N.N. Goswamy, J.
1. This appeal by the husband is directed against the judgment and decree dated January 30, 1982 passed by the learned Additional District Judge, Delhi, whereby his petition under Section 9 of the HinduMarriage Act for restitution of conjugal rights was dismissed on the ground that there was no valid marriage between the parties.
2. The appellant filed a petition under Section 9 of the Hindu Marriage Act against the respondent and also imp leaded her father as a co-respondent. It is alleged in the petition that the marriage between the parties was solemnised on 2-9-1979 at Delhi in accordance with the Hindu rites. The father of the respondent did not approve of this marriage being an inter-caste marriage and got falsely registered a case in Police Station BahdadurGarh against the appellant under Section 363 and 366 of the Indian Penal Code. It is alleged that the marriage was performed without any coercion or undue influence by Pandit Daya Ram Sharma of Darga Mandir, New Moti Nagar, New Delhi according to the complete Hindu rites and rituals. After the marriage, the parties cohabited as husband and wife at Delhi in the house of the appellant. When they came to know about the registration of the case, they surrendered themselves before the Chief Judicial Magistrate, Rohtak. The respondent who is a major, categorically stated before the Illaqa Magistrate on 11-9-1979 that she was legally wedded wife of the appellant and wanted to live with him, but as there was apprehension of breach of peace, she prayed that she may be sent to Nari Niketan, Delhi. However, the Illaqa Magistrate gave her custody to her father. The appellant and the members of his family have several times requested the father of the respondent to send her back to the appellant but he is adamant and is not willing to sent the respondent to the appellant. The father of the respondent is detaining her much against her wishes and is not allowing her to join the appellant.
3. The petition was contested by the respondent. Two written statements were filed, one by the respondent No. 1 and the orders respondent No. 2 as guardian and next friend of respondent No. 1. In the written statements, it is pleaded that no valid marriage was solemnised between the parties and that the appellant had no cause of action and the petition merits dismissal on that short ground. It is further pleaded that at the relevant time the respondent was minor as her date of birth is 4-10-1962 and the alleged marriage is of 2-9-1979. The factum of marriage has also been disputed and it has been pleaded that no marriage as alleged was ever performed between the parties and as such, the question of approval or disapproval did not arise. It is further pleaded that the parties never co-habited as husband and wife at Delhi and the statement to that effect is false and vague. According to the averments made in the written statement, the respondent was concealed at different places for illicit purposes with the aid of associates of the appellant.
4. In the replication filed by the appellant, the assertions in the written statements were denied and those in the petition were reiterated. It was further stated that the appellant had been acquitted in the criminal case under Section 363/366 of the Indian Penal Code.
5. On the pleadings of the parties, the learned trial Judge framed the following issues :--
'1. Whether there have a legal and valid marriage between the petitioner and the respondent ?
2. Whether the respondent has withdrawn from the Society of petitioner without just and sufficient cause
6. After examining the entire oral and documentary evidence on record, the learned trial Judge came to the conclusion that on the date of marriage, i.e., 2-9-1979, the respondent was minor and as such the marriage was invalid according to Section 5(iii) of the Hindu Marriage Act. He further held that the respondent was a willing party to the marriage and the necessary ceremonies for the performance of Hindu marriage have been gone into and as such on that court, the marriage was valid. However, for the reason that the respondent was minor on the date of marriage, he held that the marriage itself was illegal and invalid and as such the appellant was not entitled to the decree for restitution of conjugal rights.
7. The aforesaid judgment has been challenged by the appellant on the grounds, firstly, that the finding of the learned trial Judge regarding the age of the respondent is not sustainable and, secondly, in any case, even if the respondent was a minor on the date of the marriage, the marriage would not become void or voidable and as such was a valid marriage. The respondent has filed the cross-objections wherein the findings of the learned trial Judge on the factum of marriage have been challenged.
8. I have been taken through the pleadings and the entire evidence on record. The bindings of the learned trial Judge on the question of minority of the respondent and thus, the marriage being invalid cannot be sustained in view of the settled law on this point. Various High Courts have interpreted Section 5(iii) along with Sections 11 and 12 of the Hindu Marriage Act and have held that the mere fact that at the time of marriage one spouse was not of marriageable age would not make the marriage void or voidable. It is not necessary to refer to all those cases in view of the clear pronouncement of their Lordships of the Supreme Court in the case of Smt. Leela Gupta v. Laxmi Narain and others : : 3SCR922 . In this case, their Lordships were concerned with the validity of the marriage contracted in contravention of or in violation of the proviso to Section 15 of the Hindu Marriage Act. While taking into consideration the entire scheme of the Act, their Lordships had discussed Sections 5, 11, 12, 15 and 18 of the Act. Paragraph 4 of the said report can be usefully re-produced :--
'4. At the outset it would be advantageous to have a clear picture of the scheme of the Act. Section 5 prescribes the conditions for a valid Hindu marriage that may be solemnised after the commencement of the Act. They are six in number. Condition No. (1) ensures monogamy. Condition No. (ii) refers to the mental capacity of one or the other person contracting the marriage and prohibits an idiot or lunatic from contracting the marriage. Condition (iii) prescribes minimum age for the bride and the bridegroom for contracting marriage. This condition incidentally provides for consent of the bride and the bridegroom to the marriage as the law treats them mature at a certain age. Condition (iv) forbids marriage of parties within the degrees of prohibitedrelationship unless the custom or usage governing each of them permits of a marriage between the two. Condition No. (v) is similar with this difference that it prohibits marriage between two sapindas. Condition (vi) is a corollary to condition (iii) in that where the bride has not attained the minimum age as prescribed in condition (iii) the marriage will nonetheless be valid if the consent of her guardian has been obtained for the marriage. Section 6 specifies guardians in marriage who would be competent to give consent as envisaged by Section 5(vi). Section 11 is material. It provides that any marriage solemnised after the commencement of the Act shall be null and void and may on a petition presented by either party thereto be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5. Incidentally at this stage it may be noted that Section 11 does not render a marriage solemnised in violation of conditions (ii),(iii) and (iv) void, all of which prescribe personal incapacity for marriage. Section 12 provides that certain marriages shall be voidable and may be an dulled by a decree of nullity on any of the grounds mentioned in the section. Clause (b) of Subsection (i) inter alias provides that the marriage in contravention of condition specified in Clause (ii) of Section 5 will be voidable. Similarly, Sub-clause (e) provides that the consent of the petitioner or where consent of the guardian in marriage is required under Section 5 and such consent was obtained by force or fraud, the marriage shall be voidable. Section 13 provides for dissolution of marriage by divorce on any of the grounds mentioned in the section. Section 14 prohibits a petition for divorce being presented by any party to the marriage within a period of three years from the date of the marriage which period has been reduced to one year by Section 9 of the Marriage Laws (Amendment) Act, 1976. Then comes Section 15 as it stood at the relevant time, which is material for the purpose of this judgment and may be reproduced in extenso :--
'15. When a marriage has been dissolved by decree of divorce and either there is no right of appeal against the decree, or if there is such a right of appeal, the time, for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again : Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of the first instance'.
9. In view of the aforesaid pronouncement, the findings of the learned trial Judge to that effect cannot be sustained and the accordingly set aside.
10. Coming to the factum of marriage, the appellant examined himself as P.W. 1 and his three maternal uncles as P.W. 2, 3 and 4. The appellant, as P.W. 1, deposed that the marriage between the parties was performedaccording to Hindu religious rites, in Moti Nagar, Delhi. Pt. Daya Ram performed the rites. The marriage took place against the wishes of the parents of the respondent and thus none of the relations of the respondent took part in the ceremonies. According to him, the marriage had to be performed because the respondent had threatened that if the marriage was not performed she would commit suicide. It is stated that Pandit first lit the sacred fire and then made the parties to have seven rounds around the fire. Nawal Singh, P.W. 2, the maternal uncle of the appellant performed the Kanya Dan as he used to call the respondent as his neice. According to the appellant, Raj Singh, Nawal Singh, Mohender Singh and four or five other persons who were friends of his uncles were present at the ceremonies which were performed by the Pandit. He also proved the photographs Ex. P.W. 1/3 to P.W. 1/6 taken at the occasion of the marriage ceremony. In cross-examination, he denied the suggestion that he had taken the respondent with him by telling her that her father had been arrested by the police or that he had made her unconscious and took her by fraud in a taxi. He further stated that the entire marriage ceremony took about 4 or 5 hours in the temple. He denied the suggestion that Saptapathi was not performed. He admitted that the photographs produced by him were taken by a photographer. He denied the allegation that he was making an incorrect statement and had in fact kidnapped the respondent who was a minor at the relevant time.
11. P.W. 2, Shri Naval Singh, deposed that he was an uncle of the appellant. The parties were married on 2-9-1979 in accordance with the Arya Samaj Rites. The Saptapathi was taken around the fire. The Kanya Dan was done by Chokhraj. According to him, besides him, Chokhraj, Mohinder Singh, Shri Bhagwani, Shri Som Parkash and some people of basti were present. A number of local people were also present In cross- examination, he denied the suggestion that the marriage between the parties did not take place and he was making a false statement. According to him, the marriage ceremony took 5 to 6 hours. He has admitted that he did not try to find out the reasons for the absence of the parents of the respondent. He also did not find out from Chokhraj as to how he was performing the ceremony of Kanya Dan.
12. P.W. 3, Shri Chokh Raj deposed that the appellant was his Bhanja and he attended the marriage on 2-9-1979 at Moti Nagar. According to him, the marriage was performed in accordance with Sanatan Dharam Religious rites. The seven rounds were taken around the fire. The marriage ceremony was performed by a Pandit who was present outside the court room at the time he was being examined as a witness. He performed the Kanya Dan ceremony because he treated the respondent as his Bhanji. The respondent was not pressurised at the time of her marriage. He also stated that certain photographs were taken at the time of marriage. In cross-examination, he denied the suggestion that he did not attend the marriage and stated that he was called by letter by the appellant. According to him, the entire marriage ceremony took 2 to 3 hours. He knew the respondent as he used to visit Bahadurgarh where his sister was living.
13. P.W. 4, Mohinder Singh deposed that he knew the appellant, who was his Bhanja. He was married on 2-9-1979 according to Hindu rites in Moti Nagar. Seven steps were taken around the fire and mantras wererecited. Chokh Raj had done the Kanya Dan. Fire was lit at the time of Hawan. There was no pressure on the respondent at the time of marriage. Pandit who performed the marriage was present outside the court. In cross-examination, he denied the suggestion that he was making a false statement and he was only a fake witness and in fact, no ceremonies were ever performed. He stated that he did not know if any of the relations of the respondent were present at the time of the marriage ceremonies and he did not even inquire whether the respondent had parents. He was unable to tell the time of starting of the. marriage ceremonies or the time which it took. According to him, he could not say if the marriage ceremonies took 5 to 6 minutes or 5 to 6 hours. He was also unable to tell if the father of the appellant was present at the marriage ceremony. According to him, he was informed by Chokhraj, P.W. 3 on 1-9-1979 and he attended the marriage on 2-9-1979.
14. The only other witness is P.W. 5, Shri Maman Singh, the father of the appellant. His evidence is only hear-say, as according to him, he did not attend the marriage ceremonies. He stated that the parties lived in his house from 2-9-1979 to 6-9-1979 as husband and wife.
15. In rebuttal, the respondent examined herself as RW 1 and her father as RW 2. She deposed that she never married the appellant and she did not go with him of her free will. According to her, she was taken by the appellant by fraud on the plea that her father had been arrested. Thereafter she was taken to a temple where besides her; the appellant and his father, nobody else was present. The Pandit of the temple, however, was present. No sacred fire was lit and no 'kanya daan' was performed. They took two or three rounds and the photographs which the appellant had produced in evidence, were taken in a closed room of the house and not in the temple. She further stated that she was not willing to live with the appellant. In cross-examination, she stated that her date of birth was 4-10-1962 and she was a minor on the date of the alleged marriage. She also stated that she had got married to one Krishan Murari Verma on 21-11-1979. It was also stated that she had given birth to a child after her getting married to Krishan Murari Verma. The evidence of RW 2 is to the same effect.
16. I have given my careful consideration to the entire evidence on record and the arguments advanced by the learned counsel for the parties.
17. In Smt. Priya Bala Ghosh v. Saresh Chandra Ghosh A.I.R. 1971 Sc 1153, their lordships of the Supreme Court after discussing sections 7 and 17 of the Hindu Marriage Act quoted with approval the following passage from an earlier case :--
'The word 'solemnize' means in connection with a marriage, to celebrate the marriage with proper ceremonies and in due form ; according to the Shorter Oxford Dictionary. It follows, thereforee, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is, thereforee, essential for the purpose Section 17 of the Act that the marriage to which Section 494 I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certainceremonies with the intention that the parties to be taken to be married, will not make them ceremonies prescribed by law or approved by any established custom.'
18. In Kunta Devi v. Siri Ram Kalu Ram, , it was held by a learned Single Judge that when in 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. It was further held that where all that was said was that the marriage was performed according to vedic rites and there was no proof of any Kanyadan, Saptapadi or any hawan, having been performed, and the girl was of immature age unaccompanied by any of her relations though they were living, and she was not given in marriage by any guardian, and the whole affair was secretive it cannot be presumed that all the essential ceremonies for a valid marriage were performed. Proof of ceremonies of pan graham and Saptapadi is essential even amongst sudras.
19. In the present case, there are material contractions regarding the essential ceremonies. It is not the case of the appellant that they were governed by any customary rites and it is impliedly admitted that Saptpadi and kanyadan were essential ceremonies according to law applicable to the parties. According to the appellant, kanyadan was performed by Nawal Singh PW 2 while according to all other witnesses, the same was performed by Chokhraj PW3. The time taken in the marriage ceremonies is material difference in the statements of the parties so much so that according to one witness, the ceremonies took 5 to 6 hours while according to the other it took two or three hours and the third witness was unable to tell the time taken in the marriage ceremonies. There is yet another material discrepancy, the witnesses differed on the question whether the marriage was performed according to Sanatan Dharam or Arya Samaj rites. The photographs produced by the appellant show that they were taken in a room which had a bed with pillow and some other articles lying in that room. In view of this, it cannot be believed that the photographs were taken in the temple because obviously the temple will not have the bed with pillow etc. and other articles which can be sea in the photographs. None of the witnesses who are the maternal uncles of the appellant appear in any of the photographs although 14 such photographs have been placed on record. It is unimaginable that if they were present in the ceremonies they will not figure in any of the photographs. As stated by all the witnesses that there were many other persons present in the marriage witnesses but surprisingly non has been produced. The witnesses have admitted that when they were being examined Pandit Daya Ram who performed the marriage ceremonies was also available in the Court premises and was cited to be examined as witness. He was, however, given up at the last moment and was not examined. He would have been the only independent witness besides the photographer who allegedly took the photographs and has not been produced. There is hardly any Explanationn for not producing the Pandit and the photographer who could be said to be the independent witnesses to the ceremonies of marriage.
20. In a run away marriage, I am in respectful agreement with the observations of the learned Judge of the Punjab High Court reproduced above to the effect that there must be strict proof of ceremonies of the marriage in such a case. In the present case, that requirement is completely lacking. I am not willing to believe any of the three maternal uncles produced by the appellant regarding the ceremonies performed in the presence of the said witnesses. There is no other material before me to hold that the ceremonies in accordance with Section 7 of the Hindu Marriage Act were duly performed.
21. For the reasons recorded above, the cross-objections filed by the respondent are allowed and it is held that no valid marriage took place between the parties.
22. In the result, the appellant is not entitled to any relief and his petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights must fail on that ground. The appeal is thereforee, dismissed though reasons different than the one recorded by the learned trial Judge. In the circumstances, there will be no order as to costs.