Tek Chand, J.
1. This first appeal arises from the decision of the Sub-Judge Ist Class given on a petition made before him for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. The application was made by one Siri Ram , against Kunta Devi alias Kunti whom he claimed to be his wife.
2. The main facts of this case are that Kunta Devi is a young girl who was living at Ambala with her mother and brother, and her father is dead. She is Dhiman Brahman by caste. She had, according to the petitioner Siri Ram, become pregnant from him and they have been having a liaison for some time previously. She and the petitioner left Arnbala for Dina Nagar on 14th July, 1959, and a marriage between them was solemnised according to Vedic rites by a Pandit of the local Arya Samaj. After the solemnisation of the marriage a male child was born. The petition lacks details and is rather cryptic. The petitioner has prayed that a decree for restitution of conjugal rights be passed against the respondent.
3. From the facts on the record, it appears that on the disappearance of the girl information was lodged with the police that she had been abducted by Siri Ram. He was arrested at Dina Nagar by the police and prosecuted under Sections 366, 363 and 376, Indian Penal Code, and the Magistrate, Ambala, on 29th June, 1960, found him guilty and sentenced him to six month's rigorous imprisonment. Siri Ram then preferred an appeal before the Sessions Judge which was allowed and he was acquitted. The date of acquittal does not appear from the record of these proceedings. On 5th October, 1960, the present application under Section 9 of the Hindu Marriage Act was filed in the Court of Sub-Judge at Ambala.
4. The girl in her written statement has denied the allegations and has stated that the petitioner had abducted her from Ambala against her will and took her to Gurdaspur where 'he somehow or other managed to go through bogus and false proceedings in collaboration with Arya Samaj Workers'. She also alleged that undue pressure was put upon her for getting her statement to which she was not a willing party. The performance of marriage was not genuine and no relations of the parties were present. On her side she had her mother and a brother and other relatives and not one of them was present and no member of her bradari was there either. The whole thing was a made-up affair, deception was practised aod a faked and illegal course was adopted by the petitioner by bringing undue pressure on her.
It was also stated that no rites or ceremonies were undergone and she is not an Arya Samajist. She also stated that at the time of her abduction, she was pregnant from one Govardban with whom she is living and the child born of this connection is also living with Govardhan. She had been induced to leave her house on the false assurance that arrangements would be made for the delivery of the baby in order to save her from ignominy. She also stated that her mother and brother had lodged report with the police at Arnbala about this abduction and the police went to Simli in Gurdaspur district from where they rescued her and Siri Ram was prosecuted as stated above.
It was also urged that the Court at Ambala had no jurisdiction. The learned Sub-Judge framed the following issue : -
'Whether a marriage was solemnised between the parties on 20th August, 1959?'
5. The learned sub-judge found this issue in favour of Siri Ram and thought that there was no sufficieut reason for refusing the relief claimed by him and, therefore, a decree for restitution of conjugal rights against Kunta Devi was granted on nth November, 1961.
6. The appeal was filed in this Court on 4th May, 1962, that is, on the 174th day and the learned counsel for the respondent has raised a preliminary objection that the appeal is time-barred. From the perusal o the copy of the judgment and the decree, the date of application is shown as 24-1-1962/5-4-1962. This copy was made available to the appellant on i8th April 1962. If the days taken in obtaining the copy are excluded from 24th January, 1962, up to i8th April, 1962, then admittedly the appeal is within time. If, however, the date of making the application is considered as 5th April, 1962, and not 24th January 1962, then obviously the appeal is time-barred.
The contention of the learned counsel for the respondent is that date of application should be deemed to be 5th April, 1962. I am not inclined to accept this contention in the absence of any detailed proof on the record that no proper application was made for a copy on 24th January, 1962. There is no doubt that an application was made on 24th January, 1962, by the appellant and if there were any reasons to support the contention that the application was defective they have not been brought on the record. I will, therefore, hold that the present appeal was filed within limitation.
7-8. (His Lordship reviewed the evidence and proceeded : )
9-10. Mr. Gandhi, learned counsel for the appellant has contended that the circumstances preceding and accompanying the so-called performance of marriage are indicative of fraud and force having been practised upon Kunti. He maintained that she had in fact been abducted by Siri Ram and she left her home because she had become pregnant and the petitioner promised to help her by getting rid of her pregnancy. As a result of this assurance and her fear of exposure, he took advantage of her mental weakness and took her to Dina Nagar. The marriage was performed, according to the learned counsel, under extremely suspicious circumstances. There was at Dina Nagar no relation of her present despite the fact that she had mother, and a brother, and such a consent as is said to have been obtained even if that be so is not a genuine consent by a free agent. She was placed in circumstances under which she could not receive independent advice.
I find force in this contention. The readiness with which the office-bearers of the Arya Samaj offered their services must be deprecated. She was, whatever her exact age might be, a very young and impressionable girl and the office-bearers of the Arya Samaj ought not to have readily lent their services and performed marriage rites between two persons who had come to them under such suspicious circumstances unaccompanied with any relation. Such a practice cannot be censured in too strong terms. When the office-bearers of re-ligious institutions wittingly or unwittingly offer their services binding two persons in a matrimonial union without realising its full implications and without taking pains to find out under what circumstances the two persons have expressed a desire to be joined matrimonially, they abet vice. By readily lending their sacerdotal services at the behest of the office-bearers of the Arya Samaj, Pt. Dharam Pal and others really became participants in evil practices disruptive of morality and well being of society. Had they conducted themselves in a reasonable manner and had shown circumspection, the girl might have been saved the consequences of disgrace.
It is difficult for me to believe that Pt. Dha-ram Pal and Baldev Raj and the president of the Arya Samaj, if he was consulted, were so incurious and insouciant when they treated the request of Siri Ram to solemnise his marriage with Kunti with indifference and unconcern without their suspicion being roused as to the young girl being a pawn rather than a partner. Their own statements in the Court showed that they had sufficient reasons which should have made them suspect the statement of Siri Ram. Pt. Dharam Pal, according to his own statement, was told by Siri Ram that he had brought the girl from Ambala Cantonment after they were married in Court. If so, where was the necessity of Pt. Dharam Pal officiating at the marriage of already married persons particularly when they were unaccompanied by any relations? Neither he nor the other office-bearers of Arya Samaj thought it their duty to ascertain the antecedents of the girl or of her companion or tried to find out as to what was the hitch in their getting themselves married at Ambala. They never enquired as to the circumstances under which the so-called marriage was performed in the Court and what was the difficulty in not getting the marriage solemnised according to religious rites at Ambala.
11. Pt. Dharam Pa! A. W. 3 has not even taken trouble of stating what the Vcdic rites were and whether they had been observed on this occasion. It is well-known that according to Vedic rites there is a Kannya Dan. Obviously, there was no guardian of the girl present to do the Kannya Dan. Saptapadi is a very essential rite and neither Pt. Dharam Pal nor any other witness has deposed to this essential ceremony having been performed. There is no reference even to Homam. He has merely made a bald statement that the ceremony was performed according to Vedic rites. There is complete lack of proof to show what the ceremonies were and whether the basic and essential ceremonies had been performed with this case or not.
12. In paragraph 120 of Mayne On Hindu Law and Usage, nth Ed., it is stated that the Sastraic rites observed by the three regenerate castes, ordinarily observed by the fourth caste also, include the performance of the Homam, the Pani-grahana or taking hold of the bride's hand, and going, round the fire with Vedic mantras. On treading on the stone and the seven steps or Sapt-padi, the marriage becomes complete and irrevocable on the completion of the Saptapadi.
In this case Kunti had also denied circum-ambulation round the fire. My attention was also drawn by Mr. Gandhi to Aunjona Dasi v. Prahlad Chandra Ghose, 6 Beng LR 243. It was observed that a suit for a declaration that an alleged Hindu marriage is invalid is cognizable by Civil Courts, Norman, J., observed --
'Such a declaration may be of the greatest importance to a girl circumstanced as the infant plaintiff is. If the marriage is in fact no marriage unless she can obtain a declaration from a Court of Justice that the marriage is null and void, unless she can obtain the protection which such a Court can give her, she may be obliged to live with the defendant in a state of concubinage, or at best she will be prevented from marrying anyone else. The rights which a decree in this suit may protect, with which the defendant may be restrained from interfering, the preservation of the personal purity of the infant plaintiff, and her right and power to contract a valid marriage, are amongst the highest rights which a human being can possess; and it would be a matter deeply to be lamented if the Court had no power to protect and defend them. I have, however, no doubt of the existence of that power ..... I think that the Court must have jurisdiction in such suit to declare the marriage void if procured by fraud or force, and celebrated without the consent of the necessary parties, or without the formalities necessary to render it a binding marriage according to Hindu Law.'
13. It is no marriage in law where one of the parties was induced to enter into a matrimonial alliance under coercion, duress, fraud, evidencing want of free consent. A marriage procured by abduction, terror or coercion has no sanctity and is voidable at the election of the injured party. In this case, the marriage has not been ratified by voluntary cohabitation which might have neutralised the effect of early coercive and fraudulent acts.
14. A marriage procured through fraud is equally avoidable and is liable to annulment. Fraud perpetrated at, or before, the marriage, which has the characteristic of affecting the free consent of the injured party and calculated or intended to induce the marriage, is within the reach of the long arm of law and furnishes a good ground for annulment. Courts take into consideration, in any enquiry as to the existence of fraud, the capacity, the age and the mental condition of the party which is the victim of fraud, coercion etc.
This girl was not of mature years when she was lured to leave her parental roof by Siri Ram. In view of her pregnancy and immaturity, she was an easy dupe of dishonest respondent. The trickery practised in removing the girl from Ambala to Dina Nagar and in getting the marriage solemnised through the instrumentality of the office-bearers of the local Arya Samaj, who readily agreed to be the tools of the respondent, and the attendant circumstances, are subversive of consent freely given. Where a person is induced to go through a ceremony of marriage by threats or duress, it is invalid. In such cases, the test of validity of marriage lies in the real consent of the parties. The saving feature when a marriage induced by force or fraud may not be annulled, if the parties freely cohabit or continue to cohabit after the vitiating condition has ceased to operate, does not exist in this case as the police took into custody the respondent and who, on his release after his conviction was set aside in appeal, never cohabited with her.
According to Eversley on Domestic Relations, 5th Ed. p. 29, --
'The marriage contract is the most important a man can enter into, and public policy requires that it shall be honestly entered into; the law therefore interfers where from dishonest motives a marriage is fraudulently brought about, and one of the contracting parties gives but an unwilling assent. In the case of persons of tender age the Court will readily interfere to redress a wrong : but in the case of adults the fraud perpetrated must be in respect of the essentials and not mere accidentals of the marriage tie to entitle the defrauded party to set the marriage aside.'
15. My attention was drawn to Rampiayar v. Deva Ram, AIR 1923 Rang 202, where it was held that when in a suit for restitution of conjugal rights the validity of the marriage itself 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. A similar view was taken by a Division Bench of the Calcutta High Court in Surjamoni Dasi v. Kali Kanta Das, ILR 28 Cal 37. The Court observed-
'In this case the validity and legality of the marriage is one of the most 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 mairiage were performed. On this point, the lower Courts should have come to a distinct finding.'
The above observations apply with full vigour to the facts of this case.
16. Reliance was placed upon Deivanai Achi v. Chidambaram Chettiar, AIR 1954 Mad 657, for the proposition that the essential elements of a marriage according to Hindu law were Panigrahana and Saptpadi. It was also stated that ceremonies are essential in the case of all the eight forms of marriage and this rule applies even to Sudras.
17. Section 7 of the Hindu Marriage Act lays down that where such rites and ceremonies include the Saptapadi, the marriage becomes complete and binding when the seventh step is taken. There is no proof on the record of this case that the rite of Saptpadi, or as a matter of that, other essential rites, were performed, and I am not disposed to assume their performance from the bald statement of Pt. Dharam Pal that the marriage was according to Vedic rites.
18. Mr. Gandhi also argued that from the record of this case the girl should be presumed to be below eighteen years. In her cross-examination dated 27th October, 1961, she stated her age to be 20 years and. therefore, on 20th August, 1959, she should be below eighteen years. Unfortunately, no effort has been made by either side to find out her exact age if it is at all ascertainable. Mr. Wasu drew my attention to the copy of the entry in the register of the scribe who had drafted an affidavit for her on 22nd July 1959, in which there was a mention that she had given her age as 20 years. The actual affidavit is not forthcoming. It has not been proved and no. copy is on the record, and I cannot, fromthat alone, take it that she was above eighteen years when her marriage is stated to have been performed.
My attention was drawn to Section 5(vi) of the Hindu Marriage Act. One of the conditions to the solemnisation of a valid Hindu marriage is that where the bride has not completed the age of eighteen years, the consent of her guardian in marriage, if any must be obtained for the marriage. As already stated, the so-called solemnisation was an extremely secretive affair and although the girl has her mother and brother alive no effort was made to obtain the mother's consent. As a matter of fact, efforts were made to avoid the disclosure that the girl had been removed. As the girl, from her statement, appears to be below eighteen years on the date of the alleged solemnisation of the marriage, consent of her guardian in marriage was absolutely essential according to Section 5.
19. In Parbati Mukerjee v. SamrendraNath, AIR 1951 Punj 88, which was a case underthe Special Marriage Act, the requirements of thelaw were analogous. The Special Bench expressed the view that the marriage of a person whohas not attained the age of 21 years should beannuled if the consent of his or her father orguardian has not been obtained. Similar view hasbeen expressed in Basanta Sen v. Aghore NathSen, AIR 1929 Cal 631, and Santosh Kumari v.Chimanlal Munilal Kapur, AIR 1950 Bom 307.The last case was under the Special Marriage Act,1872, and it was stated that the doctrine of factumvalet had no application in that case as the provisions of the statute were mandatory. I am satisfied that the doctrine of factum valet has noplace in a case like the present. The applicability of the doctrine might have been consideredif, after the alleged solemnisation of the marriage,the parties had lived as husband and wife freelyfor some time. In this case, though the date,when the first information report was made, isnot known, but in all likelihood it must be priorto the date of solemnisation of the marriage asthe girl left her home on 14th July, 1959, andthe marriage was said to have been solemnisedon 20th August, 1959. Soon after 20th August,1959, the police arrested Siri Ram and also tookinto custody the girl. Siri Ram was convicted bythe Magistrate on 29th June. 1960, and later onhe was acquitted by the Sessions Judge. Thepresent application was filed by him on 5thOctober, 1960, Therefore, there is no questionof their living together as husband and wife andthe doctrine of factum valet has no scope onthese facts.
20. From what has been stated above, I am driven to the conclusion that the so-called solemnisation was a secret affair and the solemnisation was not in accordance with the essential Vedic rites. The girl's consent, in the circumstances of her pregnancy which she wanted to get rid of, and in the absence of her mother, brother and other relations, was not free from undue pressure which must have been brought upon her. The element of initial fraud and subsequent duress, sufficient to vitiate such a solemnisation, has been substantiated to my satisfaction.
This is also a case in which the consent of the guardian was absolutely necessary and which is not forthcoming.
21. For reasons discussed above, I am ofthe view that no valid marriage was performedbetween the parties and, therefore, Siri Ram isnot entitled to any relief under Section 9 of theHindu Marriage Act, The appeal succeeds andthe appellant will be entitled to her costs.