SUNAINA DEVI @ SONI Vs. PRASHANT KUMAR JHA

JUDGEMENT

(1.) THE present appeal arises from judgment dated 24.12.2009 by the Principal Judge, Family Court, Saharsa dismissing M.M. [Matrimonial] Case No. 52 of 2005/56 of 2005 instituted by the appellant Sunaina Devi alias Soni under section 9 of the Hindu Marriage Act (hereinafter called =the Act') for restitution of conjugal rights. Dismissing the case, the Court held that the factum of marriage itself had not been established.

(2.) LEARNED counsel for the appellant submitted that the parties were married on 16.2.2004 according to Hindu rituals and customs. The traditional =Barat' had been received. The Priest and Barber were also present. All customary hindu rituals of marriage had been duly performed. After marriage the parties also went to what is popularly known as the "Kobhar Ghar". An altercation had taken place on the marriage night itself regarding dowry. The brother of the respondent left along with some of the guests threatening the father of the appellant to falsely implicate him in a case of kidnapping for teaching him a lesson for non -payment of dowry. Despite efforts the mother and brother of the respondent refused to accept the appellant in the matrimonial house. Dowry of Rs.3 Lacs was demanded which the father of the appellant was unable to pay. The family of the respondent further stated that they would get him married elsewhere, which they ultimately did. All attempts at compromise were unsuccessful. An earlier application under Section 9 of the Act, Matrimonial Case No. 16 of 2004 had been dismissed for non -prosecution and not on merits.

(3.) LEARNED Senior counsel for the respondent vehemently disputed that any marriage had been performed much less in accordance with Hindu traditions and customs. It was submitted that on the day of the alleged marriage, the respondent, a school teacher, was returning home on a Rickshaw driven by one Tilkeshwar Tanti. He was kidnapped around 4:30 pm on the road at the point of a gun and taken away for marriage in a black Bolero GL X vehicle bearing registration No. SK 02 9658 by four persons one of whom was named as Sanjay Kumar Jha son of Navkant Jha. The brother of the respondent lodged Saharsa P. S. Case 49 of 2004 the same day under Section 365 IPC at 19.15 pm. The respondent was recovered from the house of the appellant around 10.30 the same night of the alleged marriage. The appellant's witnesses had deposed that the marriage ceremony started at about 7:30 8:00 pm and concluded by 9 9:30 PM. If it was a marriage duly solemnised voluntarily, and all rituals of a hindu marriage performed, it is not possible that the wedding would be over in such a short duration. The traditional rituals take considerable time and a normal marriage would have continued till late at night. This unusual act itself demonstrates the haste with which the alleged marriage was performed without proper rituals. Charge sheet No. 205 in the police case was submitted by the police against the father of the appellant and others on 16.2.2004. Cognizance was taken on 12.8.2004. The accused evaded appearance all along leading to orders under Section 82 Cr.P.C. where after they appeared and were granted bail by this Court on 19.3.2008. On account of non -cooperation by them in the criminal case, commitment had not been done till 16.8.2010. The mother of the appellant had earlier filed Complaint Case No. 156 of 2004 against the respondent and others on 24.2.2004 under Section 3 and 4 of the Dowry Prohibition Act. The case was dismissed for non -prosecution on 27.7.2013. The appellant herself on 28.4.2004 had also filed a Complaint case under Sections 420, 494 and 120 B IPC along with Section 4 of the Dowry Prohibition Act. It was also dismissed on 30.8.2013 as no prosecution witness appeared after charge. Earlier the appellant had filed Matrimonial Case No. 16 of 2004 under Section 9 of the Act which was dismissed for non -prosecution on 25.2.2005 and attained finality. The fresh application under Section 9 of the Act was then filed again only for harassment.