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Bhonrilal Vs. Mst. Kaushaliya - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 188 of 1968
Judge
Reported inAIR1970Raj83; 1969()WLN55
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 39, Rule 2(2); Evidence Act, 1872 - Sections 50
AppellantBhonrilal
RespondentMst. Kaushaliya
Appellant Advocate C.L. Agarwal, Adv.
Respondent Advocate P.N. Dutt, Adv.
DispositionRevision application rejected
Cases Referred and Kashi Nath v. Bhagwan Das
Excerpt:
.....the petitioner informed her father that he would marry again and bad in fact arranged a second marriage with the daughter of bhonrilal of malarnadoongar. , panigrah-ana, homa, going round the fire and the saptapadi and there are certain rites like the seeing of the pole star and c......that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. the marriage may also be completed by the performance of ceremonies other than those referred to above where it is allowed by the custom of the caste to which the parties belong. it is pointed out that in the present case the non-petitioner did not set up any custom of the caste to show that any other ceremonies were considered sufficient as constituting the marriage and so it was essential to prove the aforesaid two ceremonies. it is further contended that in a case of the present nature where the question of liberty of a citizen is involved by his being detained in a civil prison, proof of marriage as is necessary, in criminal prosecution for offences under sections 494 and 497 of.....
Judgment:
ORDER

C.B. Bhargava, J.

1. The petitioner having been found guilty of disobedience of order of injunction restraining him from entering into second marriage, has been ordered to be detained in the civil prison for one month, by the Munsif, Gangapur City, by his order dated 24-3-1967. The said order has also been confirmed in appeal by the Senior Civil Judge, No. 1 Gangapur City.

2. Non-petitioner Mst. Kashaliya filed a suit against the petitioner with tbe allegation that she was bis legally wedded wife and had been living with him till four months before the filing of the suit. As tbe petitioner severely beat her, she came to her father's house. Thereupon the petitioner informed her father that he would marry again and bad in fact arranged a second marriage with the daughter of Bhonrilal of Malarnadoongar. She, therefore, prayed for the issue of a permanent injunction restraining tbe petitioner from marrying the daughter of Bhonrilal of Malarnadoongar or any other girl. On the application of the non-petitioner under Order 39, Rule 2, C. P. C. the petitioner was restrained from entering into second marriage till tbe final disposal of the suit. The order of injunction was passed by the court on 28th May, 1966 in the presence of the petitioner and was duly communicated to him.

On 2nd June, 1966, the non-petitioner submitted an application under Order 39, Rule 2(3) C. P. C. to take proceedings against tbe petitioner for disobedience of the order of injunction inasmuch as be had married Smt. Tofa daughter of Bhonrilal of Malarnadoongar on 29th May, 1966. Notice was issued to the petitioner and in reply he submitted that on account of the prohibitive order passed against him he gave up the idea of second marriage, but as the daughter of Bhonrilal of Malarnadoongar had already been anointed with oil, she was married to his younger brother Bimsingh and not with the petitioner. No objection about tbe legality of the marriage was taken in this reply.

The learned Munsif held an enquiry to find out whether Mst. Tofa daughter of Bhonrilal of Malarnadoongar was married to the petitioner or to his younger brother on 29th May, 1966. Both parties produced evidence in support of their rival contentions, and it is significant to note that neither the petitioner gave his own statement nor did heexamine Mst. Tofa as his witness. However, Rambilas who had conducted the marriage as a priest, was examined on his behalf. The learned Munsif on a careful scrutiny of the evidence produced by the parties arrived at the conclusion that Mst. Tofa was married to the petitioner and he had thus intentionally disobeyed the order of injunction issued against him on the previous day i. e., on 28th May, 1966.

On appeal by the petitioner the learned Senior Civil Judge concurring with the finding of the learned Munsif, dismissed the appeal. It is against this order that the present revision application has been filed and it has been contended on behalf of the petitioner that the Courts below worngly found the fact of marriage of the petitioner with Mst. Tofa proved without there being any evidence that the ceremonies essential for a valid marriage had been gone through. It is contended that two ceremonies essential to the validity of a marriage as noted by Mulla in his book 'Principles of Hindu Law', Thirteenth Edition are whether the marriage be in the Brahma form or the Asura form, namely-

(1) invocation before the sacred fire, and

(2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The marriage may also be completed by the performance of ceremonies other than those referred to above where it is allowed by the custom of the caste to which the parties belong. It is pointed out that in the present case the non-petitioner did not set up any custom of the caste to show that any other ceremonies were considered sufficient as constituting the marriage and so it was essential to prove the aforesaid two ceremonies.

It is further contended that in a case of the present nature where the question of liberty of a citizen is involved by his being detained in a Civil prison, proof of marriage as is necessary, in Criminal Prosecution for offences under Sections 494 and 497 of the Indian Penal Code is required. Reliance is placed on Bhaurao Shankar v. State of Maha-rashtra, AIR 1965 SC 1564, Kanwal Ram v. Himachal Pradesh Administration, AIR 1966 SC 614; Gopal v. The Emperor, AIR 1925 Rang 328; Ganga Patra v. Emperor, AIR 1928 Pat 481; Phankari v. The State, AIR 1965 J and K 105; The Empress v. Pitamber Singh, (1880) ILR 5 Cal 566; Empress of India v. Kallu, (1883) ILR 5 All 233 and Queen Empress v. Dal Singh, (1898) ILR 20 All 166 which relate to prosecutions under Sections, 494, 497 and 498 of the Indian Penal Code and on Rampiayar v. Deva Rama, AIR 1923 Rang 202; Surjyamoni Dasi v. Kali Kanta Das, (1901) ILR 28 Cal 37 which relate to suits for restitution of conjugal rights.

It is contended that in the present case there is no evidence of Saptapadi i.e., takingof seven steps by the petitioner and Mst. Tofa jointly before the sacred fire. The evidence led by the non-petitioner only shows that phera ceremony was performed and a priest was called for that purpose. This is however, not sufficient to constitute a valid marriage.

3. On the other hand learned counsel for the non-petitioner urges that the question of the validity of marriage performed on 29th May, 1966 in the house of Bhonrilal was never called in question by the petitioner in the courts below. Even in the revision petition this objection has not been taken and it is for the first time that this question has been raised during the course of arguments. It is urged that in the court below the controversy was confined to the fact whether Mst. Tofa was married to the petitioner or to his younger brother Bhimsingh. It is next urged that once the fact of marriage is established it shall be presumed that it was a valid marriage and all the ceremonies essential for constituting a valid marriage had been performed. Reliance is placed on Inderun Valungypooly Taver v. Ramasawmy Pandia Talaver, (1869-70) 13 Moo Ind App 141 ; Brindabun Chandra v. Chundra Kurmokar, (1886) ILR 12 Cal 140; Khushalchand Lal-chand v. Bai Mani, (1887) ILR 11 Bom 247; Bai Diwali v. Moti Karson, (1898) ILR 22 Bom 509; Mouji LaJ v. Chandrabati Ku-mari, (1911) ILR 38 Ca! 700 (PC); Sitabai Sadashiva v. Vithabai Namdeo, AIR 1959 Bom 508 and Kashi Nath v. Bhagwan Das, AIR 1947 PC 168.

It was also urged that in the present case there was evidence that a marriage party reached the house of the bride's father, a priest was called and phera ceremony took place. It is urged that Phera ceremony is tantamount to the taking of seven steps by the bride and the bridegroom jointly.

4. As to the last submission it may be pointed out that under the Hindu Law the ceremony called the 'Saprapacli' is the taking of seven steps by the bridegroom and the, bride jointly before the sacred fire and it is not to be confused with taking of seven rounds of the fire. The distinction in the two is borne out from the following description of the Samskara of marriage given by Kane in the History of Dharmasastra, Vol. 2 Pt. 1 at page 531:

'There are certain rites that are preliminary, there are then a few rites that are of the essence of the samskara viz., Panigrah-ana, homa, going round the fire and the saptapadi and there are certain rites like the seeing of the Pole Star and c. that are subsequent to the central rites. The essential rites are mentioned by all sutrakaras, but as to the preceding and subsequent rites there is a great divergence in the details. Even as regards the essential rites the sequence in which they take place differs. For example, the Asv. gr (1.7.7) describes going round thefire before saptapadi, while the Ap, gr. describes saptapadi (IV. 16) before the act of going round the fire (V. I).'

The learned authority then explains 'Agni-parinayana' as (the bride-groom going in front takes the bride round the fire and water jar). It is while doing this that he utters the words 'amohasmi', and 'Saptapadi (taking seven steps together). This is done to the north of the fire; there are seven small heaps of rice and the bridegroom makes the bride step on each of these seven with her right foot beginning from the west.

5. However, the important point to be considered is whether in the absence of proof of the ceremony of Saptapadi having been gone through the petitioner can be held liable for disobedience of the injunction issued against him, No doubt having regard not only to Section 50 of the Evidence Act, but to general principle that strict proof is required in all criminal cases it has been held that in all offences where marriage is an ingredient of the offence there must be proof that marriage had been celebrated strictly in accordance with the requirements of custom and law applicable to the parties. But no decision has been cited to show that the above principle should also be extended to contempt proceedings for disobeying the order of injunction.

Proviso to Section 50, Evidence Act is not applicable to contempt proceedings and the contemner is also not a person accused of any offence. I am, therefore, of the view that the decisions relied upon on behalf of the petitioner are not helpful to him in the present proceedings. The main concern of the court in proceedings under Order 39, Rule 2 (3) is to see how far the act done in disobedience of the order is in disregard to its authority. The two courts below found on evidence that the petitioner had acted in disobedience of the order of injunction and there is no room for interference by this Court in revision application.

6. Another reason why interference with the lower court's order is not called for is that the objection about the validity of marriage was not taken by the petitioner at any earlier stage. The petitioner in reply to the notice only denied his own marriage with Mst. Tofa and asserted that the marriage was performed with his younger brother Bhim-singh a fact which the courts below have found untrue. The petitioner cannot therefore, be allowed to turn round and question the validity of the marriage at this stage. There is no reason to suppose that the petitioner who was keen to enter into second marriage, as is clear from his reply, would have gone through it without due performance of ceremonies necessary for a valid marriage according to law or usage of his caste. If the objection about validity of marriage had been taken at the earliest stage in reply to the notice given by the court, the non-petitioner would have had the opportunity tomeet the objection and prove that all the ceremonies necessary to constitute a legal marriage had been performed, The proceed-ings under Order 39, Rule 2 (3) cannot be regarded as akin to a criminal prosecution where the prosecution is required to prove its case against the accused beyond all reasonable doubt.

7. The revision application has, therefore, no force and is hereby rejected. In the circumstances of the case I make no order as to costs.


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