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Chander Mukhi Vs. Bhagat Ram - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 199 of 1977
Judge
Reported in23(1983)DLT309
ActsHindu Marriage Act, 1955 - Sections 9
AppellantChander Mukhi
RespondentBhagat Ram
Advocates: M.B. Lal,; Vohra and; Lila Dhar, Advs
Excerpt:
.....petition for restitution of conjugal rights - evidence produced by appellant pertaining to marriage not convincing - no sufficient evidence proving marriage between parties - witness of appellant have made parrot like statement and when cross-examined have given different statement - appellant failed to establish that she was married to respondent - findings of trial court justified - appeal liable to be dismissed. - - his statement to this effect, would indicate that he has no knowledge of the facts and has made a statement-in-chief in a parrot like fashion. this would bring us to the middle of 1968. but even taking ghander mukhi's statement that they went 5 or 6 times for 5 or 6 years after the marriage, we come to 1969-70. (25) there is nothing to indicate what the..........9 of the hindu marriage act, 1955 (herein after referred to as 'the act'). (2) the appellant, chander mukhi, is resident of village rithala in the union territory of delhi. the respondent bhagat ram, is resident of village tikri khurd near alipur, delhi. (3) according to ghander mukhi, she was married to bhagat ram on 18th may, 1964 in rithala and the marriage was solemnized in accordance with hindu rites. thereafter, she went to village tikri khurd and stayed with bhagat ram for four days. she, then, returned to her parents' home in village rithala. bhagat ram never came to fetch her. pressure was brought upon him through the village panchayat but he still did not come. in these circumstances, she submits that bhagat ram should be held to have withdrawn from her society without.....
Judgment:

Leila Seth, J.

(1) This appeal by Chander Mukhi is directed against the Judgment and Order of Mr. R. Dayal, Sub-Judge, 1st Class, Delhi, dated August 27, 1977 rejecting her petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (herein after referred to as 'the Act').

(2) The appellant, Chander Mukhi, is resident of village Rithala in the Union Territory of Delhi. The respondent Bhagat Ram, is resident of village Tikri Khurd near Alipur, Delhi.

(3) According to Ghander Mukhi, she was married to Bhagat Ram on 18th May, 1964 in Rithala and the marriage was solemnized in accordance with Hindu rites. Thereafter, she went to village Tikri Khurd and stayed with Bhagat Ram for four days. She, then, returned to her parents' home in village Rithala. Bhagat Ram never came to fetch her. Pressure was brought upon him through the village Panchayat but he still did not come. In these circumstances, she submits that Bhagat Ram should be held to have withdrawn from her society without reasonable excuse since 1964.

(4) Ghander Mukhi filed the petition under Section 9 of the Act on 4th May, 1976. Bhagat Ram contested the petition. His main challenge was that he contested the factum of marriage to Ghander Mukhi. According to him, negotiations pertaining to marriage had perhaps taken place but these did not fructify. He further, asserts, that in 1967 he married Darshna of village Shahpur Kayat, District Karnal and has three children of this marriage.

(5) As such, the main issue framed by the trial Court was, whether the parties were married

(6) On examining the evidence and the probabilities of human conduct, the trial court was of the opinion that the evidence produced by the appellant pertaining to the marriage was not convincing. It accepted the evidence of the respondent and held that the parties were never married. In view of this finding the trial court dismissed the petition.

(7) Mr. M.S. Vohra, learned counsel appearing for the appellant, has contended that the trial court had erred in coming to this finding and has not appreciated the evidence correctly.

(8) In support of her case, Chander Mukhi examined herself, her father Ram Swaroop, Ami Lal, the pandit, who is alleged to have performed the marriage, Lal Chand, the negotiator of the marriage as also two residents of village Rithala,Jug Lal and Ganga Bishan who claimed to have attended the marriage.

(9) Chander Mukhi deposes on 18th May, 1977. She states that she was married to Bhagat Ram about '13 years back'. According to her, about 70 persons had come in the marriage party. The marriage was performed by Pandit Ami Lal and Laxmi Narain. After the marriage she went to village Tikri Khurd with Bhagat Ram and cohabited with him during her stay there of four days. She then returned with her brother to her parents' house and Bhagat Ram never came to fetch her. The village panchayat consisting of Shri Jug Lal, Shri Ganga Bishan and Shri Lallu pandit of Naharpur had gone with her father, to village Tikri Khurd about 5/6 times within five or six years of the marriage but Bhagat Ram neither agreed to take her back nor agreed to give in writing that he did not want to take her back. So she continued to reside with her parents.

(10) She did not disclose any reason as to why she did not move in the matter before 4th May, 1976, especially as admittedly no negotiations had taken place after 1969-1970. Her statement is to the effect that she came to know about Bhagat Ram's second marriage in 1976 and thereafter she filed the petition for restitution of conjugal rights. She is also aware that Bhagat Ram has children from his second wife.

(11) Her father, Ram Swaroop has supported her case about the approximate time of marriage and the number of 'baraties' as also the number of days she spent in Bhagat Ram's house. He, however, states that Pandit Ami Lal performed the marriage ritual. In his examination-in-chief he States that at the time of 'Bidai' Rs. 525.00 were given. But, in his crossexamination he contradicts himself and states that a sum of Rs. 101.00 was given at the time of 'Bidai'.

(12) Further, his statement as to when and how many times the village panchayat went to Tikri is different from that of Ghander Mukhi. He deposes that the appellant waited for Bhagat Ram for three years ; and only thereafter he went with the village Panchayat of Tikri three times. But cannot state, even approximately as to when was the last visit. But in Tikri, he contacted Badlu, Bhagat Ram's brother. Badlu told him that he would try to pursuade Bhagat Ram to go and bring back the appellant. He mentions Shri Ram Pat, Shri Shibli and Shri Sardari (both now deceased) as members of the first panchayat. The names of the persons who constituted the panchayat, as mentioned by Ghander Mukhi, differ completely from those mentioned by her father.

(13) Ram Swaroop states that Hawa Singh and Ram Ghander, brothers- in-law of Bhagat Ram (both his sisters' busband) attended the marriage. But Ram Ghander has deposed and specifically denied this allegation.

(14) The pandit who is alleged to have performed the marriage is Ami Lal, Public Witness . 3. He admittedly resides in village Nagal Kalan which is fifteen miles from village Rithala. He is not the family pandit and has admitted that he has not performed the marriage rites of any other member of Ghander Mukhi's family though she has two brothers and a sister. He has also not indicated any reason as to why he has performed this marriage when admittedly there is a pandit in village Rithala. Further, he admits, that there are also pandits, who perform marriage ceremonies in the other nearby villages, such as Naharpur, Pehladpur and Pooth Kalan which are 3/4th of a mile to two miles from village Rithala, and who come to perform marriage in Rithala. His complete ignorence about the number of''baraties' or the number of days they spent or even the fact whether any pandit from the side of Bhagat Ram was present at the marriage leads one to doubt the veracity of his statement. It is difficult to believe, that if he performed the ceremonies, he would not remember whether a pandit from Bhagat Ram's side was present. Further, admittedly. Ami Lal is not the family pandit. As such, it appears rather strange that he should be brought from a distant village when other pandits were freely availably in the village itself and in nearby neighbouring villages.

(15) Public Witness . 4, Lal Chand belongs to village Naharpur. His house is at a distance of one mile, from that of Ram Swaroop. He is the alleged negotiator of the marriage. He states that he saw Bhagat Ram as his nephew (elder's brother's son) is married in village Tikri. As Ram Swaroop had asked him to find a bridegroom for Chander Mukhi, he settled the marriage and the engagement ceremony was performed. According to him the marriage was performed two years after the engagement. But he states that no body from Bhagat Ram's side ever came to see Chander Mukhi before the engagement. To say the least it is rather improbable that no relative of Bhagat Ram would have gone to sec Chander Mukhi, if, in fact, a marriage was contemplated.

(16) Though he supports the case of Ghander Mukhi and her father the 70 persons had come in the 'barat' and the parties were married by Ami Lal, his statement with regard to the members of the panchayat is different from those mentioned either by the appellant or by her father. According to him when three years had elapsed, he went along with the appellant's father as also Kewal, Net Ram (deceased), Rishal and Laxmi Narain in a panchayat to pursuade Bhagat Ram to come and fetch Ghander Mukhi. He also states that subsequently, about six months later, he was sent in another panchayat and was accompanied by Ram Swaroop, Bishan Singh, Ram Lal and Har Kishan. According to him he was told by the respondent's brother Badlu that clothes were being stiched for the occasion and thereafter, the respondent would come to fetch the appellant.

(17) Mr. Jug Lal is an agriculturist residing in village Rithala. In his brief statement he asserts that he was present at the marriage 12-13 years back; 70 'baraties' had come and the marriage was performed by pandit Ami Lal. However, when cross-examined it appear that he neither knows the name of any of the 'baraties' nor even the name of the respondent. In cross-examination, he further deposes that after marriage Bh&gat; Ram had come to village Rithala, approximately a fortnight later and stayed at Ram Swaroop's house for a couple of hours.

(18) It is no body's case that Bhagat Ram ever came to village Rithala after the marriage. His statement to this effect, would indicate that he has no knowledge of the facts and has made a statement-in-chief in a parrot like fashion.

(19) Public Witness . 6, Mr. Ganga Bishan is also an agriculturist and a resident of village Rithala. He also avers that he attended the marriage about thirteen years back. He also claims to have attended the engagement ceremony. He states that he went in the second panchayat and third panchayat after three years of the marriage to pursuade the respondent to come and fetch the petitioner. However, when cross-examined, he cannot give either the month or the season or even the year of the engagement. Nor can he give the name of any of the persons present at the time of the engagement except Badlu, the responpent's brother. He categorically states that he has not seen the respondent in village Rithala after marriage. He does not know the names of the 'baraties' apart from Hawa Singh, the brother-in-law and Badlu.

(20) On the other hand, the respondent has examined himself as R.W. I and has specifically stated that he was never married to the appellant. He states that he was married to Darshan, daughter of Pandit Jai Narain of village Shahpur Kayat, District Karnal about 9 or 10 years back (that would be about 1967). He has three children from this marriage. He does not know whether any negotiations regarding his marriage with the appellant ever took place through his cider brother. However, in cross-examination he admits that his elder brother is Badlu Ram and it is possible that Ram Swaroop may have talked to him about his marriage. He categorically states that he does not know Ram Swaroop. According to him, he was employed as a airman at Palam Airport when he got married to Darshan, but left the service voluntarily in 1970 in the interest of agriculture.

(21) His younger brother Chet Ram has supported his version with regard to his marriage to Darshan and three children. He has also categorically stated that his brother's marriage party never went to village Rithala nor was he ever married to Chander Mukhi.

(22) Ram Ghander is the brother-in-law (Behnoi) of Bhagat Ram. According to the appellant's witnesses he is one of the persons who attended the marriage of the appellant. However, Ram Chander as R.W. 3, categorically states that Bhagat Ram was never married to Chander Mukhi and he has never seen Chander Mukhi residing in Bhagat Ram's house. In fact, he asserts, that Bhagat Ram was married about ten years back at Shahpur Kayat and he attended that marriage. Badlu and Hawa Singh also attended that marriage.

(23) Hari Singh, R.W. 4 is a neighbour of Bhagat Ram. He resides at village Tikri Khurd and is an agriculturist. He also specifically asserts that Bhagat Ram was never married to Chander Mukhi and he has never seen her. He also states that he attended Bhagat Ram's marriage at Shahpur Kayat which had been negotiated by Badlu Ram.

(24) The improbability of the appellant's caie is apparent from the fact that though the appellant alleges that she was married to the respondent on 18th May 1964 and four days thereafter he withdrew from her company without reasonable excuse, she files the petition only on 4th May, 1976. Even, if the efforts at reconciliation are taken into consideration, this brings ui, latest, to about 1969-70. Most of the witnesses have stated that they went three times for this purpose. The first time in 1967 and the second and third visits were made at an interval of six months each. This would bring us to the middle of 1968. But even taking Ghander Mukhi's statement that they went 5 or 6 times for 5 or 6 years after the marriage, we come to 1969-70.

(25) There is nothing to indicate what the appellant was doing after 1969, when even according to her) the efforts at negotiations had clearly not produced any result. It is difficult to believe that from 1969 to 1976, if the appellant was truely married to the respondent her family members or the appellant would not pursue the matter in any manner.

(26) The petition has been filed on 4th May, 1976 i.e. almost twelve years after the respondent is alleged to have withdrawn from the society of the appellant without reasonable excuse. No Explanationn for the delay is forthcoming. This in itself makes the whole version of the appellant doubtful. The evidence of Pandit Ami Lal having performed the marriage also docs ' not appear to be credible, in view of the fact that he is neither the family pandit nor has performed the marriage of any other member of the family, and he resides in a distant village when numerous other pandits from nearby neighbouring villages were available.

(27) The other witnesses of the appellant, also appear to have made parrot like statements and when cross-examined have given differing statements as earlier noticed.

(28) Mr. M.S. Vohra further contended that an adverse inference should be drawn from the non-examination of Badlu, the brother of the respondent who it is alleged had negotiated the marriage. It is no doubt true, that the appellant has alleged that Badlu is the person with whom the negotiations took place. The appellant could have examined Badlu and the failure of the respondent to examine Badlu cannot establish her case. In fact, the issue is not whether the negotiations took place but whether the marriage v was performed. It is more than possible that negotiations took place and the matter did not fructify. Further, Badlu is not the only person who, according to the appellant's case, is alleged to have attended the marriage. Ram Chander is also supposed to have attended the marriage. But Ram Chander has been examined and he has specifically stated that no such marriage took place and, in fact, the respondent has been married not at Rithala but at village Shahpur Kayat.

(29) It is also well settled that if the finding of the trial court is reasonable and reflects a possible view, it should not be easily reversed in view of the fact that the trial court has an opportunity to see, hear and question the witnesses.

(30) For the reasons outlined above, it would appear to me, that the finding of the trial court, that the appellant has not been able to establish that she was married to the respondent is both reasonable and justified. In this view of the matter the appeal is dismissed. But in the circumstances of the case, I make no order as to costs.


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