1. This appeal by the petitioner is directed against the order dated 16-6-1977 passed by the Principal Civil Judge, Bangalore City, in M. C. No. 20 of 1972, on his file, dismissed the petition of the petitioner-wife instituted under Section 9 of the Hindu Marriage Act, 1955.
2. Smt. Parameshwari Bai, the petitioner, averred that she was married by her father when she was a girl of 7 years to one Sakharam of Madras, a processor in CT61d. She got a sort by name Shankar Rao by him and when her son was 7 months old. her husband died in an accident. Consequently, she had to return to. Her parents' . house.' Her son was brought up in her parents' house. Later on, in about the year 1946, when she was so staying in her parents' house, one Venkoba Rao, a family friend, introduced to the members of the family the respondent in the petition, namely Muthoji Rao Scindia, who was then the District Superintendent of Police of Mysore. The respondent was introduced. to her father and thereafter , he started visiting the house often. Venkoba Rao asked, her whether she. Would be Willing to, marry the respondent. For one or two years she did not give her consent: stating that she had to consult her parents. Venkoba Rao suggested to her that there was nothing wrong in a widow's remarriage and gave some instances of eminent persons like Karnaladevi Chattopadhyaya and Durgabai Deshmukh etc. In the meanwhile, the respondent also persuaded her to marry. Him and sought her consent. Accordingly., after consulting her parents, the petitioner decided to marry him.
3. The, marriage took place at Andal Mandir, Mysore, in the presence of Smt. Pandit Sundaranima, who was in charge of that Ashram. A purohit officiated at the marriage, her parents, respondent's mother, Barister Srikantalah of Bangalore and, others were present. The marriage was not arranged on, large scale for. obvious reasons. Thereafter, the petitioner and respondent lived as husband and wife for more than two decades. The respondent treated her as a beloved wife, Even he got performed'. with her his 60th birth day in the year 1962, Ex. p-19 is the invitation issued by the mother of respondent inviting relatives and friends to attend Shastipoorthi. Shanthi ceremony on 26-4-1962, in the morning at 9-20. It is sent with best compliments of Mr. Muthoji Rao Scindia Mrs. Prameswari Bai M. Scindia.
It is further averred that Mangalya Sootra Dharana was performed in the course of the ceremony. Exs. P-20 to P~32 and Ex. p-36, are the photos taken' on that occasion. Even after performing the Shastipoorthi Shanthi ceremony, the petitioner and the respondent lived together happily without any misunderstanding between them. In the month of December, 1971, however, the respondent left the house. The respondent proceeded to Bhadravathi stating that one Chavan friend of his was not well. For 20 days, he did not return. Being apprehensive called the brother of the respondent name Achutha Rao and requested him to make enquiries. After a couple of days, she received a letter from the respondent as per Ex. p-47. Thereafter he returned on Monday next and on return he asserted that he could not stay with the petitioner and asked her to leave the house. She asserted her right and then he left the house. Thus, the misunderstandings developed till at last he started troubling her to leave the house. Hence, she instituted the petition under Section 9 of the Hindu Marriage Act, 1955, praying for restitution of conjugal rights as to respondent ,started living away from the house.
4. The petition was instituted on 10-4-1971 the respondent contested the petition by filing his statement of objection. According to him, there was no marriage between him and the petitioner he further asserted that at the time of filing Ns objections, the petitioner was. 62 years of age and he was 72 years of age. . He further asserted that the petitioner is widow having a son aged above 44 years. He had a spouse, and his sun through her is aged about 40 years. He described the averments in the petition as mischievous. He is a Maratha by caste and is aged about 72 years and the petitioner did not belong to his caste. His marriage was performed with another lady, according to the, customary rites, he denied that he lived with the petitioner,'as her husband The petition was, according to him, instituted to blackmail him, and hence he prayed that the same should be dismissed.
5.The learned Civil.Judge raised the following points at arising from the pleadings
(a) Whether the petitioner has proved that she is the wife of the Respondent?
(b) Whether the petitioner has proved that the respondent has withdrawn from her society without reasonable or just cause?
(c) Whether the petitioner is entitled to the relief of restitution of , conjugal. rights?
During the course of hearing, the petitioner examined herself as P. W-5 and examined four other witnesses as P.Ws-1 to 4. She got marked Exhibits P-1 to P-73. As against, the respondent examined himself as R.W-1 and got marked Exs. D-1 to D-8. The learned Civil Judge, appreciating the evidence on record, held in negative the Point No. I as also Point No. 2 and in that view dismissed the petition. Aggrieved by the said order, the petitioner has come up in appeal before this Court.
6. The learned Advocate appearing for the petitioner appellant vehemently contended that the very approach of the learned Civil Judge to the facts of the case was not legal and proper. He submitted that since, even according to the learned Civil Judge, it was held proved that the petitioner and respondent lived as husband and wife for more than two decades, there was a strong presumption of valid marriage and the burden shifted on the respondent to prove -that the marriage was not legal and valid. He pointed out that the learned Civil Judge, did not approach the facts in that perspective. According to him, the respondent failed to rebut the presumption arising from the facts of the case and the learned Civil Judge wrongly cast the burden on the petitioner. He further submitted that even assuming that there was any impediment for the marriage to be legal and valid when it first took place, there could not be any such impediment or obstacle when the marriage was re-performed in the year 1962, before performing Shastipoorthi Shanthi ceremony. He also pointed out that even after 1962 they lived as husband and wife and as such, he submitted, that the learned Civil Judge was not justified in recording his finding that the petitioner failed to prove that she was married' wife of the respondent. In that view, the appeal, according to him, was entitled to succeed.
As against that the learned Advocate appearing for the respondent strenuously urged that the evidence on record was sufficient to rebut the initial presumption, if any. He invited our attention to the suggestions made in the cross-examination to the respondent by the learned Counsel for the petitioner appellant and pointed out that the marriage in all probability, on the showing of the petitioner herself,, took place after 1955, i. e., after the coming into force of the Hindu Marriage Act, 19M, and as such the initial marriage pleaded was illegal and void. Adverting to the second contention that the marriage was re-performed, during Shastipoorthi Shanthi ceremony, he submitted that there was no such pleading and as such the same could not be relied upon. He also pointed out that all the ceremonies relevant for the purpose of performance of the marriage were 'not carried out during the said ceremony. Hence, he argued supporting the order of the learned Civil Judge. The points, therefore, that arise for our consideration are :
(1) Whether the learned Civil Judge was justified in not raising the presumption, from the conduct of the parties living. as husband and wife for a long time, about the validity of the marriage?
(2) Whether the learned Civil Judge was justified in not considering the reperformance of the marriage during Shastipoorthi Shanthi- ceremony.
(3) Whether the learned Civil Judge was justified in holding that the petitioner failed to prove that she was a legally wedded wife of the respondent?
7. The learned Civil Judge, appreciating the evidence on record, has held in the course of his judgment:
"While recording the finding on the question of marriage, the cumulative effect of all the circumstances disclosed in the evidence will have to be taken into consideration........... From the statements. made by respondent which have been referred to above in detail, one can certainly say that the petitioner has been treated as a loving wife ........... In para-7 of the order, he has further stated:-
"The circumstances narrated by me may induce one to take a view that the version of the petitioner regarding her marriage in 'Andal mandiraa at Mysore mav be probable."
Thereafter, he has observed:-
"While attaching due importance t o the circumstances disclosed in the evidence and the conduct of the respondent towards the petitioner and assuming for the sake of arguments that the Petitioner's version regarding her marriage at 'Andal Mandiram' is true, the most important point which was to be considered is, whether the petitioner is the legally wedded wife of the respondent". Thereupon, the. learned Civil Judge felt that since the respondent had his wife by name Sharada Bai living,at that time and since she was married under the Special Marriage Act, 1954, marriage of the petitioner even if it had taken place was void.
8. We will advert to the question of law later. It is sufficient for the present to note that even according to the learned Civil Judge, the petitioner and the respondent lived as husband and wife for more than two decades. Having gone through several exhibits and the oral evidence on record, we are satisfied that the petitioner and the respondent lived as husband and wife for more than two decades and the reputation among the relatives and friends throughout was that they were husband and wife. The learned Civil Judge has discussed this aspect at length and it is not necessary for us to repeat it. However, we would refer to a few letters written by the respondent when he was away from home to the petitioner which clearly establishes that he treated her for all purposes as his wife.
9. Ex. P-2 (a) is a letter written by the respondent to the present petitioner. It is dated 1-2-1968. In that letter, inter alia, he has observed:
"Till the time the lady of the house does not understand and observed the (Satidharma), duties of a chaste woman nothing is going to be alright. After wards no man will become good. Under such extraordinary circumstances there is nothing to say about the ordinary man. After repenting for the sins committed against me by behaving in an unnatural way, now, it will be possible for me to return only if at least from now onwards, you will conduct yourself with affection, understanding dutifulness and helpful ness." This would clearly show that there was some trouble brewing in the relation ship, but it would also establish that he wanted to tell her of the Satidharma, which could only be told to a Sati (wife). In earlier letters, he had, however, showed love and affection for his wife treating her as his dear wife. For example in Ex. P-4 (a), he as written like this
I returned after the Maharashtra Tour, only yesterday. I feel sorry to write that all my efforts have not been fruitful. The letter I wrote to you on Saturday last must have reached your hands exactly On Monday noon, that is what I think,
Pleasing lady (Priyakari), in this world though I engaged in work, I cannot forget you even for a minute. I know definitely you must be always Plunged in your anxities and worries about me. Very truly, Your love towards me is incomparable and indescribable, is it not?"
Again in Ex. P-5 (a), he has stated, inter alia, thus:
"Is it not that my love for you has Parameswari, you don't entertain any doubt at any time, about the certainty of my love for you. I have full confidence that your love too is certain and true.
Devi, between us ' did we not fully accept each other mentally just like the meeting between Shakunthala and Dushyanth?"
These letters would very clearly indicate that the petitioner and respondent lived as husband and wife as a loving couple for a number of years.
9A. In addition, the petitioner has got, marked Exs. P-38, P-39 P-41, P-42, P-43, P-44 and P-45, several letters addressing her as Mrs. Muthoji Rao Scindia. She has also examined before Court P.W. 1 Smt. Lalitha Krishna, F.W-3 U. K. Subrayachar and P. W-4 Smt. Damayanthi Bai. These are all respectable persons being relatives or friends who have come and 'deposed before Court to the effect that the petitioner and respondent lived as husband and wife happily for a number of years. The point, therefore, that arises for our consideration is: What is the legal effect if a man and woman lived for a long time for more than two decades, as husband and wife developing reputation as such among all the friends and relatives?
10. The Supreme Court of India in the case of Badri Prasad v. Deputy Director of Consolidation speaking on this aspect has observed
"A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitirnacy and frowns upon bastardy. In this view, the contention, of Shri Garg, for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its ceremonial process by 'examining the priest or other witnesses, deserves no consideration. If man and woman who live as husband and wife in Society are compelled to prove, half a century later, by eye witness evidence that they were validly married, few will succeed."
Normally, the presumption of valid marriage in such case is very strong. In the case of Rajagopal Pillai v. Pakkiam. Ammal, ( (1968) 2 Mad LJ 411), a Division Bench of the Madras High Court has made the following obsevations :
"The marriage state being the chief foundation on which the superstructure of society rests, presumption of the marriage arising from cohabitation of spouses is a very strong presumption. Where a man and a " woman had lived together as man and wife, the. law will presume, until the contrary is proved, that they were living together by virtue of a -legal marriage and not in concubinage"
11. The presumption of law is a strong legal presumption and is not likely to be repelled by mere balance of probabilities. The evidence repelling that presumption must be strong, distinct and satisfactory. However, intendment is made in favour of marriage de facto and the presumption drawn is based upon cohabitation and repute. The Weight of the presumption gets strengthened when it. is proved that the party whose marriage is in question distinctly intending to marry and went through a form of marriage with that intention and also subsequently lived together as husband and wife and were estimated and reputed - as such by those who knew them. Even when there is no positive evidence of any marriage having taken place, the presumpItion is not only with regard to factum of marriage,'but also with regard to the parties and the requisite ceremony to constitute a valid marriage.
12. When once it is proved that the marriage was performed 'the presumption arises that it is valid in law and that the necessary ceremonies had been performed, unless evidence to the contrary is adduced that the necessary ceremonies there not performed. This Court in the case of Lalithamma S. N. v. T. S. Ramaswamy (ILR (1975) Kant .1973) had an occasion. to consider this aspect. His Lordship Chief Justice Govinda . Bhat (as he then was), speaking for the Division Bench has observed. thus, in para-7 of the Judgment:-
"When a man and woman have been proved to have lived together as man and wife, the law will presume, until the contrary be clearly proved, that they were living together in consequence Of it, valid marriage and not in a state of concubinage Vide Mayne on Hindu Law and Usage, 11th 'Edition (reprint), pages N3 and 164. In Sastry V. Elaider. Aronegary v. Sembecutty Vaigalie 6. Appeal cases.164 which came up in appeal be fore the Judicial Committee of the Privv council from the decision of the Supreme court at Cevlon it has been laid down that 'according to Rornan-Dutch law there is a presumption in favour of marriage rather than of concubinage, and that according to the law of ceylon, as in England, where a man and woman are proved to have lived together as man and wife, the law will presume. unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. In Mouji Lal v. Musammat Chandrabati Kumari 381. A 122 which is an appeal from the decree of the High Court of Judicature at Calcutta, the Privy Council laid down as follows :
"It is an extremely strong presumption in favour of the validity of a marriage and the legitimacy of its offspring that from the *time of the alleged marriage the parties are recognised by all persons concerned as man and wife and so described in important documents, and on important occasions. The like presumption applies to the question whether the formal requisites of a valid marriage ceremony were satisfied".
In 52 American Jurisprudence 2nd: edition at page 981 it has been stated thus.
"'A man and woman living together as husband and wife are generally presumed to be married, provided they have acquired a general reputation as a married couple".
In 55 Corpus. Juris Secundurn at page 888, under the heading "Effect of Cohabitation and Reputation" this is what has been stated: '
"A presumption of marriage may arise from the fact that a man and woman have openly cohabited as husband and wife, holding each other out and treating each other as such, so as to be generally reputed to be such among their relatives and acquaintances; and under such circumstances, the burden of the showing that a marriage did not exist is on those so asserting."
13. Thus, these authorities would make it' clear that a man and a woman tie , d together by wedlock. form the least unit of our complex society and when ever a man and woman lived. as hug band and wife for a fairly long time and were so reputed, law presumes that they are living as husband and wife and not in a state of concubinage. Presumption is both with regard to factum of marriage and legality of it. It is a strong presumption as it goes to the root of the structure of society and the persons Who challenge it wi . 11 have to rebut iti by clear, cogent and satisfactory evidence. This burd en is heavy on them.
14. The finding of the learned. Civil Judge is that the petitioner and the respondent in this case lived as husband and wife for more than two decades. The evidence on record clearly establishes that they so lived and established such reputation amongst their relatives, friends and acquaintances. We have held earlier that we are satisfied with the said finding of the learned Civil Judge for the reasons discussed above. If that is so, a strong presumption, regarding both factum. of marriage, and legality of it arises. The respondent husband who challenges it has to rebut the presumption by clear, cogent, satisfactory and inimpeachable evidence. The question, therefore, that arises for consideration is: Whether the husband has discharged the heavy burden cast on him. In this context. we shall turn to the version of the husband, who clearly denies that he was ever married with the petitioner and stated that he never lived with her as man and wife and that she was merely a, housekeeper engaged by him in his house. - It is interesting to.read his evidlence in this behalf. This is what he 'has stated in the course of evidence
I "On .30-5-1957, the petitioner came to, In utter destitution seek in service and sanctuary under. my r9of."
He has further stated that:
"The petitioner came to my~ house with an old true, Soiled rug and bed. She .came to my house at about 5-00 p.m. I was -alone in my house. I asked the petitioner as to Why she came to my house. She stated that she is no where to go as 'her father - is dead and her brothers ~ are not willing to take her. Number of petitioner's friends had discarded. her and, therefore, she came to me seeking Reading. his evidence as a whole, it becomes apparent that the old age must have had effect on his mind. He himself stated that he was 72 years when he .filed his statement of objections; though we cannot conclude on the evidence on record that he is suffering from any disease and loss of memory, it is clear that his mind has become feeble. We have already re-produced the portions of translated letters written by him during several years when he lived with the petitioner on cordial terms as husband and. wife. It may not be out of ,place to qtote further a portion from Ex P-5 (a) in which he has stated:
"Devi very truly, when are you going to meet me? I feel happy in thinking of you and how much more that happiness will be in meeting you, L am unable to write. Pleasing lady (Priyakari), during day time, I see both of us together through mental eye, but. during sleep, at night, I see you personally. Ohl how much of peace and happiness do I get at that time? But, finding that I am left alone and that you are truly not there, I feel very sorry. The heart starts beating fast, so it appears, and then I do not get sleep at all".
He has even admitted in that letter that she was his married wife ' (see the original). There has been, how-ever, a sudden metamorphosis in him. From a loving husband he has turned into a person who says that he never treated the petitioner as his wife, he was never married to her and that they never lived as husband and -wife. This cannot, but be the effect of his old age and feeble mind and nothing else.
15. In the course of cross-examination, however, he had to admit that he gave her jewels, that she lived in his house, that he got constructed a house to her that he loved her son's daughter very much, that he wrote letters to her, that they had a joint account,, that while performing Shastipoorthi, Shanthi ceremony she sat by his side on a 'Mane' and the above admissions make it clear that they lived as husband and wife, in the same house and the lady has further. in positive terms, deposed that they shared the same marital bed. Under these circumstances, it is obvious that he has not adduced any clear, cogent and reliable evidence to rebut the initial presumption arising from the state of evidence discussed above.
16. The learned Advocate appearing for the respondent, however, invited our attention that the learned Counsel appearing for the petitioner has put several suggestions which go to rebut the presumption of validity of marriage.. The learned Counsel appearing for. the petitioner, in the course of cross-examination of the respondent, has put a suggestion that the marriage in Andal Mandir took place in the year 1957. In the crossexamination this is what is elicited.
"It is not true to suggest that subse quent to the year 1946 we were meeting each other and by about theyear 1957 it culminated in love and as, a consecluence there was marriage."
In the interrogations put to the respondent it is stated as under ;
"Is it riot a fact that you married the petitioner according to Sastricrites in Andal Mandiram, Mysore, in or about 1955. Is it not a fact that you and petitioner have been living in the house in Subramanya temple street as man and wife since 1955 till the year 1972.
Again, the learned Counsel invited our attention to the deposition of P.W-5, the petitioner, wherein it is elicited thus :
"The respondent had retired by then. He retired at Bangalore as D.I.G. He has not set up his family at Mysore. At the time of marriage the respondent was residing at Bangalore".
Later, it is further elicited:-
"It may be about two years earlier to the marriage, the respondent has retired from service".
Relying on this, the learned Counsel submitted that it becomes clear that the marriage could not belvalid in law. On this aspect, our attention was invalid to the Special Marriage Act. There is nothing in the said Act which indicates that any marriage between two Hindus is void, if. either of them has a spouse living at the time of the marriage. All that Section 4 of the Special Marriage Act states is this :
"Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriage, a marriage between any two persons may be solemnized under this Art if at the time of the marriage the following conditions are fulfilled, namely,
(a) neither party has a spouse living;"
This only states that, marriage between Any two persons may be solemnized under the Act, namely, the Special Marriage Act 1954, If neither party has a spouse living. It does not state that any marriage that took place between the persons is void if one of the parties has a spouse living whether the marriage took place under that Act or under the personal law as it is stated in Section 17 of the Hindu Marriage Act, 1955. All that it would mean is that if either party has a spouse living at the time of marriage, the marriage cannot be solemnized under the Special Marriage Act, .1954 and we are not concerned in this case with the marriage solemnized under the Special Marriage Act, because it is not the case of either party that the marriage of the petitioner with the respondent was solemnized under the Special Marriage A-t, 1954. The learned Civil Judge has obviously got wrong in thinking that the.marriage is in and void, because the respondent had a wife living, she had been married under the Special Marriage Act, 1954.
17. The other ground raised before us is that the marriage was void. because the Hindu Marriage Act, 1955, had already come into force on 18-5-1955, and the marriage took place thereafter and it was hit by provisions of Section 17 of the Hindu Marriage Act. Section 17 of the Hindu Marriage at states*
"Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly".
Thus. it is obvious that in order to attract the provisions of this Act, it would be necessary that the respondent must! show that the marriage was i after the commencement of the Act, namely, after 18-5-1955.
18. We have already observed above that the presumption arising on the faci of the case is a very strong presumption, and that unless the respondent adduce clear, cogent and reliable evidence, the presumption is not rebutted. The point therefore, that arises for our consideration is: Whether suggestions made, the stray sentence elicited in the course of cross-examination of the lady and the questions put on interrogation cannot be sufficient to rebut the presumption arising from the facts of the case discussed above.
19. The interrogatories would suggest that the marriage had taken place in that year 1955. It may be before May or after May, 1955, nothing is clinching. Adverting to the suggestion put in the course of cross-examination to the respondent by the Counsel for the petitioner, it is so obvious that he had not taken instructions from the petitioner. The petitioner in her evidence has clearly stated that she did not remember as to when the marriage took place. It is for that reason that the date of marriage was not obviously mentioned in the petition nor in the reply statement filed by the Counsel for the petitioner. All of a sudden, however, in the course of cross-examination of the respondent, the counsel has put a random suggestion whether the marriage had not taken place in the year N57. It is obvious from reading the evidence of the petitioner and the interrogatories that this suggestion eminates from the lawyer and was not rooted in the knowledge of the petitioner. Therefore, no evidentiary value can be attached. Besides a mere suggestion made and denied is not evidence at all. -The petitioner has stated in the course . of her evidence thus :
"I do not remember on what date and during which year I was proposed to the respondent."
Again she has stated:
"I have forgotten the date of my marriage I do not know the name of Purobit. Sundaramma had arranged the Purohit, The Purobit was a Brahmin. It is in this context that we have to appreciate the suggestion put by the Counsel to the respondent as also the so called admission made by the respondent. Having clearl stated that she does not remember as to the date or year of the marriage, it is elicited frorn her in the further cross-examination that the marriage took place after the respondent retired. This is what she has. stated:
"Respondent7 was retired by then". It may be seen that this sentence occurred in the same para in the beginning of which she has stated "I have forgotten the date of marriage." It is further elicited from her "my father presented a suit and silver articles to the respondent. It may be about two years earlier to the marriage, the respondent had retired from the service". Thus, it is clear that these stray sentences elicited in the cross-examination could hardlv be construed as admission. The Supreme Court of India, in the case of Chikkam Koteswara Rao v. Chikkam Subbarao, speaking through Justice Hegde, as he then was, has observed in this behalf thus:
"This admission must be read along with the evidence given by him in his chief examination ............
If we read these statements along with his other evidence and in a harmonious manner, it is clear that what the appellant admitted was that the acquisition in question was made by his father on his behalf and the consideration for the same was paid by his father from out of the appellant's private funds that were in the hands of his father...........
Thus, the Supreme Court has pointed out that before the right of a party can be considered to have been defeated on the- basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should not be any doubt or ambiguity about the alleged admission and to examine whether there is ambiguity in the admission, it would be necessary for the Court to read the other parts of the evidence and the stand taken by him in the pleadings. Considering in that way, as pointed out above, it becomes obvious that the so called admission is not an admission at all. It is a statement made out of knowledge. Hence, it doqs not help the case. of the respondent. Thus, we are satisfied, looking into the stand taken by the respondent in the proceeding and the manner in which he has, de. posed, having least regard for the truth, that the so-called admission and suggestions put by the Counsel for the petitioner would not render the marriage invalid. The evidence on record is neither clear nor unambiguous nor reliable. Hence, the initial presumption arising from th,: facts of the case is not at all rebutted by the respondent. Hence, we are constrained to hold that the marriage is legal and valid and that the petitioner has the status of wife of the respondent,
20. We will next advert to The ceremony of marriage , re-performed at the time of Shastipoorthi Shanthi. No separate pleading and issue are necessary (vide) . The petitioner in her evidence has stated that during the ceremony, the marriage rites were re-performed and that her husband (respondent) tied a 'tali' to her neck, sprinkled flowers on her and garlanded her. This is what she has stated:
"The respondent's 60th Birth Day was celebrated in our house. Myself and the respondent have gone to P. W. 3 to get the auspicious day fixed. The invitations were got printed in the name of rhy mother-in-law. Ex. P-19 is a specimen of the invitation. My sisters and their husbands, brothers and their wives, respondent's mother, Paternal Aunt, Panduranga Guru, respondent's brothers, and their wives, sisters and their family and other. leading members of the community attended the function. All the ceremonies connected to the marriage were observed. Another 'tali' was tied by respondent and that is the, one shown by me now."
She has also stated ,
"On the occasion photographs were taken and they are Exts. P-20 to P-32, Ex. P-36, The respondent's sister assisted in tying 'tali'."
If fact, though the respondent in his evidence denied that he tied another tali to the petitioner, . the photograph, Ex. P-32 would clearly show that the respondent was tying 'tali' to the neck of the petitioner with the assistance of his sister and priest was looking on. The evidence of the priest P.W. 2 also makes it clear that the respondent tied another 'tali' to the petitioner during Shastipoorthi ShanthL This is what he has stated:
"Except the wife, none else could have -,at with the respondent. I would not have officiated if the responderrt had not .,at with his wife. The respondent's mother and sisters were present on the occasion. "Mangalya Dharana~' ceremony took place.
The priest no doubt stated that it was part of Shastipoorthi-Ceremony. In the view that we have taken above, it is not necessary to consider this aspect. Once some argument was addressed in this aspect, we would consider it in brief. li. is necessary in this context to remember that respondent was married to Smt. Sharada Bai under the Special Marriage Act in the vear 1929. Ex. D_5 is the marriage certificate. He filed a petition for divorce in Misc. No., 22611956, okx ft! file of District Judge, Bangalore petition was allowed on 36-1-1958 as per Ex. D-6. Smt. Sharada Bai came up in appeal before the High Court of Mysore in Misc. Appeal No. 212/ 1958 and the appeal was dismissed bv this Court on 9-9-1960. Ext. D-7 is the certified copy of the judgment.
The parties, it appears, laboured under some notion that there was some infirmity in their marriage, because the respondent had another wife Smt. Sharada Bai at that time under the Special Marriages Act. But, we have pointed out above that there was no infirmity for marrying the petitioner under the regu1ar personal law. Even so, it appears that the parties who were on very cordial terms at the time, thought it pror)pr to enter into marriage and as in 1962,, there was absolutely no impediment for the respondent to marry the' petitioner Smt. Sharada Bai was given divorce in 1960. itself and even the period during, which he could not marrywas ever
It is usua I I among important ceremonies to re-perform all the 'Samskarams' even in the trase of Brahmins. Obviously therefore the parties thought that they should re-perform the 'Samskaram' of marriage to entitle the petitioner to participate in the Shastipoorthi Ceremony as the legally wedded wife of the rer.pondent.
21. Mahamahopadyaya P. V. Kane in his monumental work on Dharmhsastra (History of Dharmasastra Vol. V. Part I, 1962 at p. 758) describes the Sastyabdapurti S.hanthi, This is what he has observed,
"There is a Ms. (of only three folios in D. C. No. 609 of the year 1882-83, now in the Bhandarkar Oriental Institute at Poona) which deals with this santi attributed to Saunaka and is called Ugrarathasanti at the end. The santi -is to be performed on the day or naksatra of one's birth, On that day the -p'erson of 60 years should take an auspicious bath, perform his daily religious duties, should invite Brahmanas and choose one to officiate who is learned in the Vedas -and Vedangas and is well conducted, -First Ganesh worship should be performed, then punyahavacana, worship of mother. goddesses, then nandisraddha. He should' bring together sarvausadhis, twigs and leaves of five trees, five jewels,. pancagavya, and pancamrta: then worship, of nine planets - should be performed; an image of Markandeya was,to be made from one pala or I pala and the image was placed in a jar full of water surrounded by two garments; he should offer the 16 iLipacaras and offer to Markandeya 1008, or, 100 or 28, or eight offerings of fuel sticks,,. boiled rice rice, gheedurva, superior dishes with, the mantra. (Matter in San,;krit ornitted-MY . Then be should make a *hbma'1n,. honour. of- Mrtyunjaya (siva) with oblar tions of durva grass and sesame 1000%'Ibt 5000, or 3000 or one thousand in i.hxr~W and then he should sacrifice separately te the secondary objects of worship But, he has no where mentioned that it .is necessary to perform the rites of mar riage oftee again. In. the Sankalpa which he has given in the foot-note he has men
(Matter in Sanskrit omitted-Ed.)
"Sri Kane has further stated that 9twhoever perform-, this santi~ according to the rules prescribed for grahasanti~ -would certAin1v live for a, hundred years, all misfortunes will vanish and all pro-
sperity will be his." Therefore, it is obvious that the parties with a view to reassure themselves that the marriage is valid and legal underwent the ceremonies of marriage at the beginning of the Santi. It is needless for us to point out that in the case of, non-brahmins by custom the tying of 1~11'.is the only essential ingredient of a marriage. We are discussing this aspect incidentally and we make it'clear that even the earlier marriage at the initial stage entered into by the parties is held to be quite valid and legal and the subsequent conduct depicted above would further establish that the parties held out as husband and wife, they lived as husband and wife and they re-assured themselves that their wedlock was legal and valid by undergoing the ceremony once again at the beginning of the Sastyabdapurti ceremony. That being so, we have no hesitation to hold that the learned Civil'Judge approached the facts from a wrong angle and came to the conclusion that the marriage was not proved tc be legal. We are- of the considered view that the marriage was legal and that the couple lived for decades as husband and wife, they held out as husband and wife, created reputation amongst friends, relatives and acquaintances as husband and wife and the husband who isl now challenging the validity of the marriage has failed to rebut the strong 1 sul ion arising from such state of h we hold that the 'present petitioner is the legally " wedded wife of
22. The evidence of the respondent, makes it -clear that he is withdrawing :,from the cornpany of his wife without Just and proper cause. The letters he has addressed subsequent to 1971 also make this clear. That being so, the petitioner wife is entitled to restitution of conjugal rights as contemplated under Section 9 of the Hindu Marriage Act, 1955.
23. In the result, therefore, the appeal is allowed. The order of the learn ed Civil Judge under appeal is set aside and the petitioner-appellant is granted decree for restitution of conjugal rights as prayed for. In the peculiar facts of this case, we make no order as to costs.
24. Appeal allowed.