen to produce any one of them as his witness in spite of the fact that it has specifically been alleged in the written statement that the fact of the issue of the marriage certificate etc. relating to Ashok Dixit was disclosed in the presence of the mother of appellant and his cousin during the course of negotiations. It is true that the petitioner could not produce his mother as a witness because she died just before the evidence of the petitioner started but surprisingly she was not even cited as a witness even though she was alive when the list of witnesses was filed. The petitioner could easily produce at least bids brother or his cousin but even they have not been produced In any case, as I have already come to the conclusion that there is nothing to show that any valid marriage was performed between the respondent and Ashok Dixit or respondent and Ashok Dixit ever lived together. The certificate of marriage is of no use to the petitioner which has already been declared null and void by a competent court. In these circumstances even if there was any concealment about the issue of the marriage certificate the same is not so material as of declaration of marriage to be invalid, under Sections 11 and 12(1)(c) of the Act.

(15) The attitude of the petitioner is also apparent from the fact that in order to show that the respondent had left the matrimonial home on 18-12-1979 without his consent the petitioner has maintained the railway ticket issued and the receipt of the retiring room for the purpose to show that he was not in Delhi on 18-12-1979. The railway ticket as also the receipt for the retiring room indicate only regarding the dates from 12-12-1979 to 21-12-1979 and there is nothing to show that the petitioner could not have left Delhi on the night of 18-12-1979. He has maintained these receipts and tickets for a! I these years only in order to create evidence in his favor which, in may opinion, does not help him in any way. He has also tried to support his case by the statement of one of his employees who appeared as Public Witness 7. Surprisingly the said employee could not give details of the other visits of the petitioner but remember the dates from 17-12-1970 to 21-12-1979 which were the crucial dates when the petitioner wanted to prove that he was out of station on 18-12-1979.

(16) The petitioner has also pleaded that the respondent left the matrimonial home on 18-12-1979 and carried with her the entire jewellery worth about Rs 50,000.00 . He has gone to the extent of making an allegation that she stole this jewellery from the matrimonial house and he had lodged a police complaint to that effect. In case the respondent had really stolen and taken away this jewellery it would have found mention in the letter of the petitioner Ex. P.5 which he had written to the father of the respondent on 14-1-1980 but surprisingly it does not find place. For all these reasons, I entirely agree with the findings recorded by the learned trial Judge to the effect that the marriage between the parties was not a result of misrepresentation and fraud played upon the appellant-petitioner and could not be avoided by him. The petitioner-appellant, in fact, is trying to take prevent age of his own wrongs and there is ample material on record including the written statement which is duly supported by the statement of the respondent and her father regarding the wrongs done by the appellant and the manner in which the respondent was harassed. The present petition has been filed after the respondent had filed a petitioner under Section 125 of the Code of Criminal Procedure and the attitude of the petitioner-appellant seems to be that he wanted to avoid the appellant of maintenance as is legally due to the respondent. This is only an attempt to frustrate the petition filed by the respondent.

(17) After the hearing in the appeal was concluded the counsel for the respondent was permitted by me to file written submissions which he did. The appellant also sought leave to file his written submissions and he was also permitted to do so. The written submissions filed by the appellant are all in the nature of attacks made on the counsel for the respondent. He has tried to malign the counsel on various aspects which are absolutely unjustified and from the fact it appears that the counsel for the respondent had done her duty and there is no false statement made in her written submissions. In fact the written submissions filed by the appellant are not worth the paper on which the same have been written.

(18) For the reasons recorded above, I do not find any merit in this appeal and dismiss the same with costs. Counsel's fee Rs. 500.00 .