1. This is an application by the wife against an order of the Sub Divisional Magistrate, Villupuram, who has refused to give maintenance to the petitioner herein on the ground that it has not been established that the petitioner and the respondent were married according to Hindu law.
The evidence clearly discloses that the petitioner and the respondent went to a temple called Tiruvamuthur Easwaran temple and there with the aid of a priest, some ceremonies like Vigneswara Pooja, Kalasa pooja and Mangalya pooja were performed and then the thali was tied round the neck of the petitioner by the respondent; marriage invitations were issued inviting relatives and friends to attend the above function in the temple and the marriage itself was performed in the above manner.
It is clear also from the evidence that some other ceremonies which are performed usually In marriages according to religious rites were not performed such as Homam, Patha Pooja, Ammi Mithithal and Sapthapathi. There is no evidence that under the custom of the community to which the petitioner and the respondent belong, it is not necessary to have Sapthapathi. I may add that the petitioner and the respondent had been living as husband and wife for about four years and then as a result of some quarrel they have separated.
2. On the above evidence the question is whether it can be said that the marriage between the petitioner and the respondent is a valid one. It is true that according to Shastraic rites as en-joined by Manu, an essential part of marriage among Hindus (the petitioner and the respondent are undoubtedly Hindus) is Sapthapathi, but in the community to which the petitioner and the respondent belong, the tying of thali is equally an essential thing. Though ceremonies like Vigneswara pooja, kalasa pooja and Mangalya pooja were performed and then the thali was tied, the fact that Sapthapathi was not done will not, in my opinion, render the marriage invalid.
There is no decision which says that merely because of omission to do the Sapthapathi, when another equally essential thing like tying the thali has been done, the marriage between the parties should be held invalid. If there is any case to which the doctrine of factum valet will apply it seems to so that this is a case in which such a doctrine will apply.
As pointed out by Rajamannar J. (as he then was) in Thirumalai Naicken v. Ethiraiammah : (1946)1MLJ438 :
In this state of the evidence I am forced to lest my conclusion not on a definite finding that it has been established before me that this form of marriage is valid, but rather on the general presumption which has to be drawn in favour of a valid marriage when the fact of celebration of some form of marriage is established and it has not been established before me by evidence on behalf of the plaintiff that that form is invalid.
3. In this case also there is no evidence that the form of marriage gone through between the parties is invalid. On the other hand, something more than some form of marriage is established and the general presumption in favour of a valid marriage has to be drawn. On the facts, therefore, I hold that the petitioner has been lawfully married to the respondent herein. The question is whether she is entitled to maintenance on account of the alleged neglect by the respondent. This question has not been gone into by the lower court.
4. I set aside the order of the lower court and direct the lower court to go into the question with regard to the neglect of the petitioner by the respondent, treating the petitioner as the wife of the respondent, and, if neglect is proved, to award maintenance according to law . With these observations the order of the lower court is set aside. The petition filed under Section 488 Cri. P. C. will be taken on file and disposed of according to law. The case will be tried by some Sub Divisional Magistrate other than the Sub Divisional Magistrate who heard and disposed of the case. The District Magistrate will effect the necessary transfer.