Section 25 of the Special Marriages Act speaks of voidable marriages and lays down specific grounds for a marriage to be voidable. The case of the Appellant in the present appeal filed before the Bombay High Court is that the marriage be nullified on account of non-consummation of the marriage for a period of 9 years. With Section 25(i) of the Special Marriage Act stating that the marriage is voidable owing to the refusal of the respondent to consummate the marriage, this particular Second Appeal was filed by the Appellant on account of her refusal to consummate her marriage with the Respondent, thus raising a substantial question of law that needed clarification.
The Appellant and Respondent are both residents of Pattan Kodoli, Taluka Hatkanangale, District Kolhapur and are of same locality. The Appellant contended that the Respondent lied that he was drawing salary of Rs.20,000/- p.m. and have a good job in the factory. He also promised her that he will try for her job. He obtained signature on blank papers and blank forms and it was realised that the Respondent had used her signatures for registering the marriage without her knowledge. Therefore, the Appellant filed a petition seeking nullity of the marriage which was decreed by the Trial Court. However, the Appellant Court allowed the appeal filed by the Respondent and set aside the decree passed by the Trial Court.
While hearing the appeal filed before it, Justice Bhatkar of the Bombay High Court framed the following substantial questions of law:
(i) Whether, by ignoring the provisions of Section 25 of the Special Marriage Act, the First Appellate Court has erred in holding that the marriage between the parties was performed with free consent and without misguiding the appellant, hence is a valid marriage?
(ii) Whether the First Appellate Court has committed error of law by holding the marriage between the appellant and respondent as valid though there was no consummation of marriage and has failed to appreciate the provisions of Section 25 of the Special Marriage Act?
While relying on the facts and the evidences adduced in the Trial Court and Court of First Appeal, it has been observed that the substantial question of law No. 1 is answered in negative as the Appellant failed to prove that the consent obtained was under undue influence, coercion or fraud.
Moving on to the substantial question of law No 2, it was observed that
“The respondent/husband is resisting the relief of nullity and he claimed that there was sexual relationship between the parties. He also contended that the appellant was pregnant from him but there was miscarriage. However, as held by the First Appellate Court, this fact is denied by the appellant in her evidence, then the burden was on the respondent to produce documentary evidence of miscarriage. If the opinion of Gynaecologist about the pregnancy test was available, evidence could have been produced on record, however, it was not brought and therefore, the fact of non-consummation of marriage is to be believed and accepted. The trial Court has taken a correct view on this point and learned Judge of the Appellate Court has committed error in holding that the marriage was consummated. Hence, substantial question of law no. 2 is answered in affirmative.”
The operation of this judgment is stayed on account of the Respondent seeking an appeal to the Supreme Court.
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