C.M.S.A.No.33 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:18.02.2020
CORAM:
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.M.S.A.No.33 of 2006
P.Jayabarathi … Appellant
.Vs.
Usha Nandhini …Respondent
PRAYER: Civil Miscellaneous Second Appeal filed under Section
100 of CPC, to set aside the judgment in CMA No.2 of 2006 dated
14.10.2006 on the file of the learned Additional District Judge (Fast
Track Court No.III), Virudhachalam and confirm the judgment and
decree of the Principal Subordinate Court, Virudhachalam, in
H.M.O.P. No.58 of 2002 on the file of the Principal Subordinate
court, Cuddalore.
For Appellant : Mr.D.Bharatha Chakravarthy
For Respondent : Mr.V.Raghavachari
JUDGMENT
The present Civil Miscellaneous Second Appeal has been filed
by the appellant/husband challenging the judgment dated
14.10.2006 made in CMA No.2 of 2006 by the Additional District
Court/Fast Track Court No.II, Cuddalore, reversing the judgment
and decree dated 05.07.2004 passed in H.M.O.P. No.58 of 2002 on
the file of the Principal Subordinate court, Virudhachalam.
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2. The case of the appellant herein is that his permanent
residence is at T.Agaram Colony, Tittagudi Taluk, Cuddalore District
and he is doing agricultural works. He completed his studies upto
SSLC in Government Boys Higher Secondary School, his father is a
teacher and his mother is a house wife. He is the only son to his
parents. His father is endowed with considerable properties, both
movable and immovable. While so, with a view to grab the
properties from his father, one Subramaniam of T.Agaram, who
served as Sub Inspector of Police at Pennadum and various places,
now retired, whose sister Janaki Rajendiran is an Advocate of
Thittakudi along with Chinnakutty @ Rajakumari, Udhayakumar and
Dinesh Kumar conspired and used the respondent viz., Selvi.Usha
Nandhini, T.Agaram Colony, Pennadum post, Tittagudi Taluk,
Cuddalore District, as a tool in their hands, fabricated a false and
concocted complaint dated 04.12.2001 for the offences under
Sections 417 and 376 of IPC.
3. The petitioner was arrested and he was in judicial custody
as per Crime No.306 of 2002. The appellant was also confined to
the police station and he was forced to marry the said Usha
Nandhini, on the false complaint that he was having sexual
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intercourse with her either in the sugarcane field or anywhere at
any time muchless two months prior to 04.12.2001.
4. It is the case of the husband that on 08.05.2002 at 01.30
p.m., marriage was solemnized between him and the respondent in
the police station itself under coercion and that he had tied Thali
forcibly without her consent.
5. The petitioner’s parent solemnized the marriage of the
petitioner with one Sasikala, daughter of N.Govindasamy, according
to Hindu Caste Custom and the same was also registered under the
Hindu Marriage Act, before the Marriage registrar, Cuddalore on
26.04.2002 in marriage serial No.162/2002. The marriage is valid
and subsisting. The petitioner and his father were threatened at
Pennadum Police Station and the Police Personnel of Pennadum
Police Station forced for the marriage with Usha Nandhini and the
police by force brought the marriage Register of
Piralayakaaleshwaran Temple of Pennadum and the Pennadum Police
forced the petitioner and his father to put their respective
signatures in the above said marriage Registered on 08.05.2002 at
about 01.30 p.m., as if a marriage had been solemnized between
the petitioner and the respondent and forced the petitioner to give a
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C.M.S.A.No.33 of 2006
pose for photograph as if the petitioner tied thali to the respondent.
As a matter of fact, the petitioner was wearing only a lungi and
photographs were taken screening the lungi worn by the petitioner.
The above marriage between the petitioner and the respondent on
08.05.2002 in force and bogus and it was only a drama made to
enact by force by the Pennadum Police Personnel by sheer exercise
of abuse of police power and authority outside the temple. It is null
and void.
6. Therefore, the forced marriage by abuse of police powers
on 08.05.2002 between the petitioner and the respondent at
Pennadum Police Station is null and void under Section 11 of the
Hindu Marriage Act 1955, as it contravenes Section 5(1) of the
above Act, since the wife of the petitioner by name Sasikala was
living and their marriage is subsisting as on 08.05.2002. Because
some records were created by misuse and abuse of police powers as
if a marriage had taken place between the petitioner and the
respondent on 08.05.2002, the petitioner is constrained to file this
petition before this Court for a decree of declaration that the
marriage forced on 08.05.2002 between the petitioner and the
respondent is null and void.
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C.M.S.A.No.33 of 2006
7. Hence, the appellant moved a divorce petition in
HMOP.No.58 of 2002 before the Subordinate Judge, Virudhachalam,
against the respondent seeking to declare the forced marriage
between the appellant and the respondent alleged to be held on
08.05.2002 at Pennadum as null and void and the said HMOP was
allowed by the said Judge on 05.07.2004. Aggrieved over the
same, the appellant herein preferred in CMA.No.2 of 2006 before
the Additional District Judge (Fast Track Court-III), its order dated
14.10.2006 holding that the appellant herein has not proved the
marriage between himself and one sasikala on 08.05.2002 and also
he has not proved that the marriage between himself and
respondent is only coercion, thereby, the order passed in
HMOP.No.58 of 2002 by the trial Court was set aside.
8. Aggrieved over the order passed by the lower appellate
Court, the present Civil Miscellaneous Appeal has been preferred by
the appellant on the ground that the first appellate Court has erred
in not relying upon Ex.P4-Marriage registration certificate, which is
marked through the appellant and not through the Officials or
Register of Marriage. The appellant is a party to Ex.P4 and he can
very well mark the same. The genuineness of Ex.P4 is not disputed.
Further, the first appellate Court has came to a wrong conclusion
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C.M.S.A.No.33 of 2006
holding that the appellant has not produced any document to show
that the marriage took place on 08.05.2002 under threat and
coercion and without perusing Ex.P5 and P7.
9. The appellant was arrested and in duress for more than 40
days and thereafter the alleged marriage took place without the
consent of the appellant and his parents, that too, between 12.00
noon 01.30 p.m., during Ragukhalam on 08.05.2002 without the
presence of important relatives or friends. The alleged marriage
took place without any photograph, video graph or invitation would
itself go to show that the same was performed out of coercion. The
first appellate Court failed to see that the RW.3 is totally
unconnected person and is not a relative of any of the parties. He is
a witness to the document as Ex.P1. The trial Court rightly pointed
out that the deposition of RW.3 is totally false. The first appellate
Court failed to see the deposition of RW.2, who is the Archagar of
the temple, who conducted the alleged marriage and he did not
know the writer of Ex.P1 and he did not know the fees amount and
he did not enquire the parties about the earlier marriage and which
has to be endorsed by Village Maniakkarar and also he was not
permanent archagar of the temple. The first appellate Court ought
to have seen that as per the version of RW.1, the alleged marriage
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C.M.S.A.No.33 of 2006
was an arranged one by both the families. But none of the relatives
attended and the photograph and video graph etc., were not taken.
Originally, the marriage took place in the police station in an hasty
and hurried manner that too in the Raghukalam on 08.05.2002.
The first appellate Court, without looking into the documents and
evidence of the appellant and without properly understanding the
entire scope of the case set aside the judgment of the trial Court
and as such the judgment is liable to be set aside.
10. On the other hand, it is the plea of the respondent that
the marriage was solemnized as per Hindu Rites and Customs in a
proper manner and it does not warrant any interference.
11. The learned Principal Subordinate Judge, Virudhachalam,
not satisfied with the stand of the respondent/wife and on being
satisfied with the averment stated by the husband, allowed the case
of the husband and declared the marriage as null and void.
12. Challenging the said judgment and decree passed by the
Principal Subordinate court, Virudhachalam, the wife appealed to
the learned Additional District Court/Fast Track Court No.II,
Cuddalore, and by judgment dated 14.10.2006, the appellate Court
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has upheld the marriage that was solemnized between the appellant
and the respondent.
13. Challenging the above said order, the husband has filed
this appeal by raising the following substantial questions of law for
consideration:
(a) Whether or not is necessary to mark the Statutory Certificate
(Marriage Certificate Ex.P4) though the concerned issuing authority
only?
(b) Whether or not a document marked and taken on file can
be rejected even when there is no objection to the document at the
time of marking?
(c) Whether or not the lower appellate Court is correct in
totally rejecting the relief prayed for on the sole basis of the
existence of first marriage without considering the plea of duress
and co-ercion?
(d) Whether or not the approach of the first appellate Court
in coming to a conclusion and thereafter analysing the materials on
record is correct or not?.
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C.M.S.A.No.33 of 2006
14. The main contention of the learned counsel for the
husband is that when he has produced Ex.P4, marriage registration
certificate to the effect that there is already a valid marriage
subsisting with one SasiKala, the Additional District Court/Fast
Track Court No.II, Cuddalore, ought not to have upheld that the
second marriage solemnized with the respondent herein as valid.
15. The next contention raised by the learned counsel for the
appellant is that only due to coercion, the appellant had married the
respondent and that marriage was also solemnized in the police
station and therefore, such marriage solemnized under coercion is
not valid.
16. The learned counsel for the respondent/wife, reiterated
the reasons weighed by the appellate Court in holding that the
marriage was valid and prayed for dismissal of this appeal.
17. Heard the learned counsel for the appellant and the
learned counsel for the respondent. Since all the questions of law
raised by the appellant are interconnected, they are dealt with
together.
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18. It is the case of the appellant/husband that the marriage
between him and the respondent took place on 08.05.2002 when
already the marriage between him and one Sasi Kala was
subsisting. In support of the said stand, he relied on Ex.P4, which
is the marriage registration certificate.
19. The said marriage itself is seriously disputed by the
respondent and the same was also held to be true by the learned
Appellate Court, wherein the Additional District Court/Fast Track
Court No.II, Cuddalore, has categorically held that the first marriage
has not been proved in accordance with law.
20. When the factum of marriage is disputed, evidence
regarding performance of marriage according to Hindu Rites must
be brought on record to show that there is a valid marriage. Mere
production of marriage registration certificate Ex.P4 is not the proof
of marriage in order to become a valid marriage. Ex.P4, at best,
can prove the marriage was between the said parties i.e., husband
and wife, it does not prove valid marriage. When the said marriage
itself is disputed, the burden of proof lies on the party who is
placing reliance on the said marriage registration certificate to prove
that such marriage took place in accordance with law. In the case
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on hand, the appellant has failed to produce any evidence, in
support of the said marriage, except Ex.P4. The appellant has not
chosen to examine his parents, who would have definitely
participated in the said wedding had it really been taken place.
21. Admittedly, the appellant failed to produce any iota of
evidence both oral or documentary to prove that the said marriage
between him and one Sasi Kala took place on 26.04.2002.
22. In view of the above said reasons, this Court does not
find any reason to take a different view than the view taken by the
learned Appellate Court holding that the first marriage dated
26.04.2002 is not valid and therefore, the marriage dated
08.05.2002 is valid.
23. The next issue which needs to be considered is as to
whether there was coercion in performing the marriage between the
appellant and the respondent.
24. It is the case of the appellant that the marriage took
place before the parents and he was forced to marry the
respondent. When a party is taking the plea of coercion, it is for
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him to prove that actually he was forced to marry the respondent.
In the case on hand, no material has been placed on record to prove
that he was forced to marry the respondent herein. This Court in
the absence of evidence either or oral documentary, cannot take the
submission of the appellant as gospel truth.
25. Therefore, this Court is of the view that even the plea of
coercion has not been proved by the appellant.
26. For the foregoing reasons, this Court does not find any
merit in this appeal and the same is accordingly, dismissed.
18.02.2020
Index : Yes / No
Internet : Yes / No
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C.M.S.A.No.33 of 2006
To
1.The learned Additional District Judge
(Fast Track Court No.III), Virudhachalam.
2.The Principal Subordinate Court,
Virudhachalam.
3.The Principal Subordinate court,
Cuddalore.
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C.M.S.A.No.33 of 2006
V.BHAVANI SUBBAROYAN, J.
ub
C.M.S.A.No.33 of 2006
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