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Parbia Ram Vs. Smt. Thopli and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. First Appeal No. 45 of 1963
Judge
Reported inAIR1966HP20
ActsHindu Marriage Act, 1955 - Sections 7 and 9; ;Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 27
AppellantParbia Ram
RespondentSmt. Thopli and ors.
Appellant Advocate Ishwar Dass, Adv.
Respondent Advocate Hira Lal, Adv. for Nos. 1, 3 and 4
DispositionAppeal dismissed
Cases ReferredK. Venkataramiah v. A. Seetharama Reddy
Excerpt:
.....according to prevalent custom - further contended that she had been forcefully taken after 1 and half year of marriage by respondents no. 2 to 4 - petition dismissed by senior subordinate judge on ground that appellant failed to prove that respondent no. 1 was her legally wedded wife - appeal - in order to constitute a essential marriage essential ceremonies and rites pertaining to hindu marriage must be performed - evidence brought by appellant vague, discrepant and conflicting - presumption regarding validity of marriage cannot be raised when there direct evidence that essential ceremonies had been performed and marriage was valid in law - order of senior sub-ordinate judge upheld. - .....governing the parties. the learned counsel slated that the essential ceremony to constitute a valid marriage under custom, was the performance of arti of the bridegroom at the house of the bride. so, for proving that a valid marriage had been performed between him and respondent no. 1, it was incumbent on the appellant to establish that the essential ceremony of arti had been performed. the appellant miserably failed to establish that. there is absolutely no evidence on record, that the ceremony of arti was performed. on the other hand, chetru p. w. 2 and barfu p. w. 8 stated that no ceremonies, whatsoever, had been performed at the house of the bride. it follows that as the essential ceremony of arti of the bridegroom had not been performed, there could be no valid marriage between.....
Judgment:

Om Parkash, J.

1. This is an appeal, against an order of the learned Senior Subordinate Judge, Mandi.

2. The appellant had filed a petition, under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights, against respondent No. 1 and for the issue of a mandatory injunction against respondents Nos. 2 to 4. The allegations, in the petition, were that respondent No. 1 was the legally wedded wife of the appellant, that their marriage had been per formed under custom, prevalent in the brotherhood and the illaca, that respondent No. 1 had lived with the appellant for one and a half years after the marriage and that she had been taken away by respondents Nos. 2 to 4 on the 23rd May, 1952 to their house and had not been sent back, despite repeated requests.

3. The petition was contested, on behalf of the respondents, on various grounds. It is unnecessary to set forth all those grounds. The only ground, relevant for the decision of this appeal, was that respondent No. 1 had been never married to the appellant and was not his legally wedded wife and that the appellant had abducted respondent No. 1 who had lived with him for a rear or so.

4. The learned Senior Subordinate Judge held that the appellant had failed to prove that respondent No. 1 was his legally wedded wife. He, therefore, dismissed the petition of the appellant, who has come up in appeal. Sanga respondent No. 2 died during the pendency of the appeal. As relief claimed against him was personal and the right to appeal had not survived against the legal representatives, the name of Sanga was struck off the record.

5. The learned counsel for the appellant contended that the learned Senior Subordinate Judge was in error in holding that the appellant had failed to prove that respondent No. 1 was the legally wedded wife of the appellant. This contention is without any force. The case of the appellant, as set forth in his petition, under Section 9 of the Hindu Marriage Act. was that he had married respondent No t in the customary form of marriage. The particulars of the customs were not stated in the petition The statement of the learned counsel for the appellant was recorded, with respect to the essential ingredients of the custom of marriage, governing the parties. The learned counsel slated that the essential ceremony to constitute a valid marriage under custom, was the performance of Arti of the bridegroom at the house of the bride. So, for proving that a valid marriage had been performed between him and respondent No. 1, it was incumbent on the appellant to establish that the essential ceremony of Arti had been performed. The appellant miserably failed to establish that. There is absolutely no evidence on record, that the ceremony of Arti was performed. On the other hand, Chetru P. W. 2 and Barfu P. W. 8 stated that no ceremonies, whatsoever, had been performed at the house of the bride. It follows that as the essential ceremony of Arti of the bridegroom had not been performed, there could be no valid marriage between the appellant and respondent No. 1.

6. The learned counsel for the appellant argued that a Hindu marriage was valid though no ceremonies were performed. The learned counsel placed reliance on Section 7 of the Hindu Marriage Act, in support of his argument. That section reads as follows:

'A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such riles and ceremonies include saplapudi (i.e. taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.'

7. A perusal of the provisions of Section 7, set forth above, makes it abundantly clear that the essential ceremonies and rites, pertaining to a Hindu marriage, must be performed, in order to make it valid and binding. There is no warrant for the argument that the section dispenses with the performance of essential ceremonies of marriage. The provision in Subsection (2) that where the ceremonies include saplapadi, the marriage becomes complete and binding when the seventh step is taken clearly indicates that the intention of the legislature was that in order to constitute a valid marriage, essential ceremonies must be performed.

8. The next argument of the learned counsel, for the appellant, was that the evidence of the witnesses, produced by the appellant, established that a marriage had, in fact, been performed, between the appellant and respondent No. 1 and that this gave rise to a presumption that the necessary ceremonies had been performed and the marriage was valid in law. In the first place, the evidence of the witnesses was vague, discrepant and conflicting. The evidence was rejected, by the learned Senior Subordinate Judge, as unreliable. I see no reason to differ from the opinion of the learned Senior Subordinate Judge. In the second place presumption regarding the validity of a marriage can be raised only where it is proved that the marriage was duly solemnized but some unessential ceremonies were not performed or there was some defect in the completion of the ceremonies, vide Kashi Nath v. Bhagwan Das AIR 1947 PC 168 and Appibai v. Khimji Cooverji, AIR 1930 Bom 138. Such a presumption cannot be raised where there is direct evidence that essential ceremonies were not performed at the time of marriage. As already stated, in the present case, the witnesses of the appellant had admitted that no ceremonies had been performed, Therefore, no presumption regarding the validity of the marriage of the appellant with respondent No. 1 can be raised, in the present case. The authorities, relied upon by the learned counsel, for the appellant, are not at all applicable to the ('acts of the present case. In Sitabai Sadasheo v. Vithabai Namdeo, AIR 1959 Bom 508, it was hold that the essential ceremony of spatapadi had been performed and that the marriage was valid. In the present case, the essential ceremony of Arti of the bridegroom was not performed. In Smt. Kasloori Devi v. Chiranji Lal, AIR 1960 All 446, one of the grounds, given by the lower Court, for holding the marriage invalid, was that there was no evidence that the vital ceremony of saplapadi had been performed. The High Court held to the contrary. It observed that every witness, who was present at the time of the marriage, and the Purohit, who had performed the marriage, had slated that the marriage was duly performed, but that none of them was cross-examined that the marriage was defective or vitiated by any vital omission. The High Court. therefore, concluded that the presumption was that all ceremonies were performed and the marriage was valid. In the instant case, every witness was cross-examined, in detail, about the ceremonies, performed at the house of the bride and at the house of the bridegroom. The witnesses gave different and conflicting versions. None of them slated that the Arti of the bridegroom had been performed. Another case, relied upon by the learned counsel, for the appellant, was Smt. Rewa v. Galharsingh Kanhaisingh, AIR 1961 Madh Pra 164. That case related to the remarriage of a widow. The only question, in that case, was whether the remarriage was invalid as the second husband was a sagotra or sapinda of the widow It was held that the second husband was neither a sagotra nor a sapinda of the widow and that the marriage was valid. There was no question, in that case, about the effect of the non-observance of essential rites and ceremonies.

9. The result of the above discussion is that the learned Senior Subordinate Judge was not in error in holding that the appellant had failed to prove that respondent No. 1 was his legally wedded wife.

10. Before parting with the case, it may be pointed out that an application under Order 41, Rule 27(1)(b) C. P. C. was put in, on behalf of the appellant, for production of additional evidence. It was requested, in that application, that the appellant may be permitted to produce a copy of the birth entry of the child of respondent No. 1. The application was opposed on behalf of the respondents, Additional evidence can be allowed by an appellate Court if it requires it to enable it to pronounce judgment or for any other substantial cause. Their Lordships of the SupremeCourt laid down in K. Venkataramiah v. A. Seetharama Reddy, AIR 1908 SC 1526 that:

'There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27(1)(b) of the Code.

Such requirement of the Court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon Us appreciation of the evidence as it stands.'

11. In the present case, this Court does not require the copy of the birth entry to enable it to pronounce judgment. Upon an examination and appreciation of the evidence, adduced in the case, no inherent lacuna or defect has come to notice, for the removal of which the birth entry may be required. To allow the production of the copy of the birth entry at the appellate stage will be tantamount to permitting the appellant to fill in gaps in his evidence. This will not be in the interest of justice. The application, under Order 41, Rule 27 C. P. C. will stand dismissed.

12. The order of the learned Senior Subordinate Judge, dismissing the petition of the appellant is upheld. The appeal is dismissed with costs.


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