IMPORTANT POINT
Restitution of conjugal rights – Where marriage itself is not proved, decree for restitution of conjugal rights cannot be sustained.

JUDGMENT

Heard Ms. Sunieta Ojha, learned counsel for the appellant and Ms. Seema Kashyap, learned counsel for the respondent.

2. This is an appeal under Section 19(1) of the Family Courts Act, 1984 read with Section 28 of Hindu Marriage Act, 1955 challenging the judgment and order dated 29.08.2023 passed in Original Suit No. 1990 of 2009; Shruti Agnihotri Vs. Anand Srivastava.

3. The appellant herein had filed a Suit bearing No. 1990 of 2009 under Section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, 1955’) against the respondent i.e. the alleged husband, on 14.10.2009. The respondent on the other hand filed a Suit bearing No. 2168 of 2009 under Section 9 of the Act, 1955 on 11.11.2009 seeking restitution of conjugal rights. Both the suits were clubbed together for the purposes of collecting and recording of evidence and for being decided by a common judgment. The evidence is therefore common. The suit of the appellant under Section 12 of the Act, 1955 has been dismissed, whereas, the suit of the respondent under Section 9 of the Act, 1955 has been decreed.

4. The facts of the case in brief are that the appellant and her family were residents of Kanpur. The appellant’s ‘mausi’ used to reside at Lucknow. Through her ‘mausi’ the family members of the appellant, except her father, came in touch with the respondent herein, who, as alleged, was a religious Guru and used to hold religious discourses at his residence, at Lucknow. The appellant while she was a minor used to go with her mother, mausi and maternal uncle, to the residence of respondent for such religious discourses including on the occasion of Gurupurnima or other special occasions. The family members of the appellant, except her father, were deeply under the influence of the respondent and used to refer him as their Spiritual Guru. It is stated that during ceremonies at the place of the respondent certain ‘prasad’ including ‘special prasad’ used to be given and on taking the same the disciples used to feel elevated and used to loose normal consciousness.

5. It is said that on 05.07.2009 which was Gurupurnima the respondent called the mother of the appellant for signing certain papers on the pretext of enrolling them as members of his spiritual institution, accordingly, the appellant and her mother visited his place at Lucknow and signed certain papers. It is alleged that on 03.08.2009 when the appellant and her mother had gone to Lucknow to attend birthday of appellant’s cousin, they were again called by the respondent at his place and made to sign certain papers on the pretext of being witnesses to a sale deed and they signed certain documents. It is pertinent to mention that on the relevant date i.e. 05.07.2009 the appellant had barely crossed marriageable age of 18 years, say by 12 days, her date of birth being 21.06.1991, whereas, the respondent was at that time about 39 years of age.

6. On 05.08.2009 the respondent called the father of the appellant to inform him that he had married the appellant at Arya Samaj Mandir, Ganeshganj, Lucknow on 05.07.2009 and had got it registered with the Registrar of Marriages on 03.08.2009. This sent the entire family into a tizzy. They were all taken aback and felt cheated by the fraudulent act of the respondent, who, it appears, used the signed papers aforesaid to get a marriage registered, although, according to the appellant, she had never married the respondent and had never given her consent for the same. All efforts by family members of the appellant to contact the respondent failed, but, ultimately, they some how persuaded him to meet the family members and the appellant’s father and mausa reached his residence on 04.09.2009. They called the Police and get the respondent arrested. An F.I.R. was lodged by the father of the appellant at Police Station - Gazipur, District- Lucknow under Sections 419, 420, 496 IPC.

7. It is against the aforesaid background, as the appellant had never married the respondent