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Chhandupriya @ Priyanka Vs. Rahul Mohod

Judgement

 
Court:Bombay High Court

Bench: JUSTICE V.A. Naik

N.P. ABU Vs. VELLAM THOTTIL ASMA & ORS. On 26 August 1998

Law Point:
Wife has a lover from prior to marriage and marriage was not consummated. Marriage Annulled.

 

 

JUDGEMENT

 

ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.) The Family Court Appeal is ADMITTED and heard finally with the consent of the learned counsel for the parties.

2. By this Family Court Appeal, the appellant challenges the judgment of the Family Court, Nagpur, dated 21.11.2015 in Hindu FCA 97/15 2 Judgment Marriage Petition No. 1021 of 2013, allowing the petition filed by the respondent-Husband for a declaration of nullity of marriage under Section 12(1)(c) of the Hindu Marriage Act, 1955.

3. The facts giving rise to the Family Court Appeal are stated thus:

The marriage between the respondent-Husband and the appellant-Wife was solemnized on 13.06.2013 at Nagpur as per Hindu rites and custom. The marriage was an arranged marriage. After the marriage, the parties started residing together in the matrimonial home. Before the marriage, the engagement ceremony was performed on 24.02.2013. It is the case of the respondent-Husband in the Hindu Marriage Petition filed by him against the appellant-Wife for a decree of nullity of marriage that the appellant-Wife was never anxious to meet the respondent-Husband after the engagement ceremony was performed. According to the respondent-Husband, whenever the respondent-Husband asked the wife to come out for a movie or accompany him to a hotel, the appellant-Wife did not show any interest and refused to accede to his request. It is the case of the respondent-Husband that on 11.06.2013, i.e. just two days before the date of marriage, he received a phone call from an unknown person informing him that the appellant is having an affair with one Muslim boy and they are involved in physical relationship since 4 to 5 FCA 97/15 3 Judgment years. It is pleaded by the respondent-Husband in the Hindu Marriage Petition that it was informed by the unknown caller that he was the respondent’s well wisher and the respondent should not marry the appellant. It is pleaded in the petition that after receiving the phone call, the respondent-Husband was disturbed and spoke about the same with the appellant-Wife and her brother. It is pleaded that the appellant-Wife and her family members denied the information that was supplied to the respondent-Husband by the unknown caller and he was told that somebody might have mischievously called him with a view to defame the appellant and her family members. It is pleaded that believing the words of the appellant and her family members the marriage was performed on 13.6.2013. It is pleaded that after the marriage, the appellant-Wife was remaining aloof and was disinterested in the respondent-Husband and his family members. It is pleaded that there was no excitement on the face of the appellant-Wife like a newly married girl. It is pleaded that the appellant informed the respondent-Husband that she was not interested in cohabitation. It is pleaded that the respondent-Husband thought of giving some time to the appellant, but the appellant-Wife did not change her ways and did not allow any physical relationship. It is then pleaded that when once the respondent-Husband, his cousin and the appellant were chatting, the appellant started reciting Azan, i.e. prayer in Urdu, before them. It is pleaded that they were surprised to hear the prayer and FCA 97/15 4 Judgment on asking the appellant as to how she could recite the Azan, the appellant-Wife replied that she likes Urdu and is interested in learning Urdu. It is pleaded that one day the respondent-Husband found a diary in the name of the appellant with some Urdu writing on it. It is pleaded that the respondent-Husband got the Urdu writing translated and found that the meaning of the said words were “I love you, you are my wife and I cannot live without you.” It is pleaded that on securing the knowledge of the meaning of the aforesaid writing, the respondent-Husband got distrubed. It is further pleaded that when the appellant-Wife went to her parents’ house for Ashadi Ekadashi, she did not call the respondent-

Husband till she returned to the matrimonial home after ten days. It is pleaded that the respondent-Husband sought an explanation from the appellant about the phone call, the Urdu writing and her non-cooperative behaviour. It is pleaded that the appellant was frightened as soon as the respondent-Husband showed the Urdu writing to her and she told the respondent-Husband that she loves Mohammad Javed Khan, who is a medical representative now, and that they had an affair for a period of 4-

5 years and both had decided to get married. It is pleaded that the appellant-Wife informed the respondent-Husband that Mohammad Javed Khan and the appellant could not marry due to the objection from the mother and the brother of the appellant. It is pleaded that the appellant-

Wife confessed that she married the respondent only under pressure.

FCA 97/15 5 Judgment

4. It is pleaded that the respondent-Husband was frustrated on hearing the aforesaid facts from the appellant and he informed the appellant that he is not ready to continue with the matrimonial relationship. It is pleaded that on the birthday of the respondent-

Husband, i.e. on 30th of July, the appellant did not greet the respondent-

Husband and informed him that she was not interested in him. It is pleaded that the appellant’s brother Satyajeet came to the house of the respondent-Husband and took the appellant to the parental home. It is pleaded that since 10th of August, the appellant is residing in the parental home. On the basis of the aforesaid facts, it is pleaded that the appellant-

Wife had concealed a material fact in respect of the appellant’s affair with Mohammad Javed Khan from the respondent-Husband . It is pleaded that the appellant-Wife had cheated the respondent-Husband and the consent of the respondent-Husband for the marriage was secured by the appellant-Wife by fraud and by concealing a material fact concerning the appellant. It is pleaded that the respondent-Husband met Mohammad Javed Khan and Mohammad Javed Khan admitted that he has an affair with the appellant and he was helpless as the appellant’s family members did not permit him to marry her. It is pleaded that some meetings took place to settle the matter amicably but without any success. On the aforesaid pleadings, the respondent-Husband sought a declaration that the marriage solemnized between the appellant-Wife and the respondent-

FCA 97/15 6 Judgment Husband on 13.06.2013 was null and void under Section 12(1)(c) of the Hindu Marriage Act.

5. The appellant-Wife filed the written statement and denied the claim of the respondent-Husband. The fact of solemnization of the marriage, after the engagement ceremony dated 24.02.2013, on 13.06.20013, was admitted by the appellant-Wife. The appellant-Wife, however, denied that she had an affair with Mohammad Javed Khan. It was denied by the appellant-Wife that she was not interested in marrying with the respondent-Husband and that she did not show any interest in accompanying the respondent-Husband to movies and hotels. The pleading in respect of the alleged phone call received by the respondent-

Husband, a couple of day before the marriage, was denied by the appellant-Wife. The appellant denied that she had recited complete Azan (prayer in Urdu) in the presence of the respondent-Husband and his cousin Ashwin. It is denied that the appellant-Wife knows Azan and that she had told the respondent-Husband that she likes Urdu and is interested in learning Urdu. The pleading of the husband, in respect of the diary with some Urdu writing on it, was denied by the appellant. It was denied that the respondent-Husband got the Urdu writing translated and according to the translation, the writing was, “I love you. You are my wife and I cannot live without you.” It was denied that the appellant did not FCA 97/15 7 Judgment call the respondent-Husband during her ten days stay in her parental home during ‘Aashadhi Ekadashi.’ The appellant-Wife denied that though she had an affair with Mohammad Javed Khan, she was not able to marry him because of her mother and brother. It was denied that the appellant-

Wife was forced to marry the respondent-Husband by her family members. It was denied that the marriage was not consummated. It is pleaded that the respondent-Husband had falsely pleaded an imaginary story about the love affair of the appellant with Mohammad Javed Khan.

It is denied that the respondent-Husband met Mohammad Javed Khan and Mohammad Javed Khan admitted about his affair with the appellant-

Wife. It is reiterated that the appellant does not have any relationship with Mohammad Javed Khan and the case tried to be made out by the respondent-Husband in the Hindu Marriage Petition is false and concocted. The appellant-Wife then pleaded that after one month of the marriage, the respondent-Husband informed the appellant-Wife that he had an affair with one of his professional colleagues but due to the strong opposition from his parents, he was not able to marry her. It is then pleaded that since the marriage, the respondent-Husband was doubting her character and the appellant-Wife was mentally tortured due to the said behaviour. It is pleaded that the respondent-Husband doubted the character of the appellant-Wife without any reason. It is lastly pleaded that though the appellant-Wife tried to contact the respondent-Husband FCA 97/15 8 Judgment and asked him to take her back to the matrimonial home, the respondent-

Husband refused to do so and stated that if the appellant-Wife returns to the matrimonial home, he would commit suicide or leave the house forever. The appellant-Wife sought for the dismissal of the Hindu Marriage Petition.

6. On the aforesaid pleadings of the parties, the Family Court framed the issues. The respondent-Husband examined himself and also examined Nagsen Mankar, who is said to have got the Urdu writing on the diary translated. The respondent-Husband examined Mohammad Sharik who knew Mohammad Javed Khan for four years before he tendered the evidence. The appellant-Wife examined herself and closed the evidence on her side. The respondent-Husband produced certain documentary evidence to prove his case. On an appreciation of the material on record, the Family Court, by the judgment dated 21.11.2015 allowed the petition filed by the respondent-

husband and declared that the marriage, solemnized between the appellant-Wife and the respondent-Husband on 13.06.2013, is null and void under Section 12(1)(c) of the Hindu Marriage Act. Being aggrieved by the said judgment, the appellant-Wife has filed this Family Court Appeal.

FCA 97/15 9 Judgment

7. Shri Hedau, the learned counsel for the appellant-Wife submitted that the Family Court was not justified in allowing the Hindu Marriage Petition for a decree of declaration of nullity of marriage. It is submitted that the Family Court erroneously relied on the Urdu writing in the diary at Exhibit 44 though the respondent-Husband had not examined the translator. It is stated that though the appellant-Wife had admitted that the diary belonged to her, the writing in the diary was not proved. It is stated that though Nagsen had stated in his evidence that he had given the transcription of the Urdu writing to the respondent-Husband, the said transcription is not filed in the court. It is stated that when the appellant-

Wife had gone to her parental home, the diary was found by the husband and the Family Court could not have relied on the same, especially when the appellant had denied the meaning of the Urdu words in the said diary. It is stated that the case of the respondent-Husband is not supported either by his parents or brother. It is stated that the respondent-Husband ought to have examined either his parents, brother or sister who was working in the same college where the appellant and Mohammad Javed Khan were stated to have studied. It is stated that an adverse inference needs to be drawn against the respondent-Husband for not examining either Mohammad Javed Khan or any of his family members in support of his case. It is stated that the Family Court did not give due weightage to the last four lines in Exhibit 46-Note Book, wherein FCA 97/15 10 Judgment the wife had stated “Rahul, I will wait for you. I cannot live without you.”

It is stated that the aforesaid words clearly show that the appellant-Wife had great affection for the respondent-Husband and she did not want to sever the ties with him. It is lastly stated that on the basis of the material tendered by the respondent-husband, the Family Court should not have recorded the finding that the appellant-Wife had an affair with Mohammad Javed Khan and this material fact was not disclosed by the appellant-Wife to the respondent-Husband.

8. Shri Khare, the learned counsel for the respondent-Husband supported the judgment of the Family Court and submitted that on a proper appreciation of the evidence on record, both oral and documentary, the Family Court has rightly arrived at a conclusion that the appellant-Wife had concealed a material fact or circumstance, the disclosure of which may have resulted in the refusal on the part of the respondent-Husband to perform the marriage with the appellant-Wife.

It is stated that though each material fact by itself may not be enough to prove the concealment on the part of the appellant-Wife of a material fact or circumstance concerning her, the cumulative effect of all the proven facts clearly lead to a conclusion that the appellant-Wife has concealed a material fact or circumstance concerning herself. It is submitted that though the parties resided together for nearly 45 days, there is enough FCA 97/15 11 Judgment evidence on the part of the husband that the marriage between the parties was not consummated. It is submitted that there is evidence on record to show that the appellant-Wife was disinterested in accompanying the respondent-Husband to movies and hotels during the period between the engagement and the solemnization of marriage. It is stated that the evidence of the respondent-Husband is supported by the evidence of Nagsen and Mohammad Sharik. It is stated that the there is nothing in the cross-examination of the respondent-Husband or his witnesses to falsify their statements in the examination-in-chief. It is stated that the appellant-Wife had admitted in the cross-examination that the Book of Islam was possessed by her and the diary also belonged to her. It is stated that Nagsen had clearly proved by his evidence that he had got the Urdu writing translated and he had informed about the said translation to the respondent-Husband. It is stated that Mohammad Sharik had also clearly stated in his evidence that he knew Mohammad Javed since past three to four years and he also knew that Mohammad Javed had an affair with the appellant-Wife. It is stated that the Family Court rightly considered the evidence of the respondent-Husband and his witnesses as also the Urdu writing in Exhibit 44, which reads, “I love you.

You are my wife and I cannot live without you.” It is stated that it was necessary for the appellant-Wife to have examined some witnesses to prove that some of the facts pleaded by the respondent-husband and FCA 97/15 12 Judgment concerning the appellant’s brother and mother were not proved. It is stated that the appellant had not applied for Restitution of Conjugal Rights and this would clearly show that the appellant-Wife is not interested in the respondent-Husband as she had an affair with Mohammad Javed. It is stated that the mediation report clearly shows that the mediation failed because of the counsel for the appellant-Wife. It is stated that the view expressed by the Family Court is a correct view and this Court may not interfere with the same in the Family Court Appeal.

9. On hearing the learned counsel for the parties and on a perusal of the record and proceedings, it appears that the following points arise for determination in this Family Court Appeal :

I) Whether the respondent-Husband is entitled to a decree of declaration of nullity of marriage, under Section 12(1)(c) of the Hindu Marriage Act?

II) What order?

10. For determining the points, it would be necessary to consider the pleadings of the parties and the evidence tendered by them. It would not be necessary to reiterate the pleadings of the parties, as we have narrated the facts pleaded in the petition and the written statement in FCA 97/15 13 Judgment detail in the earlier part of the judgment. The respondent-Husband had examined himself and had also examined two other witnesses in support of his case. The respondent-Husband had reiterated the facts pleaded in the petition in his examination-in-chief. The respondent-Husband was cross-examined at length on behalf of the appellant-Wife. It was admitted by the respondent-Husband in his cross-examination that the parties exchanged their mobile numbers with a view to talk to each other after the marriage was settled. The respondent-Husband denied the suggestion that he did not receive the call pertaining to the appellant’s character and her affair with Mohammad Javed Khan on 11.06.2013.

The respondent-Husband denied the suggestion that he had falsely stated that on 11.06.2013, he received a call in respect of the appellant’s character. The respondent-Husband denied the suggestion that the marriage between the parties was consummated. The respondent-

Husband denied the suggestion that the appellant-Wife was not allowing the respondent-Husband to maintain physical relationship. The respondent-Husband admitted that he is unable to read and write Urdu.

The respondent-Husband reiterated in his cross-examination that the appellant-Wife understands Urdu language and she had disclosed the said fact to him. The respondent-Husband denied the suggestion that he had falsely stated that the appellant-Wife had recited Azan in his presence and in the presence of his cousins. The respondent-Husband FCA 97/15 14 Judgment denied the suggestion that with a view to create evidence against the appellant-Wife, he had got written the Urdu writing in diary, Exhibit 44.

The respondent-Husband stated in his cross-examination that after the marriage, the appellant-Wife brought all her books and educational documents from her parental home to her matrimonial home. The respondent-Husband denied that he had falsely stated that on inquiry from the appellant-Wife, she had informed him that she had an affair with Mohammad Javed Khan since past five years and because her parents had not consented for the marriage, they could not marry. It was denied by the respondent-Husband that he had not talked with Mohammad Javed Khan and that he had not confessed about his affair with the appellant-Wife. The respondent-Husband denied the suggestion that after one month of the marriage, he had informed the appellant-Wife about his affair with his colleague. The respondent-Husband denied the suggestion that he was a man of suspicious nature and used to doubt the character of the appellant-Wife. It is apparent, on a reading of the cross-

examination of the respondent-Husband, that there is nothing in the cross-examination that falsifies his case either in his pleadings or in his examination-in-chief.

Witness Nagsen was examined on behalf of the respondent-

Husband. Nagsen stated in his examination-in-chief that the respondent-

Husband had told him that he was not happy with his marriage as the FCA 97/15 15 Judgment appellant-Wife had an affair with Mohammad Javen Khan, who is a Medical Representative. Nagsen stated that the respondent-Husband had told him that he had found a diary with Urdu writing in the bag of the appellant-Wife. Nagsen stated in his examination-in-chief that the Urdu writing on the diary possessed by the appellant-Wife was got translated by him from the Court. Nagsen was cross examined on behalf of the appellant-Wife. Nagsen admitted in his cross-examination that he did not have personal knowledge about the Urdu writing and that it was addressed to the appellant-Wife. Nagsen, however, denied the suggestion that he had falsely stated that the respondent-Husband requested him to get the Urdu writing translated. Nagsen denied that the respondent-

Husband had not shown any diary or Urdu writing to him. Nagsen admitted that he did not get the Urdu writing translated from the Court and it was wrongly written in the affidavit that he got it translated through the Court, though it is true that he had got the Urdu writing translated.

11. The next witness examined on behalf of the respondent-

Husband is Mohammad Sharik. The said witness has stated that he knew the respondent-Husband since past twelve years and he also knew Mohammad Javed Khan, who is working as a Medical Representative, since past 4 years. The witness stated that he was informed by the FCA 97/15 16 Judgment respondent-Husband in a depressed mood that he was not happy with his marriage, as the appellant, his wife, was in love with Mohammad Javed Khan, who is a Medical Representative. The witness stated that he arranged the meeting of the respondent-Husband with Mohammad Javed Khan and Mohammad Javed Khan had disclosed that he knew the appellant-Wife, as they were in the same college of Pharmacy and they were in love for a long time and had decided to marry each other but, the family members of the appellant-Wife had forced the appellant to marry with the respondent-Husband. Mohammad Sharik had admitted in the cross-examination that he was not present at the time of the marriage of appellant-Wife and the respondent-Husband. He, however, denied the suggestion that he had falsely stated that Mohammad Javed Khan had informed the respondent-Husband that he had an affair with the appellant and he wanted to marry her. The witness denied that the affidavit pertaining to his examination-in-chief was prepared by the respondent-Husband on his own accord and that he had signed it without going through the contents.

The appellant-Wife examined herself and reiterated the pleadings in the written statement, in her examination-in-chief. She stated in her examination-in-chief that the respondent-Husband informed her after one month of the marriage that he had a love affair with one of his professional colleagues but due to strong opposition from his family, FCA 97/15 17 Judgment he was unable to marry her. It is stated by the appellant-Wife that the respondent-Husband was doubting her character. It is stated that though she had asked the respondent-Husband to take her back to the matrimonial home, he had refused to take her. Though the appellant-

Wife had denied in her written statement that the Diary-Exhibit 44 and the Note Book-Exhibit 46 belong to her, she admitted in the cross-

examination that the Diary-Exhibit 44 and the Note Book-Exhibit 46 belong to her. The appellant-Wife admitted that the writing on the second last page of Exhibit 46 i.e. Note Book, is in her handwriting. The appellant-Wife denied the suggestion that she had prevented the respondent-Husband from maintaining physical relationship with her.

The appellant admitted that she had completed her Diploma in Pharmacy from Sachchidanand Institute of Pharmacy. She admitted that between the year 2007-2010, she was studying in the said college. The appellant-

Wife admitted that before the marriage, the respondent-Husband had been to her parental home on the occasion of her Birthday on 12.04.2013.

The appellant-Wife admitted that thereafter the parties did not meet each other till the date of marriage, i.e. 13.06.2013. The appellant-Wife denied the suggestion that though the respondent-Husband had asked her to accompany him to movies and hotels, she had refused to do so. The appellant-Wife denied the suggestion that she had falsely stated that the respondent-Husband has a suspicious nature. The appellant-Wife denied FCA 97/15 18 Judgment the suggestion that she had falsely stated that the respondent-Husband had threatened to commit suicide if she returned to the matrimonial home. The appellant-Wife, however, admitted that she had never lodged any report against the respondent-Husband in the Police Station.

12. It is clear on a consideration of the oral and the documentary evidence, mainly the documents at Exhibits 44 and 46, that the respondent-Husband had succeeded in proving that the appellant-Wife had concealed the material fact in respect of her affair with Mohammad Javed Khan while securing the consent of the respondent-Husband for the marriage. Though the appellant-Wife had denied that Exhibits 44 and 46, the Diary and the Note Book belong to her, in the cross-examination, she has clearly admitted that the two documents belong to her and were possessed by her. Both these documents play a very important part in proving the case of the respondent-Husband. It is stated in the evidence of the respondent-Husband and it is also not disputed by the appellant-

Wife that the appellant-Wife had carried all her books, note books and the other study material from her parental home to her matrimonial home.

The respondent-Husband had discovered the Diary at Exhibit 44, while the appellant-Wife was not at home. It is difficult to gauge, as to how, the diary of a Medical Representative could be possessed by the appellant-

Wife, who is not working as a Medical Representative, though she has FCA 97/15 19 Judgment secured a degree of D.Pharm. Firstly, the appellant-Wife had denied in her written statement that the diary, Exhibit 44 belongs to her. The wife has, however, admitted in her evidence that the Diary Exhibit 44, belongs to her. There is no explanation whatsoever coming forth from the appellant-Wife as to how the Diary, Exhibit 44, came in possession of the appellant-Wife. We find that there is some Urdu writing in the Diary Exhibit 44. The respondent-Husband does not understand Urdu language. It is the case of the respondent-Husband that he got the Urdu writing translated through the help of his friend Shri Nagsen, who is examined by the respondent-Husband, as one of his witnesses. It is stated by the respondent-Husband in his evidence that the translation of the Urdu writing is “I love you, you are my wife and I cannot live without you.”

There is no explanation from the appellant-Wife about the possession of the diary by her and also the Urdu writing. There is a suggestion from the appellant-Wife that the Urdu writing was written by the respondent-

Husband only to create evidence against the appellant-Wife. We find that the evidence of the respondent-Husband and his witness Nagsen is more trustworthy than the evidence of the appellant-Wife. The Family Court, therefore, rightly relied on the evidence of the respondent-

Husband and his witness Nagsen to hold that the respondent-Husband had been successful in proving the Urdu writing on the document, at Exhibit 44. Merely because the translator has not been examined, it FCA 97/15 20 Judgment cannot be said that the case of the respondent-Husband is falsified or weakened. It would be necessary at this stage to reiterate that the appellant-Wife is not a trustworthy witness, as she had denied in her written statement that the diary belongs to her, but had admitted the said fact in her cross-examination. In this background, the Family Court rightly believed the case of the husband and his witnesses to hold that the respondent-Husband had successfully proved on the basis of oral evidence as also the documents Exhibits 44 and 46 that the appellant-Wife had an affair with Mohammad Javed Khan and this fact was concealed by the appellant-Wife while securing the consent of the respondent-Husband for the marriage. Exhibit 46 is a Note Book that belongs to the appellant-

Wife, as admitted by her. On the last but one page on Exhibit 46, the word “sorry” has been written almost 100 times by the appellant-Wife.

The appellant-Wife admits that the writing on the last but one page of the note book at Exhibit 46 is in her handwriting. The Family Court has rightly disbelieved the case of the appellant-Wife that the word “sorry”

was written many times by her as the respondent-Husband had asked her as to how many times she could write the word “sorry” in one minute.

The Family court has disbelieved the case of the appellant-Wife in this regard. The Family Court rightly held that a newly married couple will not choose the word “sorry” for playing the game of writing a word several times in a minute. The Family Court held and rightly so that the FCA 97/15 21 Judgment respondent-Husband had been successful in proving that after the appellant-Wife admitted that she had an affair with Mohammad Javed Khan, she wrote the word “sorry” several times in view of her guilt.

Apart from holding that the respondent-Husband had proved his case on the basis of the aforesaid documents and his oral evidence, the Family Court has held that the respondent-Husband had succeeded in proving that the appellant-Wife had recited Azan, the prayer in Urdu language in the presence of the husband and his cousins. The Family Court found that the husband had been successful in proving that Mohammad Javed Khan and the appellant-Wife were studying in the same college of Pharmacy during the same period. The Family Court found that though the parties were residing separately for a long time, the appellant-Wife did not file a petition for restitution of conjugal rights.

Also, though the appellant-Wife had levelled the allegation in respect of the disclosure of the affair of the respondent-Husband with one of his colleagues, the wife had not substantiated the said fact. It is notable that the wife had not disclosed the name of the colleague of the respondent-

Husband. We find that the allegations made by the appellant-Wife in this regard are reckless and baseless and if it was really so, the wife would have mentioned the name of the colleague with whom the respondent-

Husband allegedly had an affair. In one breath, the appellant-Wife has levelled the allegation that the respondent-Husband was having an affair FCA 97/15 22 Judgment with one of his professional colleagues and in the other breath she has pleaded that he constantly suspected her character. If the husband really had an affair, why should he suspect the character of the wife. An infidel husband would not bother about the wife. The approach of the Family Court in appreciating the evidence is just and proper and the view expressed by the Family Court, after consideration of the entire material on record, appears to be the only view that could have been expressed.

13. Much has been said on behalf of the wife in regard to the non-examination of Mohammad Javed Khan by the respondent-Husband.

The Family Court rightly held that in the circumstances of the case, the respondent-Husband could not have examined Mohammad Javed Khan.

The Family Court rightly observed that the parties should lead the best evidence available with them but, in the circumstances of the case, it cannot be said that the respondent-Husband was in a position to examine Mohammad Javed Khan as his witness and despite that, he had failed to examine him. The Family Court rightly observed that on the contrary, it was not possible for the respondent-Husband to examine Mohammad Javed Khan. The Family Court, therefore, rightly held that this was not a case where the respondent-Husband had failed to produce the best possible evidence that was available, in support of the claim of the respondent-Husband that the appellant-Wife had an affair with FCA 97/15 23 Judgment Mohammad Javed Khan. We also do not find any force in the submission that the respondent-Husband ought to have examined his family members as his witnesses. The examination of the family members of the respondent-Husband was not necessary for proving his case, in regard to the affair of the appellant-Wife with Mohammad Javed Khan and the respondent-Husband had rightly examined Nagsen, who had got the Urdu writing in Exhibit 44 translated and Mohammad Sharik, who had accompanied the respondent-Husband to Mohammad Javed Khan, who was known to him for past four years, both being Medical Representatives. The respondent-Husband proved his case on the basis of the witnesses and also Exhibits 44 and 46 which supported his case about the affair of the appellant-Wife with Mohammad Javed Khan for about four to five years, before the solemnization of the marriage. We do not find any force in the submission made on behalf of the appellant-Wife that the wife was ready and willing to reside with the husband as the last four lines on Exhibit 46 recited that Rahul, I would be waiting for you, I cannot live without you. We find that after admitting the affair with Mohammad Javed Khan before the respondent-Husband, the appellant-

Wife had written the word ‘Sorry’, a number of times on the last but one page of Exhibit 46 and it seems that while leaving the house, with repentance the wife wrote on Exhibit 46 that she would wait for the respondent-Husband and that she cannot live without him. The last few FCA 97/15 24 Judgment words on Exhibit 46 would carry no meaning when the respondent-

Husband has approached the Family Court for a declaration that the marriage solemnized between the parties is a nullity as the appellant-Wife had concealed a material fact while securing the consent of the respondent-Husband for the marriage.

14. We find that the Family Court has considered the entire evidence in the right perspective to hold that the respondent-Husband had been successful in proving his case for a decree of nullity of marriage under Section 12 of the Hindu Marriage Act. There is no scope for interference with the judgment of the Family Court in this appeal.

Hence, for the reasons aforesaid, the Family Court Appeal is dismissed with no order as to costs.

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