# Ashish Morya v. Smt. Anamika Dhiman

- **Citation:** (2022) 12 ILRA 234
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-17
- **Case number:** First Appeal No. 830 of 2022
- **Bench:** Surya Prakash Kesarwani, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-morya-v-smt-anamika-dhiman-48007
- **Pages:** 6

## Headnote

A. Civil Law - Civil Procedure Code, 1908 -
Order II Rule 2(2), C.P.C. - Where a
plaintiff intentionally relinquishes, any
portion
of
his
claim,
he
shall
not
afterwards sue in respect of the portion so
relinquished - Plaintiff/husband earlier
filed Suit No.1028 of 2021, u/s 9 of the
Act,
1955,
in
which
he
moved
an
application stating that "Saptpadi" was
not conducted as per Hindu rites & that he
does not want to press the suit and that
he shall not reinitiate any proceeding -
aforesaid suit, was dismissed - Plaintiffhusband was not entitled to file a fresh
12 All. Ashish Morya Vs. Smt. Anamika Dhiman
235
suit on the same set of facts for restitution
of conjugal rights u/s 9 of the Act, 1955,
inasmuch as cause of action and the relief
sought in both the suits were identical and
the earlier suit was got dismissed by him
as not pressed in the absence of a valid
marriage - Second suit filed by the
plaintiff husband was barred by the
provisions of Order II Rule 2, C.P.C. and,
therefore, the suit was rightly dismissed
by the court below (Para 9)
B. Civil Law - The Hindu Marriage Act,
1955 - Section 8 - U.P. Hindu Marriage
Registration Rules, 1973 - Uttar Pradesh
Registration of Marriage Rules, 2017 -
Registration
of
Hindu
marriages
-
Marriage
certificate
-
No
statutory
provisions enabling the Arya Samaj to
issue a marriage certificate - Marriage
Certificate issued by Arya Samaj has no
statutory force (Para 12)
C. Civil Law - The Hindu Marriage Act,
1955 - Section 9 - Restitution of
conjugal right - existence of a valid
marriage is precondition to ask for relief
of restitution of conjugal rights - It is
admitted case of the plaintiff/husband
that
the
rites
and
ceremonies
of
Saptapadi had not taken place in the
alleged marriage of the plaintiff - In the
absence of proof of a valid marriage, the
court below has not committed any error
of law to dismiss the suit observing that
mere getting a marriage certificate from
Arya Samaj is not proof of a valid
marriage (Para 14)
Dismissed. (E-5)
List of Cases cited:

Seema Vs Ashwini Kumar, (2006) 2 SCC 578
(Paras 4, 9 & 15)

## Text

234 INDIAN LAW REPORTS ALLAHABAD SERIES

8. To appreciate the controversy in
hand, it would be relevant to reproduce
Para-16 of the written statement of the
Insurance Company:-

9.

The
judgement
of
the
Commissioner
reveals
that
he
has
considered in detail the testimony of PW1
(claimant/respondent)
who
has
categorically stated that she is married, but
she was dependant upon the deceased as
she is physically disabled and her husband
was also not well, due to which he was not
able to look after her.

10. It is admitted on record that by the
claimant that the claimant/respondent was
married sister of the deceased.

11. Now coming to the definition of
"Dependant" as defined in Section 2(1) (d)
(iii) (d) of the Workmen's Compensation
Act 1923, it is evident that definition of
"Dependant" covers only minor brother or
unmarried sister or widowed sister if minor.
Married sister is not covered under the
definition as defined in Section Section 2
(1) (d) (iii) (d) of the Workmen's
Compensation Act. In such view of the fact,
this Court finds substance in the argument
of the learned counsel for the appellant that
the claim petition was not maintainable on
behalf of the married sister of the deceased
and
the
Tribunal
has
committed
jurisdictional error in entertaining the claim
petition on behalf of the married sister of
the deceased.

12. Thus, for the reasons given above,
the
impugned
judgement/award
dated
06.08.2009
passed
by
Workmen
Compensation Commissioner, Ghaziabad is
hereby set aside. Accordingly, the appeal
stands allowed.

13. Consequently, the Tribunal is
directed to refund the entire amount
deposited by the Insurance Company under
Section 30 of the Employees Workmen's
Compensation
Act
to
the
Insurance
Company within a period of one month
from the date of production of a certified
copy of this order.
----------
(2022) 12 ILRA 234
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

First Appeal No. 830 of 2022

Ashish Morya ...Appellant
Versus
Smt. Anamika Dhiman ...Respondent

Counsel for the Appellant:
Ms. Mamta Singh, Ms. Vandana Singh

Counsel for the Respondent:
Sri Sumit Daga
A. Civil Law - Civil Procedure Code, 1908 -
Order II Rule 2(2), C.P.C. - Where a
plaintiff intentionally relinquishes, any
portion
of
his
claim,
he
shall
not
afterwards sue in respect of the portion so
relinquished - Plaintiff/husband earlier
filed Suit No.1028 of 2021, u/s 9 of the
Act,
1955,
in
which
he
moved
an
application stating that "Saptpadi" was
not conducted as per Hindu rites & that he
does not want to press the suit and that
he shall not reinitiate any proceeding -
aforesaid suit, was dismissed - Plaintiffhusband was not entitled to file a fresh
12 All. Ashish Morya Vs. Smt. Anamika Dhiman
235
suit on the same set of facts for restitution
of conjugal rights u/s 9 of the Act, 1955,
inasmuch as cause of action and the relief
sought in both the suits were identical and
the earlier suit was got dismissed by him
as not pressed in the absence of a valid
marriage - Second suit filed by the
plaintiff husband was barred by the
provisions of Order II Rule 2, C.P.C. and,
therefore, the suit was rightly dismissed
by the court below (Para 9)
B. Civil Law - The Hindu Marriage Act,
1955 - Section 8 - U.P. Hindu Marriage
Registration Rules, 1973 - Uttar Pradesh
Registration of Marriage Rules, 2017 -
Registration
of
Hindu
marriages
-
Marriage
certificate
-
No
statutory
provisions enabling the Arya Samaj to
issue a marriage certificate - Marriage
Certificate issued by Arya Samaj has no
statutory force (Para 12)
C. Civil Law - The Hindu Marriage Act,
1955 - Section 9 - Restitution of
conjugal right - existence of a valid
marriage is precondition to ask for relief
of restitution of conjugal rights - It is
admitted case of the plaintiff/husband
that
the
rites
and
ceremonies
of
Saptapadi had not taken place in the
alleged marriage of the plaintiff - In the
absence of proof of a valid marriage, the
court below has not committed any error
of law to dismiss the suit observing that
mere getting a marriage certificate from
Arya Samaj is not proof of a valid
marriage (Para 14)
Dismissed. (E-5)
List of Cases cited:

Seema Vs Ashwini Kumar, (2006) 2 SCC 578
(Paras 4, 9 & 15)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Rajendra Kumar-IV, J.)

1. Heard Ms. Vandana Singh, holding
brief of Ms. Mamta Singh, learned Counsel
for the Plaintiff-appellant and Sri Sumit
Daga, learned Counsel for the defendantrespondent.

2. This appeal has been filed praying
to set aside the judgment and order dated
09.09.2022 in Case No.269 of 2022,
(Ashish Maurya versus Smt. Anamika
Dhiman), under Section 9 of the Hindu
Marriage Act, 1955 (hereinafter referred to
as Act, 1955) passed by the Principal
Judge, Family Court, Saharanpur whereby
the case filed by the plaintiff-appellant
under Section 9 of the Act, 1955 has been
dismissed.

Facts:-

3. Briefly stated the facts of the
present case are that the plaintiff-appellant
had earlier filed Case No.1028 of 2021,
(Ashish Maurya versus Smt. Anamika
Dhiman), under Section 9 of the Act, 1955
which was subsequently withdrawn by him
stating that he does not want to press the
case for the reason that a compromise has
been entered and satpadi ceremony was not
performed for marriage. Again he filed
Case No.269 of 2022, (Ashish Maurya
versus Smt. Anamika Dhiman), under
Section 9 of the Act, 1955 which has been
dismissed by the impugned judgment dated
09.09.2022.
Aggrieved
with
this
judgement, the plaintiff-appellant filed the
present appeal.

4. In her written statement, the
defendant-respondent has clearly denied
any marriage between her and the plaintiffappellant. She made several allegation in
her written statement and specifically stated
the story of marriage is totally false and in
fact there was no marriage at all and the
236 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff-appellant is regularly attempting to
black mail her. She has also lodged FIR
No.0475 of 2021, dated 04.10.2021, under
Sections 384, 328, 506, 376, 427 and 504
IPC, Police Station Sadar Bazar, District
Saharanpur in which charge sheet has been
filed by the police.

Discussion and Findings:

5. We have carefully considered the
submissions of the learned counsels for the
parties and perused the appeal.

6. The submissions made by learned
counsel for the parties give rise to the
following questions:-

(a) Whether the Suit No.269 of
2022 (Ashish Maurya vs. Smt. Anamika
Dhiman) filed by the plaintiff-appellant
was barred by Order II Rule 2(3) of the
Civil Procedure Code?

(b) Whether marriage certificate
issued by Arya Samaj is proof of a valid
marriage?

(c) Whether the plaintiff is
entitled for a decree of restitution of
conjugal rights under Section 9 of the
Hindu Marriage Act, 1955?

Question No.(a) Whether the Suit
No.269 of 2022 (Ashish Maurya vs. Smt.
Anamika Dhiman) filed by the plaintiffappellant was barred by Order II Rule
2(3) of the Civil Procedure Code?

7. We find that the plaintiff has earlier
filed a Suit No.1028 of 2021 under Section
9 of the Act, 1955 in which subsequently he
moved an application stating as under:

"निवेदि है नक प्राथी वाद उक्त में
वादी है। श्रीमाि जी प्राथी का समाज के चन्द
मौनजज लोगों िे सुलहिामा करा नदया है। उक्त
वाद प्राथी वानपस लेिा चाहता है। उक्त नववाह
के सम्बन्ध में वादी एवं प्रनतवादिी िे आयम समाज
में आवेदि नकया था नजसमें वादी एवं प्रनतवादिी
को नदिांक 29.06.2021 की शादी का प्रमाण
पत्र दे नदया है लेकिन किन्दू रीकि ररवाज िे
अनुसार िोई फेरे वादी व प्रकिवादनी िे निीीं
हुये थे। वादी अपने वाद में बल देना निीीं
चाििा िै इसकलये वादी िा वाद बल न कदये
जाने िे िारण कनरस्त फरमाया जाना जरुरी
िै। इस सम्बन्ध में पुनः िोई िाययवािी निीीं
िरुींगा। अतः श्रीमाि जी से प्राथमिा है नक वाद
उपरोक्त वादी द्वारा बल िा नदये जािे के कारण
निरस्त करिे की कृपा करें।"

8. Order II Rule 2(2), C.P.C. provides
as under:

"Where a plaintiff omits to sue in
respect of, or intentionally relinquishes,
any portion of his claim, he shall not
afterwards sue in respect of the portion so
omitted or relinquished."

9.

Undisputedly,
the
plaintiffappellant has earlier filed the aforesaid Suit
No.1028 of 2021 in which he moved an
application stating that "Saptpadi" was not
conducted as per Hindu rites and rituals and
that he does not want to press the suit and
that he shall not reinitiate any proceeding.
In the aforesaid suit, the defendantrespondent/ girl has filed a written
statement. Thereafter, on the complaint of
the plaintiff-appellant, the aforesaid Suit
No.1028 of 2021 under Section 9 of the
Act, 1955 was dismissed. Thus, the
plaintiff-appellant has omitted to sue in
respect of conjugal rights , therefore, he
was not entitled to file a fresh suit No.269
of 2022 on the same set of facts for
restitution of conjugal rights under Section
9 of the Act, 1955, inasmuch as cause of
action and the relief sought in both the suits
12 All. Ashish Morya Vs. Smt. Anamika Dhiman
237
were identical and the earlier suit was got
dismissed by him as not pressed in the
absence of a valid marriage. Therefore, we
do not find any illegality in the impugned
judgment holding that the second suit i.e.
Suit No.269 of 2022 filed by the plaintiffappellant was barred by the provisions of
Order II Rule 2, C.P.C. and, therefore, the
suit was rightly dismissed by the court
below.

Question No.(b) Whether marriage
certificate issued by Arya Samaj is proof
of a valid marriage?

10. Arya Samaj, a vigorously
reforming sect of modern Hinduism,
founded in the year 1875 by the great saint
and reformer Swami Dayanand Saraswati;
is a reformist movement which believes in
one God and in the Vedas as the books of
true knowledge. The Arya Samaj opposes
the caste system based upon birth as
unvedic and insist that castes should reflect
merit. The Arya Samaj has sought to
revitalize Hindu life and instil selfconfidence and national pride amongst
Hindus with the watch word of Swami
Daya Nand "Back to the Vedas".

11. In the case of Seema vs. Ashwini
Kumar, (2006) 2 SCC 578 (Paras 4, 9 and
15), Hon'ble Supreme Court considered the
provisions of Section 8 of the Act, 1955
and compulsory registration of marriages
and held as under:

4. It has been pointed out that
compulsory
registration
of
marriages
would be a step in the right direction for
the prevention of child marriages still
prevalent in many parts of the country. In
the Constitution of India, List III (the
concurrent list) of the Seventh Schedule
provides in Entries 5 and 30 as follows:

"5. Marriage and divorce; infants
and minors; adoption; wills, intestacy and
succession; joint family and partition; all
matters in respect of which parties in
judicial proceedings were immediately
before
the
commencement
of
this
Constitution subject to their personal law.

* * *

30.
Vital
statistics
including
registration of births and deaths."

9.
In
exercise
of
powers
conferred by Section 8 of the Hindu Act
the State of U.P. has framed the U.P.
Hindu Marriage Registration Rules, 1973
which have been notified in 1973. In the
affidavit filed by the State Government it
is stated that the marriages are being
registered after enactment of the Rules.

15. As is evident from narration
of facts, though most of the States have
framed rules regarding registration of
marriages, registration of marriage is not
compulsory in several States. If the record
of marriage is kept, to a large extent, the
dispute
concerning
solemnisation
of
marriages between two persons is avoided.
As rightly contended by the National
Commission, in most cases non-registration
of marriages affects the women to a great
measure. If the marriage is registered it
also provides evidence of the marriage
having taken place and would provide a
rebuttable presumption of the marriage
having
taken
place.
Though,
the
registration itself cannot be a proof of
valid marriage per se, and would not be
the determinative factor regarding validity
of a marriage, yet it has a great evidentiary
value in the matters of custody of children,
right of children born from the wedlock of
the two persons whose marriage is
registered and the age of parties to the
marriage. That being so, it would be in the
interest of the society if marriages are
made
compulsorily
registrable.
The
238 INDIAN LAW REPORTS ALLAHABAD SERIES
legislative intent in enacting Section 8 of
the Hindu Act is apparent from the use of
the expression "for the purpose of
facilitating
the
proof
of
Hindu
marriages".

12. Thus, from the aforequoted
judgment of the Hon'ble Supreme Court, it
is evident that though the registration itself
cannot be a proof of valid marriage per se,
and would not be the determinative factor
regarding validity of a marriage, yet it has a
great evidentiary value. The plaintiffappellant has neither led any evidence nor
filed any certificate of marriage as proof of
marriage under Section 8 of the Act, 1955
read with the Uttar Pradesh Hindu
Marriage Registration Rules, 1973 or the
Uttar Pradesh Registration of Marriage
Rules, 2017. Learned counsel for the
plaintiff-appellant has also completely
failed to place before us any statutory
provisions enabling the Arya Samaj to issue
a marriage certificate. Thus, we have no
difficulty
to
hold
that
Marriage
Certificate issued by Arya Samaj has no
statutory force.

13. Section 5 of the Act, 1955
provides for conditions for a Hindu
marriage. Section 7 of the Act, 1955
provides for ceremonies of a Hindu
marriage that a Hindu marriage may be
solemnized
in
accordance
with
the
customary rites and ceremonies of either
party thereto and that where such rites and
ceremonies include the Saptapadi i.e. the
taking of seven steps by the bridegroom
and the bride jointly before the sacred fire,
the
marriage
becomes
complete
and
binding when the seventh step is taken.
Section 11 of the Act, 1955 provides for
void marriages. It is admitted case of the
plaintiff-appellant
that
the
rites
and
ceremonies of Saptapadi had not taken
place in the alleged marriage of the plaintiff
with the defendant on 29.06.2021. It is also
relevant to mention here that the defendant
respondent has made serious allegation and
filed an application under Order VII Rule
11, C.P.C. in the above Suit No.269 of 2022
that the plaintiff-appellant stolen her
photographs from whatsapp and facebook
and deceitfully got her signature on some
papers
alluring
her
for
providing
employment. The defendant-respondent has
also made serious allegation of rape etc.
against the plaintiff-appellant and lodged
FIR No.475 of 2021 under Sections 384,
328, 506, 376, 427, 504 I.P.C.. P.S. Sadar
Bajar in which chargesheet has also been
filed by the police. Thus, in the absence of
a valid marriage, marriage certificate of
Arya Samaj is not proof of a valid
marriage of the plaintiff-appellant and the
defendant-respondent.

Question
No.(c)
Whether
the
plaintiff is entitled for a decree of
restitution of conjugal rights under
Section 9 of the Hindu Marriage Act,
1955?

14. Section 9 of the Act, 1955
provides for restitution of conjugal rights. It
provides that 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 decree restitution of conjugal rights
accordingly. The explanation appended to
Section 9 of the Act, 1955 provides that
where a question arises whether there has
been reasonable excuse for withdrawal
from the society, the burden of proving
12 All. Vision India Welfare Trust, Inderlok, New Delhi Vs. U.O.I. & Ors.
239
reasonable excuse shall be on the person
who has withdrawn from the society. Since
in the present set of facts, there is no proof
of valid marriage, therefore, the court
below has not committed any error of law
to dismiss the suit. In our view, existence
of a valid marriage is precondition to ask
for relief of restitution of conjugal rights.
In the absence of proof of a valid marriage,
under the facts and circumstances of the
case; the court below has not committed
any error of law to dismiss the suit
observing that mere getting a marriage
certificate from Arya Samaj is not proof of
a valid marriage.

15. For all the reasons aforestated, we
find that the present appeal has no merit
and is, therefore, dismissed with costs.
----------
(2022) 12 ILRA 239
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE J.J. MUNIR, J.

Public Interest Litigation (P.I.L.) No. 1816 of
2022

Vision India Welfare Trust, Inderlok, New
Delhi ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamlesh Kumar Mishra

Counsel for the Respondents:
A.S.G.I., Sri Shashank Shekhar Singh, Sri
Vinod Kumar Shukla

A. Public Interest Litigation - Allahabad
High Court Rules,1952 - SubRule (3-A) of
Rule 1, Chapter XXII of the Rules of Court
- Rule 1(3-A) of Chapter XXII of the Rules
requires the petitioner to establish its
credentials
by
affidavit
-
Petitioner
seeking to file a Public Interest Litigation,
should precisely and specifically state, in
the affidavit to be sworn by him giving his
credentials - In the instant case, in
paragraph no. 5 of the petition only this
much was pleaded 'that the petitioner is a
social trust and is not politically motivated
by any political party nor have been
financed by any person/ political party to
file this PIL' - Held - contents of the writ
petition
show
no
more
than
a
paraphrasing of the contents of Sub-Rule
(3-A) of Rule 1 - no facts pleaded vis-à-vis
any of the requirements which the Rule
postulates to maintain a petition in public
interest - Petitioner does not say as to
what kind of activities does the petitioner
- 'Vision India Welfare Trust' undertakes,
what has it done in the past towards
charity or the realization of charitable
objectives that it may have set for itself -
Not a word has been said by the petitioner
about any specific activities that it has
undertaken in the past - In the absence of
that, a bald assertion, would not satisfy
the first part of Rule 1(3-A) of Chapter
XXII that requires the petitioner to
establish its credentials by affidavit. (Para
6, 7, 8, 9)

B. Public Interest Litigation - Allahabad
High Court Rules,1952 - SubRule (3-A) of
Rule 1, Chapter XXII of the Rules of Court
- Rule 1(3-A) require that the petitioner
must show what public cause it seeks to
espouse - Held - There is hardly anything
said about it - Petitioner in no way
satisfies
the
two
essential
parts
of
SubRule (3-A) of Rule 1 of Chapter XXII of
the Rules of Court.

C. Public Interest Litigation - Service
Matter - except for a writ of quo warranto,
public
interest
litigation
is
not
maintainable
in
service
matters
-
Petitioner
seeks
is
to
question
the
appointment of respondent no.6 as an
Associate Professor in the Department of
Psychology of the University - Held - In
substance, the cause of action involved is