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Sitabai Sadasheo Vs. Vithabai Namdeo and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 514 of 1955
Judge
Reported inAIR1959Bom508
ActsHindu Law; Evidence Act, 1872 - Sections 101 to 104
AppellantSitabai Sadasheo
RespondentVithabai Namdeo and ors.
Appellant AdvocateG.B. Gandhe, Adv.
Respondent AdvocateR.N. Deshpande, Adv.
Excerpt:
- - according to the finding of the court below the marriage was bad because the couple had not taken seven rounds. in my opinion, the defendant's evidence has wholly failed to establish any circumstances by which that presumption was rebutted......as d.w. 2 had stated that the couple took only 'five rounds around' the nuptial fire during the marriage ceremony. therefore to quote its own words, the lower appellate court came to the following conclusion:'no authority has been cited in support of the contention that a marriage is complete and valid with five 'rounds'. relying on bulli appana v. subamal, air 1938 rang 111, i hold that the marriage, even if performed with five rounds, was invalid, and the plaintiff therefore did not inherit the estate of sadasheo.' (underling (here in ' ') is mine.)5. now, in the first place bulli appana's case, air 1938 rang 111 was an entirely inapposite case and i am unable to understand how it could possibly be attracted in the present circumstances. all that the case decided was that the.....
Judgment:

1. This is a second appeal by a plaintiff whose suit was dismissed by the lower appellate Court. The trial Court had granted the plaintiff a decree for possession of the suit properties.

2. The plaintiff sued the defendants alleging that she (the plaintiff) was the wife of Sadasheo belonging to her late husband. There was no dispute as to the other allegations in the plaint, but the defendants had denied that she was the wife of Sadasheo and they put the plaintiff to the proof of the marriage.

3. Now, both the Courts below came to a finding that the plaintiff was the legally married wife of Sadasheo and that the marriage took place about 3 1/2 years before the date of the suit. But, notwithstanding that finding the lower appellate Court held that the marriage was invalid in law.

4. The point which the lower appellate Court made was that the second defendant as D.W. 2 had stated that the couple took only 'five rounds around' the nuptial fire during the marriage ceremony. Therefore to quote its own words, the lower appellate Court came to the following conclusion:

'No authority has been cited in support of the contention that a marriage is complete and valid with five 'rounds'. Relying on Bulli Appana v. Subamal, AIR 1938 Rang 111, I hold that the marriage, even if performed with five rounds, was invalid, and the plaintiff therefore did not inherit the estate of Sadasheo.' (Underling (here in ' ') is mine.)

5. Now, in the first place Bulli Appana's case, AIR 1938 Rang 111 was an entirely inapposite case and I am unable to understand how it could possibly be attracted in the present circumstances. All that the case decided was that the essential thing for the performance of the saptapadi ceremony in a Hindu marriage is that the bride and bridegroom must take seven steps. The bride and bridegroom in that case were found to have walked round the sacred fire seven times and therefore it was held that the saptapadi ceremony was duly performed 'and the mere fact that they took more than seven' steps did not make the marriage invalid. The only question, here, was not regarding the effect of more steps being taken than seven, but assuming the findings to be correct what was the effect if less than seven steps were taken. Therefore, so far as AIR 1938 Rang 111 is concerned, it was, in my opinion, an irrelevant authority so far as the circumstances of the present case, are concerned.

6. But the further error which the lower appellate Court made was to confuse seven steps with seven rounds. According to the finding of the Court below the marriage was bad because the couple had not taken seven rounds. It must be pointed out that the only requirement of the ceremony called the saptapadi gamana is that seven steps should be taken round the nuptial fire and that it is on the taking of the seventh step that the bride and the bridegroom become united in marriage. In my opinion, the lower appellate Court completely misguided itself by assuming that something was necessary for the ceremonies which the law did not enjoin. The finding was, therefore, wrong in law.

7. Both the Courts below gave concurrent findings that the marriage between the plaintiff and her husband Sadasheo did not take place. That would give rise to a dual presumption that all the legal formalities of the marriage took place as also the necessary ceremonies. (See Bai Diwali v. Moti Karson, ILR BOM 509 and Kashinath v. Bhagwandas, AIR 1947 PC 168. It was therefore for the defendants who were challenging the validity of the marriage to rebut that presumption. In my opinion, the defendant's evidence has wholly failed to establish any circumstances by which that presumption was rebutted.

8. In the result, therefore, I allow the appeal, set aside the judgment and decree of the lower appellate Court and restore those of the trial Court. The respondent shall pay the costs of the appellant.

9. Appeal allowed.


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