Norris and Ghose, JJ.
1. This was a suit for restitution of conjugal rights, and the only question we have to determine is, whether the marriage set up by the plaintiff is valid according to Hindu law.
2. The Court of first instance dismissed the suit, being of opinion that there was no real marriage, and that it was not valid according to Hindu law.
3. The Sub-Judge in appeal has confirmed the decree of the Munsiff, though upon somewhat different grounds. He holds, as we understand his judgment, that the marriage was real, the gift of the bride was made by the mother, and the nuptial rites were recited by the priest, but he is, notwithstanding, of opinion that the marriage is not valid; first, because the Nandimukk or Bridhishradh was not performed at the house of the bride, and, second, because 'there is no evidence on the record to prove that the bride was made to walk seven steps.'
4. There was a further question raised in the lower Courts between the parties which was whether the marriage was valid, the girl having been given away by her mother without the consent of her uncle. But the Courts held that, although the uncle was the preferential guardian of the minor for the purpose of marriage, yet the mere fact of his consent having not been obtained would not invalidate the marriage, if it was otherwise legally contracted and performed.
5. We may dispose of this part of the case by stating that we agree with the lower Courts in the view adopted by them. There can be no doubt that the uncle of the girl had a right in preference to the mother, under the Hindu laws, to give the girl away in marriage, but the mother, the natural guardian, having given her away, and the marriage having not been procured by fraud or force, the doctrine of factum valet would apply, provided, of course, the marriage was performed with all the necessary ceremonies--a matter which we shall presently determine--Modhoosoodun Mookerjee v. Jadub Chunder Bonerjee 3 W.R. 194.
6. We now come to deal with the two grounds which have been relied upon by the Sub-Judge in holding that the marriage was not valid.
7. As regards the first of those two grounds, we may say that, although the Bridhishradh is invariably performed on the occasion of a marriage and such other occasions of rejoicing, with a view that the departed ancestors might partake in spirit of the rejoicing and render the ceremony auspicious by their blessing, it (the shradh) is not regarded by the Hindu laws such an essential ceremony, as the non-performance of it renders marriage invalid.
8. As regards the other ground, we are of opinion that it being found by the Sub-Judge that there was a marriage, that the mother made a gift of the bride, and that the nuptial rites were reoited by the priest, he ought to have presumed, in the absence of anything to the contrary, that the marriage was good in law, and that all the necessary ceremonies wore performed--Inderan Valengy Pooly Taver v. Rama Sawmy Pandia Talaver 13 Moore's I.A. 141 : 3 B.L.R. P.C. 1 and Taylor on Evidence Vol. I p. 176 fifth edition of 1868.
9. No doubt, as the lower Appellate Court observes, that the taking of seven steps by the bride is the most material of all the nuptial rites, for the marriage becomes complete and irrevocable on the completion of the seventh step. But we are of opinion that upon the facts found by the Sub-Judge, he ought to have presumed that the seven steps were taken and completed by the bride and that the marriage was a valid one.
10. We are, therefore, of opinion that there was a marriage as provided by Hindu law between the plaintiff and the minor Juggat Lakhi, and that the plaintiff is entitled to the restitution of conjugal rights as prayed for.
11. We accordingly direct that the decrees of both the lower Courts be set aside, and the appeal be decreed, but under the circumstances of the case we are of opinion that each party should bear his own costs in all the Courts.