ORDER
G. Radhakrishna Rao, J.
1. The marriage between the petitioner and the respondent took place in the year 1970. Differences arose in the year 1980 and some compromise was effected by the mediators and it was reduced into writing. The petitioner, who is the husband, filed an application for a declaration that the marriage between him and the respondent was null and void and alternatively for divorce under Ss. 11 and 13 of the Hindu Marriage Act on the following grounds :
2. The first ground is that the respondent i.e., the wife was married to one Karnati Rama Rao, her maternal uncle, that marriage was not dissolved and the same was subsisting on the date of his marriage with the respondent and thus his marriage with the respondent is void under S. 11 of the Hindu Marriage Act.
3. The second ground is desertion and cruelty. The husband’s case is that the wife is frequently leaving his house after taking the entire salary from him and was not returning and sending that amount to her parents use and was not giving him food properly. These two grounds cannot go together.
4. The wife denied the allegations made in the petition. The fact that the marriage took place between them in the year 1970 and they lived together as wife and husband is not in dispute. The fact that the elders convened a panchayat and compromised the matter in the year 1980 and the same was reduced into writing and marked as Exs. A-11, A-12, and X-l, are not in dispute. The fact that subsequent to that compromise both of them lived together. Desertion according to the husband is from November, 1981 is not denied. This petition was filed in 1982. To sustain the plea
of desertion a continuous period of two years of separation between the spouses is necessary before presentation of the petition for divorce. The previous periods before present separation wherein desertion took place” cannot enure to the benefit of any party. The continuous period of separate living is a ‘must’ to entertain the ground of desertion. So the plea of desertion raised by the husband cannot be sustained.
5. Coming to the second plea viz., cruelty the husband stated that the wife was not providing food to him properly and was taking away his salary and spending it for her parents. Even on his own saying, the wife was frequently, visiting her parents house since their marriage. When that fact was not complained to the elders during panchayat, the husband cannot be permitted now to raise such a ground. The lower Court rightly rejected the plea of cruelty.
6. Mr. C. V.N. Sastry, learned counsel for the petitioner contended that the first marriage has been proved on the basis of probabilities of the documentary evidence that has been adduced by the husband and that the husband discharged the burden of proving the earlier marriage and the burden is shifted to the wife to adduce the rebuttal evidence. In the matrimonial cases we have to consider the evidence with great care and caution as it affects the rights of the parties, unlike in civil matters. The catena of decisions relied upon by Mr. Sastry has no application o this case. Each case has to be decided on its own merits. In the case of matrimonial matter the theory of proving facts beyond ‘reasonable doubt cannot be applied. But it must be on a reasonable and sound appreciation of evidence, coupled with the statutory provisions.
7. Mr. Sastry argued that solemnization of the marriage between the parties was not proved. What is solemnization. Solemnization of marriage can be done only in accordance with the custom and the ceremonies that have been followed in the caste to which the parties belong. Number of decisions were cited by Mr. Sastry in support of his contention. The Supreme Court held in Priya Bala v. Suresh Chandra, AIR 1971 SC 1153 : 1971 Cri LJ 939 that as the second marriage has been proved by adducing evidence there is a solemnization of the second marriage as per the Hindu rites and custom. Following the said decision I held in V. Neelaveni v. V. Venkateshwar Rao, 1988 (2) ALT 770. The reasoning given in that case cannot be applied to this case. Here the petitioner and the respondent lived together for merely 12 years. Basing on some documents executed by the former husband of the respondent the petitioner herein came up with these proceedings when the property is going to be sold. Therefore proposition taken by me in Neelaveni’s case (supra) cannot be made applicable to this case. No steps have been taken by the husband to prove that there is a marriage subsisting between Rama Rao and the respondent herein. The non-examination of Rama Rao, particularly when the document was executed by him, is a fatal to this case. Where the party approaches the Court alleging that the marriage is not valid, the burden is on him and in such a case solemnization of the marriage must be established. In this case the date of marriage of the respondent with Rama Rao is not mentioned. On that count we hold that the evidence adduced by the petitioner is not sufficient to hold that the marriage between the respondent and Rama Rao has been established. It is also to be borne in mind that the petitioner is none else than a relative of the respondent and when he is a relation he is expected to be aware of the first marriage of the respondent. This plea has been taken only with a view to forestall the sale of the property.
8. Sri Raja Rao, the learned counsel for the respondent contended that the respondent is only aged 10 or 11 years at the time of the marriage of Karnati Rama Rao with a woman of Katuru village. In support of his contention he relied upon the age given by the petitioner himself. In the petition the petitioner
mentioned the age of respondent as 32 years. Evidence has been recorded in the case and the respondent gave her age in the Court is 36 years at the time of giving her evidence. The gift deed was executed by K. Rama Rao in the year 1963. If we take into consideration the probable age of the respondent that has been given by the husband in the O.P. the respondent might have born in the year 1950. If the respondent was born in 1950, she must be about 10 or 11 years at the time of the marriage between Rama Rao and the woman of Kataru village. If there is marriage of a girl who is below 12 years, it is a void marriage. It cannot be treated as a marriage at all. Sri C.V.N. Sastry submits that this plea was not taken earlier. From the recitals in the document that has been exhibited, it is clearly established that the respondent was below 12 years. Certainly the respondent can take the aid of the facts mentioned in the evidence. The first marriage is a void marriage, and that we find that the case of desertion by the wife has not been made out. The case of cruelty by her also has not been made out. The marriage between the petitioner and the respondent is not at all disputed. So it is a valid marriage. As the marriage between Karnati Rama Rao and the respondent is not proved, the appeal is dismissed. No costs.
9. Appeal dismissed.