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Judgments of Supreme Court of India and High Courts

Rohidas Dattu Chavan vs Anjum Abdul Maniyar @ Anjum … on 2 July, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

FIRST APPEAL NO. 158 OF 2018

Rohidas Dattu Chavan,
Age; 35 years, Occ; Business,
Resident of Virgaon, Tq. Akole,
Dist. Ahmednagar. …APPELLANT
(Original Respondent)

VERSUS

1. Mrs. Anjum Abdul Maniyar
@ Anjum Rohidas Chavan,
Age; 34 years, Occ; Service,
Resident of Gaurav Nagar,
Fakir Wada, Ahmednagar.

2. Achal s/o Rohidas Chavan,
Age; 7 years, (Minor),
Under Guardian of mother
Respondent No. 1. …..RESPONDENTS
(Orig. Petitioners)

…..
Shri. B.V.Dhage, Advocate for Appellant
Shri.A.R. Devkate, Advocate for Respondents
…..

CORAM : SMT. VIBHA KANKANWADI, J.

Date of Judgment : 02.07.2019.

JUDGMENT :

The Appeal has been filed by the

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respondent in original proceeding for challenging

the judgment and award passed in the Special

Marriage Petition No. 04 of 2017 by the learned

District Judge -3, Ahmednagar on 25.10.2017,

whereby the said petition filed by the present

respondents came to be allowed and the marriage

between the present appellant and respondent No. 1

was declared as null and void (Hereinafter the

parties are referred as per their original

nomenclatures before the Trial Court).

2. Original Petitioner No. 1 had come with

the case that she belongs to Muslim Community,

whereas, the Opponent belongs to Hindu Community.

The marriage was solemnized under the SectionSpecial

Marriage Act on 15.4.2009 in the office of the

Registrar of Marriage, Ahmednagar. She claims

that she had no knowledge that the Opponent has

spouse living at the time of their marriage and

that he was having three daughters and one son

from his first marriage. It is also stated that he

has played fraud upon her. According to petitioner

No. 1, since the Opponent was having souse, living

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at the time of their marriage, their marriage is

void. Petitioner No. 2 is their child. She has

contended that she want to keep the custody of

petitioner No. 2 with her. It was also contended

that the Opponent was harassing and subjecting her

to cruelty by demanding salary amount from her and

on that count also she prayed for divorce.

3. Opponent was duly served with notice

(Exh. 8) on 1.2.2017, however he remained absent,

and therefore the matter proceeded ex-parte

against him.

4. The petitioner No. 1 filed her affidavit

of Examination-in-chief and led documentary

evidence. After taking into consideration the

evidence on record and hearing, the learned

District Judge -3, Ahmednagar, allowed the

petition. Declaration about marriage of petitioner

No. 1 and Opponent as null and void has been

granted. Petitioner No. 1 is held to be entitled

to retain the custody of petitioner No. 2. So also

the consequential prayer of injunction restraining

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the Opponent from entering the house of petitioner

No. 1, as well as her office has been granted.

5. The Opponent has challenged the said

judgment and decree on the count that he was

forced and pressurized for not contesting the

petition and his main prayer is to remand the

matter to the Trial Court.

6. Heard learned Advocate Shri. B.V.Dhage,

for Appellant and Shri. A.R. Devkate, learned

Advocate for Respondent No. 1.

7. It has been vehemently submitted on

behalf of the appellant that there was suppression

of facts by the petitioner. In fact, petitioner

No. 1 and the Opponent were happily enjoying their

married life between 2009 to 2017 and petitioner

No. 2 born out of their wedlock. Petitioner No. 1

was known to the Opponent since many years, even

prior to their marriage. The family of petitioner

No. 1 was the tenant in the house of Opponent at

village Virgaon, Tq. Akole, Dist. Ahmednagar. The

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entire family resided in his house for about 15

years. Father of petitioner No. 1 was Primary

Teacher in that village and after his transfer,

the family had shifted. Families of Opponent as

well respondent No. 1 were having cordial

relations and they were quite aware about the

family background of each other. It is submitted

that petitioner No. 1 took up a job as Junior

Assistant in P.W.D. Department in 2004 and then

she was transferred to Ahmendnagar in the year

2009. It is stated that after her transfer to

Ahmednagar, the community people started

pressurizing her to get divorce from the appellant

and those persons were continuously pressurizing

the Opponent. Under such circumstances, she

started making false allegations against the

Opponent. It is stated that she used to visit his

house during the Saturdays and Sundays, but when

the community people started harassing, she filed

the petition for divorce. It was submitted on

behalf of Opponent that due to pressure from the

community people, he did not appear before the

Trial Court and the matter was proceeded ex-parte.

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He could not get proper opportunity to bring all

these facts on record. Especially, the fact that,

petitioner No. 1 was aware about all the facts in

the life of Opponent. She has obtained the decree

by suppressing the material facts. He therefore,

requested to remand the matter with direction to

the Trial Court to give proper opportunity to the

appellant.

8. Per contra, the learned Advocate

appearing on behalf of respondent No. 1 submitted

that the reasons given by the learned Trial Court

are proper and further submitted that though an

opportunity was given to the Opponent to contest

the matter, he preferred not to contest it and

remained absent. Under such circumstances, the

learned Tricl Court has justified in proceeding

with the matter Ex-parte.

9. Taking into consideration the above said

rival contentions, following points arise for

determination for the reasons as follows :

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Sr.No POINTS FINDINGS
1) Whether the matter
deserves remand ? In the negative.

2) Whether the Trial Court
erred in granting award on
the ground that the
marriage between the In the negative.
petitioner No. 1 and
Opponent is nullity, there
was cruelty to her at the
hands of the Opponent ?

REASONS

As to point Nos. 1 2 :-

10. Since both points are inter-connected,

they are taken for discussion together in order to

avoid repetition.

11. From the contentions raised by petitioner

No. 1 as well as appellant in his appeal memo, it

can be seen that the fact of marriage between

petitioner No. 1 and the Opponent on 15.4.2009

under the SectionSpecial Marriage Act, is not disputed.

So also it is not disputed that petitioner No. 1

belongs to Muslim Community, whereas, the Opponent

belongs to Hindu community. It is also not in

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dispute that petitioner No. 2 was born out of

their wedlock.

12. It is to be noted that petitioner No. 1

had come with the case that there was suppression

of material facts that the Opponent was married

earlier and had three daughters and one son from

his first wife. She has produced on record

documentary evidence to support said contention.

Now the question is as to whether it was known

earlier to petitioner No. 1, and she had

suppressed the fact of knowledge from the Court.

The Opponent has not disputed the fact that he was

served with summons of the petition, but he

remained absent and did not contest. He has come

with the case that he was pressurized by the

community people of the petitioner No. 1. The

learned Advocate appearing on behalf of appellant

has pointed out para No. 7 of the appeal memo,

wherein pleadings to that effect have been made by

him.

13. It is to be noted that there are no

details as to when the alleged threat was given or

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pressurizing tactics were adopted by the muslim

community people are given. The names of those

community people have not been given. If appeal

memo is required to be read as it is, specially

para Nos. 6, 7 and 8 be read in continuous, then

it gives picture that after petitioner No. 1

joined her services in 2004, she was transferred

to Ahmednagar in 2009, then appellant says that

after her transfer to Ahmednagar, muslim community

people started pressurizing him to give divorce.

In fact, as per petitioner No. 1 their marriage

was solemnized on 15.4.2009. He has not given the

date and month on which petitioner No. 1 was

transferred to Ahmednagar. He has also not

explained as to why the muslim community people

interfered in their marital life. He has not

stated that he had taken action against those

community people for threatening him pressurizing

for divorce. What efforts he had made to reconcile

this with Petitioner No. 1 was not stated by him.

Another fact to be noted is that the allegations

are not made out that acts of pressurizing by the

community people were continuing since after the

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transfer of petitioner No. 1 to Ahmednagar in 2009

till the divorce petition is filed in the year

2017. So this long gap speaks for itself and it

does not support the contention of the appellant

that from 2009 to 2017, he was just sustaining

pressure from the muslim community people, without

taking any action against them as he was

continuously harassed by them.

14. When he was duly served with notice (Exh.

8) on 1.2.2017 by which he was directed to appear

before the Court on 22.2.2017, he remained absent

and the order for proceeding the matter ex-parte

was passed against him on 30.3.2017. However,

ultimately, the judgment has been pronounced on

25.10.2017. In such circumstances, he had ample

opportunity to go to the Court and get the order

of “Ex-parte” set-aside passed against him in the

matter, but he had not taken that opportunity.

Furthermore, he has not given any cogent and sound

reason as to why he remained absent. Therefore,

there is no question of remanding the matter to

the Trial Court.

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15. It appears from the appeal memo that the

appellant has no intention to challenge the fact

that he was married earlier and had three

daughters and one son from his first wife. He has

not produced any evidence on record to show that

his first marriage was not in existence before

15.4.2009. Rather, he intends to say that all

these facts i.e. main fact of his first marriage

and having three daughters and one son from his

first wife, were within the knowledge of

petitioner No. 1 while performing the marriage

with him and this fact has been suppressed from

the trial Court. Even, if for the sake of

argument it is accepted that she had every

knowledge about the first marriage of the Opponent

and yet she performed the marriage with him, that

does not legalize their marriage for the simple

reason that as per Section 4 of the special

SectionMarriage Act, the earlier marriage of any spouse

should not be in existence on the date of the

marriage which is performed under the SectionSpecial

Marriage Act. So, any way, it would be nullity

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and therefore, there is no question of remand of

the matter on this count also.

16. Now as regards the custody of the child

is concerned, she has daughter aged about 07

years, under such circumstances, her custody has

been given to petitioner No. 1 by the learned

Trial Court which cannot be doubted. So also the

fact which is on record that there are three

daughters and one son from the first marriage to

the Opponent. Under such circumstance, no fault

can be found with the decree that has been passed

by the learned Trial Court. Therefore, points are

answered accordingly. There is no merit in the

present appeal and it deserves to be dismissed.

Hence following order :

ORDER.

First Appeal No. 158 of 2018 is hereby
dismissed, with costs.

( SMT. VIBHA KANKANWADI )
JUDGE
mahajansb/

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