Neeraj Kumar Singh Vs Tesu Kumari

1. The instant Miscellaneous Appeal has been filed under Section 19(1) of the Family Courts Act, 1984 against judgment and decree dated 04.11.2015

and 21.11.2015, respectively, passed by the learned Principal Judge, Family Court, Bhagalpur in Matrimonial Case No. 81 of 2009.

Factual Aspects of the matter:-

2. The conspectus of case of the parties is that the respondent filed Matrimonial Case No. 81 of 2009 under Section 9 of the Hindu Marriage Act,

1955 (for short â€˜HMAâ€™) against the appellant/opposite party seeking restitution of conjugal rights against the appellant directing him to discharge

his marital obligations towards the respondent. For the sake of convenience, we will be using nomenclature as used in the present appeal for further

reference. From the petition of the respondent before the learned Family Court, it appears that she had been living in Bhagalpur and working in LIC in

one of its Branches at Bhagalpur. The appellant solemnized marriage with the respondent on 9th November, 2003 according to Hindu Rites and

Customs at Bhagalpur. Both appellant and respondent used to work in LIC and they were posted at LIC Office, District-Sahebganj, Jharkhand in the

year 2003 after joining the organization. Both of them were residing at Bhagalpur and they were accustomed to commute monthly by train together

and also by motorcycle. The close association resulted in special affinity between them and it culminated in love. The appellant and respondent

decided to solemnize marriage without any interference or intervention of their family members since they belonged to different castes and

accordingly the marriage was solemnized at the residence of the petitioner/respondent in presence of close relatives including sister and brother-in-law

(Didi and Jija Ji) of the respondent as she has been residing in a rented house at Adampur, Bhagalpur. The marriage was solemnized by a Pandit,

namely Pankaj Kumar Jha. The appellant and the respondent started leading their conjugal life peacefully for about 02 years but when the fact came

to the knowledge of the parents of the appellant, they got enraged. They started pressurizing the appellant to solemnize marriage with another lady of

same caste with handsome dowry. Tempted by the allurement of money and instigated by his mother, the appellant started demanding Rs. 10,00,000/-

from the respondent and on non fulfillment of this demand, the appellant started maintaining some distance from the respondent and later on

solemnized marriage with another woman after taking dowry. Coming to know about the second marriage of the appellant, the respondent went to the

native place of the appellant but the respondent was abused and threatened by the family members of the appellant. Due to continuous demand of

dowry, the respondent got instituted an FIR against the appellant and his mother for offence under Section 498A of IPC and Section Â¾ of the

Dowry Prohibition Act. Subsequently, several litigation started due to adamant attitude of the appellant and his family members. The respondent

continued her parleys with theÂ appellant and his mother directly or through other persons persuading them to allow the respondent to live with the

appellant. The respondent submitted that the cause of action arose on 05.04.2006, when the appellant refused to lead conjugal life with the respondent

after his second marriage and thereafter, the respondent filed the petition before the learned Family Court for restitution of conjugal rights. The

respondent further submitted that marriage of the respondent with appellant was a valid marriage and she has got right of restitution of conjugal rights

and she was ready to live with the appellant as his wife to lead married conjugal life. Thus, the respondent prayed for passing a decree for restitution

of conjugal right against the appellant, directing him to discharge his marital obligation with the respondent petitioner.

3. The appellant joined the trial before the learned Family Court, Bhagalpur filing his written statement claiming that petition was not maintainable. The

appellant denied the claim of his marriage with the respondent as mischievously false and baseless. The appellant submitted that the respondent-Tesu

Kumari was posted at Sahebganj LIC Branch in the year 2003 and the appellant was also posted in the same service with same status and they were

working in the same office and had friendly relation as well as official relation. The appellant had no inkling about feelings being carried by the

respondent towards the appellant. The respondent got a voluntary transfer from Sahebganj to Bhagalpur in March, 2005 whereas the appellant

remained at Sahebganj till August, 2007 and was transferred to Bhagalpur in August, 2007. The appellant solemnized marriage with one Bibha Kumari

on 23.11.2005. Thereafter, the respondent revealed her intention to marry with the appellant. The appellant was threatened by the respondent and the

appellant filed Sanha No. 349 of 2006. The respondent also filed a Sanha No. 1467 of 2006 in which she made claim about her marriage but without

disclosing any date, place and manner. She also procured a marriage certificate without disclosing the name of the temple which allegedly issued the

certificate. The respondent gave a petition before the Senior Divisional Manager, LIC, Bhagalpur where she mentioned that in November, 2003, they

had solemnized marriage and they started living as husband and wife but without any date. Thereafter, the respondent filed a criminal case and in the

FIR she did not mention any arranged marriage as claimed by her subsequently and only stated that since 9th of November, 2003, they had been living

like husband and wife while both of them had been working at Sahebganj. No where did she disclose the names of persons in presence of whom the

marriage was solemnized. The appellant was arrested and was put under custody and the appellant got bail from this Court when the document was

brought on record showing that the respondent claimed herself as unmarried in the office of LIC till 14.03.2007. The appellant in his written statement

denied ever living as husband and wife with respondent and if they solemnized marriage on 09.11.2003, why would the respondent get voluntary

transfer to Bhagalpur in 2005 when the appellant remained there even after 2005? The appellant reiterated that there was never a relationship of love

between the appellant and respondent and they were co-workers having good relationship and they never talked about any marriage. Further, the

appellant and respondent never lived as husband and wife. The appellant denied the marriage as claimed by the respondent and claimed that this fact

came to his knowledge only in January, 2006 when the respondent revealed her true intention. Even the allegation of demand of dowry was

completely false and baseless. The appellant further stated in his written statement that he has only one wife, namely, Bibha Kumari and there is no

other marriage and from his wife Bibha Kumari he has two children. Thus, the appellant stated that there was no question of restitution of conjugal

rights as the respondent is not the wife of the appellant and, therefore, the petition of the respondent/petitioner was liable to be dismissed.

4. On the basis of pleadings of the parties, the learned Principal Judge, Family Court, Bhagalpur framed the following issues:-

(i) Is the case as framed maintainable?

(ii) Has the petitioner got valid cause of action for the suit?

(iii) Is the petitioner first legally wedded wife of the respondent as claimed?

(iv) Is the petitioner entitled to a decree for restitution of conjugal rights as prayed for?

(v) To what other relief or reliefs, if any, is the petitioner entitled to?

5. In support of her case, the respondent produced and examined the following oral & documentary evidence(s) before the learned Family Court:-

Oral Evidence(s):

PW-1 - Mahesh Prasad Singh

PW-2 - Kailash Rajak

PW-3 - Vikas Singh

PW-4 - Tesu Kumari

PW-5 - Rohit Kumar Thakur

PW-6 - Awan Kumar Singh

PW-7 - Smt. Renu Kumari

Documentary Evidence(s):

Exhibit-1- Certificate issued by Pandit Pankaj Kumar Jha, showing that he has performed/solemnized marriage between these appellant and

respondent on 09.11.2003 in the night at Adampur, Bhagalpur, but the original certificate contains no date of issuance, but contains the signatures of

witnesses, Sri Sudhir Kr. Thakur, Rohit Kumar, Neeta Thakur for the bride and Mahesh Singh, Vikas Singh and Nand Rani Devi for the Bride-groom.

Exhibit-2- Positive of pair photographs of the petitioner and the opposite party as wife and husband.

Exhibit-3- Details of the petition submitted by respondent before the L.I.C. Bhagalpur, Branch-I, showing her address as C/o Ravindra Rajak at

Adampur, Bhagalpur and her date of birth as 01.01.1967.

Exhibit-4- Details submitted by respondent to the L.I.C. Bhagalpur, Branch-I showing her address as wife of Neeraj Kumar Singh C/o Shobha Devi,

Nurse, Lal Bag, Tilkamanjhi, Bhagalpur on 31.03.2010.

Exhibit-5- Letter issued by Chief Manager, LIC Office, Bhagalpur Branch-I showing the address of the respondent as wife of Neeraj Kumar Singh,

C/o Smt. Shobha Devi house no. 64 Techno Point Gali, Lal Bag, Tilkamanjhi, Bhagalpur.

Exhibit-6- Information regarding change of marital status given by respondent Tesu Kumari to the Chief Manager, LIC Bhagalpur, Branch-I showing

Neeraj Kumar Singh son of Sachida Nand Singh, Dogachhi, Tarar P.S.-Sanhaula, Bhagalpur as her husband.

Exhibit-7- The statement of LIC showing nominee of Tesu Kumari as Neeraj Kumar Singh her alleged husband working as Higher Grade Assistant.

Exhibit-8- True copy of extract of the guest house registered LIC Division showing sl. no. 3504 dated 08.11.2003 that Tesu Kumari and Neeraj

Kumar Singh stayed there in the night in one bedroom-2, likewise sl. no. 3507 dated 24.05.2003, 3275 dated 16.11.2002 etc. show that the respondent

Neeraj Kumar Singh had stayed there for official purposes in the said guest house of LIC at Patna.

Exhibit-9- Attested photostat copy of report of chairperson of complaint committee, Life Insurance Corporation, Bhagalpur, namely, Renu Kumari

Ghosh dated 02.12.2006, who had found that Neeraj Kumar Singh had legally married with Tesu Kumari. Exhibit-10- Certificate issued by the

Manager, O.S., Divisional Office, Patna verifying the contents of the aforesaid guest house register showing that Tesu Kumari-Petitioner and Neeraj

Kumar Singh had stayed since 08.11.2003 to 09.11.2003 in the Divisional Office guest house in one room. Exhibit-11- Copy of complaint/report given

by Tesu Kumari to S.P. Bhagalpur regarding the marriage held with apellant and later on, demanding dowry of Rs. 10 lacs and misbehaviour of the

appellant and his family members with her. Earlier the petition was marked as â€˜Xâ€™.

Ext. 11/1 earlier marked X/1- The statement of R. K. Dubey. Ext. 11/2 earlier marked X/2- The statement of Rajesh Kumar Dubey. Ext. 11/3 earlier

marked X/3- the statement of Pandit Pankaj Kumar Jha. Ext. 11/4 earlier marked X/4- The statement of Sudhir Kr. Thakur dated 23.11.2006 etc.,

before the inquiry committee of Mahila Koshang S.P. Office, Bhagalpur showing therein that the alleged marriage between the petitioner and the

opposite party was held on 09.11.2003 as per Hindu Rites and Rituals.

Mark Y to Y/9- Ten different positive photographs showing intimate relation and casual moments in the life of the parties and these photographs have

been allegedly prepared from the C D attached with the case record.

Mark Y/10- The LIC I.D. Card of Tesu Kumari showing her as daughter of Sitaram Thakur and working as HGA at LIC, Bhagalpur, date of birth

01.01.1967 Sl. no. 354062, date of issue 27.07.2005 and Mark Y/11 is Voter I.D. Card of Tesu Kumari bearing Sl no. T.T.N 1182-211 showing Tesu

Kumari to be wife of Neeraj Kumar Singh.

6. On the other hand, the appellant produced and examined the following oral & documentary evidence(s) before the learned Family Court:-

Oral Evidence(s):

OPW-1 - Keshav Kumar Singh

OPW-2 - Shivjani Devi

OPW-3 - Nigam Kumar Singh

OPW-4 - Bibha Singh

OPW-5 - Neeraj Kumar Singh (opposite party)

Documentary Evidence(s):

Exhibit-A- The photostat copy of result dated 04.02.2004 of fellowship Exam, November, 2003 regarding Neeraj Kumar Singh of Techno point lane,

Lal Bag, Tilkamanjhi.

Exhibit-B- The I.D. along with photographs for MLA Election, 2005 Sahebganj regarding duty in the said election of Neeraj Kumar Singh dated

17.02.2005.

Exhibit-C- LIC receipt regarding issuance of report from Manager of LIC Patna Division regarding stay of Neeraj Kumar Singh there since

08.11.2003 to 09.11.2003 showing the old records of the year, 2003 have already been destroyed.

Exhibit-D- Manual of LIC Departmental Examination (Hand-Book) in printed form. Exhibit-E- Booklet Trains at a glance from Patna to Bhagalpur via

Kiul and Patna to Naugachia via Barauni, Railway Time-Table from July, 2003 to January, 2004.

Exhibit-F- Certified true copy of FIR of Kotwali (Adampur) P.S. Case No. 288 of 2007 dated 19.05.2007 U/s 498A IPC and Â¾ of Dowry

Prohibition ActÂ byÂ TesuÂ Kumari,Â theÂ petitioner, against Neeraj, Shivjani Devi-mother of Neeraj along with written report dated 18.05.2007

of Tesu Kumari regarding the alleged atrocities and cruelty done against her and demand of dowry etc.

Exhibit-G- Result of Neeraj Kumar Singh, of fellowship examination November, 2003 dated 04.02.2004, issued by the Secretary General of LIC

Department concerned.

Exhibit-H- Certified copy of true xerox copy of order dated 27.02.2008 passed by the High Court in Criminal Misc. No. 54883/2007, Neeraj Kumar

Singh Vs. State of Bihar, by which the petitioner has been granted bail.

Mark-X- True photostat copy of alleged medical prescription dated 22.03.2012.

Mark-X/1 is true photostat copy of Sanha No. 349 of 2006 dated 25.01.2006, Neeraj Kumar Singh vs. Tesu Kumari.

Mark-X/2- Copy of Sanha No.2545 of 2006, Neeraj versus Tesu Kumari dated 7.06.2006, Mark-X/3 is another Sanha No. 1467 of 2006, Tesu Kumari

Versus Neeraj Kr. Singh and others dated 05.04.2006. Mark-X/4- The true photostat copy of the FIR lodged by Tesu Kumari against Neeraj Kumar

Singh and others dated 15.05.2007, Mark-X/5 is true photostat copy of the order dated 27.02.2008 passed by the Honâ€™ble High Court Patna in Cr.

Misc. No. 54883 of 2007. Mark-X/6-Voter Identity Card of Bibha Kumari wife of Neeraj Kumar Singh.

Mark-X/7- Photostat copy of Voter ID of Neeraj Kr. Singh S/o Sachidanand Singh, Mark X/8- Photostat copy of information given by Tesu Kumari to

the LIC Bhagalpur. Mark-X/9- Copy of complaint given by Tesu Kumari to Senior Manager, LIC Bhagalpur. Mark-X/10- Copy of voter list of

Bhagalpur Constituency (MLA) of 2010, showing that Bibha Devi is wife of Neeraj Kumar Singh.

Findings of the learned Family Court:-

7. After hearing both the parties and considering the oral and documentary evidence(s) available on record, the learned Family Court came to the

conclusion that the matrimonial case as framed was maintainable and the respondent has valid cause of action for filing the suit. The respondent is the

first legally wedded wife of the appellant and she is entitled to decree of restitution of conjugal rights against the appellant. Accordingly, the learned

Family Court allowed the petition decreeing the suit on contest but without cost in favour of the respondent and against the appellant and ordered that

the respondent is first legally wedded wife of the appellant and she is entitled for a decree of restitution of conjugal rights against the appellant as

prayed for and the appellant is legally bound to discharge his marital obligations with the petitioner and to lead conjugal life with her as husband and

wife.

Submissions on behalf of parties:-

8. Learned counsel appearing on behalf of the appellant submitted that the judgment and decree under appeal is bad in the eye of law as well as on

facts and the same is fit to be set aside. The learned court below has erroneously decreed the suit in favour of respondent whereas from perusal of

depositions of witnesses and documents exhibited in the case, it is apparent that the respondent failed to prove the alleged marriage with the appellant.

Learned counsel further submitted that the learned court below has wrongly relied on the wrongly recorded deposition of OPW-4 while passing the

decree in favour of the respondent which was objected by the counsel for the appellant and the same was challenged in writ jurisdiction before this

Court in CWJC No. 13078 of 2013. Learned counsel further submitted that the learned trial court misdirected itself while passing the judgment under

appeal by ignoring the provisions of law as enumerated under Sections 5 & 7 of the HMA which provide that if marriage has not been solemnized in

accordance with the provisions of those sections, then no decree can be passed under Section 9 of the HMA. Learned Family Court is not competent

to pass decree of restitution of conjugal right in favour of respondent unless and until the marriage in question is declared valid by a competent court.

Learned Family Court is empowered to pass decree under Section 9 of the HMA when it is admitted that respondent is legally wedded wife of the

appellant but in the present case marriage of the respondent is itself under doubt. The learned Family Court has wrongly relied on Exhibit-1 which

does not bear signatures of parties as well as date of issuance. Moreover, the said Pandit was not examined in this case. The close relatives like Didi

and Jijaji of the respondent have also not come forward to prove and establish the genuineness of respondentâ€™s case. Likewise, Exhibit-8 (extract

of the guest house register), allegedly bearing the signatures of the parties was disputed by the appellant, as the appellant stayed there for official

purpose wherein the signature of appellant is forged and fabricated. Learned counsel further submitted that Ext. 9 (Report of Chairperson of

Complaint Committee, LIC) is an ex-parte proceeding whereas during cross-examination of the chairperson, it was disclosed that said witness was

known to the appellant and the respondent since 2006 and though alleged marriage took place on 09.11.2003 and the persons present in the alleged

marriage could not be identified by this witness. Learned counsel further submitted that the learned Family Court wrongly disbelieved the documents

of the appellant which prima facie proves that on 09.11.2003 till 05:00 PM, the appellant was present at Patna. On 09.11.2003, the appellant was

attending departmental examination at Patna till 5:00 PM and there was no question for leaving for Bhagalpur at 02:55 PM by Dadar Express as

09.11.2003 was Sunday and on that day Dadar Express was not available. This fact clearly proves that the alleged marriage was never solemnized on

that date as claimed by the respondent and the whole case of the respondent gets falsified by this fact. Learned counsel further submitted that in

Para-1 of the cross-examination of PW-1 there was interpolation by making correction as year â€˜2002â€™ in place of â€˜2004â€™. The learned

Family Court ought to have dismissed the respondentâ€™s case on the basis of pleadings and evidence available on record which do not support the

case of the respondent at all. Learned counsel further submitted that learned Family Court has exceeded its jurisdiction vested in it by law in passing

the impugned judgment and hence the judgment under appeal is perverse and is liable to be set aside.

9. On the other hand, Mr. Ganpati Trivedi, learned senior counsel appearing on behalf of the respondent submitted that there is no infirmity in the

impugned judgment and decree passed by the learned Family Court. Learned Family Court after considering the oral and documentary evidence(s)

produced and examined on behalf the parties, found that the respondent is the first legally wedded wife of the appellant and allowed the petition filed

on behalf of the petitioner/respondent for restitution of conjugal rights. Mr. Trivedi further submitted that PW-5, Rohit Kumar Thakur, in his

examination-in-chief as well as cross-examination fully supported the fact about solemnization of marriage of the respondent with appellant on

09.11.2003. Insofar as interpolation in Para-1 of cross-examination of PW-1 is concerned, the appellant did not raise any objection to the alleged

interpolation while recording the statement of PW-1 by the learned Family Court and the law is well settled that if any such miss-recording of

statement is made by the Court below it must be brought to the knowledge of the court immediately by filing application but no such application or

objection was filed on behalf of the appellant before the learned trial court. Hence such objection is fit to be rejected. Mr. Trivedi further submitted

that PW-1 in Para-4 of his deposition stated that Pankaj Kumar Jha got the marriage solemnized according to Hindu custom, â€˜saptapadiâ€™ was

done, vermilion was applied and everybody blessed the couple and to this effect, Pandit Pankaj Kumar Jha provided the certificate (Ext.-1) and there

was no cross-examination on this issue on behalf of the appellant. Mr. Trivedi further submitted that PW-2, Kailash Rajak also supported the marriage

by Hindu custom, â€˜saptpadiâ€™, applying vermilion and marriage was solemnized by Pandit Pankaj Kumar Jha. In para-3 of his deposition, this

witness supported the story of taking steps around the holy fire, except the wrong counting of number of rounds and likewise, other witnesses also

supported the factum of marriage and that â€˜Kanyadanâ€™ had been done by Sudhir Thakur. The respondent examined herself as PW-4 and in

Para-9 of her deposition, she supported the fact that marriage was solemnized in presence of all the above named persons. Mr. Trivedi further

submitted that initially, Pandit Pankaj Kumar Jha was cited as witness on behalf of the respondent but he did not come to the court for his examination

as he came in collusion with the appellant. However, it is apparent from the record that he appeared at Mahila Koshang for his deposition. Mr. Trivedi

further submitted that Chairperson of the Women Complaint Committee of LIC, Renu Ghosh, has been examined as PW-7 where she has proved her

findings given as Chairperson of Women Complaint Committee of LIC which has been taken into evidence as Ext.9. The said findings support the

case of the respondent that both the appellant and respondent were married. From Ext. 9, it also transpires that the statement of Pandit Pankaj Kumar

Kumar was recorded from which it is evident that he got the marriage of the respondent performed with appellant as per Hindu rites and rituals. The

learned senior counsel further submitted that as far as claim about non-running of Dadar Express, the learned Family Court has taken into

consideration this fact and accepted the submission about Trains taking different routes through nearby Stations.

Findings:-

10. Having gone through the records and the rival submissions, the following points are framed for determination by this Court:-

(I) Whether the respondent is the legally married wife of the appellant?

(II) If yes, whether the respondent is entitled to restitution of conjugal rights or not?

Point No. (I):-

11. Admittedly, the appellant and respondent had been working together in the year 2003. On the point of solemnization of marriage, the Pandit has not

been examined though it has come in the deposition of OPW-4, Vibha Singh, that in the â€˜Crime Against Women Cellâ€™, the Pandit gave a

statement to the effect that he performed the marriage of the appellant with the respondent. The said Pandit also issued a certificate, which was

marked exhibit with objection, that he performed the marriage of the respondent with the appellant. All witnesses examined by either side appear to be

interested witnesses with varied degree of interest and it will require careful examination of their deposition with reading of documents to arrive at a

just conclusion.

12. The star witness of the respondent side is respondent herself, who deposed as PW-4. In her deposition, she stated that her marriage was

solemnized with Neeraj Kumar Singh, appellant herein, on 09.11.2003 in the house of one Ravindra Rajak at Bhagalpur in presence of pandit Pankaj

Kumar Jha and the relatives of both sides. After her marriage, she spent her conjugal life with the appellant till 04.04.2006. She has further deposed

that subsequently, feelings of her husband towards her drastically changed and she came to know that her husband had solemnized marriage with

another lady after taking heavy dowry and under pressure of his mother. On 05.04.2006, she went to her matrimonial home but she was driven out

and a demand of Rs. 10,00,000/- was made. The witness further deposed that when her husband refused to restore the conjugal life, she gave an

application bearing No. 56 of 2006 to the Crime Against Women Cell. At the consultation center of Women Cell of Superintendent of Police,

Bhagalpur, her husband appeared and showing his inability, refused to restore conjugal life with the witness. Before the Women Cell, the pandit

Pankaj Kumar Jha, Sudhir Kumar Thakur, Rakesh Dubey and Rajesh Dubey got recorded their statements in support of the claim of the witness. The

witness further deposed that she filed a criminal case bearing G.R. No. 1374 of 2007, which is still pending before the Court of learned Sub Divisional

Judicial Magistrate, Bhagalpur and police has submitted charge-sheet in this case stating her to be the first married wife of the appellant.

In her cross-examination, she reiterated that her marriage was solemnized on 09.11.2013 and she further deposed that on the date of marriage, she

came from Patna to Bhagalpur at 09:30-10:00 PM by Dadar train. The train left Patna at 03:00-4:00 PM in the evening. She had her examination in

the first sitting at Patna and she had no examination in the second sitting. The witness further deposed that the appellant was also not having any

examination in second sitting. The witness further deposed that from the year 2003 to 2007, she had shown herself as unmarried in the office record.

From 1997, when she joined the service, till 2007, she named her father as her nominee in office records since her husband wanted to keep their inter-

caste marriage secret. The witness further deposed that her husband solemnized another marriage on 23.11.2005 with Bibha Kumari Singh and

concealing this fact, her husband used to visit her till 04.04.2006. The witness further deposed that there was no photography of the marriage

ceremony, however, there is a joint photograph taken by a friend of the appellant at her residence, but she could not tell the name of this friend. The

witness further deposed that after one year of her transfer to Sahebganj, the appellant was transferred to the same place. The said transfers were at

the instance of both the parties. The witness also deposed that on 01.11.2003, she and the appellant were at Patna and they decided to get married on

09.11.2003 and in the night of 09.11.2003, the son of her sister called the Pandit. The witness also deposed that after marriage, she stayed in a hotel at

Sahebganj on three occasions wherein she mentioned the name of the appellant as her husband, but her husband never affixed his signature

anywhere. The witness also deposed that she made a complaint before the Women Complaint Cell of LIC of India wherein she stated about her

marriage with the appellant, but she could not say whether she gave the date of marriage or not. However, she filed the certificate issued by Pandit

showing her marriage date to be 09.11.2003. The witness further deposed in her cross-examination that no one from the village of the appellant

participated in the marriage ceremony.

13. PW-1, Mahesh Prasad Singh, in his deposition supported the claim of the respondent about her marriage with appellant in his examination-in-chief.

This witness deposed that he attended the marriage which was solemnized by pandit Pankaj Kumar Jha following the Hindu rites and rituals. Seven

rounds of sacred fire were taken and thereafter ritual of applying vermilion on forehead was done. Pandit Pankaj Kumar Jha gave a certificate of

marriage on which the witness affixed his signature from the side of bride-groom. The witness also deposed that the appellant kept his marriage with

the respondent secret, but later on, refused to keep her when the respondent went to the house of the appellant.

In his cross-examination, this witness also deposed that the marriage was solemnized on 09.11.2003, but he could not say about the Day. The marriage

ceremony was performed during the period of 10:00 PM to 11:30 PM. The marriage was attended by the witness, his brother-in-law Vikas Singh and

Nandrani Devi. The witness further deposed that he was invited by the appellant in the marriage. At around 09:15 PM, he was at Bhagalpur Railway

Station, as he had gone to Tilkamanjhi for treatment of his sister-in-law, Nandrani Devi, who has since died but he could not say about the date of her

death. The witness further deposed that from the side of bride-groom, he, his brother-in-law and his sister-in-law attended the marriage ceremony

whereas from the side of girl four persons attended the ceremony. The parents or siblings of the appellant were not present. The witness further

deposed that he knows the appellant since his childhood but they are not related. The witness, however, deposed that he could not tell the name of the

grandfather of the appellant. The witness admitted that the respondent is one of the bailors of his brother, Murari Singh, who is on bail after being

convicted and sentenced to undergo life imprisonment. The witness further deposed that the fact of marriage of the appellant and respondent had been

kept secret for about three years. The witness denied the suggestion that as Tesu Kumari, the respondent herein, has stood surety for the brother of

the witness, he has been deposing falsely in her favour.

14. PW-2, Kailash Rajak, is the second witness of the respondent as petitioner before the learned trial court, who deposed in his examination-in-chief

that he knows both sides as husband and wife. He further deposed that the marriage of Tesu Kumari was solemnized in accordance with the Hindu

rites and rituals with circumambulation around sacred fire by pandit on 09.11.2003 at around 11:30 PM in the house of Ravindra Rajak in Adampur.

In his cross-examination, PW-2 has deposed that Tesu Kumari was like her sister and she was introduced to the witness by his staff Rekha Kumari.

The witness further deposed that Tesu Kumari stayed in the house of Ravindra Rajak, DSP. The witness further deposed in his cross-examination

that the marriage of Tesu Kumari was solemnized on 09.11.2003 with Neeraj Kumar and the marriage was attended by the uncle of Neeraj Kumar,

namely, Mahesh Singh, brother-in-law of Mahesh Singh, namely, Vikas Singh and Nandrani Singh wife of Vikas Singh from the side of Neeraj Kumar.

However, the witness stated that he could not say about relationship of these persons with Neeraj Kumar. PW-2 further deposed that he attended the

marriage from the side of girl and other persons, who attended the marriage were Sudhir Kumar Thakur (Jija), Rohit Kumar Thakur and sister of Tesu

Kumari. The marriage ceremony started at 11:00 PM and it ended within half hour. The bride-groom took five rounds of sacred fire and the

bridegroom applied vermilion on the forehead of bride. No photography took place during the marriage which was solemnized by a pandit who did not

give any certificate of marriage. The witness further deposed that he had been called in marriage by the son of the sister of Tesu Kumari, namely

Rohit Kumar Thakur, by calling him on his mobile phone having No. 9955211387 at around 08:00 PM. The witness further deposed that at the time of

her marriage, Tesu Kumari was working in the LIC office, Bhagalpur and the son of her sister used to stay with her. The witness further deposed that

he does not know about the parents or siblings of Tesu Kumari. The witness also deposed that he knew Neeraj Kumar Singh two months prior to the

marriage. At the time of marriage, Ravindra Rajak was not present in his house and Rekha Kumari was also not present at the time of marriage. The

witness further deposed in his cross-examination that Kanyadad of the girl was done by brother-in-law (Jija) of the girl.

15. PW-3, Vikas Singh has also deposed in his examination-in-chief that the marriage of Tesu Kumari was solemnized with Neeraj Kumar Singh on

09.11.2003. The witness further deposed that on 09.11.2003, he had gone to Bhagalpur for treatment of his wife along with his brother-in-law and had

been waiting for train at Bhagalpur station. The train came from Patna to Bhagalpur and a co-viilager of his brother-in-law Mahesh Singh descended

with a girl. Thereafter, he, his wife and his brother-in-law came to a house in Adampur, Bhagalpur to attend the marriage from the side of bridegroom

and to bless them. On 09.11.2003, after exchange of garlands, the marriage was solemnized by pandit Pankaj Kumar Jha and they gave their blessings

to the newly wedded couple. The witness further deposed that pandit Pankaj Kumar Jha issued a certificate of marriage on which he affixed his

signature as a witness.

In his cross-examination, the witness deposed that he came to know Tesu Kumar for the first time on 09.11.2003 and also Neeraj Kumar Singh. The

witness reiterated that he attended the marriage from the side of bridegroom though he has no relationship with them. The witness further deposed in

his cross-examination that his wife was being treated for brain tumour and she died on 11.05.2007. The witness further deposed that they reached the

station at 08:30 PM and the appellant and Mahesh Singh met him at station. The witness further deposed that he could not say whether Neeraj Singh

descended from any train or not. He was introduced to Neeraj Singh at 09:20 PM by Mahesh Singh that Neeraj Singh was from his Village. The

witness further deposed that he, Mahesh Singh, his wife, Neeraj Singh and 5-6 other persons were also present and all of them went to the house of

Tesu Kumari. He did not know those 5-6 other persons. At the house of Tesu Kumari, the marriage ceremony started at 10:00 PM and it was

completed around 11:00 PM. Already five persons were present at marriage venue when the witness reached the place. This witness also deposed

that no photography was done in the marriage, but the witness further deposed in his cross-examination that after exchange of garlands, the bride and

bridegroom took rounds around the sacred fire and mantras were chanted by the pandit. The pandit gave a paper to Mahesh Singh for affixing his

signature as witness. The witness also deposed that he and his wife also affixed their signatures on the said paper as witnesses from the side of

bridegroom. However, the witness deposed that he did not see who was the witness from the side of the bride.

16. PW-5, Rohit Kumar Thakur deposed in his examination-in-chief that petitioner Tesu Kumari is his maternal aunt (mausi) and Neeraj Kumar Singh

is the husband of Tesu Kumari and his maternal uncle (mausa). Both of them have been working in Life Insurance Corporation of India. The witness

further deposed that he used to stay with his Mausi in the year 2000 for the purpose of his studies. The witness further deposed that in the morning of

09.11.2003, he was told on his mobile phone by Neeraj Kumar and Tesu Kumari to make preparation of marriage. He started preparation of marriage

with his maternal uncle Kailash Rajak and purchased the articles of marriage along with his mother from the market as told by Pandit Pankaj Kumar

Jha. On the night of 09.11.2003, both sides came from Patna to Bhagalpur and came to the marriage venue with three other persons. The witness

further deposed that marriage was solemnized at around 10.30 PM in accordance with Hindu Rights and Rituals and in presence of witnesses by

Pandit Pankaj Kumar Jha and marriage ceremony was attended by the parents of this witness, Kailash Rajak, Mahesh Singh, Vikas Singh, Nand Rani

Devi etc. The witness further deposed that the Kanyadan was done by his father Sudhir Thakur. After completion of marriage ceremony, Pandit

Pankaj Kumar Jha gave a written certificate of marriage on which the witness also affixed his signature as a witness of marriage. The witness further

deposed that he gave a Nokia mobile phone to Neeraj Kumar Singh as a gift and also guided him about operation of the mobile phone. After marriage

both sides started living as husband and wife at Adampur, Bhagalpur and also at Sahebganj and this witness stayed with his Mausi. The cordial

relationship between husband and wife continued till 2006. The marital discord arose when Tesu Kumari came to know about the second marriage of

her husband in the year 2006. Tesu Kumari went to the house of her husband in the year 2006 where her husband Neeraj Kumar Singh and his

mother demanded dowry, cash etc. and also misbehaved with her.

In his cross-examination, this witness deposed that at the time of marriage, his parents came from Rosera and they attended the marriage. The

witness further deposed that he came to know about the marriage of Neeraj and his Mausi and he received the phone call at 04:00 PM. The witness

further deposed that the call came even in morning of 09.11.2003. But he could not remember the phone number. He made calls to Kailash uncle and

Pandit Pankaj Kumar Jha. He told them after 04:00 PM and his parents were present in Bhagalpur. The witness further deposed that no photography

was done in the marriage. Only a single joint photograph of Neeraj and Tesu was taken. The witness further deposed that the parents and brother of

Tesu Kumari had no information about the marriage. No person from the building where she stayed was invited in the marriage. The witness also

deposed that in the said marriage, his parents, Kailash Rajak and Pankaj Kumar Jha attended from the side of Tesu Kumari. From the side of Neeraj

Kumar two males and one female attended but he does not know their names. These persons stayed in the night after marriage. The witness further

deposed that Dadar Express came at around 10:00 PM on 09.11.2003 from Patna to Bhagalpur and the rituals started at around 10:50 PM.

17. PW-6 appears to be a hearsay witness of the marriage and this witness deposed that the marriage of Tesu Kumari and Neeraj Kumar Singh was

solemnized in November, 2003 and they have been living as husband and wife at Bhagalpur and both of them were working in Life Insurance

Corporation of India. The witness further deposed that concealing the fact of his first marriage, under pressure of mother, Neeraj Kumar Singh

solemnized second marriage with a girl of his own caste in surreptitious manner, so that Tesu Kumari could not know about it. On coming to know

about second marriage, Tesu Kumari came to her matrimonial home at Dogachhi Tarar, in the year 2006 where Neeraj Kumar and his mother

misbehaved with her and drove her out from their house. Again in the year 2008, Tesu Kumari went to her matrimonial home at Dogachhi.

Considering the condition of Tesu Kumari, villagers gave an application to Superintendent of Police Bhagalpur and also to SDJM, Bhagalpur for

allowing Tesu Kumari to lead conjugal life with Neeraj Kumar Singh and on the said application along with other villagers this witness also affixed his

signature. Considering the helpless condition of Tesu Kumari, the aunt of Neeraj Kumar, Smt. Karuna Devi allowed her to stay in her house as

daughter-in-law in the year 2008 and she has been staying there since then.

In his cross-examination the witness deposed that he knows Tesu Kumari since November, 2003 and her marriage was solemnized on 09.11.2003 but

he did not attend the marriage. He has heard about the marriage. He came to know about the marriage on 10.11.2003. The witness further deposed

that he has no relationship with Tesu Kumari and Neeraj Kumar Singh was his neighbor. The witness further deposed that Neeraj Kumar Singh

solemnized second marriage with a girl from Hazaribag and this witness attended the â€˜baratâ€™ in the said marriage but he does not remember the

date, month and year of the marriage. The witness further deposed that the application given to Superintendent of Police, Bhagalpur was from Tesu

Kumari in which it was stated that Tesu Kumari wanted to stay in her matrimonial home but she was not being allowed. The witness further deposed

that he saw Tesu Kumari in his village for the first time in the year 2006. Prior to marriage, Tesu Kumari had been staying in Bhagalpur whereas

Neeraj Kumari Singh stayed in his village. Presently Tesu has been staying in Bhagalpur and she has not been staying in the village house of Neeraj

Kumar Singh. Tesu has been staying in the house of uncle of Neeraj Kumar at Dogachhi.

18. PW-7, Smt. Renu Kumari, is the last witness of the respondent before the learned trial court, who, in her examination-in-chief, deposed that she is

the Chairperson of Women Complaint Committee of LIC of India, Bhagalpur and is also a lawyer. She knows both sides who have been working in

the Life Insurance Corporation of India. The witness further deposed that Tesu Kumari gave a complaint petition in the year 2006 against her husband

Neeraj Kumar Singh in the aforesaid committee. On the basis of the said complaint, after giving written notice, both sides were called. From the side

of the complainant, a joint photograph, CD, marriage certificate issued by the Pandit, register entry of the hotel etc. were produced as evidence.

Intensive inquiry was made and both sides were heard. Pandit Pankaj Kumar Jha was also present who stated about performing the marriage of both

sides in accordance with Hindu Rites and Rituals and also gave a certificate of marriage which was signed by witnesses from both sides. The witness

further deposed that she also examined the entry register of Shivlok hotel of Sahebganj where both sides stayed as husband and wife. The witness

also deposed that the staff of the Branch Office of LIC, Sahebganj and also the landlord of the premises taken on rent in Sahebganj also confirmed

that petitoner and respondent were living as husband and wife. The witness further deposed that after examination of all the evidence in December,

2006, the Women Complaint Committee gave its decision that the complainant Tesu Kumari was the legally wedded wife of Neeraj Kumar Singh.

In her cross-examination, the witness deposed that she knows Tesu Kumari since 09.09.2006 and also Neeraj Kumar Singh from the same time. The

witness further deposed that she has not recorded the statement of all the persons who attended the marriage except Pandit Pankaj Kumar Jha who

gave the statement that he had solemnized the marriage of both parties. After inquiry, she handed over all documents to the office of LIC. There was

a joint photograph taken of both parties which was also handed over to the LIC office. The witness further deposed that she is not having the

complaint which was given by Tesu Kumari to her department. However, the witness deposed that she inquired about both sides staying as husband

and wife after marriage at a hotel in Sahebganj and she submitted a report to the office of LIC. The witness further deposed that she could not say

whether signature of Neeraj Kumar was on the register or not. The witness further deposed that Tesu Kumari had been staying in the house of Arun

Kumar Sharma as a tenant but how long she stayed in the house and what was the period of stay, she could not say. One of the landlords was Mishra

Ji and she made inquiry from him. The witness further deposed that she recorded the statement of two landlords. The witness further deposed that

she recorded the statement of Tesu Kumari but she could not say whether she recorded the statement of Mahesh Singh, Anita Thakur, Vikas Singh,

Sudhir Thakur, Nand Rani Devi and Kailash Rajak. The witness further deposed that the Inquiry Committee of the LIC was chaired by her and Ms.

M.P. Chandran and Pushpa Rani and Manager Rajiv Kumar were its members. The witness further deposed that after getting the complaint petition

from Tesu Kumari, she did not inquire about the status of both sides as mentioned in their documents.

19. On the other hand, the witnesses examined on behalf of the appellant Neeraj Kumar Singh have all denied the marriage of Neeraj Kumar Singh

with Tesu Kumari. It is relevant to mention here that all the witnesses of appellant are his close relations like brothers, mother and his wife. OPW-1

Keshav Kumar Singh, OPW-3 Nigam Kumar Singh are brothers of the appellant. OPW-2, Shivjani Devi is the mother of the appellant whereas

OPW-4 Bibha Singh is the wife of the appellant.

20. The Examination-in-chief of OPW-1, 2 and 3 are almost similar. The witnesses have deposed in their examination-in-chief that marriage of Neeraj

Kumar Singh was solemnized in accordance with Hindu Rights and Rituals with Bibha Singh, D/o of Achyutanand Singh of Village-Khaira, Dist.-

Chatra on 23.11.2005 in presence of persons from both sides at Deoghar. The witnesses further deposed that Tesu Kumari tried to enter into their

house and Neeraj Kumar Singh gave an informatory petition in the year 2006 to the Court of learned Chief Judicial Magistrate, Bhagalpur. The

witnesses also deposed that they know Tesu Kumari only for the reason that she falsely implicated Neeraj Kumar Singh in a criminal case. The

witnesses also deposed that it was wrong to say that Neeraj Kumar Singh has solemnized marriage with Tesu Kumari. OPW-2 has also deposed that

Tesu Kumari got registered a case against her and her son in May, 2007 for demanding dowry and torture pursuant to said demand. OPW-2 further

deposed that in the year 2006, Tesu Kumari tried to enter into her house claiming that she has solemnized marriage with Neeraj Kumar Singh but

when her son denied the marriage unequivocally, she did not allow Tesu Kumari to enter into the house. The OPW-2 further deposed that the criminal

case filed against her by Tesu Kumari is still pending in Fast Track Court No.5, Bhagalpur.

In his cross-examination, OPW-1 deposed that his other name is Rambadan and he has been working in Army for 15 years and in the year 2003 he

was posted in Meerut. But he could not say what was his place of posting on 09.11.2003. The witness further deposed that Neeraj Kumar Singh is his

elder brother and he was posted in Sahebganj in the year 2003 and he had no knowledge about marriage of Tesu Kumari and Neeraj Kumar Singh. In

the year 2006, Tesu Kumari tried to forcibly enter into his house and her attempt was foiled by the villagers. The witness also deposed that in

September, 2007, Neeraj went to jail in a false case and further deposed that it was wrong to suggest that on 05.05.2008, Tesu Kumari was called in

the village for compromise. The witness denied that his mother demanded Rs. 10,00,000/- from Tesu Kumari. The witness also deposed that he knows

Mahesh Singh but could not say whether he is a senior â€˜Panchâ€™ in the Gram Panchayat. The witness also deposed that he does not know

whether Mahesh Singh was present in the marriage or not. The witness further deposed in his cross-examination that Vimalendra Singh was his own

uncle and the name of his wife is Karuna. He denied the suggestion that Tesu Kumari has been staying in the house of Vimalendra Singh. The

witness further deposed that Tesu Kumari stayed for a day or two in the house. The witness also denied the suggestion that while Tesu Kumari was

staying in the house of his uncle, Rambadan damaged the house of his uncle. The witness further deposed that Tesu Kumari and Neeraj Kumar Singh

were posted in the same office at Sahebganj in the year 2003.

OPW-2 in her cross-examination deposed that she did not lodge any case when Tesu Kumari tried to enter into her house in the year 2006 with some

antisocial elements. The witness further deposed that only marriage solemnized by Neeraj is with Bibha Devi and he has not solemnized any other

marriage. The witness further deposed that in October, 2003 she went to the house of her daughter at Nagpur and returned in January, 2004. The

witness also deposed that her son Neeraj was posted in Sahebganj from 2003 to 2007 and during this period she never visited the house of her son.

She also knows that Tesu Kumari was also posted at Sahebganj at the relevant period. The witness further deposed that she never received any

notice from Women Cell of Bhagalpur and she did not assault Tesu Kumari in the year 2006. The witness admitted that Tesu Kumari has filed a case

for torture with regard to dowry in which she is also an accused. In May, 2008, Tesu Kumari came to her house. The witness further deposed that

Vimalendra Singh is her younger brother-in-law and the name of his wife is Karuna. In the year 2008, Karuna gave a portion of her house to Tesu

Kumari for her stay. The witness further deposed that she did not make any inquiry from Karuna Devi in this regard. The witness further deposed

that she has no knowledge that her son Neeraj solemnized marriage with Tesu Kumari.

In his cross-examination, OPW-3 Nigam Kumar Singh deposed that he has been working in Army since 2000. The witness further deposed that he

has not seen the document of marriage of Tesu Kumari and Neeraj Kumar Singh and further deposed that no marriage was solemnized and there is

no documentary proof.

21. OPW-4, Bibha Singh has deposed in her examination-in-chief that her father entered into marriage talks with the father of the Neeraj Kumar

Singh and her marriage was solemnized with Neeraj Kumar Singh on 23.11.2005. The witness further deposed that she is educated lady and had a

degree in Chemistry at the time of marriage. Her marriage was solemnized in Deoghar Temple in presence of relatives and friends in accordance with

Hindu Rights and Rituals. After marriage she came to her matrimonial home and started her conjugal life with her husband and she gave birth to twin

daughters on 02.12.2007. The witness further deposed that just after her marriage, Tesu Kumari started threatening her husband that she should also

marry her otherwise he would be implicated in false case. At that time Tesu Kumari had been working in Bhagalpur whereas her husband was posted

at Sahebganj. On receiving the threat, her husband gave an informatory petition on 25.01.2006 to the Chief Judicial Magistrate, Bhagalpur. The

witness further deposed that on 05.04.2006, Tesu Kumari tried to enter into her house with the help of some antisocial elements but she could not

succeed in her designs. Tesu Kumari firstly gave an informatory in the year 2006, and thereafter filed a criminal case. But she never claimed that her

marriage was solemnized in the house of Ravindra Rajak at Adampur and this shows her claim of marriage is baseless and frivolous. The witness also

deposed that only relationship of Tesu Kumari with her husband was that both of them had been working in the same department. Her husband was

transferred to Bhagalpur in August, 2007 whereas Tesu Kumari took voluntary transfer in March, 2005 from Sahebganj to Bhagalpur. The witness

also deposed that the claim of Tesu Kumari, that her husband and his family members were not accepting her due to their demand of dowry, is

completely false and mischievous. Her in-laws are not greedy people for dowry and they did not demand any dowry from her father. The witness

further deposed that the claim of Tesu Kumari was completely false and mischievous.

In her cross-examination the witness deposed that at the time of marriage Neeraj Kumar Singh was aged about 35 years and her father inquired from

villagers why Neeraj Kumar Singh did not solemnize marriage till 35 years and he came to know that the marriage of sister of Neeraj Kumar Singh

was solemnized in the year 2002 and as Neeraj Kumar Singh did not like any proposal so he did not solemnize his marriage. The witness further

deposed that she knew that the informatory of her husband was of the intent that Tesu Kumari was giving threats on phone. The witness further

deposed that she was present with Neeraj Kumar Singh in Womenâ€™s Cell. In the Womenâ€™s Cell, Pandit Pankaj Kumar Jha stated about

performing marriage of Tesu Kumari with Neeraj Kumar Singh. Rakesh Dubey and Rajeev Dubey also stated that they saw Tesu Kumari with

Neeraj Singh in compromising position and they suggested them to solemnize marriage. The witness also deposed that Tesu Kumari stayed in the

house of aunt of her husband for a month. The witness also deposed that she did not get opportunity to look into the CD provided by Tesu Kumari in

the Court. She also deposed that she had no talk with the villagers of Neeraj Kumar Singh who gave application on behalf of Tesu Kumari. The

witness further deposed that on 28.10.2008, she came to the house at Tilkamanjhi and thereafter in November, 2008, Tesu Kumari came into the

house of her aunt-in-law at Dogachhi. The witness denied the suggestion that an inter-caste marriage of Tesu Kumari with Neeraj Singh was

solemnized and for this reason his family solemnized his second marriage with her. This witness further denied the suggestion that being wife of

Neeraj Singh, she has been deposing falsely.

22. Respondent Neeraj Kumar Singh recorded his statement before the learned Family Court as OPW-5. This witness, in his examination-in-chief, at

the outset denied his marriage with Tesu Kumari at the house of DSP Ravindra Rajak and stated the claim to be mischievous and false. The witness

further deposed that in 2003, the witness and the respondent were working in LIC at Sahebganj Branch and they have only professional relationship.

The respondent never proposed marriage with the witness. In March, 2005, the respondent voluntarily got herself transferred from Sahebganj to

Bhagalpur whereas the witness remained at Sahebganj till August 2007. The witness further deposed that while he had been posted at Sahebganj, one

Achyutanand Singh, resident of District-Chatra, proposed the marriage of his daughter with the witness and thereafter in November, 2005 his

marriage was solemnized with Bibha Kumari in accordance with the Hindu rites and rituals at Deoghar Temple. Since then, both of them have been

living together and birth of twin sons took place on 2nd December, 2007. The witness further deposed that in January, 2006, the respondent disclosing

her intention of marriage, started threatening the witness why he solemnized marriage and the witness made it clear that as he was unmarried, he

solemnized marriage as per wishes of their parents. Thereafter, the respondent disclosed that she wanted to marry the witness. After that, the

respondent started threatening the witness, who filed an informatory petition on 25th January, 2006 before the Chief Judicial Magistrate, Bhagalpur.

Thereafter, the respondent gave informatory petition No. 1467 of 2006 on 05th of June 2006, claiming that both of them have solemnized the marriage

taking God as witness and Neeraj Kumar Singh gave a certificate of temple to the respondent but this fact is completely false and it also falsified the

claim of the respondent about marriage taking place on 09.11.2003. The witness further deposed that respondent gave an application to Sr. Divisional

Manager, LIC, Bhagalpur, in which the respondent did not give any date of marriage. Again, when criminal case was lodged by the respondent against

the witness and his mother on 18.05.2007, in that case, she did not mention anything about marriage taking place on 09.11.2003 by a Pandit in

presence of some persons at Bhagalpur and merely stated that since 09.11.2003, both of them had been living together but this fact is completely

false. The witness further deposed that the respondent was required to submit her marital status in the office of LIC but from 2003 to 2007, the

respondent had shown her to be unmarried and on the basis of this fact, the witness got bail from Patna High Court. Thereafter, since 2008 the

respondent started showing her to be married. The witness further deposed that after coming to know about his marriage, the respondent making out a

concocted story connived with certain persons, who had always been ready to do anything for money, filed a criminal case and in that case, the

witness was granted bail by Patna High Court. The witness further deposed that though Pandit Pankaj Kumar Jha was cited as witness, but the

respondent refused to examine him as her witness. The brother-in-law of the respondent, Sudhir Kumar Thakur, was not examined despite his name

was mentioned as one of the witnesses. All these facts show the falsity of the present case. The witness further deposed that on the date of alleged

marriage, he had gone to Patna for participating in departmental examination and he remained there till 5:00 PM in the evening. In the same night, the

witness left the place and reached Sahebganj on 10.11.2003. The witness further deposed that he has solemnized marriage only with Bibha Kumari in

accordance with Hindu rites and rituals and thereafter they had been living as husband and wife. The witness further deposed that he remained at

Sahebganj from 2003 to August, 2007 and never stayed in Bhagalpur during this period. The witness further deposed that he never stayed with Tesu

Kumari as husband and wife and there had been no physical relationship.

In his cross-examination, the witness deposed that he had been knowing that petition of the respondent was filed for restitution of conjugal relationship.

The witness also deposed that he cross-examined the witnesses of the respondent. The witness also deposed that he does not know what was the

caste of respondent though he was â€˜Rajputâ€™ by caste. The witness further deposed that he had been working in LIC since 15.10.1992 and

joined at Sahebganj in December, 2002. The witness denied knowledge about respondent staying in the house of Ravindra Rajak at Bhagalpur. The

witness identified the identity card of respondent and stated that this Identity Card was issued on 27.05.2006. In the said certificate, in the column of

address, care of Ravindra Rajak, DSP, C.C. Mukherjee Road, Adampur, Bhagalpur was written. The witness denied the suggestion that during

posting at Sahebganj Branch, he and respondent used to converse on daily basis about their well-being. The witness deposed that the talk was with

regard to office work. He also denied the suggestion that he and respondent used to stay together. The witness further denied the suggestion that he

and respondent used to stay in the house of Arun Sharma and Anukul Mishra on rent as husband and wife. The witness was shown a joint photograph

of the witness and respondent. On seeing this photograph, the witness deposed that this photograph was prepared on the basis of photograph

submitted in election department and the photograph was prepared in forged manner. The witness denied the suggestion about making wrong

averment about the joint photograph and further denied the suggestion that the exhibited photograph was taken by his friend at Adampur residence.

The witness further deposed in his cross-examination that he did not file any application for taking a look at the Compact Disk filed by the respondent

in his report. The witness was shown an identity card. On seeing it, the witness deposed that it was issued by Election Department. The witness

further denied the suggestion that he used to visit the Adampur residence of the respondent and he had been staying with the respondent as husband.

The witness deposed that house of his co-villager, Aman Kumar Singh is situated behind the house of the witness. The witness further deposed that

Vimalendra Singh and Karuna Devi are his own uncle and aunt. The witness further deposed that he has no information as to how many days the

respondent stayed in the house of Vimalendra Singh. The witness further deposed that it is wrong on part of respondent to say that in order to conceal

his marriage with respondent, he solemnized the marriage at Deoghar Temple and stated that his marriage took place at his village. The witness

further deposed in his cross-examination that he does not know marriages are to be solemnized taking â€˜fireâ€™ as witness. The witness admitted

that on 05.04.2006, Tesu Kumari tried to enter in his house with the help of 4-5 antisocial elements but she could not be succeed. The witness denied

the suggestion that the averment made in Paragraph-9 of his evidence, is wrong. The witness further denied the suggestion that he was hiding the

truth and he concealed the fact about his marriage with respondent from his parents and stated that his marriage was not solemnized with the

respondent. The witness deposed that he has knowledge about complaint given by respondent to the Women Cell of LIC. The witness denied the

knowledge that the respondent made him nominee as her husband in her service-book. The witness further deposed that in the year 2002-03

whenever he went to write his departmental examination, he used to stay in the guest house or hotel and affix his signature at the time of arrival and

departure in the guesthouse of his department. The witness identified 7 pages of the register of guest house, showing arrival and departure, which was

in his handwriting but denied his writing and signature at Page 3504. The witness further deposed that in November, 2003, he stayed in guest house of

his department for writing examination, but he could not say where the respondent stayed. However, the witness deposed that he could not remember

where he stayed during examination of 9th November, 2003 and denied the suggestion that he and the respondent stayed at the same place. The

witness further deposed in his cross-examination that he has knowledge that some of the witnesses mentioned in the case diary in the Case under

Section 498A recorded their statement that they participated in his marriage with respondent. The witness further deposed that he has knowledge that

in the Case of 498A, the written certificate given by Pandit for the marriage was filed. The witness was shown the decision of the Complaint

Committee of LIC and the witness stated that it was the decision of Smt. Renu Kumari Ghosh. The witness further deposed that he has knowledge

about cost of staying at the guesthouse of LIC at Patna is deposited through MR and he knows that for staying in Room No. 2 on 09.11.2003, MR

was issued in whose name. The witness denied suggestion that he concealed the truth in his earlier cross-examination regarding register of LIC

Guesthouse, Patna. The witness further deposed that LIC guesthouse was situated between the examination center and Station and distance of

examination center and Station is about 3-4 kilometers. The witness further deposed that he participated in the second shift from 02:00 to 05:00 PM of

examination on 09.11.2003.

23. From the analysis of the evidence(s) of the parties, it is admitted fact of both sides that the appellant and respondent had been working as

colleagues and were posted at same place during the period when the marriage is claimed, i.e., on 09.11.2003. Thereafter, there is completely

contradictory claims on the part of the parties. The learned Principal Judge, Family Court, Bhagalpur has analyzed the evidence of the parties in detail

and recorded a finding that the marriage of respondent was solemnized with the appellant on 09.11.2003 and she is his first legally wedded wife.

24. From the arguments on the side of the appellant, stress has been put on wrong appreciation of evidence, particularly, the documentary evidence

like Ext. 1, which is stated to be a certificate issued by the pandit who performed the marriage ceremony, mainly, on the ground that the said pandit

was not examined. However, it has been contended on behalf of the respondent that the Pandit was gained over by the appellant side and for this

reason, he was not examined. However, there are other circumstances, which could help the Court to arrive at a definite finding. The OPW-4, in her

cross-examination, admitted that the said pandit Pankaj Kumar Jha came before Women Cell (Mahila Koshang) and stated about performing the

marriage ceremony of the respondent with Neeraj Kumar Singh. Apart from that OPW-4 has also admitted that persons named, Rakesh Dubey and

Rajiv Dubey were also present, who stated that they saw Neeraj Singh with the respondent in compromising position and advised them to solemnize

the marriage. Further, there is Ext. 11/1 to Ext. 11/4 series, which are statements of certain persons acquainted with the matter, recorded before the

Enquiry Committee of Mahila Koshang, SP Office, Bhagalpur, corroborate the claim of the respondent regarding the marriage ceremony was

performed on 09.11.2003. Further, exhibits 8 and 10 show the appellant and respondent stayed together in a single room and it is also a relevant fact

since it shows the intimate relationship of the appellant and respondent. Further, photographs which have been marked Y to Y/9, are of similar nature.

It also reveals the intimate relationship of the parties as the photographs are quite candid. Though the photographs have not been marked exhibits and

do not fall within the category of admissible evidence, but they cannot be simply brushed aside considering their corroborative nature and since

veracity of the compact disk, from which, the photographs have been taken out, have not been challenged. Though objections were raised on marking

of exhibits 11/1 to 11/4, but some of the documents have been taken on record as exhibits and from the orders of the learned Principal Judge, Family

Court, it appears that the objections raised were overruled and rightly so. Further, exhibit-9 is also a supporting document in favour of the marriage of

the respondent with appellant. This document is dated 2nd of December, 2006 and if the appellant and respondent were put to notice and the fact

about marriage was recorded by a neutral person working as Chairperson of Complaint Committee of LIC, such report has got some weight in the

eyes of law.

25. Further, the document related to prosecution of the appellant under Section 498A of IPC and complaint petition etc. are also indicative of existence

of matrimonial relationship of the parties. Further, certain facts have come up in the depositions of the witnesses of the respondent as well as the

appellant. It has been admitted by the witnesses of appellant (OPâ€™s witness) that the respondent was allowed to stay for about a month by the

own uncle and aunt of the appellant. No person would allow a stranger to stay in his house unless there exist some sort of relationship and this fact is

common knowledge. When the respondent as petitioner put her case that due to the fact that appellant and the respondent belonged to different caste

and the appellant wanted to hide his relationship with the respondent from his parents and for this reason, no admission is expected from the appellant.

If it was a marriage performed behind the back of the family members of the appellant, naturally, the appellant and his family would deny such

marriage. But it appears the own uncle and aunt of the appellant put their trust in the claim of the respondent and allowed her to stay in their house for

about a month. One of the defences taken by the appellant is that the respondent claimed her to be unmarried till 2007 in her service book maintained

at LIC but it might be for the aforesaid reasons and a suggestion was put to the appellant that it was at the behest of the appellant.

26.Thus, in the light of preponderance of probabilities, we are of the view that despite certain infirmities in the evidence of the petitioner, the

respondent herein, the marriage was solemnized between the appellant and the respondent on 09.11.2003 in accordance with Hindu rites and rituals.

27. Moreover, the oral evidence of the respondent is unwavering and uncontroverted on the point of marriage of the respondent with the appellant.

The witnesses of the respondent are of different hue and all of them could not be said to be interested witnesses, rather it has been taken as a plea at

the time of argument that the own sister and brother-in-law, who were said to be present at the time of solemnization of marriage, did not appear as

witnesses in support of the case of the respondent. However, whichever witnesses appeared, they supported the case of the respondent about her

marriage taking place with the appellant on 09.11.2003. Further, the appellant has not been able to challenge the veracity of the deposition of

witnesses of respondent.

28. On the other hand, all the witnesses of the appellant are interested witnesses. All the time it is not that interested witnesses could not be relied but

in the present case their evidence must be considered with certain circumspection since they are highly partisan witnesses being the brothers, mother

and wife of the appellant. Their denial is uniform and further the appellant has tried to show that it was not possible for the appellant to be present at

Bhagalpur in the night of 09.11.2003. The reason being non-running of the train Dadar Express from Patna to Bhagalpur on that date, but this

contention was taken into consideration by the learned Principal Judge, who has recorded the finding that the train used to run through different routes

and was available either at Naugachia or at Bhagalpur every day. If the train was available at Naugachia, it hardly matters, it was not coming to

Bhagalpur Station since these two places are adjoining places. For the same reason, the claim of the appellant that he was not present at Bhagalpur as

he was in Patna till 5:00 PM, is not credible since it has been recorded in the cross-examination of appellant as OPW-5 that the Guest house where

the appellant stayed was in between the Station and the guest house and the distance of the Station and examination center is stated to be 3-4

kilometers only. So, there was no hindrance in appellant catching a train and reaching Bhagalpur by the time marriage was to be solemnized. The

documentary evidences adduced on behalf of the respondent was challenged by the appellant, saying it to be fraudulent and fabricated documents.

But, the registers of the guest house showing arrival and departure of the guests of an institution like LIC could not be fabricated by a person in

position of the respondent. Thereafter, certain documents, which were marked for identification like photographs etc. showing intimacy of the parties,

could not be easily morphed. At the same time, it is also to be considered that now-a-days mobile phones and digital cameras are mostly used to take

the photographs and if a printout is taken, it would be an onerous task to ask one to prove the digital evidence. If such photographs are available, they

require at least a non-biased approach for their consideration. Another point raised by the appellant so far as interpolation of year 2002 in place of

2004 is concerned, this fact was not brought to the notice of the learned Principal Judge, Family Court and it was not challenged before any superior

Court. If the said fact was not brought to the knowledge of the learned Principal Judge, the issue cannot be raised at this later part of time.

29. The Honâ€™ble Supreme Court in case of Ilavarasan Vs. Superintendent of Police and Ors, reported in 2023 SCC OnLine SC 1120 has observed

in Para-8, which reads as under:-

â€œ8. The view expressed by the Madras High Court in S. Balakrishnan Pandiyan (Supra), in the opinion of this Court is erroneous. It is premised on

the assumption that every marriage requires a public solemnization or declaration. In the opinion of this Court, such a view is simplistic because often

due to parental orÂ pressureÂ amongÂ kinshipÂ groups,Â or caste/community institutions, couples intending to enter into matrimony, may not be

able to, for the reasons of such opposition-holdÂ orÂ giveÂ suchÂ aÂ public declaration. Doing so would imperil their lives or could in the very

least likely result in danger to their bodily integrity or at worst, a forceable or coerced separation of one from the other. It is not hard to visualize other

pressures being brought to Â bear upon two individuals, who are otherwise adults and have exercised their freewill. To superimpose the condition of a

public declaration, which is absent in section 7A, in the opinion of this Court, it is not only narrowing the otherwise wide import of the statue but also

would be violative of the rights under Article 21 of the Constitution of India. This Court has emphasized in more than one decision (Lata Singh v. State

of UP, (2006) 5 SCC 475, Shafin Jahan v. Asokan KM, (2018) 16 SCC 368, and Laxmibai Chandaragi B. v. The State of Karnataka, (2021) 3 SCCÂ

360)Â theÂ rightÂ ofÂ individualsÂ to exercise free choice and that it is an intrinsic part of the right of life. It is, therefore, held that view

expressed in S. Balakrishnan Pandiyan (Supra) is erroneous. The same is, accordingly, overruled in Nagalingam (supra).â€

Though facts are not similar but the issue of pulls and pressure and different type of compulsions coming in way of open declaration of marriage is

always a factor to be considered in such case.

30. In somewhat similar situation, the Honâ€™ble Supreme Court in the case of Ranganath Parmeshwar Panditrao Mali and Anr. Vs. Eknath

Gajanan Kulkarni and Anr., reported in (1996) 7 SCC 681 has held that if there is consistent evidence of relationship, a legal presumption arises that

they were living together as husband and wife. Similarly to the effect is the observation of the Honâ€™ble Supreme Court in case of Shiramabai W/o

Pundalik. Bhave and Others Vs. Captain, Record Officer For O.I.C. Records, Sena Corps Abhilekh, Gaya, Bihar State and Another, reported in 2023

SCC OnLine SC 1026 at Paragraph Nos. 14 to 23, which read as under:-

â€œ14. It is no longer res integra that if a man and woman cohabit as husband and wife for a long duration, one can draw a presumption in their

favour that they were living together as a consequence of a valid marriage. This presumption can be drawn under Section 114 of the Evidence Act

that states as follows:

â€œ114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural

events, human conduct and public and private business, in their relation to the facts of the particular case.â€

15.Â InÂ thisÂ aboveÂ context,Â weÂ mayÂ referÂ to Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy, where the

Privy Council observed thus:

â€œâ€¦..where a man and woman are proved to have lived together as man and wife,Â theÂ lawÂ willÂ presume,Â unlessÂ the contrary be

clearly proved, that they were living together in consequence of a valid marriage and not in a state of Â concubinage.

xxx xxx xxx

â€œThe parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognized, by

affectionate provisions,Â hisÂ wifeÂ andÂ children.Â The evidence of the Registrar of the District shows that for a long course of years the

parties were recognized as married citizens, and even the family functions and ceremonies,Â suchÂ as,Â inÂ particular,Â the reception of the

relations and other guests in the family house by Don Andris and Balahamy as host and hostessâ€"all such functions were conducted on the footing

alone that they were man and wife. No evidence whatsoever is afforded of repudiation of this relation by husband or wife or anybody.â€

16. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan, it was again observing by the Privy council that:

â€œâ€¦.The law presumes in favour of marriage and against concubinage when aÂ manÂ andÂ aÂ womanÂ haveÂ cohabited continuously for a

number of yearsâ€¦â€¦â€

17. Similarly, in Badri Prasad v. Dy. Director of Consolidation, this Court held as follows:

â€œâ€¦â€¦.A strongÂ presumption arises in favour of wedlock where the partners have Â Â lived together for a long spell as husband andÂ wife.Â

AlthoughÂ theÂ presumptionÂ is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of

legitimacy and frowns upon bastardyâ€¦..â€

18. In S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi, this Court held as under:

â€œ4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in

law of legality of marriage existing between the two. But the presumption is rebuttable (see Gokal Chand v. Parvin Kumari).

19. It is true that there would be a presumption in favour of the wedlock if the partners lived together for a long spell as husband and wife, but, the

said presumption is rebuttable though heavy onus is placed on the one who seeks to deprive the relationship of its legal origin to prove that no marriage

had taken place (refer : Tulsa v. Durghatiya).

20. A similar view has been taken by this Court in Madan Mohan Singh v. Rajni Kant, Indra Sarma v. V.K.V. Sarma (supra) and Dhannulal v.

Ganeshram.

21. In the case of Gokal Chand v. Parvin Kumari alias Usha Rani (supra) this Court observed thus:

â€œâ€¦â€¦Continuous cohabitation of man and woman as husband and wife and their treatment as such for a number of years may raise the

presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken

and destroy that presumption, the court cannot ignore them.â€

22. In Kattukandi Edathil Valsan's Case (supra), citing the abovesaid decisions and relying on Section 114 of the Evidence Act, this Court held in the

facts of the said case that there was a presumption of the marriage between the parents of the plaintiffs on the ground of their long cohabitation

status, entitling their offspring to claim their share in the suit schedule property.

23. It can be discerned from the aforesaid line of decisions that the law infers a presumption in favour of a marriage when a man and woman have

continuously cohabitated for a long spell. No doubt, the said presumption is rebuttable and can be rebutted by leading unimpeachable evidence. When

there is any circumstance that weakens such a presumption, courts ought not to ignore the same. The burden lies heavily on the party who seeks to

question the cohabitation and to deprive the relationship of a legal sanctity.â€

31. The witnesses examined on behalf of the respondent have stated in clear terms that all the rites and rituals of Hindu marriage were performed;

vermilion was applied and â€˜Saptapadiâ€™ also took place. Thus, it could not be said that the marriage was shorn of essentials in performance of the

customary rites and rituals as prescribed under Section 7 of the HMA and apparently the marriage was not barred under Section 5 of the HMA.

32. In the light of aforesaid discussion, we have no hesitation in holding that the respondent is the legally married wife of the appellant and their

marriage was solemnized on 09th of November, 2003. Point No. (I) is decided accordingly.

Point No. (II ):-

33. So far as second point for determination is concerned, the issue was hanging in balance due to dispute over marital status of the appellant and

respondent as husband and wife. Once the respondent has been able to prove that the appellant is her husband, desertion is proved by the oral

evidence of the appellant, which has already been discussed in detail. If the appellant has refused to accept the respondent as his wife, naturally, there

was no question of restitution of conjugal life and whole opposition of the appellant is only on this point that the respondent is not his wife as their

marriage could not be proved under the provisions of Section 5 and 7 of the HMA and therefore, he was not liable to restitute any conjugal relationship

with the respondent. Section 9 of the HMA reads as under:-

â€œ9. Restitution of conjugal right.â€" When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other,

the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the

statements made in such petition and that there is no legal ground why the application should not be granted, may Â decree restitution of conjugal

rights accordingly.

[Explanation.â€"WhereÂ aÂ question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving

reasonable excuse shall be on the personÂ whoÂ hasÂ withdrawnÂ fromÂ the society.]â€

34. Evidently, the appellant has deserted the respondent without any reasonable cause and in the light of discussion of the evidence of both sides, we

find and hold that the respondent is entitled to get the relief for restitution of conjugal rights. Thus, Point No. (II) is also decided accordingly.

35. In the light of discussion made here-in-above, we do not find any infirmity in the judgment of the learned Principal Judge, Family Court, Bhaglapur

and the same is hereby affirmed.

36. Accordingly, the present Misc. Appeal stands dismissed.

37. The appellant is directed to pay the litigation cost to the respondent which is quantified at Rs. 1,00,000/- (one lac) within six months from the date

of judgment, while bearing his own cost.

38. TheÂ officeÂ isÂ directedÂ toÂ prepareÂ theÂ decree accordingly.

39. Pending application(s), if any, stand(s) disposed of.

Neeraj Kumar Singh Vs Tesu Kumari

Judgement