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PETITIONER: JOLLY DAS

       Vs.

RESPONDENT: TAPAN RANJAN  DAS

DATE OF JUDGMENT04/05/1994

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) PUNCHHI, M.M.

CITATION:  1994 SCC  (4) 363        JT 1994 (3)   529  1994 SCALE  (2)832

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- Leave granted. 2.The appellant instituted Matrimonial Suit (No. 51 of  1987 on  the file of the Tenth Court of the  Additional  District Judge,   Alipore)  for  declaring  her  marriage  with   the respondent  a nullity on the ground that her consent in  the marriage was obtained by fraud within the meaning of Section 25(iii)  of  the Special Marriage Act, 1954.  Her  case  was accepted  by  the learned District Judge  who  declared  the marriage void.  On appeal, a Division Bench of the  Calcutta High  Court took the view that the appellant has  failed  to establish the fraud alleged by her.  The respondent’s appeal was accordingly allowed and the appellant’s suit dismissed. 3.At  the time of marriage, the appellant was  19  years’ old.   She was a student of B.A. Respondent is far older  in age.  According to the appellant, he was more than 40  years of age at the time of marriage though the respondent himself contends  that he was only 32 years’ old at that  time.   He was teaching music to the appellant’s elder sister until she was married.  He From the Judgment and Order dated 15-3-1990 of the  Calcutta High Court in O.D. No. 171 of 1989 364 was known to the appellant’s family for over a decade.   The appellant  was taking music lessons at which the  respondent was  the Tabla-player.  The school where the appellant  took music  lessons  was  being  run  at  the  residence  of  the respondent.   The  appellant’s case is that  the  respondent fraudulently represented to her that if she accompanies  him to Calcutta he will arrange for an audition by the Officials of  All India Radio to enable her to participate in a  music competition,  which  will  ultimately pave way  for  her  to become  an artiste with All India Radio.   Accordingly,  she accompanied him to Calcutta.  There he took her to a  ’ghar’ and  took her signatures on certain blank forms.  Since  she

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had  implicit faith in the respondent, she signed the  forms without  noticing  the  contents  thereof.   Several  months later,  i.e., on 2-3-1987, the respondent told her  for  the first  time that she must come and live with him since  they were   married  at  Calcutta.   The  appellant  says,   this revelation  came  as  a shock to  her  and  she  immediately informed her parents.  On inquiry and on verification,  they found out the particulars of marriage from the office of the Marriage  Officer at Calcutta, and then  instituted  present suit. 4.The   respondent   denied  any  fraud   or   fraudulent misrepresentation in obtaining the consent of the  appellant for  the marriage.  According to him he knew  the  appellant and  her family for the last several years; he was  visiting their  house  quite often.  He admitted that he  gave  music lessons  to  appellant’s elder sister and also that  he  was acting  as  Tabla-player at the music lessons taken  by  the appellant in guitar.  His case is that the appellant fell in love  with him and it was at her instance that the  marriage was  registered at Calcutta.  It is not, however,  suggested by him that the parents of the appellant were opposed to the marriage  nor  could he give any particular reason  why  the marriage  had to be registered at Calcutta and why  none  on the  appellant’s  side participated or  witnessed  the  said marriage.   No reason is also assigned why the marriage  was not  consummated  for a period of about 8 months  after  the marriage.  He could not also produce a single photograph  of both  the  parties together, let alone  photographs  of  the marriage.   He  produced  certain  witnesses  in  proof   of marriage.  Since the registration of marriage is admitted we need  not  refer to their evidence at any length,  the  only question being whether her signatures on the relevant  forms were  obtained  by  the  respondent  by  making   fraudulent misrepresentation.  On this aspect, their evidence does  not inspire much confidence.  They are all persons connected  in one way or the other with the music school run in the  house of  the respondent.  None of them could suggest  one  reason why  none from the side of the appellant was  present.   The appellant comes from a respectable family.  Her father is  a practising   doctor  of  good  repute.   According  to   the appellant, the respondent was unemployed.  He of course says that  he was working in a Metal and Steel Factory earning  a salary  of  Rs 2000 per month.  According to him,  he  is  a Commerce  graduate from the University of Calcutta and  also holds a diploma in Music.  He could not say why the marriage was not consummated for 8 months, and why did they not  live together as husband 365 and  wife  for 8 months.  If his story of love  marriage  is true, the above facts are un-understandable. 5.In  the  light of all the above facts,  circumstances  and probabilities, the learned District Judge was satisfied that a  fraud  was played by the respondent on the  appellant  in getting the said marriage registered and that, therefore, it is a fit case for declaring the marriage void under  Section 25(iii)  of  the Special Marriage Act.  The  High  Court  on appeal  was influenced more by the oral evidence led by  the respondent and did not attach due importance to the  glaring improbabilities  in the respondent’s case.  We have  already referred  to  these facts hereinabove.  They  are  the  non- consummation of marriage by the parties, the absence of  any ceremony  or function connected with the marriage, the  fact that  they  never lived together as husband and wife  for  a period  of  8  months and that no one on  the  side  of  the appellant  had  anything to do with the said  marriage  even

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though there is no allegation that the parents or  relatives of  the  appellant’s  were opposed  to  the  marriage.   The respondent  was a grown-up person while the appellant was  a young  and inexperienced college student of 19 years.   More importantly,  he  was in the position of a  teacher  to  the appellant.   It appears to us that the respondent  may  have taken  advantage of the innocence, inexperience  and  tender age  of  the appellant and obtained her  signatures  on  the Marriage  Certificate and other forms by  making  fraudulent misrepresentation  to  her.  In the  circumstances,  we  are inclined to believe the appellant’s case that her signatures were  obtained on certain forms without fully apprising  her of  their contents.  In short, it was a sham marriage.   All the witnesses examined by the respondent are connected  with the  music school run in the respondent’s house, in  one  or the  other  way.   Their  oral  evidence  does  not  inspire confidence  in us.  The circumstances mentioned  above  show that  it was a marriage only in name.  Except  the  marriage certificate  issued  by the Marriage Officer,  there  is  no trace of the marriage.  All this probabilises the version of the appellant and not that of the respondent. 6.For the above reasons the appeal is allowed, the  judgment of the High Court is set aside and the order of the  learned District  Judge (trial court) is restored.   The  respondent shall  pay the costs of this appeal to the  appellant  which are quantified at Rs 5000. 366