JUDGMENT
Joytosh Banerjee, J.
1. The present appeal is directed against the judgment dated 27.3.2001 passed by Additional District Judge, 10th Court, 24-Parganas now known as 24-Parganas South through which the learned Judge dismissed the Matrimonial Suit No. 75 of 1999. The relevant facts leading to the instant appeal are as follows :–
The petitioner Smt. Tamali Bhattacharjee filed the petition under Section 25 of the Special Marriage Act for annulment of marriage alleging, inter alia, that both the parties of the matrimonial suit were students of coaching class and through them their respective families also became acquainted and close with each other. In the month of June, 1999 the respondent informed the petitioner that a party would be given by the respondent at Dhakuria. The petitioner with one of her friends attended that said party wherein some of the friends of the respondents were also present. There was one lady who took signatures of all of them in a Khata. It is alleged that the signatures of all the persons were taken in such a mechanical way that the petitioner or her friend did not get any scope to enquire about the reason for such signatures. On 9th July, 1999 the respondent asked the petitioner to come to the house of the respondent but the petitioner refused the same. Then the respondent disclosed that he had every right to bring the petitioner to his house as the petitioner was his legally married wife. At this, a strong suspicion arose in the mind of the petitioner and she reported the matter to her parents thereafter, they enquired the matter and ultimately came to know on 14th July, 1999 that a fake marriage had been held on 21st June, 1999 before the marriage officer for C.M.C. District at 44, Dhakuria Station Road, Calcutta-700 031 between the parties of the suit. It is the further allegation that the petitioner had no knowledge about the notice of such marriage and she could not recollect how the signature on the notice was procured by the respondent and the petitioner had no consent to such marriage at any point of time. No solemnization of the purported marriage was ever held. Through an application under Order 6 Rule 17 of the C.P. Code the petitioner amended her application and the relevant portion added made an allegation that the conduct on the part of the respondent clearly went to show that the respondent wilfully refused to consume the marriage and on that score the petitioner was also entitled to a decree of nullity of the said marriage.
2. The respondent, Samik Baidya, contested the suit on a written statement denying all the material allegations raised. His specific allegation in the written statement was that the petitioner on different pretex influenced the respondent for solemnisation of the marriage. It was alleged further that the petitioner made misrepresentation to the respondent so as to get solemnisation of the marriage between the parties as initially respondent did not agree to the proposal of the petitioner regarding marriage. But the respondent agreed to marry the petitioner on the basis of her representation that the petitioner’s father and brother got good connection with different companies and if the respondent married the petitioner in that event the respondent might find a service in a company with their help.
3. The learned Court below at the trial of the matrimonial suit raised certain issues including the issue touching the question whether petitioner was entitled to get a decree of nullity of marriage as prayed for and on consideration of the evidence on record and other material facts and circumstances came to a conclusion that the application filed by the petitioner for the purpose of getting the marriage declared as null and void had no merit and accordingly dismissed the suit.
4. Through the present appeal the decree of dismissal has been challenged and the only point for our consideration here is whether the learned Judge of the Trial Court dismissed the suit after due consideration of the relevant facts and circumstances of the case and evidence on record or not ?
5. At the time of hearing of the appeal the learned senior Advocate for the appellant has submitted that in this case both the parties i.e. to say the petitioner and the respondent have alleged in the petition and the written statement that the marriage in question should be declared null and void. In this background the Court should not have any difficulty in giving such a declaration as prayed for by the petitioner. It is further contended that the marriage in question was not solemnised as required under Section 12(2) of the Special Marriage Act, 1954. In this respect our attention has been drawn to the provision of Section 12(2) of the Special Marriage Act, 1954 (hereinafter referred to as the Act). The relevant provision is set out as below :–
Section 2 : (2) The marriage may be solemnized in any form which the parties may choose to adopt:
Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties– “1, (A), take thee (B), to be my lawful wife (or husband).”
6. In this connection the learned Advocate has also drawn our attention to the evidence of the petitioner at page 20 of Paper Book. Our attention has been specifically drawn to the first paragraph of the deposition recorded at page 22 of the same wherein the petitioner has asserted that in fact no solemnization was held about any such marriage. It is further contended that there is no cross-examination from the side of the respondent in connection with the aforesaid assertion on the part of the petitioner. Therefore the petitioner’s evidence that there was no solemnization in connection with the marriage should be accepted as unchallenged from the side of the respondent. It is also contended that as per provisions of Section 12(2) as noted above there cannot be any marriage under the Act without the same is solemnized in any form as required under the Act.
7. The learned Advocate for the respondent on the other hand has submitted that the evidence on record will clearly indicate that the parties who were known to each other from before got their marriage registered after issuing a notice as required under the law. It is further contended pointing out to Section 13(2) of the Act that issuance of the Marriage Certificate will be a conclusive evidence of the fact that a marriage under the Act has been solemnized and therefore the petitioner should not be allowed to avoid the marriage on the plea that the same was never solemnized.
8. Having heard the contentions of learned lawyers of both sides and on going through the evidence and other relevant surrounding circumstances very carefully we find at the very outset that it is not true that both sides of the suit wanted to get a declaration that the marriage in question was nullity on the same allegations; while the petitioner has alleged in her petition that there was no marriage at all and she only put her signature on a Khata along with her companion as requested by one lady. The respondent on the other hand has alleged that there was no doubt a marriage between the parties but his consent to such marriage was obtained by the petitioner by a false representation as she at that time represented that the respondent could get a service in a company through the intervention of her father or brother. So in this way it cannot be said for a moment that both the parties denied the existence of the marriage. Moreover at the time of his submission the learned Advocate for the respondent has submitted that those statements were loose statements from the side of the respondent. Here the question is whether the petitioner is entitled to get a decree of nullity of marriage and in our considered opinion the written statement filed by the defendant will not be helpful in establishing the petitioner’s case.
9. Now coming to consider the question whether the petitioner is in a position to prove her allegation regarding how a marriage was registered between the parties under the Act, we find at the very outset that the case which the petitioner wants to make out is weak at the test of probability. Here admittedly both the parties are not residents of Dhakuria where the marriage in question was registered under the Act. It is alleged that there was a party in which the petitioner and her companions were approached by a lady to put their signatures on a Khata. It is very difficult for us to accept that any educated woman like the petitioner would put her signature on a Khata or a Register on being requested by a lady who was not known to her. Then again there is no explanation forthcoming how and in what way the petitioner put her signature on the notice which was required to be given 4 weeks before the marriage. It is not the case of the petitioner that the marriage in question took place without any notice or that the signature appearing in the notice did not belong to her. She has tried to avoid that vital question in her petition by stating that she was not in a position to explain how her signature appeared in the notice. That apart we find there was photographs which the petitioner admitted were snapped at the time when the signature had been obtained, Considering all these circumstances and the evidence on record it can be said without hesitation that the petitioner has failed to establish here that there was no marriage between the parties under the Act. Now the question is whether marriage was solemnized. Section 13(2) along with its proviso as we have already seen from before has clearly laid down that marriage under the Act must be solemnized in any form which the parties may choose to adopt but such marriage cannot be completed and binding on the parties unless each party says to the other in the presence of the Marriage Officer and three witnesses that he or she takes the other to be his lawful wife or lawful husband.
10. The learned Advocate for the petitioner has much relied on the evidence of the petitioner as P.W. 1 which goes unchallenged to establish that the marriage between the parties was not solemnized. The petitioner in her evidence at page 22 of the Paper Book has only stated that there was no solemnization in connection with the marriage. There is no specific allegation on her part that the minimum declaration which is required under the proviso to Section 12(2) of the Act has not been made. On the other hand it is an admitted position that after the marriage a certificate of marriage had been issued by the appropriate authority and in that background it is well settled that the issuance of certificate is a strong indication that all the formalities prior to issuance of such certificate have been complied with. Section 13 of the Act deals with the Certificate of Marriage and it lays down very clearly that when the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof specified in the schedule in a book to be kept by him i.e. to say Marriage Certificate Book and Clause (2) of the said section further lays down that on a certificate being entered into the Marriage Certificate Book by the Marriage Officer the certificate shall be deemed to be conclusive evidence of the fact that a marriage under the Act has been solemnized. Section 18 of the Act further lays down regarding effect of registration of marriage and clearly indicates that where a certificate of marriage has been finally entered into the Marriage Certificate Book the marriage shall be deemed to be a marriage solemnized under the Act from the date of entry in such Book. From all these provisions it is evident that it is not open to the petitioner to challenge the marriage simply on the allegation that marriage was not solemnized as per the provisions of the Act.
11. From all these facts and circumstances and evidence on record we find that the learned Court below has rightly dismissed the suit.
12. Accordingly the appeal is dismissed, but having regard to the circumstances we make no order as to costs.
Ajoy Nath Ray, J.
13. I agree.