P. Devaraj vs P. Silja and Others

S.P. Chaly, J.—1. This appeal is filed against the judgment in O.P. No. 55 of 2012 of the Family Court, Thrissur dated 31.10.2014, by the petitioner, whereby the Family Court has dismissed the Original Petition refusing to dissolve the marriage between the 1st and the 2nd respondent conducted during the subsistence of the marriage of the petitioner and the 1st respondent.

Brief facts required for disposal of the appeal as contended by the appellant are as follows:

The appellant and the 1st respondent were in love with each other for a period of 3 years from 1998 to 2000. The 1st respondent was a student of Guruvayurappan College, Calicut and the appellant was doing business in Calicut city. The parents of the 1st respondent were not amenable to the love affair of the appellant and the 1st respondent. The 1st respondent informed the appellant by way of letters that she could not continue to live with her parents and unless the appellant rescues her, she had no other option but to commit suicide.

It is the further contention of the appellant that on getting such letters from the 1st respondent, appellant decided to rescue her from her family house. On 23.02.2000, while she was returning from the college, appellant met her on the way and she voluntarily accompanied the appellant and thereafter she insisted the appellant to marry her. The appellant and the 1st respondent proceeded to Ernakulam on the same day and stayed in a hotel, and on 24.03.2000 they got married at ''Sree Narayana Seva Sabha Temple'', Thevara in accordance with the rituals and customs prevailing in the Thiyya caste. After marriage they started living as husband and wife and on 25.05.2000 they proceeded to Bangalore and started residing in the family house of one of the friends of the appellant. They stayed in Bangalore for 40 days and they were leading a happy and peaceful marital life. It is the further contention of the appellant that, in the meanwhile, 1st respondent''s father had preferred a complaint before the Kasaba Police, Kozhikode stating that his daughter was missing and accordingly a case was registered as Crime No. 85/2000. During the course of investigation, Police came to Bangalore and took custody of the 1st respondent while the appellant was not present at home.

It is also the contention of the appellant that thereafter the 1st respondent was produced by the Police before the Medical College Hospital for examination and thereafter produced before the Judicial First Class Magistrate Court-III, Kozhikode and a statement of the 1st respondent was also recorded by the Magistrate. The 1st respondent has deposed before the Magistrate that she left the company of the appellant out of her free will and she was in love with the appellant, it is contended. It is also contended that the 1st respondent went with her father who was present along with the police party due to the pressure exerted by her father and uncle.

Thereafter the appellant left to Gulf countries to seek some employment there and he had to close down the business in Calicut due to constrained financial circumstances. The appellant was able to secure a job in Bahrain and he wanted to continue his marital relationship with the 1st respondent. In the meantime, the police filed a final report alleging offence against the appellant under Sec.366(1) of IPC, and later the case was committed to Sessions Court, Kozhikode. An application filed by the appellant seeking discharge before the Assistant Sessions Court, Kozhikode was dismissed and the Revision filed before this Court as Crl.R.P. No. 2502/2004 was also dismissed as not pressed. Against the order in the said Crl.R.P., a Special Leave Petition was preferred before the Apex Court and later the order passed by this Court in Crl.R.P. was set aside and remanded the matter to this court for fresh disposal. Thereupon the revision was heard and the proceedings before the Assistant Sessions Court was quashed.

It is the further case of the appellant that he has not married so far and he was under the bonafide impression that the 1st respondent was still in love with him. Later he came to know that the 1st respondent had married the 2nd respondent due to the pressure exerted by her parents and uncle and other relatives. That apart, it is also contended that the 1st respondent had made the appellant believe that she has attained majority when she left with him and later he understood that 1st respondent had not attained majority at that point of time. It is also contended that since the marriage between the minor is a voidable one and the minor has not exercised option to get the same declared as null and void after attaining majority, the marriage solemnized between the appellant and the 1st respondent remain valid.

It is thus contended by the appellant that since the marriage between the appellant and the 1st respondent was subsisting, the marriage solemnized by the 1st respondent and the 2nd respondent is null and void. It is thus the appellant has filed the Original Petition before the Family Court, seeking to declare the marriage between the 1st respondent and 2nd respondent null and void.

The respondents have filed objection to the Original Petition and refuted the allegations and claims and demands raised by the appellant. It was contended that the Original Petition itself is not maintainable and that the love affair and other sequence of facts narrated by the appellant was not having any factual basis. The conduct of marriage and the subsequent developments were also denied by the 1st respondent. The 1st respondent has admitted that a crime was registered by the police but denied the allegation that she has cared to go along with the father on pressure exerted on her by her father and uncle. The sexual relationship alleged to be maintained by the appellant was also denied by the 1st respondent. Thus the 1st respondent sought dismissal of the Original Petition.

By the aforesaid rival contention of the parties, the Family Court has raised the following two points for consideration:

"(1) Whether it is proved that there is a valid marriage between the petitioner and the 1st respondent?

(2) Whether the petitioner is entitled to get a decree of declaration as prayed for?"

The appellant was examined as PW1 and 3 other witnesses as Pws2 to 4, and Exts.A1 to A14 were marked on his side. 1st respondent was examined as RW1 and Exts.B1 to B4 were marked on the side of the 1st respondent.

After appreciating the evidence on record and assimilating the facts and circumstances, the Family Court has found that the evidence tendered by the appellant did not inspire confidence in the Family Court to arrive at a finding that a marriage was solemnized between the appellant and the 1st respondent, as contended in the Original Petition, and thus the Original Petition was dismissed.

Heard learned counsel for the appellant. The learned counsel has vehemently contended that there was sufficient evidence before the court below in order to grant the declaratory relief sought for by the appellant.

We have appreciated the evidence tendered by the appellant before the court below. The appellant has tendered evidence in tune with the pleadings contained in the Original Petition. The brother of the appellant was examined as PW2. A friend of the brother was examined as PW3. PW4 is one Shaji, allegedly a priest of the temple who conducted the marriage. The Family Court, in view of the declaration sought, has appreciated Sec.34 of the Specific Relief Act and entered into a finding that petitioner is basically not entitled to get any relief as sought for since a further declaration to declare the marriage of the appellant and the 1st respondent was not sought for, which is a necessary corollary to seek declaration under Sec.34 of the Specific Relief Act. That apart, the court below has found that the evidence tendered by Pws1 to 4 did not prove conclusively that a marriage was solemnized by and between the appellant and the 1st respondent. So also, the court has found that necessary documents maintained by the temple as deposed by PW4 was not produced before the court to prove the conduct of the marriage. So also, it was found that none of the documents produced by the appellant before the court below did contain seal of the Secretary of the religious establishment which has issued the marriage certificate. The court also expressed its own doubt regarding the capacity of a priest who conducted a marriage to sign any document of the religious institution and make an endorsement in Ext. A2(a) certificate. Further PW4 has deposed that, PW2, brother of the appellant brought the said certificate and asked him to make the said endorsement. That apart, the evidence tendered by Pws1 to 3 with regard to conduct of the marriage was disbelieved by the court for the reason that according to Pws2 and 3, the marriage was registered in the temple, but according to PW1 they have not signed in any register. That apart, it was deposed by PW3 that Pws2 and 3 signed in a register kept in the temple but any such register was produced before the court in order to establish the marriage. It was also found by the court that the marriage was not registered before any local authority also.

The Family Court also disbelieved the ceremony of marriage that was deposed by Pws 1 to 4 and even though a photograph was produced and marked with the picture of appellant and the 1st respondent wearing the garlands, the court held that, that by itself is not a sufficient proof to establish that marriage was solemnized, as contended by the appellant. The rest of the photographs produced were also disbelieved by the court. That apart, it was also found by the court that since the 1st respondent was a minor at that point of time, there was no consent from her part to conduct any such marriage.

Even though Family Court did not approve the evidence tendered by 1st respondent with regard to the explanation offered by her in evidence, it was held that since the 1st respondent was a minor at that point of time, she cannot be blamed fully for such explanation offered by her. It was also held by the Family Court that even if RW1 was in love with the appellant and she had eloped with him, the evidence shows that she has not consented for such a marriage. The Family Court also found that when she was produced before the Magistrate, even though she has stated that she was in love with the appellant, she has not made any statement with regard to any marriage ceremony she underwent.

Under such circumstances, the Family Court has entered into a finding that at no point of time the 1st respondent has admitted the marriage or marriage ceremony and therefore under such circumstances it can only be believed that she was induced to go along with the appellant and do in accordance with the wishes of the appellant. That apart, the court has totally disbelieved the evidence of PW4, who deposed that he was the main priest of the temple but he has not produced any evidence to establish his appointment as a priest of the temple in question.

The Family Court has also found that Sec.34 of the Specific Relief Act is a discretionary remedy and after appreciating the circumstances involved in the case, there are no justifying circumstances enabling the Family Court to grant the declaration sought for by the appellant especially in view of the fact that the appellant has never sought for a declaration that the marriage between the appellant and the 1st respondent was solemnized as contended by the appellant.

On re-appreciation of the evidence tendered by the rival parties borne out from the available records, we find no circumstances to interfere with the factual findings rendered by the Family Court. The Family Court has appreciated the evidence tendered by both parties in a legalistic and thorough manner and after examining the pros and cons with regard to the oral evidence and the documents produced by the parties has arrived at a conclusion that there are no sufficient evidence before the court in order to arrive at a conclusion that the appellant and the 1st respondent were married. That apart, it was also found by the court that since the appellant has not sought for a declaration declaring the marriage of the appellant and the 1st respondent as a valid one, the court was not bound to grant any relief under Sec.34 of the Specific Relief Act. We also find that the Family Court has appreciated the question raised with regard to minority of the 1st respondent when the appellant married the 1st respondent and has arrived at a finding that the 1st respondent was not under free will and volition to grant consent for conducting marriage as alleged by the appellant. On a totality of the facts and circumstances, we are of the considered opinion that the Family Court has rightly concluded that the appellant was not entitled to get the marriage of the 1st and the 2nd respondent declared null and void.

Learned counsel for the appellant had made strenuous efforts to establish that the findings of the court below cannot be sustained, by taking us through the oral as well as the documentary evidence. In our considered opinion, the appreciation of evidence undertaken by the court below, cannot be found fault with. Moreover, even according to the appellant a marriage is solemnized by and between the 1st and 2nd respondents and therefore the evidence has to be appreciated with all seriousness and alertness and the court should be satisfied that the evidence is sufficient enough to grant the relief of declaration sought for. But however, the court below has found that the evidence tendered by the appellant could not conclusively establish that, there was a valid marriage existing between the appellant and 1st respondent. We are also of the considered opinion that the appellant was not successful in establishing his case before the court below.

Therefore, we do not find any illegality, gross injustice, incorrectness or other legal infirmities warranting interference in the order passed by the Family Court.

The appeal fails and the same is accordingly dismissed.