Mahemmed Habeeb Shams Ansari, J.@mdashInstant appeal is filed by the wife aggrieved by the judgment and decree dated December 21, 2001 passed by the learned Additional District Judge at Arambagh, Hooghly in Matrimonial Suit No. 1 of 2000 whereby and whereunder the suit field by the respondent-husband for declaring the marriage registered under the Special Marriage Act, 1954 was decreed on contest and the marriage between the parties was thereby declared a nullity.
2. For the sake of convenience we shall refer to the appellant and the respondent, hereinafter, as the ''wife'' and the ''husband'' respectively.
3. The suit was filed by the husband for declaration that the marriage between the appellant herein and the respondent is null and void. The marriage between the parties was registered under the Special Marriage Act on March 30, 1992. The relief for nullity of marriage is founded on three grounds. Firstly, on the ground that the husband belongs to ''Mahisya'' community whereas the wife belongs to ''Tili'' community with no prevalent social system of marriage in between the persons of the said two communities. Secondly, on the ground that the on March 30, 1992 when the husband was alone on the street certain unruly youngsters encircled and took him by force and without his consent to the office of the Sub-Registrar at Arambagh and by pressure tactics, threats and intimidations compelled him to put his signatures on some printed papers by force and fraud. It was asserted in the petition that the respondent-husband did not appear before the Special Marriage Officer for registration. Consequently, the marriage certificate dated March 30, 1992 is null and void. Thirdly, on the ground that the wife was underage.
4. The wife and her father, who were arrayed as the defendants, in the suit field a common written statement denying the material allegations. It was asserted that the date of both of the wife is May 12, 1972 and that the school record is not correct. While denying the allegation that the parties did not live together as husband and wife it was asserted that the marriage was consummated. Allegations as to fraud and coercion were specifically denied.
5. On the pleadings as many as five issues were framed, which are as under:
"1) Is the suit maintainable in the present form and prayer?
2) Was the wife-respondent minor at the time of solemnisation and registration of the alleged marriage?
3) Is the marriage document executed before the Special Marriage Officer genuine, valid and legal?
4) Is the petitioner entitled to get a declaration regarding alleged nullity of the marriage?
5) To what relief the petitioner is entitled?"
6. In the judgment under appeal, learned Court below held that the respondent (appellant before us) was a minor at the time of marriage and that the marriage registration was done by taking signatures of husband (PW-2) on some printed papers forcibly and without his consent and thereupon held that the marriage is not valid according to law. It was further held that the marriage certificate (Ext 2) does not bear the signature of bridegroom and signature of the bride.
7. Thus, two questions arise for consideration in the present appeal. Firstly, whether the marriage between the parties is the result of fraud and coercion and thus voidable and to be annulled by a decree of nullity u/s 25 of the Act. The second question being whether the wife was a minor at the time of marriage on March 30, 1992 and therefore marriage is liable to be declared as null and void u/s 24 of the Act.
8. The foremost contention of Ms. Jayashree Banerjee, learned counsel for the appellant-wife is that the judgment under appeal reflects neither the contentions raised on behalf of the respective parties nor does it deal with the documents oral and/or documentary adduced by the respective parties to the proceedings. Learned Court below has merely proceeded on the basis of the pleadings of the petitioner-husband and the evidence adduced on his behalf. No finding or conclusion has been arrived at with regard to the evidence adduced on behalf of the wife, respondent, in the proceedings the learned Court below.
9. Mr. Asok Banerjee, learned counsel for the respondent, thereupon submitted that the appeal being a continuation of the suit. This Court is competent to consider the matter as it stands and give its own findings on the material available on record. According to Mr. Banerjee the evidence adduced on behalf of the respondent herein are sufficient to arrive at the conclusion which the learned Court below did. There is no evidence adduced on behalf of the respondent which can upset the said finding, it was contended. Mr. Banerjee has placed the pleadings, the evidence oral and/ or documentary on record. The judgment under appeal was also placed.
10. A perusal of the judgment under appeal would show that the learned Court below has merely proceeded on the basis of the certificate of the Headmaster of the school (Ext 3) and the school admission register (Ext 1) apart therefrom on the testimony of the witnesses examined on behalf of the respondent herein (petitioner-husband). There is neither any discussion nor any finding is arrived at with regard to the evidence oral and/or documentary adduced on the side of the wife or even to the contentions of the respective parties. Learned Court below has merely proceeded on the testimony of the witnesses produced on behalf of the husband in coming to the conclusion as it did.
11. From the rival contentions and perusal of the judgment under appeal as above a question arises as to whether the matter is required to be remanded under Order 41 Rule 23 CPC for decision afresh. A discretion is conferred upon the Appellate Court to remand under Order 41 Rule 23 CPC for fresh consideration. Such discretion has to be exercised on some basis guided by judicial principles. Certain well settled principles governing remand of a matter by the Appellate Court are that even where the judgment of the lower Court is based on either misreading the evidence or ignoring important evidence or is otherwise contrary to law a remand merely for writing a more satisfactory judgment should not be made. Appellate Court has a duty to first assess the evidence on record and deal with the issues and the findings arrived at by the trial Court and if in the opinion of the appeal Court it is not possible to give a finding on the basis of evidence on record a remand may be justified. It is, therefore, for the appeal Court to consider the matter as it stands and give its own finding unless it comes to the conclusion that there is total lack of evidence and the appeal Court is not in a position to give a finding based thereon. It is not the insufficiency of evidence but the total lack of evidence that would justify a remand. We shall, therefore, proceed to examine the matter, also, keeping the above principles in view.
12. It was contended by Ms. Jayashree Banerjee, learned counsel on behalf of the appellant-wife that as regards the question as to the age of the wife the learned Court below has completely overlooked Ext B and Ext C being the birth certificate issued by the Registrar of Births and Deaths and the record maintained by the Hospital where the appellant (wife) was born. It was urged that the school register and certificate being Exts 1 & 3 have no evidentiary value more particularly in view of the evidence of RW 2 and therefore the judgment could not be based solely on these two documents. It was further contended that in view of the marriage between the parties having been consummated no relief could have been claimed or granted u/s 25 of the Act. Reliance was placed by Ms. Jayashree Banerjee upon certain precedents reference to which shall be made at appropriate stage.
13. On the other hand, the contention on behalf of the respondent-husband by his learned counsel Mr. Asok Banerjee is that the school admission register (Ext 1) which shows the date of birth based on which the Headmaster issued the certificate (Ext 3) are based upon the particulars furnished by the father (RW 2) of the wife and it clinches the issue whereas the evidence relied upon by the appellant being the certificate (Ext B) of the Registrar of Births, Arambagh Municipality shows that registration of birth was recorded after the institution of the suit and from column 2 it is evident that the registration was made on June 23, 1992. The Log Book of Arambagh S.D. Hospital being Ext C, it was contended, has not been duly proved nor was the Log Book maintained in accordance with the procedure prescribed therefore nor the person competent to testify with regard to the said Log Book has been examined. It was therefore urged that no reliance can be placed upon the Exts B & C, relied upon by the appellant.
14. Before we deal with the rival contentions a brief look at some of the provisions of the Act would be useful.
15. The marriage was performed and registered under the Special Marriage Act, 1954 (hereinafter referred, to as the Act). The petition for declaring the marriage as null and void is apparently filed under the provisions of Sections 24 and 25 of the Act.
16. Section 4 of the Act prescribes the conditions relating to solemnisation of the marriage under that Act. Sub-clause (c) lays down the age requirement for a valid marriage and in the case of a female the age prescribed is 18 years. Section 24 lays down that any marriage solemnised under the Act shall be null and void and may on a petition presented by either party be so declared by a decree of nullity if any of the conditions specified in Clauses (a), (b), (c) and (d) of Section 4 has been fulfilled. Thus the question as to whether the marriage in the case on hand is void on the ground that the wife was under-aged would have to be considered in the light of the provisions contained in Section 4(c) read with Section 24.
17. Section 25(iii) specifically provides that any marriage solemnised under the Act shall be voidable and may be annulled by a decree of nullity if the consent of either party to the marriage was obtained by coercion of fraud as defined in the Indian Contract Act, 1872. The effect of registration of marriage is laid down in Section 13. Where a certificate of marriage has been finally entered in the Marriage Certificate Book the marriage shall, as from the date of such entry, be deemed to be a marriage solemnised under the Special Marriage Act. Merely because certificate of marriage has been issued under the Act it cannot be contended that a party to the said marriage cannot seek its annulment. The conclusiveness of fact of marriage attached to the certificate is provided for the reason that the parties to the marriage certificate are agreed that they are husband, and wife. Thereby no third party can contend that the marriage is either illegal or invalid for want of compliance with certain formalities required by the Act.
18. The procedure for solemnisation of the marriages under the Act has been prescribed by the Act. u/s 5, notice of intended marriage is required to be given in writing in the form specified in second schedule to the Marriage Officer.
19. u/s 6, the Marriage Officer is required to keep all notices given u/s 5 with the records of his office and enter the same in the book called the Marriage Notice Book which shall be open for inspection at all reasonable times by any person desirous of inspecting the same. Every such notice given u/s 5 is to be published by affixing a copy thereof by the Marriage Officer on some conspicuous place in this office. Any person objecting to the marriage can file his objections u/s 7 within thirty days from the publication of such notice. The objections to the intended marriage can be founded on one or more of the conditions specified in Section 4. The nature of objections shall be recorded in writing by the Marriage Officer in the Marriage Notice Book. After expiration of 30 days from date on which notice of intended marriage has been published under Sub-section (2) of Section 6 of the marriage may be solemnised unless it has been previously objected to under subsection (1) of Section 7.
20. A further requirement is prescribed u/s 11 of the Act wherein it is laid down that before the marriage is solemnised the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the third schedule and the declaration is to be countersigned by the Marriage Officer.
21. u/s 13, when a marriage has been solemnised the Marriage Officer shall enter a certificate thereof in the form specified in the fourth schedule in a book called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses. Under Sub-section (2) of Section 13, it is laid down that 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 solemnised and that all formalities respecting the signatures of witnesses have been complied with.
22. Two presumptions arise, firstly the marriage certificate will be deemed to be conclusive proof of fact that marriage has been solemnised. The second presumption is that all formalities respecting the signatures have been complied with. Where, however, fraud or coercion is pleaded by either party to the said marriage as a ground for declaring the marriage void then in view of specific provision contained in Section 25(3) of the Act, Court is not denuded of the power or jurisdiction to consider, nor a party to the marriage is precluded from establishing, that the consent was obtained by coercion or fraud to render the marriage void.
23. In the case on hand we find that such plea of coercion was taken. It was open to the wife and/or her father to have summoned the record from the Registrar of marriages with regard to the procedures covered by Sections 5 to 12 of the Act. No such steps were taken by the appellant in the trial Court. We also notice that on the side of the respondent-husband the only evidence is that of the respondent-husband (PW 2), interested testimony. Though it was contended before us that the evidence of PW 2 has been corroborated by PW 4 we however find that the evidence of PW 4 is more in the nature of an opinion. This witness has drawn an inference that PW 2 was taken forcibly and that his signatures were forcibly obtained on printed papers by certain persons. This witness does not speak of what he actually saw. It is also to be noticed that this witness did not disclose about the alleged incident to any other person or even to the father of the husband with whom he is acquainted, until about a month before the date of his deposition in Court. This is rather an unnatural conduct. More importantly, a relevant fact, which has been overlooked both by the parties to the proceedings as also by learned Court below is the pleadings of the respective parties with regard to consummation of the marriage. The husband in his plaint specifically pleaded that he never lived with respondent No. 1 (wife) as husband and wife nor there was any sexual intercourse and cohabitation between the parties.
24. On the other hand, in the written statement it has been specifically stated that the marriage between the parties was consummated and that the husband visited the house and spent the night. No issue, however, was framed with regard to the consummation of marriage.
25. Ms. Jayashree Banerjee relied upon the observations in
26. As regards the ground of nullity of marriage based on Section 24 is concerned we find that the only evidence relied upon by the respondent-husband which found favour with the learned Court below is the school register (Ext 1) and the certificate Ext 3 wherein the date of birth was recorded at the time of admission into school. Mr. Banerjee, learned counsel for the husband is right in his submission that the said documents are admissible in evidence and relate to the period before any controversy as to the correct age was raised. The father (RW 2) has been examined in the case and it was thereupon contended by Mr. Banerjee that the learned Court below as justified in coming to the conclusion as it did. As regards the evidentiary value of the certificate suffice it here to state that in the light of the decision in
27. The above two Exts and C were sought to be proved by RWs 3 and 4. The said two witnesses have stated that they had been merely authorised to produce the said documents respectively before Court. The said two witnesses respectively had no role either in the preparation of the Log Book maintained by the Arambagh S.D. Hospital or the Register maintained by the Arambagh Municipality. A distinction has to be drawn between the testimony of a witness called for proving a document and the testimony of a witness who merely produces a document into Court summoned by a party to the proceedings. In the instant case there is no evidence on record of any person either from the Arambagh Municipality or the Arambagh S.D. Hospital who either maintained the relevant records or made the entry in the record/register nor even a person under whose control, authority or supervision such record/register was required to be maintained.
28. The contentions of Mr. Banerjee cannot be brushed aside. We are also of the view that we cannot accept the submissions of Ms. Jayashree Banerjee that the oral testimony of RW 2 can be accepted. He deposed that in the school admission register the date of birth is not genuine. It is, however, not disputed by him that he admitted his daughter in the said school. There is no presumption as to any such practice of which the Court can either take judicial notice or give its seal of approval that incorrect dates of birth are recorded at the instance of the parents in school registers at the time of admission of their wards. If as deposed by RW 2 the child was born at the Arambagh S.D. Hospital then the record of that hospital would be material evidence. If the birth was registered with the Registrar of Births in accordance with law and the procedure prescribed therefore that would equally be relevant and material evidence. In the case on hand, however, the same have not been proved in the manner required by law.
29. The real question is as to the correct date of birth of the wife upon which depends the answer to the question as to the validity of the marriage itself. Subject to our observations as above with respect to Exts 1 & 3 there is no cogent evidence brought on record on this important issue. The documents exhibited on behalf of the appellant have not been duly proved. We are, therefore, of the view that based upon the evidence on record, no firm conclusion can be arrived at with regard to the age of the wife as on date of the solemnisation of the marriage.
30. For all reasons aforestated the judgment under appeal cannot be sustained. The question that immediately arises is whether this Court should merely reverse the findings and conclusions arrived at by the learned Court below or the matter should be remanded for fresh disposal by the learned Court below. As already noticed supra, the case on hand is not one of inadequate evidence but one of lack of evidence. By this we mean that there is no evidence in the eye of law based on which any firm conclusion can be arrived at. No witness to the marriage has been examined nor the relevant issue considered nor even the material evidence adduced. That which was summoned has not been duly proved. We should bear in mind that the question involved in the case on hand is with regard to the nullity of marriage. Being a question of marital status the consequence of treating a marriage null and void are far reaching. The question of the validity of a marriage deserves special care and caution must be exercised before a marriage is declared void. At the same time if the marriage is in fact null and void and the statute specifically provides for declaring the marriage on fulfillment of the conditions stipulated therein as void then to treat the same as valid would be equally against public interest and contrary to the object of the Act. We are, therefore, of the view that the matter should be remanded for fresh decision in accordance with law after affording the parties an opportunity of producing such evidence oral and/or documentary as they may wish to rely upon.
31. Accordingly, for all the reasons aforestated, we set aside the judgment under appeal and remand the matter for decision afresh by the learned Court below.
As it is an old matter it deserves certain priority and accordingly it is requested that the learned Court below shall dispose of the matter in accordance with law preferably within a period of 9 (nine) months from date of receipt of the lower Court records. The parties hereto shall cooperate in the early disposal of the matter before the learned trial Court.
We make no order as to costs.
Let the lower Court records along with a copy of this judgment and order be sent down forthwith.
J. Banerjee, J.
32. I agree.
Case remanded for fresh decision
