MADHUBALA Vs. JAGDISH CHANDRA

JUDGEMENT

(1.) THIS appeal arises out of a petition under Section 22 of the Special Marriage Act, 1954 (hereinafter referred to as the Act). The petitioner-respondent filed a petition for restitution of conjugal rights on the allegations that the appellant was married to him on November 26, 1972 at Dehra Dun under the Special Marriage Act, 1954, that she was taken away on Nov. 29, 1972 by her brother and brother-in-law from the custody of the respondent on a false pretext that her brother was seriously ill and she has never returned to the respondent since then, that the petitioner-respondent made repeated efforts to bring her back but to no effect. It was further alleged that the appellant had taken with her gold ornaments worth Rs. 2,000|- and cloth worth Rs. 1,500|-. The petitioner-respondent claimed that the appellant was the legally wedded wife of the respondent and he was accordingly entitled to restitution, of the conjugal rights, hence the petition. The defendant-appellant resisted the claim on the allegations that she was never married to the respondent as alleged by him, that she was living with her mother, brother and elder sister at 31, Rispana Road, Dehra Dun; that the respondent was on visiting terms to her family, that in August September, 1972 the petitioner-respondent, on the basis of a letter manipulated by him as a love letter under the signature of one Capt. Rawat, coerced the appellant to sign certain papers on the threat that, in case she did not do so, he Would blackmail her, that the appellant in these circumstances signed the papers which she was pressed upon by the respondent to do and, on the basis of those papers, the respondent obtained a marriage certificate from the Marriage Officer but the appellant never entered a marital alliance With the respondent and never took him as her husband. The trial court allowed the petition of the respondent and held that the marriage certificate bore the signatures of both the parties, namely the petitioner-respondent and the defendant-appellant as also the signatures of the witnesses as required by Section 13 of the Act. It further found that the Marriage Officer had deposed about the marriage proceedings under the Act, and the proceedings could be presumed to have been conducted in accordance with the procedure provided under the Act; hence the court below reached the conclusion that the parties had accepted each other as husband and wife before the Marriage Officer and the marriage had been solemnized under the Act, the appellant's case that she had not been married to the respondent and that she had signed certain documents under threat and compulsion by the respondent was unworthy of credence. From the material on record the marriage under the Act was found to have been solemnized. The appellant accordingly was the wife of the respondent and the respondent accordingly was entitled to claim restitution of conjugal rights. Learned Judge was of the view that though the marriage had taken place, the appellant was trying to "back out from marital ties on account of the disparity of ge of the parties. It was contended on behalf of the appellant that the marriage was not complete as the declaration required by the proviso the subsection (2) of Section 12 was not made by the parties. Section 12 reads as follows: "12. Place and form of Solemnization: (1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed. (2) The marriage may be solemnized in any form which the parties may chose to adopt; Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the marriage officer and the three witnesses and in any language understood by the parties: - I, (A), take the (B), to be my lawful wife (or husband)." According to the appellant no such declaration as is required by the above proviso was made by the appellant at least. Section 13 of the Act provides as follows: - "13. Certificate of Marriage.- (1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and three witnesses. (2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer the certificate shall be deemed to be conclusive evidence of the fact that a marriage under the Act has been solemnized and that all formalities respecting signatures of witnesses have been complied with." It will be seen that the certificate issued under sub-section (2) of Section 13 of the Act is conclusive evidence of two facts: (1) that a marriage under the Act has been solemnized and (2) that all formalities respecting the signatures of witnesses has been complied with. The court below held that in view of the marriage certificate issued by the Marriage Officer and the material on record it was established that the marriage had been solemnized between the parties, and that all the formalities required under the law had been fulfilled. The appellant's contention was that there was no specific evidence on record to prove that either of the parties had taken one and the other as a husband or a wife. Hence there was no completed marriage I find no force in this contention. No plea was raised in the written statement to the effect that no such declaration as is required under the proviso to sub-section (2) of Section 12 of the Act was made before the Marriage Officer. The appellant further made no such statement in her statement before the court below that before the Marriage Officer she did not give a declaration of the nature contemplated by the proviso. THIS point was also not put to the respondent or to the Marriage Officer when they were in the witness box. In her statement before the court below the appellant in her cross-examination admitted that she was married in November 1972 and that she made no objection to her marriage before the Marriage Officer. The certificate of marriage states that the marriage was duly solemnized. In P. J. Ratnam v. D. Kaniaharam and others (A.I.R. 1964 S C. 244) which was a case arising under the Bar Council Act, the Supreme Court, while considering an argument that the matter could not have been remitted for Snquiry to the District Judge unless the statutory pre-condition ot consultation with the Bar Council had taken place, observed thus: .'It is not necessary to consider in this case whether this provision for consultation is mandatory or not but we shall assume that it is so. There was. however, no hint of this objection to the validity of the proceedings upto the stage of the appeal in this Court. The question whether there has been or has not been consultation is one of fact and if this point had been raised in the High Court we would have information as to whether there had been such consultation or not, and if not why there was none ....................... In these circumstances we are not disposed to entertain this objection which rests wholly upon a question of fact.......... There would be a presumption of regularity in respect of official and judicial acts and it would be for the party who challenges such regularity to plead and prove his case." I have already observed that there was no plea of the lack of a declaration as required by the proviso to sub-section (2) of Section 12 of the Act and that this part of the case was not put to the witnesses of the petitioner respondent or by the appellant in her own statement before the court below. The certificate of marriage clearly states that the marriage was solemnized under the Act which would mean according to the provisions of the Act. In the circumstances, I find no force in the contention that compliance was not made of the proviso to sub-Section (2) of Section 12 of the Act or that the marriage was not complete. The appeal accordingly fails and it is dismissed but in the circumstances of the case I make no order as to costs.