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1982 Supreme(Del) 341
High Court Of Delhi
CHANDER MUKHI - Appellant
Versus
BHAGAT RAM - Respondent
Decided On : 12/01/1982
In a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, the burden of proving the factum of marriage lies on the petitioner, and the court must carefully scrutinize the evidence to ensure that the marriage is valid and that the respondent has withdrawn from the society of the petitioner without reasonable excuse.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 9 - RESTITUTION OF CONJUGAL RIGHTS - FACTUM OF MARRIAGE - EVIDENCE - DELAY IN FILING PETITION - ADVERSE INFERENCE FROM NON-EXAMINATION OF WITNESS.
Fact of the Case:
Appellant, Chander Mukhi, filed a petition under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights, alleging that she was married to the respondent, Bhagat Ram, in 1964 and that he had withdrawn from her society without reasonable excuse. Bhagat Ram contested the petition, denying the marriage and asserting that he had married another woman in 1967.
Finding of the Court:
The trial court, after examining the evidence, found that the appellant had failed to establish the factum of marriage and dismissed the petition. The court noted several inconsistencies and improbabilities in the appellant's evidence, including the delay in filing the petition, the lack of credible evidence regarding the marriage ceremony, and the failure to examine a key witness who was alleged to have negotiated the marriage.
Issues: 1. Whether the appellant and the respondent were validly married? 2. Whether the respondent had withdrawn from the society of the appellant without reasonable excuse? 3. Whether the appellant was entitled to restitution of conjugal rights?
Ratio Decidendi: 1. The court held that the appellant had failed to prove the factum of marriage by reliable evidence. The evidence of the alleged marriage ceremony was not convincing, and there were several inconsistencies and improbabilities in the appellant's testimony and that of her witnesses. 2. The court found that the appellant had not established that the respondent had withdrawn from her society without reasonable excuse. The appellant had waited for an unreasonable period of time before filing the petition, and there was no evidence to suggest that the respondent had refused to take her back or had given her any reason to believe that he did not want to live with her. 3. The court concluded that the appellant was not entitled to restitution of conjugal rights since she had failed to prove the existence of a valid marriage.
Final Decision: The appeal was dismissed, and the trial court's decision was upheld.
( 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 partics 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 "
