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Mandakini Pundalik Salkar Vs. Chandrasen Raikar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 71 of 1984
Judge
Reported inAIR1986Bom172
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17; Evidence Act, 1872 - Sections 114; Specific Relief Act, 1963 - Sections 34; Indian Contract Act, 1872 - Sections 22 and 23; Hindu Marriage Act, 1955 - Sections 5, 11 and 12
AppellantMandakini Pundalik Salkar
RespondentChandrasen Raikar
Appellant AdvocateB. Reis and;R.G. Ramani, Advs.
Respondent AdvocateM.S. Usgaonkar, Adv.
Excerpt:
a) the case questioned whether the amendment of the written statement was rightly allowed under order 6, rule 17 of the civil procedure code, 1908 - a suit was filed for the annulment of marriage between two persons 'p' and 'd'- the amendment in the written statement was done for introducing a specific date of marriage between the parents of 'd'- the amendment instead of showing an ulterior motive, had showed an intention to bring the correct and precise facts related to the aforesaid marriage - in view of the above, it was held that the said amendment was rightly allowed;b) the case questioned whether the marriage between a man from goa and a woman from vengurla was performed according to hindu religious rights - it was found that they had followed all the religious rites of hindus in.....1. this appeal by the original defendant is directed against the judgment and decree dt. 29th sept. 1984 whereby the learned civil judge, senior division, mapusa, decreed the suit filed against the appellant and consequently, annulled their marriage solemnized on 30 the dec. 1978, and further held that the respondent is entitled to recover the gold ornaments mentioned in the plaint, from the appellant.2. the relevant facts may be stated. the appellant and the respondent got married under the civil law on 30th dec. 1978. this marriage was solemnized by the civil registrar of vasco da gama. sometime after the said marriage, it appears that differences of opinion arose between the respondent and the appellant and ultimately, the respondent filed a suit for annulment of the said marriage on.....
Judgment:

1. This appeal by the original defendant is directed against the judgment and decree dt. 29th Sept. 1984 whereby the learned Civil Judge, Senior Division, Mapusa, decreed the suit filed against the appellant and consequently, annulled their marriage solemnized on 30 the Dec. 1978, and further held that the respondent is entitled to recover the gold ornaments mentioned in the plaint, from the appellant.

2. The relevant facts may be stated. The appellant and the respondent got married under the Civil law on 30th Dec. 1978. This marriage was solemnized by the Civil Registrar of Vasco da Gama. Sometime after the said marriage, it appears that differences of opinion arose between the respondent and the appellant and ultimately, the respondent filed a suit for annulment of the said marriage on the ground that, on inquiries he had come to know that the appellant is an illegitimate child and that if he had known this circumstance, he would not have married her. He also prayed for the return of the gold ornaments that he had given to the appellant. this suit was resisted by the appellant on several grounds, particularly, on the ground that she is not an illegitimate child, but on the contrary, she is the legitimate daughter of Pundalik Govind Salkar and Premlata Salkar who got married under the Hindu religious rites at Vengurla. In addition, according to the appellant, she has been always treated and reputed to be a legitimate issue not only by her relatives, but also by the public in general. She stated that the respondent got married to her because he liked her and, therefore, made a proposal to get married with the appellant. The proposal was sent through Prakash Verlekar, who happens to be the brother-in-law of the appellant. Specifically and in respect of the marriage of Pundalik Govind Salkar with Premlata, the appellant agreed that the said Pundalik was married to Smt. Sokubai alias satyawati. There were no issues from the wedlock of the said Sokubai, nor there was any hope of having an issue and, therefore at the instance of the said Sokubai, Pundalik got married to Premlata on 4th April, 1944. The said marriage was solemnized at Vengurla under the Hindu religious rites, which is the place of residence of Premlata's parents. it is further the appellant's case that when the said marriage was solemnized at Vengurla, that portion of the country was under British rule and it was lawful for a Hindu, at that time, to get married twice even during the lifetime of the first wife specially when there was no issue from the first wife. After the said marriage, Pundalik and Premlata lived together and Sokubai or Satyawati was also living with them. Premlata and Pundalik were treated and reputed as husband and wife by their relatives and by the public. Similarly, after the birth of the brothers and sisters of the appellant and her women birth, all the issues of Premlata and Pundalik were treated by the relatives and public as legitimate issues. the respondent, according to the appellant, was fully aware of fact that after the engagement, he used to visit house in Calangute. Not only that, but also the respondent's brother and sisters-in law- had visited the appellant and her family in their house at Calangute before the marriage and have even had occasion to have dinner and lunch in the appellant's house. On such occasions, Sokubai or Satyawati had acted as a member of the family and was present. So far as the gold ornaments, the appellant's case is that the said gold ornaments were gifted to her by the respondent out of love and, therefore, there is no ground for their return. On these grounds, the appellant submitted that the suit was liable to be dismissed. Issues were framed on the basis of such pleadings and the burden of proving whether the late Pundalik Salkar and whether the plaintiff gave his consent to the marriage with the belief that the appellant was a legitimate child and that he learnt about her illegitimacy only in the month of Feb. 1979 was put on the respondent. Other issues were framed in respect of the gold ornaments. The learned trial Judge answered these issues in favour of the plaintiff and consequently, decreed the suit by the impugned judgment.

3. Now, it is the case of the appellant that the learned trial Judge has erred in decreeing the suit, for the respondent has failed to discharge the burden lying on him to prove that he would not have married the appellant if he knew that she was an illegitimate child. Besides, the appellant (respondent?) completely failed to prove that the respondent (appellant?) is, in fact, an illegitimate child, being a fact that the evidenced led by her clearly and conclusively established that she has been born out of the wedlock of Pundalik and Premlata. In the circumstances, therefore, the learned Judge could not have decreed the suit.

4. Elaborating the above grounds, Mr. B. Reits, learned counsel appearing for the appellant, assailed the impugned judgment by submitting that, first of all, the marriage of Pundalik and Premlata had been amply and conclusively proved. secondly, the factum that Pundalik and Premlata were living together at Calangute in the company of Satyawati, being considered and treated by their relatives and the public in general as husband and wife, establishes the marriage. Thirdly, the fact that the appellant, her brothers and sisters were residing with Premlata and Pundalik in the same house and were being treated as legitimate issues by the relatives and the public in general is another aspect to be considered that per se proves the marriage. He also submitted that evidence that flows from official documents is also to be considered, specially when, in such documents, it is clear that Premlata is shown as the wife of Pundalik. Irrespective of this aspect, Mr. reis submitted that the error in respect of the status of the bride would be relevant only if the same error was essential and excusable to form the will of the respondent. In the present case, there is no evidence whatsoever in order to establish that the respondent was, at all, in error and much less that if at all he was in error, the same error was excusable.

5. Insofar as the first contention, the learned counsel invited my attention to the evidence on record and he submitted that the respondent has not effectively deposed in order to show that no marriage between Pundalik and Premlata had taken place. He also, in cross-examination, did not forcefully advance the case that no marriage between Premlata and Pundalik had taken place, but he went mainly, on the footing that the marriage, if any, celebrated at Vengurla, was not valid. Apart from this fact, the learned counsel submitted that the appellant has adduced strong evidence to the effect and has thereby established conclusively that the marriage of Pundalik with Premlata did taken place at Vengurla. He submitted that witnesses who had attended the wedding ceremony were examined, as well as Premlata, her mother Gangabai, Sokubai or Satyawati and also Roghuvir Shirodkar, who happens to be the brother of Sokubai. He submitted that the evidence of these witnesses was not shaken in any manner during the cross-examination, being noteworthy that nothing was put in cross examination of the said witnesses in order to established any bias, prejudice or ill-will against the respondent which would have caused them to depose falsely in Court. the learned counsel placing reliance on the provision of S. 50 of the Evidence Act, submitted that the evidence of Narain Rivonkar, who is a member of the family of appellant, goes to show that in fact a marriage between Pundalik and Premlata's had taken place. He further contended that after the marriage at Vengurla, Pundalik brought Premlata to his residential house at Calangute and she started to live in the said house along with Satyawati. Satyawati not only did not react adversely, but on the contrary, started to live on friendly terms with Premlata and her husband Pundalik. Besides, Premlata was treated by the relatives of Pundalik and by the people in general as the lawful wife of Pundalik. so also, the children who were born to Premlata from Pundalik were treated and considered as legitimate issues. All these circumstances and considering that Premlata is an educated lady, lead to the conclusion that Pundalik got married to Premlata.

6. It was however contended by Mr. M. S. Usgaokar, the learned counsel appearing for the respondent, that the evidence on record adduced by the appellant is far from satisfactory and is to be discarded since, as rightly held by the trial Judge, it is entirely unreliable and unbelievable. He submitted that it is to be pointed out, first of all that in the original written statement filed by the appellant, it has been averred that the alleged marriage of Pundalik and Premlata had been solemnized at Vengurla somewhere in the year 1940. However, after the evidence of Narain Rivankar was recorded, the appellant realized that her whole story that Premlata had married Pundalik in 1940 would be found to be patently false because Premlata would have been in 1940 only 12 years old and she was attending the fourth or sixth standard in a school at Vengurla. Therefore, the appellant moved an application for amendment of the written statement to the effect that the as id marriage had taken place on 4th April, 1944. This specific date was, according to the learned counsel introduced in the written statement for the purpose of overcoming the hurdle put in the way of the appellant's story by the evidence of Narain Rivankar. This is specially relevant and material for the purpose of appreciating the evidence of the witnesses, who alleged to have attended the marriage of Pundalik and Premlata, in its proper perspective. Such witnesses are Sadguru Bhonsle, Laxman Vengurlekar, Narain Rivankar, Roghuvir Shirodkar and Gangabai Karekar. The learned counsel then submitted that though the witnesses Sadguru, Laxman and Narain have deposed in Court that they actually attended the wedding ceremony at Vengurla, the fact remains that there are material and substantial discrepancies in their evidence which show that the said witnesses had not deposed truthfully. In fact, Sadguru and Laxman stated that the wedding of Pundalik and Premlata was solemnized in the bungalow or house of one Dabolkar and that, at that relevant time, Dabolkar was not staying in the said house which was being used for celebration of marriages. However, Narain Rivankar stated that, at the relevant time of the said marriage, Dabolkar was living in the said house, Besides, Laxman stated that, after the marriage, Premlata and Pundalik stayed for one or two days in the house of one Bhonsle who is not the witness Sadguru, but is related to him. After that, Premlata and Pundalik, according to the said witness, came to the house of the parents of Premlata, where they stayed for two days before returning to Goa. In his turn, Narain Rivankar stated that after the marriage, Pundalik and Premlata, stayed in the house of Bhonsle for two or three days. Then, they stayed for one day in the residence of Premlata's parents and then, returned to Calangute. Gangabai, the mother of Premlata, however stated that after the marriage, Pundalik and Premlata were lodged in the house of one Bhonsle at Vengurla and that on the day after the marriage, Pundalik and Premlata were called to Gangabai house for Panchpartavan. Thereafter, they went back to the house of Bhonsle and returned to Goa from that place. The learned counsel contended that it is commonly known, that among the Hindu community, a married couple does not return to the house of the bride's parents after the marriage, but they go to stay at the residence of the husband. It is true, the learned counsel further contended, that such married couple after the marriage visits the parental house of the bride, but that is for the limited purpose of celebrating some religious ceremonies to give blessings to the newly wed. In the present case, the evidence of the said witness is contrary to this custom of the Hindu community and this goes to show that the said witness had not deposed the truth. He further submitted that the inference that the appellant wishes to draw from the fact that Premlata was being considered as the lawful wife Pundalik is not sustainable, for the provisions of the Evidence Act relied upon for the effect are not applicable.

7. It will be necessary in view of the above rival contentions to turn to the relevant evidence. First of all, I should say that the submission of Mr. Reis that the appellant did not bring any kind of evidence in order to establish that Premlata was not married to Pundalik is entirely correct. It is also to be pointed out that the whole tenor of the cross-examination of the appellant done by the respondent is not that there was no religious marriage celebrated at Vengurla between Pundalik and Premlata, but that such marriage is not valid. It is true that a suggestion was made that no such marriage took place, but a careful scrutiny of the cross-examination clearly shows that the stand was that the marriage was not at all valid. Be it as it may, k however, the evidence adduced by the appellant in the respect could not have been disbelieved and discarded by the learned Judge in the manner he did. It is to be noted that the whole approach of the learned trial Judge is erroneous, for he appears to have been impressed by the fact that an amendment to the written statement has been moved for the purpose of bringing on record that he marriage had taken place not somewhere in the year 1940, but on 4th April, 1944. This fact adversely impressed the mind of the learned Judge because he thought that this amendment has been introduced in order to circumvent something that has come in the evidence showing that the wedding has taken place in month of April of 1944. But, in my view, the learned Judge had no sufficient reasons to think that the said amendment had been introduced in the written statement for the aforesaid purpose. In fact, if that was the reason for the amendment of the written statement, if at all the appellant had approached the Court with a false case and false witnesses, it would have been very easy for her to tutor the witnesses and to cause them to give some evidence which was tallying with the averments in the written statement, or at least, an evidence which was slightly vague in respect of the date of the said marriage was introduced by way of amendment, in my view, instead of showing intention to bring the correct and precise facts in respect of the marriage of Pundalik and Premlata. It is true that the learned counsel contended that the said amendment was necessitated by the statement made by Narain Rivankar in the course of his evidence in Court that he attended the said wedding and the same was celebrated in April, 1944. The learned counsel further contended that the appellant realized that the respondent had already obtained reliable evidence that no marriage had been celebrated, and specially she realized the damaging effect of the school leaving certificate regarding Premlata. the said school leaving certificate was indeed showing on one hand, that Premlata was 12 years old in 1940 and on the other, the name shown was where maiden name. This argument is at first glance attractive, but it does not stand scrutiny on a deeper consideration. I say so because the evidence of the school leaving certificate would not have been so damaging, for the same certificate was not proving that Premlata has not left the school in the middle of the year to get married. If this were the case, naturally, the school leaving certificate would show her maiden name. secondly, we have to bear in mind that, even today, in our country, child marriages take palace and, therefore, the tender age of Premlata in 1940 could not have been such a serious infirmity as to show that the story of her marriage was false. Thus, if in spite of this, an amendment was sought, it does appear that it was realized that there was a genuine mistake and the same was to be corrected. In addition, it is also to be pointed out that the said amendment application was not at all opposed by the respondent and this would go to show that the submissions made on behalf of the respondent are merely for the purpose of taking advantage of some discrepancy that crept in the evidence.

8. The learned Judge, in addition to the effects of the said amendment in the evidence, sought to disbelieve the witnesses on the basis of some small things that he recorded in respect of the demeanour of those witnesses in the course of their evidence. The comments about the demeanour of the witnesses do not however disclose any serious bias or infirmity in the evidence of the said witnesses, being relevant to not that though all the said witnesses were thoroughly cross-examined, no question was put to them as regards their bias in favour of the appellant or their prejudice against the respondent. What was sought to be brought on record are small discrepancies which instead of vitiating their evidence, contribute to strengthen it. In fact, it is well-known that, with the lapse of time, details are forgotten and mistakes in respect thereof are made. Hence, if after many years some witnesses give an account of an incident with all the details in such a manner that their statements appear to be carbon copies, then, an element of doubt about the veracity and the truth of their evidence creeps in. the alleged contradictions existing in the evidence of the said witnesses which were pointed out by Mr. Usgaokar are minor discrepancies, which in no manner whatsoever vitiate their evidence. I may say that a careful analysis of the evidence of the witnesses Sadguru, Laxman, Narain and Roghuvir shows that the version given by them is substantially the same. Corroboration of the said version is found also in the evidence of Gangabai Karekar and premlata herself. This version is that the wedding was solemnized somewhere in the month of April, at noon time, in the house or bungalow of one Dabolkar. the said marriage ceremony was celebrated with all the Hindu religious rites, particularly by exchange of garlands and by walking around the fire, i.e. by doing the 'saptpadi'. Further, in all of the versions, it has become clear that, after the wedding, Pundalik and Premlata stayed for two days in the house of one Bhonsle, they went to the house of the parents of Premlata from where they went back to the house of Bhonsle and ultimately, returned to Goa. the submission made by Mr. Usgaokar that this is against the customs of the Hindu community does not appear to be correct, for one has to bear in mind that Pundalik was a resident of Goa and had gone to Vengurla in order to get married the second time while the first marriage with Satyawati was not dissolved. this shows that Pundalik could not have gone to his own house immediately after the marriage. None-the-less, and in accordance with the said alleged Hindu custom, Pundalik and Premlata did not go to the house of Premlata's parents immediately after the marriage because they on the contrary, went and stayed for two days at the residence of Bhonsle. then, they went to the house of Premlata's parents and some religious ceremony was celebrated. In the particular circumstances of the case where Pundalik had no house of his own at Vengurla, the fact that he might have stayed in the house of his in-laws for one or two days is of no consequence and is not a fact that vitiates the evidence of the witnesses. In this context of the facts and circumstances, I am unable to accept the findings of the learned Judge that the said evidence was to be straight was discarded. On the contrary, in my view, the said evidence is absolutely reliable and it conclusively establishes that the marriage of Premlata and Pundalik was solemnized under the Hindu religious rites somewhere in April 1944 at Vengurla.

9. This finding gets additional corroboration from the evidence of Premlata herself, Satyawati and Roghuvir Shirodkar as well as in the circumstance that after the said marriage, Pundalik and Premlata returned to Calangute and began to live in company of Satyawati in the same house, peacefully and in a friendly way. They were considered and treated as lawfully wedded not only by their relatives, but also by the people in general, as can be seen also from the documentary evidence consisting of the electoral roll, ration cards and even marriage certificates. Mr. Usgaokar however, contended that this fact in no manner helps the appellant, for it would have been relevant only if there existed a valid marriage. I am afraid that this is not so, for the conduct of Satyawati and the other members of Pundalik's family and of the people in general is most relevant and material. We should bear in mind in this connection that it is an admitted fact that even under the law prevailing in this territory of Goa, Daman and Diu, a Hindu can get married for the second time while his first marriage is still not dissolved, provided of course some legal conditions are satisfied. This goes to show that among the Hindu community, a second marriage in Particular set of circumstances is acceptable and does not hurt their conscience. Such marriage does not cast any stigma on the second wife. Besides, it has come in the evidence of Satyawati, that is the first wife of Pundalik, that she consented to the second marriage of her husband Pundalik with Premlata because she had not borne any children. This statement of Satyawati is also corroborated by her brother Roghuvir Shirodkar who specifically said that the second marriage of Pundalik took place with the consent of Satyawati because she had no children. He also stated that he attended the wedding of Pundalik with Premlata. In the circumstances, therefore, the evidence, therefore, the evidence adduced by the appellant to prove that the marriage of Pundalik and Premlata had taken place at Vengurla under the Hindu religious rites is conclusive.

10. Apart from the aforesaid evidence which, as I already stated conclusively proves that pundalik had married Premlata under the Hindu religious rites at Vengurla, it is relevant also to note that in the particular set of circumstances of this case where after the said wedding which took place in the year 1944, Pundalik and Premlata had been living together and openly as husband and wife and were being treated as such by all the relatives, friends and people in general, a presumption of being lawfully married arises under S. 114 of the Evidence Act, which provides that the Court may presume the existence of any fact which it thinks likely to have happened, having regard to the common course of natural events, human conduct and public and private business in relation to the facts of a particular case. In this respect, it may be quoted with advantages what is written in 'An Introduction To Evidence' by G. D. Notes, 4th Edition p. 71. The learned commentator has observed that wedlock may be proved by various means which include evidence of the celebration of a marriage, or of cohabitation, or of reputation, or of a combination of these circumstances. Similarly, it may be also advantageous to make a reference to 'Sarkar On Evidence', 13th Edition, P. 1068. Sarkar observes that the law presumes in favour of marriage and against concubine age. Continuous cohabitation for a number of years may raise the presumption and such presumption can be repelled only by strong and conclusive evidence of marriage which took place many years before being unsatisfactory, would not displace the said presumption. In fact, there is a general presumption of marriage from cohabitation with habit and repute. in the present case, as I already stated, Pundalik and Premlata had been cohabiting since 1944 and they were being treated as lawfully wedded by all their relatives, friends and by the people in general. Their issues had been considered also by their relatives, friends and the public in general as legitimate issues. Therefore, this is a case where there is a combination of a fact establishes a presumption that Pundalik and Premlata were actually wedded. Mr. Reis had relied on the decision of the Supreme Court in 'Badri Prasad v. Dy. Director of Consolidation' : [1979]1SCR1 in support of this view. That was a case where for about 50 years a man and a woman had lived together, but they had been unable to prove that they had been married. The Supreme Court observed that an adventurist challenge to the factum of marriage between the two persons had been negatived and rightly by the High Court, for a strong presumption arose in favour of the wedlock where the partners had lived together for a long spell as husband and wife. the Court further observed that such presumption is undoubtedly rebuttable, but a heavy burden lay on the person who wished to rebut such presumption in order to deprive that relationship of its legal origin. In my view, that above observations of the Supreme Court squarely apply to the case before me and therefore, an additional circumstance exists, i.e. a legal presumption to corroborate that Pundalik and Premlata were lawfully wedded.

11. This brings me to the next question, namely what are the effects of the said marriage in respect of the issues which were born to Premlata and Pundalik. Addressing himself to this problem, the learned trial Judge held the view that if at all the said marriage between Premlata and Pundalik took place, nevertheless, considering the relevant law prevailing in the territory of Goa, daman and Diu at the relevant time, the said marriage would be invalid but even in that event, the issues of Premlata and Pundalik would be legitimate. I do not find any infirmity in this finding of the learned trial judge, except that, in my view, the learned Judge ought to have recorded, in the light of the evidence discussed above, a specific and positive fingering to the effect that Pundalik and Premlata had married on 4th April, 1944 at Vengurla under the Hindu religious rites. I say so because bearing in mind the relevant law in force in this territory of Goa, Daman and Diu and the circumstance that admittedly Pundalik was at that time a native of Goa and a Portugues citizen, his personal law was the law of the Portuguese citizens and his competence to get married was regulated by the said personal law. Now, the Decree No. 1of 25th Dec. 1910 which regulates the civil marriages in this territory of Goa, Daman and Diu lays down in its Art, 4 what are the legal impediments for a person to get married. One of the bars is that those who are bound by an earlier marriage which is not dissolved cannot get married again. this provision of law has, however, to be read together with the provision of Art. 3 of the Law of Usage's and Customs of the Hindus of Goa, Daman and Diu. Art. 3 of the said law provides that a polygamous simultaneous marriage celebrated by a male Hindu will not have any legal effects except when there are no issues at all from the earlier marriage and the wife had reached the age of 25 years, or when there is no male issue at all and the wife of the first marriage has completed 30 years of age, or being less than 30 years, 10 years had lapsed over the last pregnancy. Then, Art. 4 provides that the judicial justification of any of the above exceptions and the consent of the first wife expressed in a public deed are the essential conditions for the solemnization of a simultaneous polygamous marriage. In the present case, admittedly, there was no judicial justification of any of the above exceptions in Art, 3, nor consent of Satyawati or Sokubai i.e. the first wife, has been proved by exhibiting the public deed therefor. Thus, it is quite clear that the legal conditions as required by the law in force in this territory were not satisfied for the simultaneous polygamous marriage of Pundalik. It is no doubt true that the second marriage of Pundalik with Premlata took place on 4th April, 1944, at Vengurla and that, at that time, there was no legal bar in the territory of India under British rule for such polygamous simultaneous marriage. In fact, the Anti-Bigamy Marriage Act 1946 came into force only in 1946. This being so, manifestly, the marriage of Pundalik with Premlata solemnized under the Hindu religious rites was entirely lawful and valid in the whole of India except in the territory of goa, Daman and Diu, which was at the relevant time under the Portuguese rule and where the law was entirely different. But this fact in no manner helps the appellant in order to establish that the marriage of her father Pundalik and her mother Premlata was lawful and valid within the territory of Goa, Daman and Dir. I say so because, admittedly, Pundalik was a Portuguese citizen and, therefore, the personal law applicable to him was the law in force in this territory. Thus, even though the marriage celebrated at Vengurla was valid under the British law, the fact remains that the principle of locus refit factum was not in any way helping the respondent, for intrinsically the marriage of Pundalik would be invalid in the territory of Goa, Daman and Diu because he was not competent to marry again by virtue of the provision of Art. 4(6) of the Decree No. 1 of 1910 and by his omission to satisfy the requirements of Art. 4 of the Code of Usage's and Customs, though it is common ground that, in fact, Satyawati had no issue at all and therefore, it would have been permissible for Pundalik to get married again if he had followed the legal formalities as laid down in the said Art. 4 of the Code of Usages and Customs. the learned Judge, as I already stated, held the view that even if the marriage had been celebrated at Vengurla, the same would be invalid in this territory. this finding is, for the reasons advanced above, quite correct, as correct is the finding that in case the marriage has been celebrated, the issues born from the said marriage would be for all legal purposes legitimate. This follows as a necessary consequence of the provision of Art. 31 of the said Decree No. 1 of 1910. In fact, it is laid down therein that the issues of a marriage that is void or voidable will be legitimate even if they were born before the marriage and even if the said marriage was not celebrated in good faith by any of the spouses or by both of them. In the present case, the evidence on record, namely the evidence of gangabai, goes to show that the second marriage of Pundalik to Premlata was solemnized after advice was given to Gangabai that the same would be lawful under the law prevailing, at the relevant time, at Vengurla. If this is so, it become apparent that at least Premlata was in good faith when she married Pundalik. Art. 30 of Decree No. 1 of 1910 provides that when a marriage void or voidable had been solemnized in good faith, the same would have all the civil effects in relation to the spouses and if only one of the spouses was in good faith, the marriage would have civil effects in respect of that spouse only. Then, Art. 31 postulates that, in any event, the issues born of such a void or voidable marriage will be always legitimate even if they were born before the marriage and even if the marriage had not been celebrated in good faith by either of the spouses or by both. In other words, in whatever circumstances, the issues legitimate. Mr. Usgaokar however, contended that it is not so, for, according to him, the provision of Art. 31 of Decree No. 1 of 1910 is attracted only when a marriage is actually solemnized and it is found later on to be void or voidable. In the present case, according to the learned course, no marriage between Pundalik and Premlata was solemnized and as suc, Art , 31 does not come in to operation. I am afraid that this view of the learned counsel is not well-founded. I say so because the evidence on record clearly and unmistakably established that a religious marriage ceremony took place under the Hindu religious rites and Pundalik and Premlata were thereby y united by the bonds of marriage. the fact that such marriage was not considered valid under the law prevailing in the territory of Goa, Daman and diu makes no difference for the provision of Art. 31 of Decree No. 1 of 1910 being applicable. this is so because in the provision of Art. 31of the said Decree it is specifically prescribed that only the issues of the persons mentioned in Clauses 1 and 2 of Art. 4 are excluded from the provision of Art. 31. The said Clauses 1 and 2 of Art. 4 bar the marriage of persons who are related in direct line by the bond of blood or by the bonds of marriage and of the brothers and sisters and, therefore, it is obvious that the provision of Art. 31 is fully attracted, since the marriage of Pundalik and Premlata is not valid in the territory of Goa, Daman and Diu only on account of the provision of Clause 6 of Art. 4, which prescribes that those united by an earlier marriage which is not dissolved cannot marry again. It is thus clear that the learned trial Judge has correctly held that in case the marriage of Premlata and Pundalik took place, and I may say once again that the evidence so proves, the issues born to them are legitimate.

12. On this ground alone, it is obvious that the suit filed by the respondent for annulment of his marriage with the appellant had to be dismissed. In fact, he approached the Court with a case that he got married with the appellant on 30 the Dec., 1978, thinking that she was the legitimate daughter of Pundalik Govind Salkar and Premlata Salkar; that he came to know on inquiry made after the marriage that the appellant was the illegitimate daughter of the said Pundalik and Premlata and therefore, had he known that she was an illegitimate issue, he would not have married her. Now, the evidence on record clearly shows that the appellant has been born from the second marriage of Pundalik with Premlata and that though such marriage is void, nevertheless, by virtue of the provision of Art. 31 of Decree No. 1 of 1910, the appellant is a legitimate daughter of Pundalik and Premlata. Therefore, the very foundation of the respondent's suit has ceased to exist and consequently, the suit was bound to be dismissed. But apart from this aspect of the case, it is also noteworthy that the suit was also liable to be dismissed on other grounds. I already said that the respondent has approached the Court with a case that he came to know, after the marriage, that the appellant was an illegitimate issue of Pundalik and Premlata and that had he known this status of the appellant, he known this status of the appellant, he would not have got married to her. Therefore, the second foundation for the suit is that he gave the consent for the marriage on the basis of an error about the person, particularly, the status of the appellant. This being the position, it will be advantageous to recall that error in the consent constitutes a vice that affects the validity of a contract only when such error is essential and excusable, in the sense that had it not been for such error, the person would not have contracted. Mr. Usgaokar however, while conceding that the error should be essential, non-the-less, contended that there is no need for the error to be excusable. In this connection, he placed reliance on the observations made by Dr. Luiz Da Cunha Goncalves in 'Tratado de Direito Civil' vol. IV and Autonio de Arruda Ferrer Correia in 'Error Elnterpretacao Na Teoria Do Negocio Juridico'. He contended that the said jurists had expressly found that the traditional view that the error should be excusable is not acceptable and was not adopted by the Portuguese legislature. Mr. Usgaokar is not correct in the said view and I may say, first of all, that the aforesaid opinions of Dr. Cunha Goncalves and Dr. Ferrer Correia were advanced in respect of the error over the object of the contract and not over the person. secondly, the said opinion is not a dominant opinion of the Portuguese jurists and has not been accepted and followed by the Portuguese jurisprudence. On the contrary, the dominant view of the jurists as well as of the Courts has been that the error is relevant only when essential and excusable. I am fortified in this view by the opinion of Professor Innocence Galvao tales in 'Das Contraltos Em Geraldd' p. 64 onwards. In the said commentary, the learned Professor, while dealing with the error as a defect vitiating a contract and the consent, has expressed the view that there exist some strict conditions in order to make the error relevant. In the first instance, the error should be essential, in the sense that due to such error the person has manifested his will in a wrong direction. secondly, the error should be excusable i.e. should be an 'error excusabilis'. The learned Professor, while expressing his view, has made a reference to the opinion of Dr. Cunha Goncalves and whiled adopting the opposite view, has relied also on the opinion of Professor Beleza Dos Santos in 'A Simulacal' Vol. I, Cabral de Moncada in 'licoes De Direito Civil' Vol. II and Paulo Cunha in 'teoria Geraldd Da Relacao Juridicall (Factor Garantia)'. He also observed that the provision of Art. 695 of the Portuguese Civil Code gives expression to the said theory that the error should beexcusable. In fact, Art. 695 provides that no party can take recourse to the nullity resulting from the incompetence of the other party, nor he has contributed. It was observed that expression 'to which he has contributed' goes to show that the error should be excusable. This view expressed by the learned Professor is in respect of the contracts in general, but insofar as the contract of marriage, it is relevant to note that in addition to the general requirements that the error should be essential and excusable, it should be also of an objective nature. Commenting on this point, Dr. Guilherme Braga Da Cruz has observed in 'DirectorDe Familia' (Vol. I p. 69) that the essentially which is required is, however, an objective essentially and not merely subjective. In other words, it is not sufficient that the error should be considered essential in relation to the deceived spouse. It is not essential that the deceived spouse proves that his will would not have formed in the direction it had if he had knowledge of the error. What is necessary is an objective essentially, i.e. an essentially that the general conscience, the opinion of all the reasonable people with common sense, goes in the direction of considering such an error as the cause of determining the will. This view of the learned commentator is also the view of Professor Pires de Lima as well as of Professor A. Varela. it can be thus considered as well-settled that the error to be relevant to vitiate a contract should be in all the contracts essential and excusable and in a contract of marriage, should be, in addition of such an objective nature that in the general conscience, people feel that if such an error was known, the will would not have formed in the manner it did.

13. In the light of the aforesaid principles of law on the point, it will be necessary to see what is the evidence on record. The plaintiff/ respondent herein has approached the Court with the case that had he known that the appellant was an illegitimate issue, he would not have married her. However, he did not adduce any evidence in order to prove that this was the case. Then, the evidence on record clearly shows that the marriage of the appellant with the respondent was not a love affair and on the contrary, was an arranged marriage. it is the case of the appellant that the proposal came from the side of the respondent, whereas it is the case of the appellant that the proposal came from the side of the respondent, whereas it is the case of the respondent that it was the family of the appellant who made the proposal. Be it as it may, it is not however material to know whether the proposal has come from the side of the appellant or from the side of the respondent. In fact, what is relevant is that the marriage was an arranged marriage and consequent upon a proposal. If this is the case it was only natural for the appellant to make the necessary inquiries in order to satisfy himself about the status and qualities of the proposed bride. It has come in the evidence of the respondent himself that except for some questioning of the persons who approached him with the proposal, namely one Mhatme and one Daimodkar, he did not make any other investigation in respect of the appellant. He stated that since the said Mhatme and Daimodkar were his friends, he did not care to make any such investigation. The evidence further shows that a few days after the solemnization of the marriage, the respondent took the appellant to Bombay in his company and stayed with her in a hotel at Bombay, for a few days. It also seems that the marriage was consummated and further that after their return from Bombay, the appellant went back to her parental house and that the respondent was spending nights with her at Calangute in her parental house. The respondent alleged that, after sometime, he saw in the residence of the appellant two elderly ladies and on inquiries, he came to know that the appellant was an illegitimate issue. This fact clearly establishes that the respondent easily found out about the secondd marriage of Pundalik and at the same time, shows that it were his acts of omission that may have caused him to be in ignorance about the second marriage of Pundalik, if at all he was ignorant in respect of that. In the circumstances, therefore, it is rather difficult to hold the view that, if at all an error existed, such error is excusable. irrespective of this aspect of the case, it is to be noted that in the context of the facts and circumstances of the case, it is not possible to hold that the error, if it existed, was essential. I say so because it has been brought abundantly in the evidence that Satyawati has no issue for a long period of years; that this fact had caused Satyawati to consent for a second marriage of Pundalik; that after the marriage of Pundalik with Premlata, the newly wed came to reside at Calangute under the same roof with Satyawati; that they were living together in peace and good harmony; and finally that nor only Premlata was being treated and considered by the relatives and fiends of Pundalik, but also by the people in general, as his lawful wife, but also her issues were equally considered and treated as legitimate by them. I already said that it is clear from the Code of Usages and Customs that among the Hindu community, in certain circumstances, polygamous simultaneous marriage is admissible and, therefore, in such circumstances, if a second marriage is solemnized, this fact does not hurt the conscience of the members of the said community. A marriage in such circumstances does not cast any stigma on the second wife, nor on the issues born from such marriage. The second wife and the issues are not lowered in the esteem of other members of the community and the second wife is treated as equal to the first wife. In these premises, applying the test of the objective essentially, the question that has to be answered is whether in such set of circumstances, the members of the Hindu community to which the appellant and the respondent belong would have found such an error as essential. In my view, the answer to this question could be only in the negative, for not only all the legal conditions were existing, though they were not proved by way of a public deed, but also actually a marriage was solemnized under the religious rites. It may be said that the appellant and her family had not informed the respondent that she was born of the second marriage and about the circumstances in which the second marriage of Pundalik took place. However, it may be pointed out that, as the French in their wisdom say, 'en marriage on trompedd qui peut'. Thus, the fact that apparently the family of the appellant did not disclose that she was the daughter of the second marriage has no relevance and is of no consequence.

14. The learned trial Judge did not consider at all these aspects of the case and the relevant law on the question of error, for after having recorded a finding that the marriage of Premlata and pundalik at Vengurla had not taken place, observed that 'the plaintiff was certainly ignorant of the factum of non-solemnisation of the said marriage and there is nothing on record to show that he was aware of the fact that the defendant was illegitimate child', and that, therefore, the respondent had proved his case. Accordingly, he decreed the suit. He failed, however, to appreciate that not only the wedding of Premlata with Pundlik at Vengurla had been duly proved, but also that though the said marriage is not valid in the territory of Goa, Daman and Diu, the appellant is a legitimate issue, and as such, the very foundation of the suit having ceased to exist, the same was to be dismissed. So also, he did not appreciate that since the alleged error cannot be held, in any event, to be essential and excusable, on that count too the suit could not have been decreed.

15. The result is that this appeal succeeds and consequently the impugned judgment dt. 29th Sept. 1984 is hereby set aside. Endorsements, if any, made in respect of the annulment of the marriage of the appellant and the respondent in the Civil Registration Office are to be cancelled. Costs by the respondent.

16. The learned counsel appearing for the respondent stated that the gold ornaments which are the subject-matter of the suit had been deposited in the Court of the Civil Judge, Senior Division, Mapusa. He prays that an order be passed directing the same to continue in the custody of the court for a period of 30 days. Mr. Reis, the learned counsel for the appellant, has no objection. Accordingly, it is ordered that the gold ornaments which are in the custody of the Civil Judge, Senior Division, Mapusa, should not be handed over to the person who deposited them for a period of thirty days.

17. Appeal allowed.


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