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P.Jayabarathi vs Usha Nandhini on 18 February, 2020

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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C.M.S.A.No.33 of 2006

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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C.M.S.A.No.33 of 2006

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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C.M.S.A.No.33 of 2006

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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C.M.S.A.No.33 of 2006

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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C.M.S.A.No.33 of 2006

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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C.M.S.A.No.33 of 2006

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

ub

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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

18.02.2020

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