HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 14.10.2019
Delivered on 22.01.2020
Court No. – 34
Case :- FIRST APPEAL No. – 90 of 2016
Appellant :- Gaurav Srivastava
Respondent :- Sonia Raikavaar
Counsel for Appellant :- Rahul Sripat,Dilip Kumar Goswami,Premnendra Singh
Counsel for Respondent :- Arvind Kumar Soni, Dadhi Bal Yadav
Hon’ble Sudhir Agarwal,J.
Hon’ble Rajeev Misra,J.
1. Feeling aggrieved by Judgment and order dated 11.2.2016 and decree dated 25.2.2016 passed by Family Court, Jhansi in Petition No. 550 of 2011 (Gaurav Srivastava Vs. Sonia Rayakvaar) under Section 7 (1) Explanation (b) of Family Courts Act, 1984 (hereinafter referred to as ‘Act 1984’) whereby declaration prayed for by plaintiff that no marriage of respondent was solemnized with plaintiff on 24.6.2010 nor respondent is legally wedded wife of plaintiff nor there is husband and wife relationship between parties was refused and Petition No. 354 of 2010 (Smt. Sonia Rayakvaar Vs. Gaurav Srivastava) under Section 125 Cr.P.C. Police Station Prem Nagar, District Jhansi whereby claim regarding maintenance prayed by Smt. Sonia Rayakvaar (respondent herein) has been allowed, the husband Gaurav Srivastava has filed present First Appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as ‘Act 1984’). However, present appeal is confined only to the Judgment rendered in petition no. 550 of 2011 (Gaurav Srivastava Vs. Sonia Rayakvaar).
2. We have heard Mr. Santosh Kumar Shukla, Advocate, holding brief of Mr. Dileep Kumar Goswami, learned counsel for plaintiff-appellant (hereinafter referred to as ‘plaintiff’) and Mr. Arvind Kumar Soni, learned counsel for defendant-respondent (hereinafter referred to as ‘respondent’).
3. Plaintiff Gaurav Srivastava filed Petition No. 550 of 2011 (Gaurav Srivastava Vs. Sonia Raikavaar) for a decree of declaration that no marriage of respondent was solemnized with plaintiff on 24.6.2010 nor respondent is legally wedded wife of plaintiff nor there is husband and wife relationship between parties.
4. According to plaint allegations, plaintiff alleged that one Ambika Prasad Srivastava had two sons and one daughter, namely, Harsh Vardhan Srivastava, Gaurav Srivastava and Shikha Srivastava. Smt. Saroj, mother of respondent, was working as a maid in plaintiff’s home at Jhansi and she worked as such from 2008 upto January 2010. Respondent is daughter of Smt. Saroj. Respondent instituted proceedings under Section 125 Cr.P.C. against plaintiff in Family Court, Jhansi on the ground that her marriage was solemnized with plaintiff on 24.6.2010 at Ramraja Mandir, Orchha in accordance with Hindu Rites and Customs. As such, respondent claims herself to be legally wedded wife of plaintiff, whereas no marriage between parties was solemnized nor the parties ever lived together as husband and wife. According to plaintiff, since mother of respondent was working in the house of plaintiff as maid, she might have obtained photograph of plaintiff from his house and taking illegal advantage of same may have got developed photographs; there was no relationship of husband and wife between parties nor plaintiff was ever married with respondent on the alleged date or before or after the same; there are no signatures of plaintiff on the deed of marriage (vivahnama); no deed of marriage was executed between the parties; respondent has forged the alleged deed of marriage (vivahnama) and by using the same wants to blackmail plaintiff. It was with aforesaid objective that application under Section 125 Cr.P.C. was filed. Apart from above, respondent also filed an application under Section 156 (3) Cr.P.C. that plaintiff is demanding dowry from respondent. Once marriage of parties itself has not been solemnized, no question of demand of dowry ever arose. Matter was investigated by Sub-inspector of Police Station Prem Nagar and entire allegations were found false. Plaintiff never purchased stamp paper valued at Rs.10/-. Marriage of parties alleged to have been solemnized at Ramraja Mandi Orchha, is wholly incorrect. No marriage of parties was solemnized at Ramraja Mandir Orchha. On the strength of a forged and fabricated deed of marriage (vivahnama) plaintiff is being blackmailed. On basis of same, plaintiff is being harassed and illegal demand is being raised by respondent. Plaintiff is working as Assistant Station Master at Meja Road Railway Station. Plaintiff joined his abovementioned services in 2007 and since then, plaintiff is regularly discharging his duties. On 24.6.2010, plaintiff was on duty from 9.00 a.m. to 17 hours, i.e. 5.00 p.m. On 24.6.2010, plaintiff was not present at Jhansi and, therefore, question of marriage of plaintiff does not arise. Apart from above, father of respondent, namely, Nand Kishor is working as Welder in Indian Railways. Respondent is dependent upon railway pass for travelling issued to her father and being unmarried, she used the same. Aforesaid information has come to the knowledge of plaintiff from record of Nand Kishor which has been received by plaintiff under Right to Information Act. Plaintiff is a bachelor till date and his marriage has not been solemnized either with defendant or with any other lady till date. Since plaintiff is employed and joined his duties at Allahabad, therefore, in order to blackmail plaintiff, respondent has engineered aforesaid proceedings. On aforesaid factual premise, plaintiff filed aforementioned petition for declaration to the effect that no marriage between the parties was solemnized, as such, respondent is not the wife of plaintiff.
5. Suit filed by plaintiff was contested by respondent. Accordingly, respondent filed a written statement dated 18.2.2012. Respondent denied plaint allegations and also raised additional pleas. According to respondent, parties know each other intimately. The land on which house of plaintiff is constructed belonged to late Har Prasad, grandfather of respondent. Aforesaid land was purchased by parents of plaintiff. Both the families are close to each other with deep and affectionate relationship, coupled with frequent and reciprocal visits by them to each other’s house. Respondent categorically denied factum regarding working of her mother in plaintiff’s home from 2008 to January 2010 as maid. It was specifically pleaded that Smt. Saroj, mother of respondent came to her matrimonial home upon marriage in the year 1985 at Isai Tola, Prem Nagar, Jhansi. Late Har Prasad, her father-in-law, was Zamindar and even on date, her husband is having sufficient land and also working in Railways. In such circumstances, it is impossible to believe that mother of respondent shall work in plaintiff’s house as maid. There is a maid servant already working in the house of respondent. Father of plaintiff as well as his brothers and sisters are unemployed. Smt. Kusum Khare, mother of plaintiff, was working as teacher at Government Bal Mandir School, Prem Nagar, Jhansi and entire family was dependant upon her. On account of false allegations made by plaintiff, a notice for defamation has been sent by mother of respondent as allegations made in the plaint have caused mental and physical pain to her. Marriage between parties was alleged to have been solemnized on 24.6.2010 at Ramraja Mandir, Orchha which was attended by a large gathering. To give legal shape to aforesaid marriage, a deed of marriage dated 24.6.2010 (vivahnama) was executed at Civil Court, Jhansi. At the time of execution/attestation of aforesaid deed of marriage, both the parties, i.e., plaintiff and respondent were present at Civil Court, Jhansi. They signed the same and also affixed their photographs on the same. Aforesaid deed was certified by one Ashwani Kumar Saxena and attested by Notary, Smt. Aruna Benjamen. Thereafter, the said deed of marriage was registered. In order to prove genuineness of same, it can be ascertained from office of Sub-Registrar. Apart from above, respondent further alleged that she had photo album of marriage which shows that marriage between parties was got performed by Pt. Anil Tiwari and he executed a marriage certificate as well as receipt regarding gifts and jewellery. Respondent also has booking receipts of place of marriage, i.e., Vivah Vatika, receipt issued by photo studio and other documents. Respondent has already submitted all the documents pertaining to her marriage in proceedings under Section 125 Cr.P.C. After marriage, respondent came to house of plaintiff and after staying about two days, she went to Meja Railway Station, Allahabad along with plaintiff. Respondent stayed with plaintiff at aforesaid place for 25 days and consequently, discharged her marital/spousal obligations. On 19.7.2010, plaintiff dropped respondent at Jhansi with the assurance that he will arrange better residential facility and, therefore, will come after a week to collect respondent. However, since then, plaintiff has not turned up to take respondent to his place of working. Consequently, respondent initiated proceedings under Section 125 Cr.P.C. which has been registered as Case No. 2010 of 2010 (Smt. Sonia Vs. Gaurav). On the aforesaid facts, it was reiterated that after marriage, respondent has lived with plaintiff as his wife for 25 days and his legally wedded wife. All the allegations made in the plaint are false and fabricated. True and correct facts are that respondent is legally wedded wife of plaintiff on account of marriage having been solemnized between them. On account of conduct of plaintiff and his family members, they have been summoned by C.J.M., Jhansi under Sections 498A, 323, 504, 506 I.P.C. and Section ¾ Dowry Prohibition Act. Against summoning order passed by C.J.M. Accused filed Criminal Revision before Court of Sessions which has been rejected by III Additional District Judge. Accused have also been summoned under the provisions of Protection of Women from Domestic Violence Act, 2005 by Judicial Magistrate-I. Against summoning order relating to abovementioned case, accused filed Criminal Appeal so that proceedings are held up. Respondent wants to reside with plaintiff and also to discharge her spousal obligations. Respondent further stated that she is a regular student of C.Lib. course and she is recorded as wife of Gaurav Srivastava. Name of respondent has been struck off from service record of her father, as respondent is no longer dependant upon her father. Aforesaid fact can be ascertained from residents of Mohalla Isai Tola, Prem Nagar, Jhansi. Doubting the genuineness of documents relied upon by plaintiff regarding his working and leave from place of working, it was pleaded by respondent before Court below that original record pertaining to presence and leave of staff at Railway Station Meja be summoned as all entries to that effect are made by A.S.M. or S.M. Manipulating records is a normal act for these officers. On the aforesaid defence, respondent reiterated her stand that she wants to reside with plaintiff as his legally wedded wife and consequently, discharge her spousal obligations. It was thus pleaded that suit filed by plaintiff is liable to be dismissed.
6. On the pleadings of parties, Court below proceeded to decide the abovementioned suit by formulating following issues:-
I. Whether respondent Sonia is legally wedded wife of plaintiff Gaurav?
II. Whether plaintiff Gaurav is a man of sufficient means?
III. Whether respondent Smt. Sonia has no independent source to maintain herself?
IV. Whether plaintiff Gaurav has ignored respondent Sonia and refused to maintain her?
V. Whether respondent Sonia is residing separately from plaintiff Gaurav on reasonable grounds?
VI. Whether marriage of plaintiff was solemnized with respondent Sonia on 24.6.2010? If yes, its effect.
7. After aforesaid issues were framed parties went to trial. Plaintiff in order to prove his case adduced himself as P.W.1 and one Anil Tiwari as P.W. 2. Defendant in order to prove her defence adduced herself as D.W.1, Prem Narain as D.W.2, Shahid as D.W.3, Anoop as D.W.4 and Smt. Saroj as D.W.5. Parties also filed documentary evidence in support of their respective case.
8. Issue 1 was decided in favour of respondent and against plaintiff. Court below concluded that respondent Sonia is legally wedded wife of plaintiff Gaurav. In order to arrive at aforesaid conclusion, Court below observed that it has been pleaded by plaintiff that on 24.6.2010 which is the date of marriage alleged by respondent, plaintiff was on duty as Assistant Station Master at Meja Railway Station under North Central Railway. To prove aforesaid fact, plaintiff deposed before court below and admitted that on 25.6.2010, he was on leave. On 27.6.2010 and 28.6.2010, he performed his duties at Vindhyachal Railway Station. On 24.6.2010, he was on duty from 9 a.m. to 5 p.m. Distance between Meja Road and Jhansi is not such that it can be reached in a short span of time. To lend documentary support, plaintiff adduced a certified copy of attendance register paper No. 9 C2. Court below upon perusal of aforesaid document concluded that said document is for the period of 15.6.2010 to 14.7.2010 but plaintiff has filed paper only for the period of 15.6.2010 to 29.6.2010. For rest of the period, certified copy was not produced. On 15.6.2010, plaintiff whose name finds mention at serial no. 5 is shown to be absent. Similarly on 25.6.2010, 26.6.2010, 27.6.2010, 28.6.2010 and 29.6.2010, plaintiff was shown absent. However, no document has been adduced showing use of aforesaid dates, by plaintiff, nor there is any evidence showing the necessity for taking leave on abovementioned dates. Apart from above, court below found that in order to prove the entries in attendance register, no departmental person has been adduced by plaintiff to prove the same nor plaintiff has filed any application for summoning original attendance register. On the aforesaid premise, court below opined that plea of alibi is a very weak defence. Failure on the part of plaintiff in not disclosing the cause on account of which leave was taken and further not explaining as to how leave was utilized coupled with the fact that distance between Meja Road and Jhansi is not such that one cannot reach Jhansi from Meja Road easily, Court below disbelieved the case put forward by plaintiff.
9. Respondent in order to prove marriage between parties relied upon marriage photographs. She accordingly adduced marriage photographs along with negative (paper nos. 44 C1 to 44 C12. This evidence was denied by plaintiff. According to plaintiff, he cannot identify whether the lady posing as bride in photograph is Sonia or not. Court below found that plaintiff in his cross-examination has admitted that his house is 8-10 houses ahead from house of respondent. He further admitted that respondent came to house of mother of plaintiff to teach tuition. Plaintiff himself has stated that mother of respondent worked as maid in his house. On aforesaid evidence, court below concluded that act of plaintiff in expressing his inability to recognize respondent derogates the credibility and truthfulness of plaintiff’s evidence. Thus, court below concluded that there is no reason to disbelieve genuineness and reliability of photographs and negatives adduced by respondent.
10. Respondent in support of her defence that marriage between parties was duly solemnized relied upon deed of marriage duly executed by parties. Same was filed and numbered as paper no. 32C2. Upon examination of aforesaid document, court below found that photographs of both parties, i.e., bride and bridegroom are affixed on the same. Both the parties in presence of their witnesses have signed the documents which is also attested by a notary. One Avinash Saxena, Advocate has attested signatures of parties on the said document. Plaintiff however denied aforesaid documents by alleging that signatures on aforesaid documents purporting to be of plaintiff are not signatures of plaintiff nor the same contains his photograph. Same might have been developed technically and got affixed. He further stated in his cross-examination that he makes signatures in English and Hindi. Court below invited attention of plaintiff to paper nos. 10 C1, 46Ga17B and 46 C1. Plaintiff admitted his signatures on paper no. 17B and 46 C1. Upon comparison of signatures of plaintiff on marriage deed with his admitted signatures, i.e., on paper nos. 17 B and 46C1 Court blow found that signatures on marriage deed are of plaintiff himself. Apart from above, Court below further found that signatures of plaintiff on marriage deed tally with his admitted signatures on attendance register. Court blow further found that though it has been deposed by plaintiff that he makes signatures in English as well as Hindi but in the entire proceedings no signature in English has been made by plaintiff whereas in attendance register and in performance of day to day work, plaintiff has signed in English. There is no such evidence to show that plaintiff makes his signatures in Hindi. As such, aforesaid conduct of plaintiff clearly denotes malice on his part.
11. Court below further found that case set up by plaintiff that no marriage of respondent was solemnized with him on 24.6.2010 nor there is relationship of husband and wife between parties is not acceptable. On record there are Paper No. 47C2/2 and the summoning order 11.7.2011 passed by C.J.M. Jhansi whereby plaintiff and his family members were summoned under Section 498A, 323, 504, 506, 452, 427 I.P.C. and Section ¾ Dowry Prohibition Act. Against aforesaid order, Criminal Revision No. 174 of 2011, (Gaurav Srivastava and others Vs. State of U.P. and another) was filed which was dismissed, vide order dated 26.11.2011 passed by Additional Sessions Judge, Court No. 3. Further from perusal of paper no. 46C2/1, it is apparent that proceedings under Protection of Women from Domestic Violence Act, 2005 were initiated by respondent. As such, Case No. 3499 of 2010, (Sonia Vs. Gaurav Srivastava and others), came to be registered in the Court of Judicial Magistrate, Court No. 9, Jhansi. Against summoning order passed in aforesaid case, plaintiff and others filed Criminal Appeal No. 42 of 2011, which came to be dismissed, vide order dated 31.10.2012 passed by Additional Sessions Judge, Court No. 1, Jhansi. Plaintiff in his cross-examination has duly admitted aforesaid proceedings.
12. Plaintiff in his desperate attempt to prove his case alleged that there is no document on record to show that marriage of parties was solemnized in accordance with Hindu rites and customs of parties or as per the provisions contained in Hindu Marriage Act. To prove aforesaid, plaintiff adduced one Anil Tiwari as P.W. 2. However, testimony of P.W. 2 was disbelieved by Court below as being unreliable and not being substantiated by record. Court below relied upon the photographs and came to the conclusion that ceremony of moving around the sacred fire by bride and bridegroom together was duly performed. Aforesaid fact has also been proved by witnesses adduced by respondent.
13. Lastly, it was alleged by plaintiff that respondent in her testimony has deposed that marriage of parties took place at 11.30 p.m. whereas in the documents adduced by defendant place of marriage has been shown as Ram Raja Mandir, Orchha. Place of marriage, namely, Vivah Vatika was booked upto 7 p.m. In cross-examination on this issue, plaintiff admitted that marriage was solemnized at 11.30 to 12.00 p.m. at Vivah Vatika. In view of aforesaid and other documentary evidence on record, court below concluded that marriage of parties was solemnized on 24.6.2010 in accordance with Hindu rites and customs.
14. On the aforesaid reasonings, Court below concluded that burden to prove allegations made in the plaint is upon plaintiff himself. He cannot rely upon weakness in defendant’s evidence. Plaintiff has to stand on his own legs. The deed of marriage (Paper No. 33C) has not been challenged by plaintiff before competent court of civil jurisdiction. From oral and documentary evidence on record, it is established beyond doubt that respondent is legally wedded wife of plaintiff.
15. Issue 2 was decided in favour of plaintiff and it was held that plaintiff Gaurav is a man of sufficient means. For the purpose of awarding maintenance under Section 125 Cr.P.C. Court below found that plaintiff is working as Assistant Station Master and drawing monthly salary of Rs.25,000/-.
16. Issue 3 was decided in favour of respondent and it was held that respondent is not having sufficient means to maintain herself. Burden to prove the same was upon plaintiff as it is positive fact which has to be proved. As such burden is upon such person who alleges that positive fact. Since it was alleged by plaintiff that respondent has sufficient means to maintain herself, burden was upon him to prove the same. However, as no evidence has been adduced by plaintiff in support of his allegation that respondent is having monthly income of Rs.25,000/- Court below concluded that respondent cannot maintain herself for lack of income.
17. Issues 4 and 5 were decided together. Both issues were interlinked and, therefore, decided together. Court below, upon appraisal of material on record and evidence adduced by parties, concluded that respondent has been neglected from 19.7.2010 and since then no amount has been given to respondent towards her maintenance. As a result, respondent, in spite of being legally wedded wife of plaintiff is residing with her parents. As such, Court below concluded that plaintiff has ignored respondent and has also refused to maintain his wife without any sufficient cause. Respondent is residing separately from her husband on account of being neglected by her husband, i.e., plaintiff from 19.7.2010.
18. Issue 6 has been decided in favour of respondent. It is held by Court below that marriage of plaintiff was solemnized with respondent on 24.6.2010 in accordance with Hindu Rites and Customs. As such, respondent is legally wedded wife of plaintiff. Consequently, Petition No. 550 of 2011 was dismissed, vide Judgment and order dated 11.2.2016 passed by Family Court, Jhansi. Feeling aggrieved by aforesaid Judgement and order, plaintiff has now approached this Court by means of present first appeal under Section 19 of Act 1984.
19. Mr. Santosh Kumar Shukla, Advocate, holding brief of Mr. Dileep Kumar Goswami, learned counsel for appellant has submitted that impugned Judgment and order passed by Court below are liable to be set aside by this Court as the same are contrary to law and facts. He further submits that findings recorded by Court below with regard to absence of plaintiff from his duties at Meja Road Railway Station are not only illegal but also perverse and erroneous. According to learned counsel, when aforesaid finding recorded by Court below is examined in light of evidence on record, the same cannot be sustained and, therefore, the impugned Judgment and order are liable to be set aside.
20. Per contra, Mr. Arvind Kumar Soni, learned counsel for respondent has supported impugned Judgment and order on the strength of findings recorded therein and also observations made therein. According to learned counsel for respondent, findings recorded by Court below are perfectly just and legal. They cannot be said to be illegal, perverse or erroneous. He further submits that if the findings have not been specifically challenged then conclusion also cannot be challenged. The matter stands concluded by cogent findings of fact recorded by Court below. Plaintiff has raised as many as eleven grounds but not a single ground has been raised specifically challenging any of the findings recorded by Court below on the six issues framed by it. What has been urged in the grounds raised in memo of appeal is the deficiency in respondent’s evidence. Such plea can be of no benefit to plaintiff as it is well settled that plaintiff has to stand on his own legs and he cannot claim any benefit from the weakness in evidence of respondent. It is, thus, strenuously urged that present appeal being devoid of merits is liable to be dismissed with cost.
21. Having heard learned counsel for the parties, we are of the view that only issue which requires to be considered by us is:- “Whether plaintiff was able to plead and prove that he was at Meja Road Railway Station during the period, marriage between the parties is alleged to be solemnized.”
22. We have already reproduced in detail the reasonings recorded by Court below while answering issue 1. We, therefore, at the time of hearing, specifically invited attention of learned counsel of appellant as to how reasonings recorded by Court below while recording a finding in favour of defendant are said to be illegal or perverse. Learned counsel for appellant vehemently urged before us that certified copy of attendance register was filed by plaintiff which proved plaintiff’s case. Rest evidence relied upon by Court below to answer issue no.1 in affirmative is manifestly illegal. According to learned counsel, aforesaid evidence clearly proved plaintiff’s case and once that was there, Court below has undertaken an unnecessary exercise to disbelieve case of plaintiff.
23. At the first flush, we were impressed by the submission urged by learned counsel for appellant. However, upon deeper scrutiny, we find that aforesaid submission has been made only to be rejected. Submission has been urged in ignorance of fact that Court below has not accepted certified copy of attendance register adduced by plaintiff as evidence, as aforesaid document was neither an admitted document nor a proved document. Defendant categorically stated that manipulations can be made in attendance register as same are maintained by Station Master/Assistant Station Master and therefore original record be summoned. In spite of aforesaid, plaintiff neither filed any application for summoning original record nor he produced any person from Railways to prove attendance register. Apart from above, the suspicious circumstances surrounding case of plaintiff were also noted. Absence of any explanation from plaintiff regarding his absence from 25.6.2010 to 29.6.2010 coupled with the fact that plaintiff has not stated the grounds for his absence for aforesaid period nor there is any explanation explaining the cause on account of which plaintiff could not attend his duties in the aforesaid period or for what purpose, he availed leave for aforesaid period create a suspicious circumstance which plaintiff was bound to explain. Thus, in totality of things as noted above, court below concluded that marriage between parties was solemnized on 24.6.2010 in accordance with Hindu Rites and Customs.
24. Thus, the solitary argument raised by learned counsel for appellant is insufficient to dislodge the findings recorded by Court below. The point for determination formulated above is answered against appellant. No other point has been argued. In the result the Judgment and decree passed by court remain intact and, therefore, not liable to be interfered with.
25. Appeal lacks merit. It is, accordingly, dismissed with cost, which be quantify at Rs.2 lacks. Cost shall be deposited by plaintiff before court below by means of bank draft payable in the name of respondent within a period of one month from today failing which court below shall proceed to recover same as if it was a recovery pursuant to an order passed by court below itself. On deposit of above, the same shall be remitted to respondent without any delay.
Order Date :-22.01.2020