1. This appeal arises out of suit No. 680 of 1930, which was instituted by Deo Narain under the guardianship of his father, Raja Ram. The suit was for a declaration that Mt. Ram Dulari was the plaintiff's wife. He impleaded as defendants Mt. Ram Dulari herself and also one Ram Narain under the guardianship of his father Bisheshar, Bisheshar himself, Mt. Ram Dulari's grand mother, Mt. Sona and two other persons, by name Mahabir and Ram Khilawan. Another suit, suit No. 557 of 1930, had been instituted by Ram Narain under the guardianship of his father. The record of that suit and of the subsequent appeal is not before me, but I am informed that it was a suit for a declaration that Mt. Ram Dulari was the wife of Ram Narain and for an injunction against other defendants in the suit-who, I am told, were Mt. Sona, Deo Narain, Deo Narain's father Raja Ram, and Mahabir-to restrain them from interfering with Ram Narain's right to have restitution of his conjugal rights. The Munsif tried the two suits together and in a consolidated judgment he decreed Ram Narain's suit and dismissed the suit of Deo Narain. Deo Narain filed a separate appeal in respect of each suit and was successful.
2. The result was that Ram Narain's suit, suit No. 557 of 1930, was dismissed and Deo Narain's suit, suit No. 680 of 1930 was decreed. The learned Subordinate Judge in allowing Deo Narain's appeal in suit No. 680 of 1930 and decreeing this suit has not only granted him a declaration to the effect that Mt. Ram Dulari is his wife, but has also given him an injunction; but an examination of the plaint shows that no injunction was sought for. Ram Narain has appealed to this Court from the decree of the lower appellate Court in suit No. 680 of 1930 (Appeal No. 276 of 1931), but he has not appealed from the decree in suit No. 557 of 1930 (Appeal No. 272 of 1931) which has, therefore, become final. Mt. Ram Dulari and her grandmother, Mt. Sona, contested the suit in a joint written statement, and another written statement was filed on behalf of Ram Narain and his father Bisheshar. All the above four defendants denied the fact of marriage between Mt. Ram Dulari and Deo Narain, plaintiff. Mt. Ram Dulari and Mt. Sona, in para. 1 of their additional pleas stated that defendant 1, i.e., Mt. Ram Dulari, had not been married to the plaintiff or to anyone else. Ram Narain and his father stated as follows: 'Defendant 1 has not been married to the plaintiff. She is not his wedded wife in any case.'
3. Although Mt. Ram Dulari had denied her marriage with either Deo Narain or Ram Narain, she did not appeal from the decrees of the trial Court. She has how-over joined with Ram Narain as an appellant in this second appeal which is now before me. The learned Judge of the lower appellate Court has assumed that Mt. Ram Dulari was married either to Ram Narain or to Deo Narain. He states: 'The only point before me for determination is with whom was Ram Dulari married, whether Ram Narain or Deo Narain.' Then upon a consideration of the evidence of the witnesses who were examined for either party, and having regard to the circumstances and probabilities, he arrived at the conclusion that it was to Deo Narain and not to Ram Narain that Mt. Dulari had been married. Learned Counsel for the defendants-appellants pleads before me that the judgment of the lower appellate Court is vitiated by the fact that the learned Judge has recorded no finding as to whether the essential ceremonies of marriage were performed, i.e., the Saptapadi and the invocation before the sacred fire. On. behalf of the plaintiff-respondent, on the other hand, it is contended that once the factum of marriage is proved, there will be a presumption that such marriage was legally and validly performed, and since no evidence has been given to rebut that presumption, Mt. Ram Dulari must be held to be the lawful wife of Deo Narain on the principle of factum valet. The first authority to which learned Counsel for the plaintiff-respondent has referred me is that in Inderan Velungypooly Taver v. Ramaswamy Pandia Talaver (1869-70) 13 MIA 141. That was a case decided in 1869. It was a suit relating to a right of succession. to property and a question before the Court was whether one of the plaintiffs, was the wife or a concubine of the deceased owner and whether the other plaintiff was his legitimate son. At p. 158 their Lordships of the Privy Councils observed:
Then if there was a marriage in fact, was there a marriage in law? When once you get to this, viz., that there was a marriage in fact, there would be a presumption in favour of there-being a marriage in law.
4. In Brindabun Chandra Kurmokar v. Chundra Kurmokar (1886) 12 Cal 140, the plaintiff has sued for restitution of conjugal rights. At p. 142 we find the 'following observations of the learned Judges:.We are of opinion that it being found by the Sub-Judge that there was a marriage, that the mother made a gift of the bride, and that the nuptial rites were recited by the priest, he ought to have presumed, in the absence of anything to the contrary, that the marriage was good in law and that all the necessary ceremonies were performed.
5. The learned Judges relied on the case in Inderan Velungypooly Taver v. Ramaswamy Pandia Talaver (1869-70) 13 MIA 141 referred to above. In Fakirgauda v. Gang (l898) 22 Bom 277, a question before the High Court at Bombay was whether a marriage between members of different sects of the Lingayet caste was or was not legal. The plaintiff had sued for the possession of his wife and the defence was that there could be no lawful marriage between them. The factum of marriage was admitted and at p. 279 the learned Judges said:
It has been contended in this Court that the fact of marriage having been admitted, it must be presumed to be valid, and that it was for defendant to prove that the marriage was invalid. We are of opinion that both these contentions are correct.
In Mahantawa v. Gangwa (1909) 33 Bom 693, the plaintiff had sued to recover certain property on the allegation that she had the right of inheritance. A question before the Court was whether a marriage between a man of the Panchal caste and a woman of the Kurbar caste was valid. The Court upheld the validity of the marriage and at p. 697 it observed:
It has been held by the Judicial Committee in Inderan Velungypooly Taver v. Ramaswamy Pandia Talaver (1869-70) 13 MIA 141, that when the factum of a marriage is proved, the presumption is that it is valid in law and in that case there was nothing illegal in the inter-marriage of members of different sub-divisions of a Shudra tribe. The onus would therefore appear to lie upon the party alleging the illegality by reason of immemorial custom to prove such prohibiting custom.
6. The next authority in order of time among those referred to by learned Counsel for the plaintiff-respondent is the case in Mouji Lal v. Chandrabati Kumari (1911) 38 Cal 700. That case was concerned with a grant of letters of administration, and one of the questions before their Lordships of the Privy Council was whether the respondent in that appeal was the legitimate child of the deceased owner. At p. 707 we find the following dictum:
The second ground of attack upon the marriage rested upon the allegation that the forms and ceremonies necessary to constitute a valid marriage had not been gone through on the occasion in question. On this point also the opinion of the learned Judges of the High Court was in favour of the marriage, and their Lordships think, rightly. To such matters of form and ceremony the established presumption in favour of marriage undoubtedly applies.
7. In Biswanath Das Ghose v. Shorashi Bala Dasi 1921 48 Cal 926, a certain person, whose father was a Kayastha, but whose wife, i.e. the mother of the plaintiff, was a Tanti, sued for a declaration that he was entitled to his father's property. The learned Judges, relying upon the case in Inderan Velungypooly Taver v. Ramaswamy Pandia Talaver (1869-70) 13 MIA 141, held that in view of the finding of the Court below that there had been a marriage in fact between the father and the mother of the plaintiff, there was a presumption that the marriage was valid and according to law and that the onus lay upon the defendants to displace that presumption. The last case which has been cited on behalf of the plaintiff-respondent is Bhai Gulab v. Jiwanlal Harilal 1922 46 Bom 871. A minor girl bad sued for a declaration that her marriage with the defendant was null and void by reason of the fact that she was a Sudra and the defendant was a Vaishya. It was found that the plaintiff was the illegitimate daughter of a Vaishya father by a Sudra mother. At p. 878, the learned Judges of the Bombay High Court, relying again upon the case in Inderan Velungypooly Taver v. Ramaswamy Pandia Talaver (1869-70) 13 MIA 141, held that where there is a marriage in fact, there is a presumption in favour of there being a marriage in law. The first case to which reference has been made on behalf of the defendants-appellants is Surjya Moni Dasi v. Kali Kanta Das (1901) 28 Cal 37. That was a suit for restitution of conjugal rights and it was held that when, in such a suit the validity of the marriage is disputed, it is not enough to find that the marriage took place, leaving it to be presumed that the rites and ceremonies necessary to constitute a legal marriage in the particular case were performed; the Court must find specifically what these rites and ceremonies are and whether they were performed. The learned Judges referred to the case in Inderan Velungypooly Taver v. Ramaswamy Pandia Talaver (1869-70) 13 MIA 141, but distinguished it on the ground that before their Lordships of the Privy Council a question of inheritance was involved. They then distinguished the case in Brindabun Chandra Kurmokar v. Chundra Kurmokar (1886) 12 Cal 140 to which case also reference has already been made in this judgment and they remarked that:
In that case however there appear to have been findings by both lower Courts with regard to the rites and ceremonies performed at the alleged marriage, and on those materials the Judges of this Court who heard the case were able to arrive at an independent opinion and at a finding reversing the findings of both lower Courts. In this case there are absolutely no materials to enable us to come to any finding on this point.
8. In considering the question of presumption the learned Judges at p. 50 observed as follows:
However much such a presumption may be taken as rightly arising in cases involving questions of inheritance so as to avoid illegitimacy, we cannot agree that in a case like the present it could have the effect which the learned pleader for the respondent would wish us to give it. In this case the validity and legality of the marriage is one of the essential points in issue, and we cannot hold that we are entitled to presume from the mere finding that the marriage was celebrated, that all the rites and ceremonies necessary to constitute a legal and valid marriage were performed. On this point the lower Courts should have come to a distinct finding.
9. The above case was followed by a learned Judge of the Rangoon High Court in Rampiyar v. Deva Ram 1923 1 Bang 129. The plaintiff had sued for restitution of conjugal rights and the defence was that there had never been a marriage or the pretence of a marriage. It was held that when, in a suit for restitution of conjugal rights, the validity of the marriage itself is disputed, the Court must find specifically what, according to the customs of the caste to which the parties belong, are the rites and ceremonies necessary to constitute a legal marriage and whether in the particular case they were performed. In Ram Haraksh v. Jagarnath 1932 53 All 815, the mother of a Brahman girl aged 9 had given her in marriage to a man between 25 and 30 years of age without obtaining the consent of the girl's paternal uncle to the marriage. The paternal uncle thereafter managed to obtain a certificate of guardianship and then secured possession of his minor niece by applying to the District Magistrate under Section 552, Criminal P.C. Thereafter the husband of the girl sued for a declaration that she was his wedded wife and also for a decree granting restitution of conjugal rights. The paternal uncle denied the fact of marriage and also pleaded unchastity on the part of the girl's mother. The trial Court found that the marriage had taken place and had been solemnised with due performance of the rites enjoineby the Shastras. It gave the plaintiff declaratory decree, while dismissing the claim for restitution of conjugal rights on the ground of immaturity of age. That decision was reversed by the lower appellate Court. It was held by Bench of this Court that, it not being alleged or proved that the marriage was performed by force or fraud, the doctrine of factum valet would apply and the marriage was valid. At p. 829, however, the learned Judges, in discussing the principle of factum valet, gave utterance to the following observation:
In order to attract the application of the doctrine of factum valet the essential conditions which must be present in the case are: (1) that the marriage was performed between two people belonging to the same caste or to certain recognized sub-divisions of the said caste; (2) that these two people did not stand to each other as relations within the prohibited degrees; and (3) that the marriage was performed with the essential ceremonies, including the final ceremony of the saptapadi.
10. When a suit is instituted for a declaration that a certain lady is the wife of the plaintiff, the declaration sought for is that she is his lawful wife. It seems to me, therefore, that when the factum of marriage and alternatively its validity are denied, as in the present case, it is the duty of the soidisart husband to prove not only that a marriage was performed, but that it was validly and legally performed. In a suit of this character, i.e., in a suit for a declaration that a certain person is the wife of the plaintiff, the validity and legality of the alleged marriage are of the very essence of the case. In the present suit, as I have already said, the fact of marriage was clearly denied, and defendants 6 and 7 further denied the legality of any marriage which might have taken place, for in para. 1 of their additional pleas they state: 'She is not his wedded wife in any case.' Since the Courts below did not think it incumbent upon them to consider the legality of the alleged marriage, it is necessary to remand the case to the lower appellate Court and obtain a finding on the point. I accordingly remand the case under Order 41, Rule 25, Civil P.C., to the lower appellate Court with a direction to try the following issue. 'Whether such ceremonies as are regarded as essential in the caste to which he parties belong were performed and whether the marriage was such as would be recognized as valid among members of this caste.'
11. The parties will be at liberty to adduce such further evidence as may be available to them on the above issue. The finding should be returned within two months. Thereafter the usual ten days will be allowed for objections.