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Kishor Kumar vs Smt. Maya Devi on 26 July, 2022

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FAM No. 93 of 2016

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

FAM No. 93 of 2016

Judgment Reserved On : 19/07/2022
Judgment Delivered On : 26/07/2022

• Kishor Kumar S/o Shri Vishnu Singh Verma, Aged About 44 Years R/o
Village Sursa Bandha, P.S. Rajim, Tah. Rajim, Distt. Raipur,
Chhattisgarh …………….Defendant,

—- Appellant

Versus

• Smt. Maya Devi W/o Shri Kishor Kumar, Aged About 23 Years R/o
Qtr. No. 15-C, Street No.29, Sect.-5 Bhilai Nagar, Tah. And Distt.
Durg, Chhattisgarh …………….Plaintiff,

—- Respondent

For Appellant : Shri Amiyakant Tiwari, Advocate.
For Respondent : Shri Jitendra Gupta and Ms. Itu Rani Mukherjee, Adv.

Hon’ble Shri Goutam Bhaduri
Hon’ble Shri Deepak Kumar Tiwari, JJ

C A V JUDGMENT

The following judgment of the Court was passed by Deepak Kumar
Tiwari, J.

1. This Appeal has been preferred under Section 19(1) of the Family

Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955

against the judgment dated 12.2.2016 passed by the 3 rd Additional

Principal Judge, Family Court, Durg District Durg in Civil Suit No.226-

A/2014, whereby the suit of the respondent filed under Section 9 of the
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FAM No. 93 of 2016

Hindu Marriage Act, 1955 for Restitution of Conjugal Rights has been

decreed.

2. Indisputably, the marriage between the appellant and the respondent

was solemnized on 5.5.2001 at Village Junwani, Tehsil Gunderdehi,

District Durg and both the parties are living separately. The respondent

herein had filed a civil suit for Restitution of Conjugal Rights under

Section 9 of the Hindu Marriage Act, 1955, on 19.6.2003 stating that

marriage between the appellant and the respondent was solemnized

according to Hindu custom, and at the time of marriage, the appellant

and the respondents were Hindu. The respondent has already passed

B.Sc. 2nd Year Exam and on the insistence of the appellant, the

respondent agreed to complete her graduation as a regular student, and

for the said purpose, the appellant left the respondent to her parental

house after one month of the marriage. The respondent appeared in the

B.Sc. Final Year Exam on 27.4.2002. Thereafter on 6.5.2002, Vidaai

ceremony (Bride’s Farewell) was organized and the respondent was

sent with the appellant. A letter was sent by the unknown person by

post to her in-laws’ house raising false allegations on her character, so

that a doubt could be created in the mind of the appellant. Likewise,

similar letter was sent to the respondent’s parents. As a result, the

appellant refused to stay with the respondent and left the respondent to

her parents’ house. Earlier also, the appellant had received an

anonymous letter doubting his wife’s (respondent) character and

thereafter the appellant and the respondent did not believe the contents
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FAM No. 93 of 2016

of the said anonymous letter and the appellant assured the respondent

about the said letter that there was no doubt in his mind. On 6.5.2002,

the appellant brought the respondent to his village. However, again on

8.5.2002 and 10.5.2002, the appellant received anonymous letters and

refused to live with the respondent. In this way, the respondent, without

any reason, is being ignored by the appellant and he refused to live with

the respondent.

3. The appellant had filed a written statement admitting the marriage with

the respondent on 5.5.2001. The appellant denied the rest of the plaint

averments. It was also pleaded that the respondent has converted into

Islam religion and had become Shabnam Nisha. She had married with

one Saiyyad Zuber, therefore, she is no longer a wife of the appellant.

When the appellant came to know that the respondent has converted

into Muslim religion and married with the said Saiyyad Zuber, the

appellant started living separate. On 6.5.2002, the appellant was not

knowing this fact and, therefore, he brought her to his home. The

respondent and her father deliberately and fraudulently suppressed the

above facts. So the respondent is not entitled for Restitution of

Conjugal Rights.

4. On the basis of averments of the parties, issues were framed and

opportunity of hearing was afforded to the parties. Respondent Smt.

Maya Devi has examined herself as AW-1, her father Kamal Prasad

Deshmukh as AW-2, Mohd. Tauhid Alam Ashrafi as AW-3 Ramesh

Kumar Deshmukh as AW-4 whereas the appellant Kishor Kumar has
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FAM No. 93 of 2016

examined himself as NAW-1, Saiyyed Zuber as NAW-2, Kumari

Sunanda Dhenge as NAW-3, a handwriting expert; Shri Vishnu Singh

Verma as NAW-4, father of the appellant and Shri Gulab Ram

Deshmukh as NAW-5, executive member of Dilliwar Kurmi Kshatriya

Samaj. By the impugned judgment, suit of the respondent was allowed.

5. We have heard learned counsel for the parties at length and perused the

impugned judgment as also the record of the Court below.

6. Learned counsel for the appellant would submit that before the

Marriage Officer at Durg, in Marriage Case No.157/01 under the

Special Marriage Act, 1954, the respondent and Saiyyed Zuber (NAW-

2) have filed their affidavits (Ex.-D/14 D/15), also annexed

photograph (Ex.-D/11) and their mark sheets (Ex.-D/12 D/13). After

conducting statutory enquiry, the Marriage Officer has issued certificate

of marriage which has been solemnized on 20th December, 2001

between the respondent Smt. Maya Devi @ Shabnam Nisha and

Saiyyed Zuber (NAW-2) and granted certificate on 26 th December,

2001. Such certificate shall be deemed to be a conclusive evidence

according to Section 13 of the Special Marriage Act, 1954, of the fact

that the marriage under the said Act has been solemnized and that all

formalities have been done. He further submits that the appellant has

also proved Khulanama Talaq (Ex.-D/18), which was duly accepted by

Saiyyed Zuber (NAW-2). So, considering the evidence on record, the

learned trial Court has not appreciated the evidence in its proper

perspective. Conduct of the wife is sufficient for the appellant to
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FAM No. 93 of 2016

withdraw himself from the society. So learned counsel prays to allow

the Appeal and set aside the impugned judgment and decree.

7. On the other hand, learned counsel for the respondent submits that the

respondent has never converted herself into Islam community. The

authenticity of marriage certificate has also been challenged. Some

unknown persons have intentionally sent anonymous letters (Ex.-D/3 to

D/6) to the appellant condemning her character. Even such letters were

sent prior to the marriage between the parties. Initially the appellant has

not given any weightage to such letters, but after the marriage, when he

continued to receive some other letters, he doubted the character of the

respondent and refused to discharge the marital obligations. She has

not married with said Saiyyed Zuber. So, learned counsel for the

respondents supported the impugned judgment, which is based on

proper appreciation of evidence and does not call for any interference.

8. In the matter of Saroj Rani v. Sudarshan Kumar Chadha1, it was

observed that in India it may be borne in mind that conjugal rights i.e.

right of the husband or the wife to the society of the other spouse is not

merely creature of the statute. Such a right is inherent in the very

institution of marriage itself.

9. Under Section 9 of the Hindu Marriage Act 1955, the Court on being

satisfied that either the husband or wife has without reasonable excuse

withdrawn from the society of the aggrieved party can pass a decree for

restitution of conjugal rights. Section 9 of the Hindu Marriage Act,

1955 reads thus :

1 (1984) 4 SCC 90
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FAM No. 93 of 2016

“9. Restitution of conjugal rights.–When either the
husband or the wife has, without reasonable excuse,
withdrawn from the society of the other aggrieved
party may apply, by petition to the district court, for
restitution of conjugal rights and the court, on being
satisfied of the truth of the statements made in such
petition and that there is no legal ground why the
application should not be granted, may decree
restitution of conjugal rights accordingly.

[Explanation.–Where a question arises whether there
has been reasonable excuse for withdrawal from the
society, the burden of proving reasonable excuse shall
be on the person who has withdrawn from the
society.]”

10. In the matter of Peddigari Annapurnamma v/s Peddigari Appa Rao 2

it was explained that ‘reasonable excuse’ synonymous with any ground

which could be the foundation for a petition for judicial separation or

for nullity of marriage or for divorce.

11. In view of the above backdrop, reverting back to the facts of the present

case, if we examine as to whether there was any justification for the

appellant-husband for living apart or withdrawing from the society of

the respondent, we are of the view that burden is on the appellant to

discharge the same.

12. Appellant Kishore Kumar (NAW-1) deposed that after solemnization of

the marriage on 5.5.2001, the respondent-wife had stayed only for one

month in the matrimonial house and thereafter to complete her studies

(B.Sc. Final Year), she had gone to her parental house and resided there

for about one year. After completion of her examination, he has

brought the respondent to his house. He further stated that he has

2 AIR 1963 AP 312
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FAM No. 93 of 2016

received several letters (Ex.-D/3 to D/6). To find out the authenticity of

such letters, he had gone to the Collector Office and obtained certified

copy of the marriage certificate, as the respondent had performed

marriage with Saiyyed Zuber (NAW-2) and he has also produced

marriage certificate (Ex.-D/1) along with annexures, photograph

annexed with the petition.

13. The appellant further stated that after coming to know about the said

fact, they called a social meeting and in such meeting, the respondent

and her father Kamal Prasad Deshmukh (AW-2) admitted about the

marriage with Saiyyed Zuber, and the members of the caste community

present in the meeting advised the appellant and the respondent to live

separate.

14. Gulab Ram Deshmukh (NAW-5), who is the Executive Member of

Dilliwar Kurmi Kshatriya Samaj, also corroborated the version of the

appellant and stated that in the society meeting, the respondent and her

father were called and both of them have admitted that the respondent

has married with Muslim Man after conversion in Islam Religion.

Father of the appellant has also stated in the similar terms.

15. The respondent (AW-1) in her cross-examination stated that Saiyyed

Zuber (NAW-2) has given tuition to her from Class-10th to B.Sc. (Final

Year) i.e. for about 5 years. She denied that during the said period love

relations were developed. She specifically denies to the proceeding

before the Marriage Officer and deposes that she never appeared before
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FAM No. 93 of 2016

such Officer. But during cross-examination when she was confronted

with the photographs of the marriage proceeding, firstly, she denies and

thereafter corrected herself to state that the photograph was not her

photograph, but it was look-alike her. However, father of the

respondent has categorically admitted in para-3 of the cross-

examination that the photograph affixed in the record of the marriage

registration was of his daughter. He also admits that he has made a

complaint against the appellant under Section 498-A of the IPC and for

dowry case, in which counseling was held and in such proceeding,

Saiyyed Zuber (NAW-2) had also participated, though he stated that

during such proceeding, Saiyyed Zuber did not admit about the fact that

he has solemnized marriage with the respondent. But in his cross-

examination, he significantly stated in para-4 that after living for about

6 months, Saiyyed Zuber fled away. He admits that he has not taken

any action against Saiyyed Zuber. He also admits that on application

filed under Section 498-A of the IPC against the appellant, the police

has not proceeded any further.

16. After scrutinizing the evidence of the respondent and her father, it

clearly appears that there is some connection between the respondent

and Saiyyed Zuber. Saiyyed Zuber (NAW-2) admits his marriage with

the respondent on 20.11.2001 at Camp Bhilai and also produced

Nikahnama (Ex.-D/9). He further stated that prior to marriage with the

respondent he was not aware that the respondent was already married.

He further stated that the respondent has persuaded him for registration
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FAM No. 93 of 2016

of marriage, therefore, he got the marriage registered and completed the

formalities, and the marriage certificate (Ex.-D/10) was also issued in

their favour. He stated that after the Nikah, the respondent has resided

with him only for 5 days and thereafter she had gone to her parental

house. He further deposed that on 18.7.2002 with the consent of

respondent Smt. Maya Devi @ Shabnam Nisha, a Talaknama in the

form of Khulanama was executed between them.

17. From the aforesaid evidence, it is explicit that after marriage of the

appellant with the respondent, certain anonymous letters were received

and the same were verified and it came to the notice of the appellant’s

family that the respondent had performed another marriage in a secret

manner with Saiyyed Zuber. Thereafter Saiyyed Zuber also executed

Talaknama (Ex.-D/18). Therefore, in the above circumstances, the

appellant wanted to perform second marriage. Hence he called a social

meeting and in the said meeting, the fact regarding relations of the

respondent with Saiyyed Zuber was placed. Thereafter the father of the

respondent has also made a police complaint in which the police has not

taken any action against the appellant. The appellant has proved the

marriage certificate (Ex.-D/10), which fact was also acknowledged by

Saiyyed Zuber (NAW-2). So, the appellant has been able to bring on

record from various instances and circumstances to establish the fact of

his living apart from the respondent.

18. It is pertinent to mention that the marriage certificate issued under

Section 13 of the Special Marriage Act, 1954 is a conclusive piece of
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FAM No. 93 of 2016

evidence. In the matter of Smt. Somawanti and others Vs. The State

of Punjab and Others3, the Constitution Bench has made it clear that

there is no difference if the statue uses the word as conclusive evidence

in stead of conclusive proof and the relevant paras 18 19 are as

under:-

“18. A distinction is sought to be made between “conclusive
proof” and “conclusive evidence” and it is contended that
where a law declares that a fact shall be conclusive proof of
another, the court is precluded from considering other evidence
once such fact is established. Therefore, where the law makes a
fact conclusive proof of another the fact stands proved and the
court must proceed on that basis. But, the argument proceeds,
where the law does not go that far and makes a fact only
“conclusive evidence” as to the existence of another fact, other
evidence as to the existence of the other fact is not shut out. In
support of the argument reliance is placed on
Section 4 of the
Evidence Act which in its third paragraph defines “conclusive
proof” as follows:

“When one fact is declared by this Act to be conclusive proof
of another, the court shall, on proof of the one fact, regard the
other as proved, and shall not allow evidence to be given for the
purpose of disproving it.”

This paragraph thus provides that further evidence is barred
where, under the
Evidence Act, one fact is regarded as proof of
another. But it says nothing about what other laws may provide.
There are a number of laws which make certain facts
conclusive evidence of other facts : (see
Companies Act, 1956,
Section 132; the Indian Succession Act, 1925, Section 381;
Christian Marriages Act, 1872, Section 61; Madras Revenue
Act, 1869,
Section 38; Oaths Act, 1873, Section 11). The
question is whether such provision also bars other evidence
after that which is conclusive evidence is produced.

19.The object of adducing evidence is to prove a fact. The
Evidence Act deals with the question as to what kind of
evidence is permissible to be adduced for that purpose and
states in
Section 3 when a fact is said to be proved. That section
reads thus:

3 AIR 1963 SC 151
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FAM No. 93 of 2016

“‘Evidence’ means and includes–

(1) all statements which the court permits or requires to be
made before it by witnesses, in relation to matters of fact under
inquiry; such statements are called oral evidence;

(2) all documents produced for the inspection of the court; such
documents are called documentary evidence.

A fact is said to be proved when, after considering the matters
before it, the court either believes it to exist, or considers its
existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition
that it exists.”

Since evidence means and includes all statements which the
court permits or requires to be made, when the law says that a
particular kind of evidence would be conclusive as to the
existence of a particular fact it implies that fact can be proved
either by that evidence or by some other evidence which the
court permits or requires to be advanced. Where such other
evidence is adduced it would be open to the court to consider
whether, upon that evidence, the fact exists or not. Where, on
the other hand, evidence which is made conclusive is adduced,
the court has no option but to hold that the fact exists. If that
were not so, it would be meaningless to call a particular piece
of evidence as conclusive evidence. Once the law says that
certain evidence is conclusive it shuts out any other evidence
which would detract from the conclusiveness of that evidence.
In substance, therefore, there is no difference between
conclusive evidence and conclusive proof. Statutes may use the
expression “conclusive proof” where the object is to make a
fact non-justiciable. But the legislature may use some other
expression such as “conclusive evidence” for achieving the
same result. There is thus no difference between the effect of
the expression “conclusive evidence” from that of “conclusive
proof”, the aim of both being to give finality to the
establishment of the existence of a fact from the proof of
another.”

19. In the matter of Lily Thomas v. Union of India4, the Hon’ble Supreme

Court has guided the principles that a second marriage, during the

4 (2000) 6 SCC 224
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FAM No. 93 of 2016

lifetime of the spouse, would be void under Sections 11 and 17 of the

Hindu Marriage Act 1955, besides being an offence and the relevant

paras 25, 30 32 are as under :

“25. It would thus be seen that the court would take
cognizance of an offence punishable under Chapter XX
of the Code only upon a complaint made by any of the
persons specified in this section. According to clause

(c) of the proviso to sub-section (1), a complaint for the
offence under
Section 494 or 495 can be made by the
wife or on her behalf by her father, mother, brother,
sister, son or daughter or by her father’s or mother’s
brother or sister. Such complaint may also be filed,
with the leave of the court, by any other person related
to the wife by blood, marriage or adoption. If a Hindu
wife files a complaint for the offence under
Section
494 on the ground that during the subsistence of the
marriage, her husband had married a second wife under
some other religion after converting to that religion, the
offence of bigamy pleaded by her would have to be
investigated and tried in accordance with the
provisions of the
Hindu Marriage Act. It is under this
Act that it has to be seen whether the husband, who has
married a second time, has committed the offence of
bigamy or not. Since under the
Hindu Marriage Act, a
bigamous marriage is prohibited and has been
constituted as an offence under
Section 17 of the Act,
any marriage solemnised by the husband during the
subsistence of that marriage, in spite of his conversion
to another religion, would be an offence triable under
Section 17 of the Hindu Marriage Act read with
Section 494 IPC. Since taking of cognizance of the
offence under
Section 494 is limited to the complaints
made by the persons specified in
Section 198 of the
Code of Criminal Procedure, it is obvious that the
person making the complaint would have to be decided
in terms of the personal law applicable to the
complainant and the respondent (accused) as mere
conversion does not dissolve the marriage
automatically and they continue to be “husband and
wife”.

30. Now, conversion or apostasy does not
automatically dissolve a marriage already solemnised
under the
Hindu Marriage Act. It only provides a
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FAM No. 93 of 2016

ground for divorce under Section 13. The relevant
portion of
Section 13 provides as under:

“13. (1) Any marriage solemnised, whether before or
after the commencement of this Act, may, on a petition
presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the
other party–

(i)***

(ii) has ceased to be a Hindu by conversion to another
religion; or

(iii)-(ix)***”

32. Change of religion does not dissolve the marriage
performed under the
Hindu Marriage Act between two
Hindus. Apostasy does not bring to an end the civil
obligations or the matrimonial bond, but apostasy is a
ground for divorce under
Section 13 as also a ground
for judicial separation under
Section 10 of the Hindu
Marriage Act. Hindu law does not recognise bigamy.
As we have seen above, the
Hindu Marriage Act, 1955
provides for “monogamy”. A second marriage, during
the lifetime of the spouse, would be void under
Sections 11 and 17, besides being an offence.”

20. Even Section 43 of the Special Marriage Act stipulates that a person

already married under any law contracts second marriage under the

Special Marriage Act, 1954 shall be deemed to have committed an

offence under Section 494 or Section 495 of the IPC and the marriage

so solemnized shall be void.

21. So, in view of the aforesaid appreciation, this Court finds that conduct

of the respondent-wife is sufficient ground for withdrawal from the

society by the appellant and the appellant has successfully establishes

his defence in the suit because there is more than reasonable excuses in

this case for the appellant to stay away with his wife.
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FAM No. 93 of 2016

22. For the foregoing, this Court is of the opinion that the findings recorded

by the Court below are perverse and not sustainable, and the same are

liable to be set aside.

23. In the result, the Appeal is allowed and the impugned judgment is set

aside. The petition/suit filed by the respondent-wife under Section 9 of

the Hindu Marriage Act, 1955 is hereby dismissed.

24. The parties shall bear their own cost.

25. A decree be drawn accordingly

Sd/- Sd/-
(Goutam Bhaduri) (Deepak Kumar Tiwari)
Judge Judge

Barve
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FAM No. 93 of 2016

HEADLINES

When there is conclusive evidence of wife’s re-marriage under Section

13 of the Special Marriage Act, 1954, then there is no justification to allow the

petition for Restitution of Conjugal Rights. Petition dismissed.

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lk{; miyC/k gSa] rc nkEiR; vf/kdkjksa ds iquLFkkZiu ds fy, ;kfpdk Lohdkj djus dk
dksbZ vkSfpR; ugha gSA ;kfpdk [kkfjt dh tkrh gS A

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