IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FAMILY COURT APPEAL No. 37 of 2014.
Mr Raj Amarsingh Gulale (Singhania)
Mrs Mansi Raj Gulale(Singhania)
CORAM :- SMT. V.K. TAHILRAMANI AND
A.R. JOSHI, JJ.
DATED :- 29th September, 2014.
Citation; 2015(3) ALLMR365
Heard the learned counsel for the appellant and the learned counsel for the respondent. By consent, matter is taken up for final hearing at the stage of admission.
The appellant has preferred this appeal against the order dated 26th February,2013 passed by the Family Court, Mumbai below Exhibit-1 in Petition No. A 1717 of 2011. In the said petition, the appellant had prayed for a decree of restitution of conjugal rights. In the said petition an application was preferred by the respondent regarding maintainability of the petition. In the application it was prayed by the respondent that the Court be pleased to frame a preliminary issue of maintainability as to whether marriage was solemnized between the petitioner and the respondent. By an order dated 26th February,2013 the Family Court answered the preliminary issue in the negative that is no marriage ever took place between the parties. It is this order which has been assailed before us.
The learned counsel for the petitioner stated that the Family Court on 26th February,2013 should not have disposed of the application for framing preliminary issue because on 22nd February,2013 application has been preferred by the appellant for adjournment on the ground that the petitioner seeks to file review petition before the Supreme Court.
In order to appreciate the controversy involved, it would be necessary to state few facts:
The facts as stated earlier are that the respondent moved
the Family Court with the prayer for framing the preliminary
issue as to whether any marriage has taken place between her and
the petitioner on 17th August, 2009 as claimed by the
appellant/petitioner. The Family Court rejected the said
application. Hence, the said order came to be challenged before
the High Court. This Court directed the Family Court to frame
the preliminary issue. This order was challenged by the appellant
before the Supreme Court. The Supreme Court upheld the order
of this Court and dismissed the SLP by order dated 5.7.2012.
Then the Family Court framed the preliminary issue which is as
“Does the petitioner prove that he was
married to the respondent on 17th August,
2009 or on any other date?”
This preliminary issue was answered in the negative on 26th February,2013 wherein it was held that no marriage took place between the parties on 17th August, 2009 or on any other date.
The learned counsel for the appellant submitted that when the said order was passed on 26 th February, 2013 an application had been made by the appellant before the Family Court on 22nd February,2013 seeking adjournment as the appellant wished to move review petition before the Supreme Court in respect of the order dated 5th July,2012 passed by the Supreme Court upholding the order of the High Court. His grievance is that on 26th February,2013 the Family Court without granting any adjournment disposed of the application relating to the preliminary issue. His further contention is that when the matter was pending before the Supreme Court no order could have been passed by the Family Court.
As far as above grievance is concerned, it is seen that SLP was dismissed on 5th July,2012. The limitation for filing a review would be 30 days. The appellant moved an application before the Family Court on 22nd February,2013 stating that he “wishes” to file a review petition before the Supreme Court. By that date no review petition had been filed before the Supreme Court. The limitation for filing the review petition had long expired. It is also seen that no review petition has been filed on the day when the order was passed by the Family Court. In this view of the matter, the Family Court is not expected to wait indefinitely till the review petition is moved by the appellant before the Supreme Court. As stated earlier, time for filing the review petition had long expired. It is observed that the appellant was only adopting delaying tactics. Thus, we find no merit in this contention.
The second grievance of the appellant is that he was not heard when the order dated 26th February,2013 was passed. As far as this aspect is concerned, the preliminary issue was framed by the Family Court on 9 th January, 2013. The preliminary issue which was framed is already reflected above in paragraph 4. On 26th February, 2013 the petitioner and his advocate were absent. So also it is seen that on earlier dates i.e. on 4th February,2013 and 13th February, 2013 the petitioner and his advocate were absent.
The learned counsel for the appellant again submitted that he was not present when the order was passed and the matter ought to be remanded back and he ought to be heard before the order is passed. As far as this contention is concerned, it is seen that in the present appeal, no ground has been made out by the petitioner for not remaining present before the Family Court on many occasions and specially on the date when the impugned order came to be passed. Had the appellant made out any good ground for not remaining present before the Family Court on the date when the order was passed we may have been inclined to remand the matter. However, no good ground is shown for remaining absent before the Family Court especially when he knew that the preliminary issue had been framed on 9th We have perused the petition filed by the petitioner January, 2013. Thus, we find no merit in this contention. before the Family Court. It merely states that marriage took place on 17th August, 2009 as per the Hindu rites and customs at Bandra, Mumbai. No details of the marriage as to the time and place of the marriage are given in the petition. It may also be noted that recitals about marriage taking place “at Bandra Mumbai” are added afterwards in writing that is it is subsequently added. In the petition before the Family Court, it is clearly stated that after marriage the parties were not residing together. Thus, it is clear from the petition itself that after the alleged marriage the parties did not cohabit together which would not be the case if the parties were really married.
Thus, except the bare statement of the appellant that he and the respondent were married on 17th August, 2009 no details of the marriage are given. No documentary evidence such as invitation card of the marriage, photographs of marriage have been filed by the appellant. It was necessary to file such documents because the appellant knew even prior to filing his petition before the Family Court that the stand of the respondent was no marriage ever took place. This is clear from the reply that the respondent sent in answer to his notice to resume cohabitation. In such case the onus of establishing that there was a valid marriage between the parties squarely rests upon the appellant and the respondent is not supposed to prove that no marriage took place between the parties and there was no matrimonial relationship between the parties. In this connection, we would like to refer to the decision of the Supreme Court in Pallavi Bhardwaj Vs. Pratap Chauhan, reported in 2011 (15) SCC 531 = 2011 (8) JT 159. In the said case it was observed by the Supreme Court that there is no document about the marriage nor is there any acceptable material relating to marriage. Observing thus, the Supreme Court restored the judgment of the Family Court which had held that as there was no marriage there is no question of restitution of conjugal rights. In the present case no document is filed as prima facie proof of the marriage. It was thus urged by the learned counsel for the respondent that the Family Court was right in holding that the petition does not disclose the cause of action and, therefore, it should be dismissed at the threshold.
The appellant has merely relied upon the copy of the notice issued by him to the respondent to resume cohabitation. To the said notice the respondent replied that no marriage had ever taken place and hence there is no question of her resuming the company of the petitioner. Thereafter, reliance was placed by the appellant upon an application under the Right to Information Act asking for mobile phone call details about calls allegedly made by the respondent and the appellant to each other. Even if call details show that they had made calls to each other, these call details would not show that any marriage ever took place between the parties. It is true that details of marriage ceremonies is matter of evidence but at the same time petition should prima facie disclose that some form of marriage took place between the parties and there should be some prima facie evidence of marriage in the form of marriage like marriage invitation card, photographs of marriage, certificate of marriage or details as to which persons were present in the marriage or details in relation to marriage ceremonies. Annexing such documents to the petition was necessary in this case because the respondent had in reply to the notice of the appellant to resume his company specifically denied that any marriage had ever taken place. As observed filed by the appellant.
earlier, all these details are conspicuously lacking in the petition In view of the above discussion, we find no merit in this appeal. The appeal is dismissed. No order as to costs.
(SMT. V.K. TAHILRAMANI,J)
(A.R. JOSHI, J)