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2009 Supreme(P&H) 1892
PUNJAB & HARYANA HIGH COURT
Vinod K.Sharma, J.
Ramesh Kumar
Versus
Sharda Devi @ Asha Devi
First Appeal Order No. 284 of 2004,
Decided On : NOVEMBER 4, 2009
IMPORTANT POINT
Valid marriage--Long cohabitation between a man and woman--Said union is accepted by the neighbourhood--Presumption of marriage can be drawn--Contention that there was no valid marriage for want of Sapatpadi deserves to be rejected.
Headnote:(A) Hindu Marriage Act, 1955, S.9--Civil Procedure Code, 1908, S.151--Paternity of children--D.N.A. test--Wife filed a petition under section 9 of the restitution of conjugal rights--Petition allowed--First appeal--Applicant despite having an opportunity to ask for DNA test did not choose to do so--No explanation as to why the relief claimed could not have been asked for in the learned matrimonial court--Application rejected. (P.3 & 5)
(B) Hindu Marriage Act, 1955, S.5--Hindu Marriage Act, 1955, S.9--Restitution of conjugal right--Proof of Marriage--Sapatpadi--Application form submitted for ration card which has the photographs of not only the appellant and the respondent but also other family members--Form is signed by the appellant himself--Student diary bears the signature of the appellant--Marriage, held, proved--Held; Merely because no averments were made regarding performance of Sapatpadi cannot be aground to hold that there was no valid marriage.
(C) Hindu Marriage Act, 1955, S.5--Hindu Marriage Act, 1955, S.9--Restitution of conjugal rights--Valid marriage--Presumption of marriage--Sapatpadi--Long cohabitation between a man and woman--Said union is accepted by the neighbourhood--Presumption of marriage can be drawn--Contention that there was no valid marriage for want of Sapatpadi deserves to be rejected.
On Facts :
Petition for restitution of conjugal rights--Oral and documentary evidence proved the factum of marriage between the parties--Petition was contested by the appellant by taking objection that petition under section 9 of the Act was not maintainable because the ceremony of Sapatpadi had not been performed in front of sacred fire--Contention rejected.
Vinod K.Sharma, J.
1. CM No. 24153-CII of 2004
This is an application under section 151 of the Code of Civil Procedure for conducing DNA test of the children. It is averred in the application that the respondent is not the wife of the appellant nor the children have any concern with the appellant, but in view of the impugned judgment and decree he is being harassed. It is prayed that that in order to establish the paternity of the children DNA test be got conducted. Application is opposed.
2. The respondent/wife had filed a petition under section 9 of the restitution of conjugal rights which stands allowed.
3. The applicant had an opportunity to ask for DNA, test but he chose not to do so. No reasons have been given as to why the relief claimed could not have been asked for in the learned matrimonial court.
4. The application deserves to be rejected in view of the law laid down by Honble Supreme Court in the case of Smt. Kanti Devi and another v. Poshi Ram, 2001(3) RCR(Civil) 587 : AIR 2001 SC 2226 and AIR 1993 SC 229. In view of the authoritative pronouncement referred to above there is no merit in the application.
Dismissed.
FAO No. 284-M of 2004
5. This is husbands appeal against the judgment and decree dated 20.4.2004 passed by the learned the learned Additional District Judge, (Ad-hoc), Faridabad on a petition filed by respondent/wife under section 9 of the Hindu Marriage Act, 1955 (for short the Act).
6. The respondent/wife filed a petition under section 9 of the Act on the pleadings that she was married with the appellant Ramesh Kumar about 17 years back at Delhi according to Hindu rites and ceremonies. After the marriage the parties lived together at Faridabad as husband and wife and 2 children namely Sanjay Kumar aged 15 years and Kumari Reena aged about 10 years were born out of the wedlock. It was the case of the respondent/wife, that the appellant never gave her love and affection and treated her with cruelty, but in spite of this, she always discharged her duties like a good and faithful wife. Request of the respondent/wife to mend his ways also did not meet with positive result.
7. On 21.8.2000 the respondent lodged a complaint with Mahila Sangharsh Samiti, Mela Maharajpur, Faridabad, where the appellant was summoned where he gave an undertaking to file reply to the complaint on 27.8.2000. In the reply submitted he denied having married the respondent and claimed that she was living with him as a keep. It was also the case of the respondent that the appellant gave her severe beating on several occasions and compelled her to leave the matrimonial home.
8. She was finally turned out of the house about 6 months prior to the filing of the petition. Since then she along with her children was residing in the house of her parents. It was also the pleaded case of the respondent that she was willing to join the company of the appellant, whereas the appellant had withdrawn from the society without reasonable excuse. It was also pleaded that the efforts for reconciliation failed as the appellant finally refused on 15.10.2000 to take her back to the matrimonial home.
9. The petition was contested by the appellant by taking preliminary objections that this petition under section 9 of the Act was not maintainable because the ceremony of Sapatpadi had not been performed in front of sacred fire. Locus standi of the respondent to file the petition was also challenged. It was also pleaded that the respondent had not come to the court with clean hands and had concealed and suppressed the material and true facts.
10. On merit, the stand of the appellant was that he was residing with his father Maha Singh at House No. 10/339 Dakshinpuri Extension, New Delhi ever since the year 1996. The respondent along with her son Sanjay and one daughter named Reena came to her father and took a portion of the above said house on rent. At the time of taking the house on rent she had stated her husbands name as Ramesh belonging to Himachal P
