BUDHAN Vs. MAM RAJ

JUDGEMENT

(1.) THIS is an appeal by Smt. Budhan against whom a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (hereinafter called the Act), was passed by the trial Court. It was alleged by Mam Raj Petitioner (Respondent) in the aforesaid petition that the marriage between him and Smt. Bhudan was solemnised on June 19, 1965, at village Gondpura, tehsil Naraingarh and that both of them last lived together as husband and wife at village Talheri, tahsil and district Ambala, after marriage.

(2.) THE case of the Petitioner is that the Respondent without any reasonable excuse withdrew from his society under the influence of her father and mother who seemed to be determined to marry Tier to some other person. It is alleged that the Petitioner made efforts with the parents of the Respondent to send her back but to no effect. A petition for restitution of conjugal rights was consequently filed. The Respondent resisted the petition and pleaded that the marriage though arranged for June 19, 1965, was never in fact, solemnised as the parents of the boy had practised a fraud. The plea is that some other boy was shown to the bride and the marriage party did come with the present Petitioner on June 19, 1965, but the marriage was not performed. In other words, the status of the Petitioner and the Respondent as husband and wife was denied. It was also contended that the Petitioner was a minor, hardly 12 years of age and the Respondent was also about 15/16 years of age at the time of the alleged marriage and that no marriage could, therefore, validly take place. On the pleadings of the parties the following issues were framed:

(3.) THE only question that requires determination in this appeal is as to whether the marriage between the parties was actually solemnised on June 19,1963 or not. It is common ground between the parties that the brat did come to the village of the bride on June 19, 1965 but the dispute is regarding the pheras being performed or not after the arrival of the marriage party on the ground that the boy turned out to be different from the one that was originally shown at the time of fixing up engagement. There is no documentary evidence os the record except etter Exhibit Al, which is said to have been scribed by the pandit on behalf of the Respondent and addressed to the Petitioner fixing the date of marriage between the parties. Nothing turns on this letter as it is nobody's case that the marriage was not arranged or fixed for June 19,1965 at village Gondpura. Oral evidence was led by both the parties regarding the factum of marriage. The trial Court relying on the circumstances of the case has believed the evidence produced by the Petitioner and in my opinion, rightly. The story of the Respondent seems to be a fabricated one and quite false. The version of the Petitioner is supported by AW 1, Balak Ram who is a pandit and performed the pheras ceremony. He is the person who also wrote the letter Exhibit A. 1. According to him he was the only pandit working at the time of the marriage as the Respondent party had no pandit of their own. The statement of this witness is corroborated by A.W. 2, who is a Sarpanch of the gram panchayat. There is yet another witness A.W. 3 Mukhatiara who supports the case of the Petitioner and is quite independent. There is no reason to disbelieve his testimony and the trial Court has accepted the same. The learned Counsel for the Appellant has not been able to persuade me that there are any good reasons for rejecting the statements of these witnesses. A.W. 4 is also quite reliable. Rula Ram, AW 5, is the father of the Petitioner. He gave the age of the boy as 18 years at time of the marriage. The Petitioner also appeared as AW. 8 in support of his case. It is highly improbable that the marriage party had gone to the village of the bride but no ceremony was actually performed. If any such fraud had taken place as alleged by the Respondent, complaints would have been made to the panchayat or local officials, but nothing was done on the side of the Respondent. What seemed to have happened is that after marriage the Respondent discovered that two fingers of the hand of the Petitioner were missing and it was suspected to be a case of leprosy. The witnesses for the Petitioner have admitted that two of the fingers of one hand of the Petitioner are not existing and that Respondent was not sent by her parents on the ground that the Petitioner was suffering from leprosy. There is no evidence on the record to establish that Petitioner is really suffering from leprosy.