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K.J.P. David Vs. Nilamani Devi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 192 of 1957
Judge
Reported inAIR1960Ori164
ActsChristian Marriage Act, 1872 - Sections 5; Evidence Act
AppellantK.J.P. David
RespondentNilamani Devi
Advocates:A.B. Ray and ;S.C. Palit, Advs.
DispositionAppeal dismissed
Excerpt:
.....plaintiff had failed to discharge the onus that lay on him, and that the defendant was the legally married wife of the plaintiff having married her according to his own admission on 13-10-1948. he, however, disbelieved the case of the plaintiff that ext. against thisjudgment the plaintiff carried an appeal and the court of appeal below had also come to the same conclusion that the plaintiff has failed to discharge the onus that lay on him and accordingly he confirmed the judgment of the trial court. d) in which he clearly addressed the defendants as his wife and described himself as the husband of the defendant. thus, the plaintiff has signally failed to discharge the onus that lies on him and it is fairly clear from his admission coupled with the subsequent conduct of the parties,..........plaintiff was that the plaintiff had not married the defendant according to the provisions of the indian christian marriage act (act no. xv of 1872). hence the marriage is invalid and illegal.3. the defence was that the mother of the defendant was a legally married wife of shyamsundar mohanty and the defendant was the daughter of shyamsundar out of this wedlock. the defendant married the plaintiff on october 13, 1948 in accordance with the christian rites in the house of the defendant's mother in the town of berhampur. after the marriage the plaintiff gave a declaration in writing on a stamped paper acknowledging the defendant to be his legally married wife (vide ex. a). thereafter they went for their honey-moon and lived as husband and wife at several places such as puri, jatni etc......
Judgment:

G.C. Das, J.

1. This is an unsuccessful plaintiff's appeal against the concurrent judgment of both the Courts below. The plaintiff filed a suit for declaration that the defendant was not his legally married wife and that the maintenance order passed in M. S. No. 42 of 1951 is invalid. His case in the plaint was this -- that the mother of the defendant, Krishna Veni was brought to Berhampur by one Labanya Mohanty and was kept by his nephew Shyamsundar as his concubine. Krishna Veni according to the plaintiff, though did not embrace Christianity, married Shyamsundar who was a Christian and the defendant was a daughter out of this wedlock. The plaintiff used to visit the house of the defendant and her mother and developed intimacy with the former.

Later as pressed by the defendant and her elder sister and mother the plaintiff was compelled to write out a document in order to clothe the defendant with a legal status as per Ext. A declaring therein the defendant to be his legally married wife. Plaintiff left Berhampur for Sambalpur to join his duty. When he came back to Berhampur some months after and visited the defendant's house, he saw the defendant sitting by the side of a Punjabi gentleman in a compromising attitude. Thereafter the plaintiff cut off all connection with the defendant and refused to give any money to her.

Consequently the defendant filed a petition which was registered as M. C. No. 42 of 1951 in the Court of the Sub-divisional Magistrate, Berhampur, under Section 488 of the Cr. P. C. the petition was filed by the defendant in February, 1951 claiming maintenance on the ground that she was legally married wife of the plaintiff. The Sub-divisional Magistrate directed the plaintiff to pay maintenance to the defendant at the rate of Rs. 35 p.m. which was subsequently confirmed by this Court.

2. The sole contention of the plaintiff was that the plaintiff had not married the defendant according to the provisions of the Indian Christian Marriage Act (Act No. XV of 1872). Hence the marriage is invalid and illegal.

3. The defence was that the mother of the defendant was a legally married wife of Shyamsundar Mohanty and the defendant was the daughter of Shyamsundar out of this wedlock. The defendant married the plaintiff on October 13, 1948 in accordance with the Christian rites in the house of the defendant's mother in the town of Berhampur. After the marriage the plaintiff gave a declaration in writing on a stamped paper acknowledging the defendant to be his legally married wife (vide Ex. A). Thereafter they went for their honey-moon and lived as husband and wife at several places such as Puri, Jatni etc. The defendant had two children by the plaintiff who are unfortunately now dead. The plaintiff according to the defence fell into evil company at Khurda and began to ill-treat her necessitating the filing of a case for maintenance in the Court of the Sub-Divisional Magistrate who directed the plaintiff to pay maintenance at the rate of Rs. 35 p.m. This order was later confirmed by this Court.

4. The trial Judge on a consideration of the evidence on record came to the conclusion that the plaintiff had failed to discharge the onus that lay on him, and that the defendant was the legally married wife of the plaintiff having married her according to his own admission on 13-10-1948. He, however, disbelieved the case of the plaintiff that Ext. A was executed by him through fraud and coercion.

Accordingly he held that the marriage was in accordance with the Indian Christian Marriage Act and cannot be declared to be void. Against thisjudgment the plaintiff carried an appeal and the Court of appeal below had also come to the same conclusion that the plaintiff has failed to discharge the onus that lay on him and accordingly he confirmed the judgment of the trial Court. It is against this judgment that the appellant has filed the present second appeal.

5. It was contended at the Bar that the marriage of an Indian Christian can only be valid, if it is performed in accordance with the provisions of the Indian Christian Marriage Act, Section 4 of that Act provides for the solemnization of the marriage in accordance with the Act and lays down that every marriage between persons, one or both of whom is a Christian or Christians, shall be solemnized in, accordance with the provisions of the next following section, and any such marriage solemnized otherwise than in accordance with such provisions shall be void.

The next section, that is, Section 5 provides the persons by whom marriage may be solemnized; and it says that marriage may be solemnized in India (i) by person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister: (ii) by any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland, (iii) by any Minister of Religion licensed under this Act to solemnize marriages: (iv) by or in presence of, a Marriage Registrar appointed under this Act, and (v) by any person licensed under this Act to grant certificates of marriage between Indian Christians.

Thus, Section 5 lays down certain classes of persons who can solemnize marriage between Indian Christians, but the Act nowhere provides that the marriage amongst the Indian Christians can be proved only in the manner as stated in Section 5 of the Act. The Indian Evidence Act also does not lay down any special mode of proof of a Christian Marriage. Hence the admission by either of the spouses of the fact of marriage and the subsequent conduct of the couple in living as husband and wife are some o the recognized modes of proof of marriage. The plaintiff having filed a suit for declaration that his marriage with the defendant was invalid, doubtless, the onus lies on him to prove that the marriage was not solemnized by any of the authorised persons prescribed in Section 5 of the Act as stated above.

6. The evidence in this case is that the plaintiff admitted this marriage to be a valid marriage by his own admission in Ext. A. Exhibit A recites that the plaintiff married the daughter of late Shyamsundar Mohanty on 13-10-1948, after taking her consent and accepted her as his married wife and had executed the document out of his own tree will, Subsequently, in the year 1949, he wrote a letter from Boinagarh on May 2, 1949 (Ext. D) in which he clearly addressed the defendants as his wife and described himself as the husband of the defendant. Further, from Exts. C and D dated 16-7-1949, and 4-8-1949, respectively it is fairly clear that he referred to himself as the husband of the defendant. What is more, during the pendency of the suit, the plaintiff wrote a letter to the Civil Surgeon of Berhampur on the New Year's day of 1954, asking him to release the defendant from the training of a dai which she was undergoing in the Government Hospital there. In that letter he also undertook to refund all the stipends that the defendant had received during her training until then (vide Ext. E/2).

7. The plaintiff examined the Pastor of Berhampur as P. W. 1. According to the admission of the plaintiff in Ext. A the marriage took place on 13-10-1948. Thus, admittedly he was not the Pastor in 1948, in which year the. marriage took place. Doubtless P. W. 1 had proved the licenses, Exts. 1 and 2 authorising him to solemnize Christian marriages, but that is of no avail to the plaintiff. He has also not produced the register either for the year 1949 or for the year 1948. P. W. 2 admitted that one Debendra Naik was the Pastor prior to P. W. 1, that is, prior to November 1949. Admittedly this Debendra Naik was the Pastor in the year 1948. Although evidence is that he was at Cuttack and was alive the plaintiff did not examine him. It must be mentioned in this connection that the defendant had admitted in her cross-examination that neither she nor the plaintiff signed any marriage register at the time of their marriage.

It may not be necessary to sign the marriage register under the Indian Christian Marriage Act, if the marriage is held at the house of the defendant's another. There is no evidence on the side of the plaintiff that it was never signed even thereafter, nor has the register for the year 1948 been called for and produced at the trial. Thus, the plaintiff has signally failed to discharge the onus that lies on him and it is fairly clear from his admission coupled with the subsequent conduct of the parties, particularly of the plaintiff that the defendant was his legally married wife. Accordingly, there is no merit in this appeal and it is dismissed. But there would be no order for costs as the respondent did not appear in this Court.

8. The appeal is therefore dismissed withcosts.


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