JUDGMENT
M.S. Liberhan, J.
1. By this appeal, the appellant impugned the judgment and decree of the Additional District Judge, Ludhiana, declining the petition of the appellant for restitution of conjugal rights under the Hindu Marriage Act (hereinafter called the ‘Act’).
2. The appellant claimed, she and the respondent were Hindus and married at Ludhiana on December 22, 1976, according to Hindu rites. A daughter was born on July 21, 1978. The appellant admitted in her replication that she was married to Girdhari Lal Wadhwa, entered into a compromise with him on January 12, 1976 in criminal proceedings, and alleged that as per her knowledge and belief he died on November 30, 1976. She claimed, that she was known and believed to be widow on December 22, 1976.
3. The respondent refused the claim of the appellant. The marriage, birth of the child and the relationship of husband and wife were denied. The appellant was asserted to be the legally wedded wife of Girdhari Lat Wadhwa son of Ram Lal with whom she went to Delhi in terms of the compromise dated January 12, 1976. Girdhari Lal Wadhwa was said to have died on March 24, 1982. It was further averred that the appellant claimed herself to be widow on November 30, 1976 per her version set up in judicial proceedings on October 29, 1985. The appellant was stated to be having a living spouse and subsisting marriage on the alleged date of her marriage with the respondent i.e. on December 22, 1976, and hence the alleged marriage with the respondent was void.
4. The trial Court found that no marriage was solemnized between the parties. Even otherwise on December 22, 1976, i.e. the date of alleged marriage, the appellant had a living spouse and subsisting marriage. The petition for restitution of conjugal rights was dismissed.
5. I have heard the learned counsel for the parties and gone through the record. The counsel for the appellant only challenged the findings of the trial Court stated above i.e. with respect to the validity of marriage as well as solemnisation of marriage.
6. It was contended that the findings recorded by the trial Court are against the facts proved. There was no proper appreciation of the evidence. The Court erroneously disbelieved the claim set up by the appellant and relied upon that of the respondent. The reasoning adopted by the trial Court for inferring the marriage as void and no solemnisation having taken place cannot be sustained.
7. It was contended that the trial Court failed to take into consideration the undisputed facts while appreciating the evidence, i.e. that the respondent was an advocate, his clerk was the material uncle of the appellant, and she claimed herself to be an issueless widow on the date of marriage. The appellant was allured by the respondent to marry him. only after he himself got fully satisfied with respect to the death of Girdhari Lal Wadhwa, her husband.
8. It was contended that the appellant stayed in the house of the respondent for seven years and a female child was born to them within two years of their marriage. They lived together as husband and wife. They made known their relationship to the people. The trial Court failed to raise the legal presumption with respect to the validity of marriage because of their living together as husband and wife for a long time. It was contended that in view of the admitted facts, the solemnisation of marriage should be presumed.
9. Lastly, it was urged that the trial Court erroneously relied on an inadmissible evidence of First Information Report and death certificate produced by the respondent in spite of the fact that the same were not proved on the record in accordance with the Evidence Act. The appellant urged that the respondent was estopped from denying the marriage and giving of birth to a female child by her from him in view of the above facts. It was further submitted that the ocular evidence brought on the record corroborated the submissions made by the counsel.
10. The counsel for the appellant in order to support his submissions relied on Badri Prasad v. Dy. Director of Consolidation and Ors., AIR 1978 SC 1557, Smt. Bina Agarwal v. Mahesh Chandra Agarwal and Anr., 1983 HLR 487 and Guru Dull Singh and Ors. v. Durga Devi and Anr., AIR 1966 Jammu and Kashmir 75, and Smt. Rajdei v. Lautan and Anr., AIR 1980 Allahabad 109.
11. The institution of marriage is a recognised time old institution. It was essential and necessary for the civilised human society. The peace clergy personalities and legislators have been bringing about the changes necessary in the institution. The marriage has been centre of activity religiously, legally and for the human biological urges. The marriages were governed by pre-determined rules worked out by the saints, philosphers, law givers, Courts as well as the legislatures. The laws and the customs varried from time to time, place to place, community to community etc.
12. The status of a husband and a wife was considered to be religious and one of the most pious relationships. According to various schools of thought life demanded certain minimum civilized existence. The marriage was an institution wherein the parties to it consolidated their social and economic gains and passed those on to their progeny. The marriage builds the dynastic units. Marriages are arranged with great solemnity and with certain ceremonies recognised by custom are by law. A healthy, and happy marriage provides a good progeny which would prove an asset to the nation. According to the ancient philosophy marriage was considered to be a spiritual ideal for the guidance of the believers. Marriage was one of the means to check immorality and further save the women from exploitation. It has psychological, biological, civil and human considerations. It was one of the essential institutions in order to protect the progeny, who would be the future citizens of the country.
13. Hindu idea of marriage has always involved the creation of permanent tie irrespective of the fact how it came into being. Hindus had been treating the marriage as a sacrosanct act. In order to bring about the marriage, in view of the sacrosanctity attached to it, various ceremonies were provided by the Hindu philosphers in order to attain the status of husband and wife and keeping the same at the highest pedestal. The marriage carried along with it divine blessings and it was known that peace and prosperity used to dwell in the house where female members received due respect and honour. It was observed by various jurists and psychologists that woman by nature is weak and is unable to bear the termoils of the world and marriage is status fulfilling, an irrevocable intention of living together, sharing the experiences of life, taking the wear and tear of life jointly. The public used to maintain and respect the status of married life. It bore a legal condition of status. The termination of marriage was unknown except in a few and a particular class of people and conditions. Marriage was considered to be essential for spiritual welfare. In the ancient society monogamy was considered a virtue in spite of the fact that in some class of people and under certain circumstances polygamy was permissible.
14. With the passage of time changes in social conditions, the reforms suggested by various saints, philosophers, law givers. Courts as well as the legislatures and the influence of the Western Society have eroded the concept of Hindu marriage being a sacrosanct. Resultantly, the marriage is now considered partly as a sancrosanct and partly as a contract. Monogamy has been considered to be decorous in view of the fact that the females are being considered as equals.
15. The marriage law was codified in 1955 and was known as Hindu Marriage Act, 1955. By the Act, all the rules of the law of marriage applicable to Hindus whether by virtue of texts, rules of Hindu law, usage, custom having force of law were abrogated. The concept of monogamy was highlighted and polygamy was frowned at. The status of the institution of marriage was kept intact in spite of the fact that indissolubility of the matrimonial relationship was loosened. Certain bars were embedded in the Act, violation of which results in a marriage being void ab initio. Importance of the ceremonies for bringing about a legal valid marriage whether under custom of the parties or under the Act were given due consideration and were almost kept intact. An attempt was made in the Hindu Marriage Act that the marriage should be considered to be in dissolvable except in the circumstances provided by the Act which have been enumerated keeping in view the interest of the society. It was observed that all attempts should be made to keep the relationship going. The split should be avoided. An attempt should be made to keep the traditions handed down by our ancestors to maintain the tie of husband and wife. Nothing should be done to impair the relationship. All attempts should be made to endure it.
16. The Hindu Marriage Act provided the bars and the rituals to be observed for bringing about a marriage, the grounds for its dissolution and the procedure for the same. It further provided in what set of circumstances a marriage can be said to be void ab initio. Special jurisdiction has been conferred in the matrimonial disputes. Bigamous marriage has been treated as void marriage. It was further provided that any judgment of the matrimonial Court determining the status of the parties shall be a judgment in rem. Section 7 of the Act envisaged that marriage amongst the Hindus can be performed by Saptapadi and this it the only form which has been accepted to be legal and valid form of marriage though special customs for performing a valid marriage amongst various class of people were kept in tact. Undergoing of ceremonies provided by Section 7 or custom of either party to it were made mandatory before the status of husband and wife could be conferred upon a person. Section 7 of the Act reads as under:–
“Ceremonies for a Hindu Marriage :
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptapadi (that is, the 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.”
17. The Act further provides under what set of circumstances and conditions marriage would be deemed to be a void marriage and it would be considered to have never come into existence, being in violation of the bars provided by the Act or the ceremonies having not taken place. Ostensibly the marriage in the presence of living spouse and on already subsisting marriage was stripped off its legal status. It was considered to be void from the very incepting, the law has strictly forbidden the begamous marriages which have not been accepted even in the changing society doing away with the shackles of Shastric or old Hindu Law with respect to marriages.
18. Cases are not infrequent when disgruntled souls incapable of maintaining themselves by honest means wear the veil of married couples and assume the garb of husband and wife and establish themselves so in the midst of ignorant credulous population. As the years pass they gather around themselves extenuating their rootless status of husband and wife and drawing a sense of security and comfort in the company of each other in the absence of any legal valid marriage. Such unions are really concubinages and they put up sham unions without there being ceremonies gone into which should and ought to have been gone into either under statute or under the custom, to attain the status of married persons. Usually where the union is wearing the veil of marriage pseudo and false ceremonies are alleged to have been gone into. Once matrimonial dispute arises amongst them, false accusations are made against each other.
19. The social requirements of traditional Hindu Law as well as condified Hindu Marriage Act maintain that undergoing of ceremonies of marriage either according to the custom of the parties or according to ceremonies provided by the Act is a must. Nothing has been pointed out at the Bar that without undergoing ceremonies of marriage there could be a marriage under the Hindu Law or the Hindu Marriage Act.
20. The learned counsel for the appellant contended, that though there is no evidence on the record with respect to ceremonies having been undergone in terms of Section 7 of the Hindu Marriage Act, i.e. Saptapadi and invocation before the sacred fire, still it should be presumed that the marriage was solemnised in accordance with the Act. In order to support his contention, he relied upon the principle that once the factum of their living together for a number of years as husband and wife is proved, it should be presumed that all the ceremonies envisaged under the Act or custom were undergone.
21. So far as AIR 1978 SC 1557 Badri Parshad v. The Deputy Director Consolidation and Ors. is concerned it lays down the principle of Hindu Law enunciated by various authors to the effect that a fact cannot be altered by hundreds text and once an act which ought not to be done is done is valid when done. There is no dispute with principle laid down by it.
22. In 1983 HLR 487, it was found as a fact that the parties had been living as a husband and wife for 14 years and four children were born. Further the statement with respect to marriage remained unchallenged, apart from she fact that all rites required under Muslim Law were gone into and further this fact was not challenged. It has been observed that the law leans in favour of legitimacy and frowns upon bastardy and in the given facts and circumstances long living resulted in a presumption in favour of wed-lock.
23. In AIR 1966 J and K 75, it was observed that in view of Section 114 of the Evidence Act, living as a husband and wife presumes a marriage though the presumption with respect to marriage is rebuttable and the burden lies on the person who challenges the marriage. Again there is no dispute with respect to the principle of law laid down in the judgment.
24. The learned counsel for the appellant further relied upon AIR 1980 Allahabad 109, wherein it was observed “there is nothing on the record to show that Saptapadi was one of the ceremonies necessary for bringing about a valid marriage between the parties in accordance with the customary rights and ceremonies of either of the parties.” It was further found that “under the circumstances the evidence that Pad-puja was dons in accordance with the custom of the ‘Biradari’ (Caste) for solemnising their marriage was in my view sufficient for bringing about a valid marriage.” It was observed that the customary rites for valid marriage of the parties must be proved. It may or may not include Saptapadi. It was further observed that in view of the fact that the parties were married according to the customary rites and have been registered as husband and wife in the extract of Kutumb register, the parties were found to be validly married.
25. The learned counsel for the appellant contended that in view of the principle laid down in the judgment cited above, since the parties were living together as husband and wife from 1976 to 1983 for a period of about 7 years and a daughter was born, it should be presumed that all the ceremonies for a valid marriage were gone into though there is no evidence with respect to performance of the ceremonies. The factum of living as husband and wife was stated to be further corroborated from the photographs produced as Exhibits P. 1 to P. 5, the birth entry of the daughter Exhibit P. 6 and the voter list Exhibit P. 7.
26. The appellant further claimed that in the alternative it has been proved on the record by the evidence of PW 1, PW 2 and PW 3 that they were married by Chadar Andazi i.e. by exchange of necklace and garland.
27. The learned counsel for the respondent refuted the contentions raised and contended that there was no dispute with the principle that once it is proved that the marriage was performed in fact, the Court would presume its validity in law and it shall be presumed that the necessary ceremonies were gone into but in this case there was not an iota of evidence on the record that any marriage with the respondent ever took place. Clandestined marriages have not been accepted as the marriages. Mere fornification cannot result in establishing relationship of husband and wife or marriage. The notion of the marriage as understood was either it was valid for ever or it was never. It was contended that the parties never treated each other as husband and wife nor the community or neighbour to whom they have been alleged to have passed on their living 38 husband and wife did so. The parties were never reputed to the married. The burden of proving that they were so reputed was on the appellant and not an iota of evidence was led to prove the same. There is no reliable evidence with respect to cohabitation. It was contended that even if it be assumed that they have cohabited, it will not result in marriage.
28. Since the marriage has both the aspects of being religious and secular, it has its own ramifications on the society, the peaceful orderly conduct of the people and also affects the future progency, therefore, while conferring such a status the Court should be cautious in appreciating the evidence. Planted evidence is led in order to support one’s version. Since some solemnity is attached to the relationship Court should take into consideration the surrounding circumstances and status of husband or wife should not be declared, unless the suspicious with respect to solemnisation of marriage are reasonably removed. Preponderance of evidence should lead to an inference of solemnisation of marriage.
29. The oral evidence examined on the point is of the petitioner as PW 1, PW 2 and PW 3. Petitioner took a categoric stand that she was married to one Girdhari Lal Wadhwa and admitted having entered into compromise with him on January 12, 1976. It wag asserted by her, that in December, 1976 when she approached the respondent for consultation with respect to her divorce with Girdhari Lal Wadhwa, a suggestion was floated that she should give up the idea of divorce and get married with the respondent, which was conveyed to her through her maternal uncle PW 2, who was at the relevant time working as a Clerk with the respondent. She admitted that she acquired the knowledge with respect to death of Girdhari Lal Wadhwa to December, 1976 through the respondent, though categorically denied her knowledge with respect to the date of death of said Girdhari Lal, in spite of the fact that she asserted in her replication the specific date of death of Girdhari Lal as 30-11-1976 according to her knowledge and belief. She denied that she made any enquiry with respect to death of Girdhari Lal Wadhwa before entering into marriage with the respondents. She took a categoric stand that the marriage was performed by putting Chadar on her and exchanging garlands. She further stated that a daughter was born to her in 1978 through the loins of the respondent. She admitted that Chadar Andaji was performed by the priest but did not disclose the name or particulars of the said priest. She did not say a word that they are governed by a custom or what that custom was.
30. A reading of the petition, as well as the replication reveals that the appellant’s categoric stand was that they were married according to Hindu rites as envisaged under Section 7 of the Hindu Marriage Act, i.e. taking of 7 steps round the sacred fire. A reading of her oral statement on oath and the pleadings, one is left only with one inference to draw that the appellant is keeping something upto herself from the Court, for the reasons best known to her. It is inconceivable that a wife would not know the date of her husband, in particular, when the appellant is not pardah-nashin house-wife. She worked as Class-III employee i.e. Security Staff in Christian Medical College and Hospital, Ludhiana.
31. Doling her statement on oath, it was suggested to her that she had entered into an agreement of sale with respect to a part of the house with the respondent. She categorically denied the fact of entering into an agreement of sale. However, a photostat copy of duly stamped agreement was produced in the court which was accepted by the learned counsel for the appellant who stated at the bar that the same be read in evidence. Since the version set up by the appellant in her statement proved grotesque to one set up in her pleadings, one is left in realm of imagination with respect to her marriage with the respondent and her status as his wife.
32. Another witness Jagan Nath PW 2 who is none else but the real maternal uncle of the appellant and was the Clerk of the respondent at the relevant time, was examined in the later part, of the day. Resultantly, he attempted to fill in the lacuna left behind by PW 1 the appellant, herself. According to PW 2 it was in December, 1976 that some enquiries were made with respect to the death of Girdhari Lal Wadhwa, the husband of the appellant, through the in-laws of the elder sister of the appellant. The appellant never stated so. The witness had attempted to go a step ahead. Nothing has been stated with respect to the ceremonies performed according to the Hindu rites i.e. by Saptapadi. The witness corroborated the statement of PW 1 with respect to the marriage of Chaddar-andaji, which never the pleadings. Rather the version set up is contrary to the pleadings. Reconciliation with Girdhari Lal Wadhwa in January, 1976, with the appellant was admitted. The time of Chaddar-andaji given by PW 2 is different than the one given by Manohar Lal PW 3, the father of the appellant. The appellant PW 1 took a stand that talk with the respondent about the divorce between the appellant and Girdhari Lal Wadhwa took place in December, 1976 though PW 2 stated that it took place in February, 1976 which is again irreconcilable. The presence of PW 2 at the alleged marriage by Chaddar-andaji is doubtful as he being the close relation has refused to disclose the particulars of the members of the alleged marriage party. A reading of the whole statement leaves one which the impression, that it is one of the vague statements that are made to support one’s relation. He refused to give the date of death of Girdhari Lal Wadhwa. Assessing his ocular account, in the light of the statements of PW 1 and PW 3 the version set up appears to be intrinsically unreliable.
33. The last witness examined by the appellant is her own father who attempted to corroborate the statement of PW 2. There is a discrepancy with respect to the time of marriage as given by PW 2 and PW 3. Though he admitted that the Pandit performed the ceremony of ‘Chaddar Andaji’ and is alive, but failed to disclose the particulars. He is one of the persons who has set up the version of marriage with respect to ceremonies other than pleaded. He did not say a word about the ceremonies of solemnisation of marriage according to Hindu rites. He further belied the statement of PW 2 inasmuch as according PW 3 no relations came in the marriage party which PW 2 was categorical that relations did attend the marriage party. He vaguely stated that he came to know about the death of Girdhari Law Wadhwa somewhere in November/December, 1976, and confirmed the same from the in-laws of his elder brother who was not examined. On a suggestion being put to him, he categorically stated that he could not confirm the death of Girdhari Lal Wadhwa in 1982.
34. There is not an iota of evidence on the record to prove that the appellant and the respondent ever lived as husband and wife. There is no evidence of their being husband and wife by reputation also. There is no evidence that the community or the society in which they were living accepted them as husband and wife. There is not an iota of evidence with respect to oral declaration by the parties that they were husband and wife; rather Ex. P-7 an application in the form produced by the appellant shows that she was not claiming herself to be the wife of respondent but used to describe herself as daughter of Manohar Lal. In these circumstances and conspectus of authorities cited by the appellant to contend that by long Jiving as husband and wife valid marriage should be presumbed; since no neighbour of either of the parties have been examined it would not be reasonable to raise the presumption of marriage of the appellant in view of the conduct of the parties and non-examination of independent and best evidence.
35. The conspectus of the examination of PW 1, PW 2 and PW 3 is that the appellant was married according to ceremonies of Chaddar-andaji by a Pandit whose particulars were not disclosed. The factum of marriage and the ceremonies of marriage in the oral statements is contrary to the one pleaded. There is no evidence of any witness of the locality to prove the conduct of the parties living as husband and wife. There is no evidence with respect to declaration by the respondent accepting the appellant as his wife. There is no evidence that the appellant and the respondent were accepted as husband and wife by their relations, neighbourers, member of the community, or were so treated. There is no corroborative evidence nor any circumstance has been brought on the record to corroborate or to support the credibility of the witnesses examined. The version set up by them appears to be unnatural and improbable. They suffer from infirmities referred to while dealing with the statement of each witness. It can safely be said that both the witnesses examined by the appellant are closely related to her and were unison in speaking the tune of the appellant. The oral evidence not only excludes the hypothesis of marriage but is inconsistent with the version set up. The witnesses do not talk about the conduct of the appellant qua the respondent nor stated anything with respect to their conduct qua the parties.
36. It is well accepted principle that before evidence with respect to custom is accepted or proved or any evidence is led with respect thereto, the custom has to be alleged in the pleadings. It has to be averred that the same is being followed and parties are governed by it and it is not inconsistent with the statute. In the absence of said pleadings no amount of evidence with regard to custom can he looked into. There is not even a reference in the petition or the replication with respect to the custom much less the nature of the custom and the parties being governed by the same.
37. The counsel for the respondent further contended that undisputedly the parties are Hindu Khatris and are residents of Ludhiana district. There is no custom of marriage by Chaddar-andaji amongst such Hindu. In order to corroborate this contention reference to Ratigan on Custom Page 475 para 75 (4th Edition) was made wherein various castes and districts are noted where the marriage by Chaddar-andaji was accepted.
38. In view of my above observations, the appellant has failed to prove the marriage by Chaddar-andaji. The counsel for the appellant failed to show anything contrary to the contentions raised by the counsel for the respondent. Further there is no evidence, much less reliable to hold that any marriage was solemnised between the appellant and the respondent either according to Hindu rites, custom or Hindu Marriage Act or by even Chaddar-andaji.
39. The counsel for the appellant urged that the birth certificate Exhibit P. 5 voters’ list Exhibit P. 6 corroborated by the photographs Exhibits P. 1 to P. 4 and supported by oral evidence prove the relationship of husband and wife between the appellant and the respondent. It was contended that appellant was not cross-examined with respect to birth entry, therefore, it should be treated that the respondent has accepted its contents and thereby their relationship.
The counsel for the respondent refuted the said submission and contended that photographs Exhibits P. 1 to P. 4 cannot be read into evidence as the same were not proved in accordance with law and are inadmissible in evidence, and an objection to the same effect was taken. She relied on 1982 (2) HLR 376.
40. I find force in the contention raised by the counsel for the respondent. Exhibits P. 1 to P. 4 cannot be read into evidence as their author was not examined. The mode of proof was challenged. Even otherwise no inference with respect to marriage can be drawn by seeing the photographs. It is well known that the science of photography is so advanced that photographs can be easily manipulated and it is difficult to decipher the manipulation in the photographs produced in particular when their negatives were not produced on the record. Even otherwise the photographs at the most show that the respondent was known to the appellant or there was some intimacy between the two. The mere intimacy and even fornication cannot prove the marriage.
41. The counsel for the respondent contended that the birth certificate Exhibit P. 5 would not lead to a conclusion nor even indicate towards the marriage of the appellant with the respondent. No person was examined who had informed the authorities with respect to the birth of she child. No name was disclosed in the birth certificate. It was not connected with the child, said to be the daughter of the appellant and the respondent. The name of the mother has been disclosed as V. Malhan and the name of the father has been disclosed as Jagdish Mittal Malhan. Though there could be a variation in the name of Jagdish Mittar Molhan who has been described as Jagdish Mittal Malhan, but it cannot be connected with the respondent. No body stated that the person described as Jagdish Mittal Malhan in the birth certificate is the respondent.
42. The counsel for the respondent relied on ILR (1961) Bombay page 963 wherein it was observed that it is wrong to assume that an entry of birth proves ipso facto that the entry relates to or proves the birth of the person concerned. Evidence has to be produced to connect that entry with the person whose date of birth is to be established. It was further observed :–
“It is now the established rule that connection of the identity of the person under the entry must be established by other evidence. Entries of names of persons in a register of births or deaths or marriages cannot be that evidence by itself and the identity of the persons with the entry should be fully proved.”
The proposition of law has been accepted in AIR 1987, Punjab and Haryana 37.
43. In my view, the necessary corollary which follows the observations made in the above cited judgments with which I fully agree, is that unless and until the birth certificate of the person is connected to the persons in dispute by other reliable evidence, the birth entry itself cannot prove the relationship, in particular when the name of the child as well as the name of the father of the respondent was not disclosed in the entry. Additionally the name of the respondent was wrongly described. Be that as it is, I am of the considered view that Exhibit P. 5, either in isolation or along with oral evidence adduced, does not lead to an inference that the appellant was married to the respondent. I am further of the view that since the statement of the appellant was challenged in cross examination as a whole, not putting of a suggestion with respect to the birth entry in particular is of no consequence.
44. The submission made by the counsel to the effect that Voters’ List Exhibit P. 6 corroborates the version set up by the appellant with respect to the marriage cannot hold the ground. In Voters’ List Exhibit P. 6 one Veena aged 36 years in the year 1980 is recorded as the voter. Admittedly the appellant while appearing as her own witness stated her age as 33 years in the year 1986 i.e. after a lapse of six years. Obviously the Voters’ List cannot be connected with the appellant. Apart from this, in my view, Voters’ List unless proved to have been prepared on the application of the voter duly signed by him is an hearsay evidence. The person who prepared the Voters’ List has not been examined. In the absence of the author of the Voters’ List, it cannot be treated as a substantive evidence to prove the relationship. The Voters’ List can at the most be treated as a corroborative piece of evidence. No rules have been pointed out under the Representation of People Act, 1950, under which the Voters’ Lists are prepared, wherein it is enjoined on the author to record the relationship. Even otherwise, under Section 36 of the Representation of People Act, 1951, the Voters’ List has been made the conclusive evidence only to the effect that the person referred to in the entry is an elector of the constituency and his vote number is so and so. The Voters’ List has not been connected with the appellant. The Voters’ List cannot be relied upon to assume and to hold that the appellant was related to the respondent as his wife.
45. The counsel for the respondent contended that a Hindu marriage may be solemnised only in accordance with the customary rites and ceremonies of either party thereto or by saptpadi and the marriage shall be complete and binding when the seventh step in taken. She referred to Section 7 of the Act. It was further contended that without observing the ceremonies/customary rites of the either party or taking seven steps around the sacred fire marriage will not be complete. In the absence of that, no status of a wife can be conferred on the appellant. In order to buttress her submissions she relied on 1976 HLR 380, AIR 1971 SC 1153, AIR 1962 AP 311 and AIR 1982 Punjab and Haryana 83. From a reading of the judgments cited, the principles deducible are :–
(1) It is necessary to plead the form of marriage between the parties;
(2) It is for the party to prove the form of marriage who alleges the marriage ;
(3) If the marriage is alleged to have been performed according to customary rites all the ceremonies enjoined by the custom to be performed should be proved to have been gone into ;
(4) Solemnisation of marriage as envisaged by Section 7 means that the same was duly performed in accordance with law.
46. In view of my observations earlier, there is no pleading with respect to custom by which the parties are governed nor any plea with respect to the customary rites required to be performed to bring about a valid marriage. In the absence of plea, no amount of evidence can be looked into. Otherwise also, there is scanty and unreliable evidence to prove the marriage.
47. The counsel for the respondent urged that the alleged marriage of the appellant with the respondent is a void marriage. It is essentials rather a pre-condition, for a Hindu marriage that a marriage can only be solemnized between two Hindus if neither of the party has a spouse living at the time of marriage.
48. Section 5 of the Hindu Marriage Act reads as under :–
“Section 5.
Conditions for a Hindu Marriage : — A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :–
(i) neither party has a spouse living at the time of the marriage ;
(ii) at the time of the marriage, neither party : —
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind ; or
(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty-one year and the bride the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two,
(v) the parties are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two.”
49. Section 11 of the Act provides the marriage to be void. It reads as under :–
Void marriages :–Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullify if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5.”
50. The Act makes it clear that a marriage solemnised between two Hindus after the commencement of the Act having a spouse living at the time of marriage shall be a void marriage. The object of the provisions is to give effect to the cherished wish of the Hindu society to give statutory recognition to monogamy and denounce polygamy. Even in archaic society monogamy was considered as the virtue and polygamy was permissible only under particular rigid conditions. Monogamy was preferred to bring harmony between the husband and wife and thus provide stable and healthy society.
51. The Legislature in its wisdom thought that there was no justification for permitting polygamy and to enforce the monogamy not only provided statutory bar against polygamy but made it penal as well. This made the provisions mandatory. Even the polygamy, permissible under the customary rites and certain conditions under the shastic law or custom was abrogated. Section 4 of the Hindu Marriage Act reads as under :
“Overriding effect of Act :–Save as otherwise expressly provided in this Act :–
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.”
52. It abrogated all rules text, custom or usage or interpretation of Hindu Law, in force immediately before the commencement of the Hindu Marriage Act which were contrary to the specific provisions made in the Act. The Act categorically provided for the concept of monogamy and any marriage of either party having a living spouse at the time of the marriage was debarred and declared a void marriage. The person solemnising the marriage during the life time of his living spouse and subsisting marriage was made punishable. The marriage was void ipso jure in case of polygamy. It would be deemed to have never taken place. It can be treated so by both the parties to the said marriage. No specific decree is required to be taken for obstensible void marriage as from the very inception of it, the parties are stripped off status of a husband and wife. Bigamous marriage has no legal status. A person cannot escape the consequences of his acts on the plea of it being not a conscious act, or have been brought about by fraud of any of the Spouse or the absence of mens rea.
53. There is no doubt in the principles laid down by various authorities as noted in the earlier part of the judgment that one mode of proving the marriage after elapse of time is that the parties have lived as husband and wife, declared themselves so and were known in the society as husband and wife. It was presumed that the ceremonies had been gone into. The principal reason for doing so is the doctrine of Hindu Law to the effect that the fact cannot be altered by 100 texts i.e. what not ought to be done if done is valid when done. The said presumption is rebuttable.
54. Once it is shown that a marriage is a valid marriage, it being a social Institution, should be jealously protected but since the calendstine marriages are not accepted by the society, the fornication of the calendstine marriage could not attribute the relationship of husband and wife. Void marriages can only result in the relationship of concubinage and not into a valid marriage. It would not confer a status of a wife. The logical corollary about the marriage is that either it is valid for ever or never.
55. It is well settled and established principle that a void act cannot be rectified by subsequent conduct or act. If it is shown that from the inception, the marriage was void, mere living as a husband and wife for some period will not clothe the parties with the status of a husband and wife. A void marriage cannot be incurred by long joint living. The conduct of the parties cannot alter the truth of the situation. There cannot be any estoppel in case of bigamous marriage. One cannot be permitted to assume the status of wife in violation of the Hindu Marriage Act which prohibits polygamy.
56. It was observed in AIR 1988 SC 644 that “the appellant cannot rely on the principle of estoppel as to defeat the provisions of the Act. So far as the respondent treating as her wife is concerned, it is again of no avail as the issus has to be settled under the law. It is the intention of the Legislature which is relevant and not the attitude of the parties. It is a complete nullity.”
57. A void marriage is a marriage that has never come into in the eyes of law. It has never taken place. No specific events being available to cure these missing links to prove valid marriage there is no necessity of declaration of the void marriage.
58. Once the prior marriage is proved, it will subsist until it is annulled or has come to an end by nature i.e. by calamity of death. Where there is no evidence or independent reliable evidence of prior marriage having come to an end by death or dissolution and it was proved that there was a prior marriage, it would be presumed that it continues until contrary is proved. It is only when circumstances are brought on record from which the Court can presume or infer that the earlier marriage came to an end that party will be at liberty to have the second husband/wife. The Court’s sympathy in view of the affirmative prohibition is of no consequence. The statutory clear and mandatory law has to be given effect to by the Courts. Connivance or intentional concurrence by the parties to a bigamous marriage and their subsequent conduct treating themselves as husband and wife is incompatible in the face of legal bar.
59. In 1961 (1) The All England Law Reporter 236, it has been observed that “it is well established that a bigamous marriage is void ipso jure or void ab initio, whichever phrase is to be prepared. Inasmuch as it is void it is of its very nature incapable of being converted into a valid marriage, as can happen in the case of a marriage which is merely voidable as opposed to void.”
60. It was further observed, “that a void marriage is one that will be regarded by every Court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both the parties to it without the necessity of any decree annulling it.”
61. It was further observed, “that it seems to me that it would be contrary to all principle if a ceremony which is by definition null and void could be converted into something valid and binding and capable of conferring status by the act or inaction of a party to it. It would surely be remarkable as a proposition of law if this Court were to be prevented from declaring the truth, namely, that a marriage is bigamous, and so correcting the status of the parties to it and of their dependents merely because one or both of them has choosen to assert its validity or because one of them has failed to dispute or has concurred in the assertion of its validity by the other. The court deals not merely with disputes between parties but with status. Marriage is not an ordinary contract, it is an institution which confers a status on the parties to it.”
62. It was observed that “it is an old maxim that estoppels are odious they tend to shut out the truth and it is well settled that they cannot override the law of the land. If the law declares a bigamous marriage void and criminal, is this court nevertheless to treat it as valid and refuse to declare truth by reason of conduct however un-meritorious to one or both of the parties to it ?
63. Accepting the second marriage during the life time of the living spouse as vaild marriage because of the conduct of the parties and invoking the plea of estoppel, leaves one of the parties to it with two husbands, or two wives regarded as such by law though polygamy or polandry has been expressly barred by statute, i.e., Hindu Marriage Act. The declaration would be contrary to the law of the land.
64. It has been further observed that, “if two people with same courses of information assert the same truth, or agree to assert the same falsehood, at the same time, I cannot see how either can be estopped as against the other from asserting differently at a lesser time”.
65. Under the Indian Evidence Act, a person is presumed to be dead only after elapse of 7 years, if he is not heard of by a person who would have heard about him in the ordinary course. It has been observed that this presumption does not presume the date of death. The date of death of the person has to be proved as a fact by a person asserting the same or by one who wants to rely on it. The presumption of death does not validate an actual bigamous marriage entered into, on reliance upon the presumption of death provided by the Indian Evidence Act.
66. The second marriage will be void ab initio once it is shown that at the relevant time of the second marriage the previous husband was alive. It is also well known that the petitioner has to succeed on its own case set up. No advantage can be taken from the falsehood asserted by the respondent or contradictions in respondent’s evidence. The initial burden of proof of the facts alleged in the petition is on the petitioner. He is to prove the facts alleged before the relief can be granted. Mere weakness in the case or contradiction in the defence does not entitle the petitioner to the relief claimed. The petitioner has to succeed on his own merits. Petitioner came on particular allegations with respect to marriage; and having failed to prove it, she cannot be permitted to take advantage of facts alleged in defence. Reference in this respect be made to AIR 1971 Madras 422.
67. The learned counsel for the respondent vehemently urged that even assuming the marriage to be there with the respondent it was a void marriage. In view of facts proved on the record that Girdhari Lal Wadhwa was admittedly married to the appellant and was living on the alleged date of marriage i.e. 22-12-1976 and the marriage was subsisting. No principle of estoppel can be invoked. The respondent further contended that it has been proved on the record that said Girdhari Lal died on 23-2-1982 in a road accident.
68. In order to support her submissions, counsel relied upon an FIR Ex. RW5/B and death certificate issued Exhibit RW5/C. It was admitted in the replication that the petitioner was married to Girdhari Lal Wadhwa and he was alive in January, 1976. The appellant has positively asserted in replication that the said Girdhari Lal died on 30-11-1976 as per knowledge and belief of the appellant. It was not pleaded in the replication that the respondent informed the appellant with respect to the date of death of Girdhari Lal Wadhwa in December, 1976 and she believed the respondent and under a bona fide belief on the information of the respondent she married the respondent. It was urged that the date of death was given by the respondent on oath and there is no cross-examination with respect to either falsity of the FIR or death certificate or the date of death. The FIR was recorded much prior to the dispute arose between As parties and it being an act of a Government servant, performed during discharge of his official duty, shall be presumed to have been rightly and correctly done.
69. It was further contended that the name of deceased wife of the respondent was Veena Malhan as is obvious from the sale dead Exhibit RW5/A registered on 24-1-1974 vide which a plot was purchased and the voters’ list relates to the wife of the respondent as in 1975 when the sale deed was executed, the age was shown to be 27 years. As a natural corollary the age in 1980 when the voters’ list was prepared would be 32/33 years.
70. It was contended that when particular facts have been proved to be in existence i.e. a spouse is proved to be living in January, 1976 it shall be presumed that the state of affairs continues till it is proved otherwise. Thus, Girdhari Lal Wadhwa shall be deemed to be alive on the alleged date of marriage i.e. on 22-12-1976.
71. It was urged that since the facts have been kept back by the petitioner and the best evidence of the relations of Girdhari Lal having not been examined nor the alleged relations of appellant’s sister who according to the statement of appellant’s witnesses verified about the death Girdhari Lal Wadhwa having been examined, an inference should be raised against the appellant.
72. The learned counsel for the respondent relied upon Parkash Chander v. Smt. Parmeshwari, AIR 1987 Pb. and Hry. 37 to contend that the Karewa marriage said to have been entered into during the life time of Girdhari Lal Wadhwa though not alleged in the petition, would be a void marriage in view of the facts and circumstances that on the alleged date of Karewa, her first husband Girdhari Lal Wadhwa was alive. It was further stated that the appellant having asserted a particular date of death i.e. 30-11-1976 and having not led an iota of evidence on the record to prove she death on the said date, it would be inferred that he was alive on the alleged date.
73. In order to support her argument, the learned counsel relied upon 1987 Punjab 37 which squarely deals with the facts and circumstances similar to the one in hand. It has been observed :–
“The next question of definite importance which arises in this case is whether during the life time of Ishwar Singh who was very much present in the village, any Karewa marriage could be legally entered into between the respondent and the appellant, or had it in fact been so taken place. There is no doubt whatsoever in my mind that in the presence of Ishwar Singh, who was very much alive in the village, no valid marriage could take place between the parties. Such a marriage would be void in the face of the provisions of Section 5(1) of the Act wherein it is laid down that a marriage may be solemnised between any two Hindus if neither party has a spouse living at the time of the marriage. It has been held by the Supreme Court in Mohd. Ikram Hussain v. State of Uttar Pradesh, AIR 1964 SC 1625, that in view of provisions of Sections 5 and 11 of the Act such a marriage would be null and void. In para 74 of the Digest of Customary Law by Sir W.H. Rattigan (13th Edition), it has been laid down that until the former marriage is validly set aside, a woman cannot marry a second husband in the life time of her first husband.”
74. The learned counsel for the appellant though refuted the contentions raised by tee learned counsel for the respondent but was not able to substantially meet the same. In the course of argument it was not disputed that the appellant was married to Girdhari Lal. He did not dispute that there is no evidence led by the appellant with respect to the date of death of Girdhari Lal as asserted by her to be 30-114976. He did not dispute that the presumption of death can only be raised after elapse of a period of seven years as envisaged by Section 114 of the Indian Evidence Act.
75. In the ordinary course of human conduct, a man shall be presumed to be alive unless proved otherwise. At the most presumption can be raised with respect to death as provided by the statute. In view of the appellant’s oral evidence discussed earlier and reading the defence evidence it would not be unreasonable to infer that said Girdhari Lal Wadhwa was alive on 22-12-1976 when the alleged marriage with the appellant had taken place. The appellant conspiringly with her father and maternal uncle, during their statements, asserted that they had learnt about the death of Girdhari Lal from the respondent himself, and they further verified the same from the appellant’s elder sister, or her relations, who had not been examined. In these circumstances it would be reasonable to infer that she does not want to disclose the date of death intentionally,
76. The fact of Girdhari Lal Wadhwa being alive in December, 1976 gets corroborated by the evidence led by the respondent to show that Girdhari Lal died in 1982. The respondent appeared in the witness box and proved RW5/B an FIR No. 251 dated 27-3-1982, wherein Girdhari Lal was shown to have died in a road accident. A cremation certificate was produced from !he persons, incharge of she cremation ground where he was cremated. (Certificate Exhibit RW5/C). There was no cross-examination wish respect to the said facts. The FIR was of a period when there was no dispute between the parties. Taking the totality of the circumstances into consideration and the evidence produced on the record, I am of the view that Girdhari Lal was alive in December, 1976 when the alleged marriage took place.
77. The counsel though not conceded but half-heartedly accepted the fact of Girdhari Lal being alive on the date of the marriage and attempted to assert that the respondent is estopped from denying the marriage, in view of his conduct, of having lived as petitioner’s husband. The respondent, it was contended, was estopped from denying the marriage in view of his conduct of having told though falsely that Girdhari Lal was dead on the date of marriage and that fact was accepted by the appellant and she believed the same and acted upon it and further the parties lived together as husband and wife.
78. I have already observed, that, this assertion of the appellant cannot be accepted. The entire thrust of the arguments of the appellant was to the effect that the respondent had a fornication and they were living near to each other. This situation cannot be accepted even if it is assumed to be so. At the most the assumed declaration of marriage was a camouflage. By no stretch of inference the status of wife can be conferred on the appellant.
79. In view of the observations made above, it cannot be held that a marriage was solemnised between the appellant and respondent. She cannot be treated to be wife of the respondent. Otherwise also in view of findings that Girdhari Lal Wadhwa was alive on the alleged date of marriage, the marriage would be a void marriage and status of respondent’s wife cannot be conferred on the appellant. I find no force in the contentions raised by the counsel for the appellant.
80. The thrust of the appellant’s argument was that the respondent has been shifting his stand and was unable to set up any coherent or reasonable defence and the evidence led by him is unreliable. The contention howsoever meritorious, is of no consequence. As observed earlier, the appellant has to succeed on his own allegations, proof of them, and not on the weakness or on falsehood of defence. The contention is noted to be rejected.
81. The counsel for the appellant after the arguments preferred an application that maintenance be granted to the daughter even if she is assumed to be illegitimate issue. The counsel for the respondent refuted the facts and resisted the application and contended that in view of Section 112 of the Evidence Act the child shall be presumed to be of Girdhari Lal as admittedly she was born during the subsistence of the first marriage. Otherwise also, no finding with respect to her parentage can be given in these proceedings as the parties never went to trial with respect to paternity or maternity of the child. There was neither any plea nor any issue with respect to it. It was stated at the Bar that some independent proceedings for determination of paternity of the child are pending,
81. It was contended by the counsel for the respondent that in view of the statement of RW 3 that Girdhari Lal used to visit the appellant, the child should be presumed to be of Girdhari Lal.
83. Without expressing any opinion, I stop short here after noticing the contentions raised. The paternity shall be determined in the civil litigation pending between the parties. Any opinion expressed in the judgment shall not be taken note of in the said proceedings.
84. The counsel for the appellant further submitted that the application for maintenance with respect to the maintenance pendente lite which was kept pending to be decided alongwith the main appeal, be decided and the appellant be granted alimony also.
85. In view of my findings above, since the appellant failed to prove herself to be the wife much less a legally wedded wife of the respondent and in the alternative the marriage being void, no alimony can be granted in these proceedings as it is only the wife to whom the alimony or maintenance can be granted. In view of my findings above, I dismiss the application for alimony. The application for interim maintenance shall stand disposed of as dismissed as observed above.
86. As the appellant has failed to prove herself to be the wife of the respondent, she is not entitled to any decree for restitution of conjugal rights. There is no merit in the appeal, I dismiss the same with no order as to costs.