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Subash Popatlal Shah Vs. Smt. Lata Subhash Shah - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberFamily Court Appeal No. 71 of 1991 with Family Court Appeal No. 72 of 1991
Judge
Reported inAIR1994Bom43; (1993)95BOMLR260; (1994)DMC115; 1993MhLJ923
ActsHindu Marriage Act, 1955 - Sections 7 and 13(1); Code of Criminal Procedure (CrPC) , 1973 - Sections 125; Indian Penal Code (IPC), 1860 - Sections 494; Evidence Act, 1872 - Sections 112 and 114; Evidence Act, 1872 - Sections 50 and 114
AppellantSubash Popatlal Shah
RespondentSmt. Lata Subhash Shah
Appellant AdvocateK.J. Abhyankar and ;R.D. Dhanuka and ;Mrs. A.R. Dhanuka, Advs.
Respondent AdvocateD.C. Shah and ;R.R. Verma, Advs.
Excerpt:
.....was a figment of imagination and totally false. sadashiv ningu, air1987bom27 ,had ruled at page 31 of air i am of the opinion that in a well organised, orderly and civilised society like ours which is not of loose and uncertain morals, the institution of marriage occupies an important place and plays a very vital role in the process of development of human personality. we have definite views and strong convictions about marital relations. the law as to presumption in favour of marriage under sections 50 and 114 of the evidence act is well crystallised. the evidence for that should be strong, satisfactory and conclusive. they would be the worst sufferers in the society. director of consolidation, [1979]1scr1 that :a strong presumption arises in favour of wedlock where the partners..........v. renuka s. shetty, : air1984bom229 it was held by this court that there was legal presumption in favour of marriage and legitimacy and the burden of proving a fact existing otherwise is on the party who challenged the marriage between two persons and the legitimacy of the children born of such marriage. following the ratio of this judgment, a single judge of this court (h. h. kantharia, j.) in the case of ningu vithu v. sadashiv ningu, : air1987bom27 , had ruled at page 31 of air 'i am of the opinion that in a well organised, orderly and civilised society like ours which is not of loose and uncertain morals, the institution of marriage occupies an important place and plays a very vital role in the process of development of human personality. we have definite views and strong.....
Judgment:
ORDER

H. H. Kantharia, J.

1. These twoappeals are being disposed by this common judgment as they arise from the same impugned judgment and decree passed by the learned Principal Judge of the Family Court, Bombay, on June 28, 1991, in M.J. Petition No. 799 of 1989 and Petition No. 500 of 1989. The appellant-husband in both the appeals, Subhash Popatlal Shah, shall hereinafter be referred to as 'the appellant' and the respondent-wife, Mrs. Lata Subhash Shah, shall hereinafter be referred to as 'the respondent'.

2. The respondent filed M.J. Petition No. 799 of 1989 for dissolution of marriage under Sections 13(1)(i); 13(1)(ib) and 13(2)(i) of the Hindu Marriage Act, 1955 and Petition No. 500 of 1989 for separate maintenance for herself and son Anand under Section 125 ofthe Criminal Procedure Code in the Family Court. Her case was that the marriage between herself and the appellant took place asper Hindu Vedic rites in the month of April, 1973 at Bombay whereafter she stayed with her husband at Pune and Mahabaleshwar. Thereafter she was brought by the appellant to Bombay and kept at her father's house where she has been staying. According to her, out of the wedlock a son by name Anand was born. Her contention was that the appellant was doing hotel business at Akola and after she was left at Bombay he used to send her money towards maintenance and after some time he stopped sending her money and performed a second marriage with one Rasia on June 3, 1975 about which she came to know in the year 1988 and as he was having sexual intercourse with another woman, she was constrained to file a petition for a decree for divorce or in the alternative for a decree for judicial separation. She also claimed maintenance for herself and Anand.

3. The appellant resisted the marriage petition and his case as per the written statement was that the respondent was not at all known to him and that he had not married her in the year 1973 as claimed by her. He also denied having stayed with her at Pune and Mahabaleshwar and leaving her at Bombay at her father's house, He disputed the birth of Anand out of the lawful wedlock with the respondent. According to him, he was in service in a shop somewhere near the house of the respondent's father and taking advantage of that fact the respondent filed false cases against him claiming to be his wife. He also contested the respondent's application for maintenance under Section 125 of the Criminal Procedure Code raising a plea that the respondent was not his legally wedded wife and, therefore, he was not liable to maintain her and her son Anand.

4. At the trial, the respondent adduced her own evidence coupled with that of her son Anand and two independent witnesses Kantilal and Baliram. The appellant adduced his own evidence.

5. On appreciation of the evidence, oral and documentary, the learned trial Judge came to the conclusion that the appellant and the respondent were legally wedded husband and wife and the wife was cruelty treated bythe husband and, therefore, she was entitled to a decree of divorce. He accordingly dissolved the marriage between the appellant and the respondent by the impugned judgment and decree dated June 28, 1991. He further held that the wife and her son Anand were entitled to maintenance as claimed by the wife and granted maintenance to the wife at the rate of Rs. 400/- per month from the date of the application on March 22, 1989 and at the rate of Rs. 500/- for the son.

6. Being aggrieved, the appellant-husband filed both these appeals.

7. Now, the evidence on the record clearly shows that the appellant and the respondent were lawfully married, The wife in her evidence stated that she was married to the appellant in April 1973 at Vajreshwari temple. The marriage was performed by a priest who had chanted mantras and had applied tilak on her forehead The appellant and the respondent garlanded each other. Her evidence also shows that after the marriage, her husband took her to Pune where they stayed for two days and then to Mahabaleshwar for two months as husband and wife. The appellant thereafter brought her to Bombay and left her at her father's place. She deposed that on August 16, 1976 a male child, who was named Anand, was born to her out of the lawful wedlock between her and the appellant. She further deposed that the appellant used to write letters to her and send money orders for her maintenance but he went through a second marriage with one Rasia on June 3, 1975 and then started harassing and ill-treating her and stopped visiting her and paying her maintenance. According to her, the appellant earns Rs. 1,000/- per month. Anand who was 14 years old when he gave evidence in the trial Court on January 16, 1991, stated that the appellant was his father and the respondent was his mother. His evidence shows as to how his father used to visit him and his mother from Akola and used to take them to Vajreshwari where they used to stay together. Not even a suggestion was made to him in the cross-examination that the appellant was not his father. Kantilal Patel who was doing tailoring business in someportion of the premises of the respondent from the year 1968 to 1973 deposed that the appellant and the respondent were behaving as husband and wife. The appellant used to take the respondent out often and they used to be together. Their behaviour indicated that both were husband and wife. There is nothing in his cross-examination to discredit his testimony. Likewise, Baliram Shirselkar, who was residing in front of the house of the respondent, deposed that he had always seen the appellant and the respondent going out together. From this oral testimony, we are more than satisfied that the appellant and the respondent had married and were residing together as husband and wife and out of the lawful wedlock, a son Anand was born. Then there are Exhibits 7, 8 and 9 in the form of letters and money order coupons which show that letters were addressed by the appellant to the respondent as husband and the photographs (Exh. 10) showed that they had posed as husband and wife and once even with their child Anand. The learned trial Judge has very well dealt with this evidence, incorporating in the judgment the letter in Marathi (Exh. 8) written by the appellant to the respondent. It is important to note that the appellant admitted in his evidence that he had written letters to the respondent but the same were on behalf of a hotel boy working in his hotel who had asked him to write such letters and he had sent money to the respondent. It is surprising to note that he did not examine that hotel boy to corroborate his own testimony. We are, therefore, more than satisfied that his evidence was a figment of imagination and totally false. The learned trial Judge was, therefore, justified in rejecting his evidence and accepting that of the respondent to declare that the appellant had married the respondent out of Which son Anand was born and that he had deserted the respondent and practised cruelty on her after getting married to another woman. We, therefore, find no infirmity in the impugned judgment and decree passed by the learned trial Judge.

8. However, at the hearing of these appeals, Mr. Abhyankar, learned advocate appearing on behalf of the appellant, very vehemently urged that as per Section 7 of theHindu Marriage Act, 1955, it had to be proved that a religious rite of completing saptapadi was performed and since there is no such evidence on record, a conclusion could not be drawn that the appellant and the respondent were legally wedded husband and wife. We are unable to persuade ourselves to agree with the submission of Mr. Abhyankar for the simple reason that it is only when the marriage rites and ceremonies include saptapadi that the marriage becomes complete and binding when the seventh step is taken. There is nothing on the record that there was such custom or rites and ceremonies between the parties before us. Thus, saptapadi is not always a must to prove valid marriage between the parties. Mr. Abhyankar advanced an argument that there is nothing on the record that no such rite and ceremony and/or custom was prevalent between the parties in this case. Such an argument cannot be accepted. The evidence of the respondent here is quite clear that she and the appellant went to Vajreshwari before a priest who recited mantras and applied tilak to her forehead and made both of them exchange garlands upon which they were declared husband and wife and the marriage was consummated. It cannot be said that this marriage between the parties was not legal and valid. There is nothing in the evidence of either the husband or the wife that saptapadi was a must according to the religious rites; ceremonies and customs prevalent between them. Therefore, even if saptapadi was not one of the items of the marriage ceremony undertaken by the parties before us, we are of the opinion that the marriage between the appellant and the respondent cannot be held to be illegal and invalid. In fact, when some sort of marriage ceremony was undergone by and between the parlies, there is always a presumption of validity of marriage unless the presumption is rebutted by quite cogent and satisfactory evidence. Mr. Abhyankar relied upon four judgments of the Supreme Court to bring home his point that unless the performance of religious rites of saptapadi is proved, it cannot be said that the marriage between the parties was valid. The judgments referred to and relied upon by him are in thecases of (i) Priya Bala v. Suresh Chandra : 1971CriLJ939 , (ii) Gopal Lal v. State of Rajasthan, : 1979CriLJ652 , (iii) Lingari Obulamma v. L. Venkata Reddy, : 1979CriLJ849 and (iv) Santi Deb Berma v. Kanchan Prava Devi, : 1991CriLJ660 . In our opinion these are not relevant to the facts of our case because they were the judgments in cases of an offence of bigamy punishable under Section 494 of the Indian Penal Code in which it was held that when the parties are both Hindus and if performance of saptapadi was not proved, it cannot be said that the second marriage was proved beyond reasonable doubt and the same was valid. The judgments handed down by the Supreme Court in criminal cases involving the proof of the offence of bigamy punishable under Section 494 of the Indian Penal Code would not be relevant in a matrimonial proceeding. In Hoovayya Kanthappa Shetty v. Renuka S. Shetty, : AIR1984Bom229 it was held by this Court that there was legal presumption in favour of marriage and legitimacy and the burden of proving a fact existing otherwise is on the party who challenged the marriage between two persons and the legitimacy of the children born of such marriage. Following the ratio of this judgment, a single Judge of this Court (H. H. Kantharia, J.) in the case of Ningu Vithu v. Sadashiv Ningu, : AIR1987Bom27 , had ruled at page 31 of AIR

'I am of the opinion that in a well organised, orderly and civilised society like ours which is not of loose and uncertain morals, the institution of marriage occupies an important place and plays a very vital role in the process of development of human personality. We have definite views and strong convictions about marital relations. The law as to presumption in favour of marriage under Sections 50 and 114 of the Evidence Act is well crystallised. Thus when a man and a woman live together as husband and wife for sufficiently long time and were treated as husband and wife by friends, relatives and neighbours there is always a presumption in favour of their marriage. If children are born to such a couple, there isa further presumption in favour of their legitimacy. The presumption in favour of marriage does not get mitigated or weakened merely because there may not be positive evidence of any marriage having taken place. But if there is some evidence on record that the couple had gone through some form of marriage, the presumption gets strengthened. Therefore, though marriage ceremony said to have taken place may not be valid, the marriage can be held to be valid by force of habit and repute and the onus of rebutting such a marriage would be on the person who denies the marriage. It may also be stated here that this presumption of law in favour of marriage and legitimacy is not to be repelled lightly by mere balance of probability. The evidence for that should be strong, satisfactory and conclusive. If the presumption is permitted to be rebutted lightly, the weaker and vulnerable sections of the society viz. the women and the children could be the victims of the vagaries of uncertainties as to their positions and status in life. This would be very much detrimental in the development of their human personality. They would be the worst sufferers in the society.'

It was held by the Supreme Court in the case of Badri Prasad v. Dy. Director of Consolidation, : [1979]1SCR1 that :

'A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy.'

The Supreme Court further held :

'If a man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed.'

In the instant case, in our judgment, the appellant has adduced no such evidence rebutting the presumption of legitimacy in favour of his marriage with the respondent.

9. In the premises aforesaid, we find no substance in these appeals. The appeals accordingly fail and are hereby dismissed. In view of the fact that poor wife here was compelled to face these litigations up to the stage of the High Court and no expenses for the same were provided, we feel that it would be just, fair and proper to award her cost of Rs. 5,000/-. We order accordingly.

10. Supply of certified copy of judgmentto the parties expedited.

Appeals dismissed.


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