A. Sankaranarayanan vs Mani

M.M. Sundresh, J.—The defendant is the appellant. The Suit has been filed by the respondent herein, as the plaintiff in the Suit, seeking

relief of declaration that she is the legally wedded wife of the appellant herein. The said Suit was filed in O.S. No. 9 of 1994 on the file of the I

Additional Sub-Court, Madurai, has been decreed and being aggrieved by the same, the appellant has preferred this Appeal. The case of the

plaintiff in a nutshell is as follows:

The plaintiff and the defendant have been living together for some time at Door No. 46, S.S. Colony, Parthasarathi Street, Madurai-16.

Thereafter, the plaintiff got pregnant and as a result of the same, the marriage was solemnized on 13.12.1987 at Pillaiyar Temple situated in

Madurai Meenakshipuram. There was an exchange of garland and a chain was presented by the defendant while solemnizing the marriage. The

marriage was solemnized in the presence of P.W.2 to P.W.4 and few other persons.

On 21.06.1988 there was an attempt to settle the dispute between the plaintiff and the defendant since a demand was made by the defendant as

dowry. On 22.05.1988, the defendant has left the plaintiff and on 6.07.1988 a male child was born to the plaintiff. However, the said child died at

the time of delivery. Ex.A1 is the certificate showing the name of the defendant as the father of the child. Therefore, the present Suit has been filed

to declare that the plaintiff is a legally wedded wife of the defendant.

The case of the defendant is as follows:

The very Suit has been filed with mala fide intention to extract money from the defendant. The plaintiff is elder to the defendant and the plaintiff met

the defendant at his residence only twice. The allegation that a son out of the wedlock is also not true. The averments that the marriage was

solemnized in the presence of P.W.2 to P.W.4, is also denied. It is also stated in the written statement that the allegation regarding the demand for

dowry has no factual basis. The Trial Court has framed the following issue.

Whether the plaintiff is a legally wedded wife of the defendant ?

On the side of the plaintiff, four witnesses have been examined and Ex.A1, which is the Birth Certificate of the child, has been marked. On the

side of the defendant, he has examined himself as D.W.1 and marked Ex.B1 to Ex.B8 in support of his case. The Trial Court has decreed the Suit

by holding that the evidence of P.W.1 to P.W.4 would clearly show that the marriage was solemnized between the plaintiff and defendant on

13.12.1987. The Trial Court has held that there are material discrepancies in the evidence of D.W.1 since at one place he says that he does not

know the plaintiff very well and on the other hand he says that the plaintiff has taken care of him when he was young. The Trial Court has also held

that Ex.A1 would clearly show the name of the defendant as the father and a finding of fact has been given that the defendant is having another

name by Rajendran. The Court below has further held that the evidence of P.W.2 to P.W.4 are trustworthy and therefore, the marriage was

conducted on 13.12.1987. The Court below has also held that the contention of the defendant that the plaintiff was living as a concubine of one

Athimoolam has not been proved by the defendant. The statement of the defendant was that he was 10 years younger than the plaintiff, was also

not proved. The further contention was that 13.12.1987 was not an auspicious day and therefore, the marriage could not be solemnized, was

rejected since considering the fact that the plaintiff was already pregnant, the marriage was solemnized on that day and also in view of the fact that

they have been living together already.

P.W.2 is the priest who performed the marriage on 13.12.1987 between the plaintiff and the defendant. In his chief-examination he stated that

the marriage was solemnized between the plaintiff and defendant at about 7.00 a.m. According to the P.W.2, by chanting mantras, he performed

the marriage. The P.W.2 says that there was exchange of garland between the parties. The P.W.2 also says about the presence of the other

persons while solemnising the marriage. The P.W.3 is a person, who was present at the time of the marriage also spoke about the exchange of

garland between the plaintiff and the defendant and they were living together after the marriage. P.W.4 is the relative of the plaintiff, who has

deposed the same line as that of P.W.2 and P.W.3. P.W.4 has stated about the fact that the plaintiff and the defendant were living together after

the marriage.

According to P.W.4, the child was born out of the wedded lock between the plaintiff and the defendant. The defendant in his evidence says that

there was no solemnization on that day and he was taken care by the plaintiff when his parents are absent. He further says that he has not married

the plaintiff and no child was born out of the wedded lock. He also says that it is true that the Plaint has been filed by showing his name as

Sanakaranarayanan @ Rajendran which fact he has not denied in his written statement.

The Trial Court on consideration of the facts and circumstances of the case, particularly after relying the evidence of P.W.I to P.W.4, has given

the finding that the marriage has been solemnized on 13.12.1987 between the plaintiff and the defendant and Ex.A1 would clearly show that the

deceased child was born out of the wedlock. The Trial Court has also taken note of the contradiction made in the evidence of the defendant and

also there was an exchange of garland between the parties and the tying of chain evidencing the solemnization of the marriage.

The learned counsel for the appellant submitted that there are discrepancies in the evidence of the plaintiff in so far as the printing of invitation is

concerned. In one place the plaintiff says that the invitation is not printed but in other place she says that it has been printed. Similarly, P.W.4 also

says that invitation is printed. Therefore, according to the learned counsel, the contradiction in the evidence coupled with the non-production of

invitation as well as the photographs taken would show that the marriage has not been solemnized. It is further submitted by the learned counsel

that the evidence of P.W.2 to P.W.4 cannot be relied upon since they are interest witnesses being closer to the plaintiff. According to the learned

counsel, the marriage has not been solemnized as per the custom and usage since Section 7 of the Hindu Marriage Act has not been followed as

there is no tying of Thali.

The learned counsel has also relied upon the judgment reported in Indirani Vs. Vellathal and Others, . He has also relied upon the judgment in

Bhaura Shankar Lokhandi and another v. State of Maharashtra and another, 1965 SC 1564, as well as the judgment reported in S.C. Shanthi Vs.

P. Venkatesh, , in support of his contention that u/s 7, the marriage has to be solemnized as per the custom and usage. Hence, according to the

learned counsel, in the absence of the same, the Suit is liable to be dismissed.

On the other hand, the learned counsel for the respondent submitted that the Court below has considered the evidence on record particularly the

evidence of P.W.2 to P.W.4 who are independent witnesses. According to the learned counsel that it has not been proved by the appellant that

P.W.2 to P.W.4 are interest witnesses. The learned counsel further submitted that the Trial Court has also taken into consideration of the

discrepancies in the evidence of D.W.1 in so far as the nature of relationship between the plaintiff and the defendant is concerned. The learned

counsel further submitted that mere discrepancy in the evidence of the plaintiff and the non-production of the invitation card would not nullify the

marriage.

According to the learned counsel that there is no specific pleading in the written statement about the non-compliance of Section 7 of the Hindu

Marriage Act. The learned counsel has further contented that u/s 7(1) what is sufficient is any form of a marriage solemnized voluntarily between

the parties and therefore the marriage has valid in law. It is further submitted by the learned counsel that once a marriage is proved the onus is on

the person who denies the factum of marriage that the same has not been solemnized in accordance with the provision of the Hindu Marriage Act.

I have carefully considered the submissions made by the learned counsel for the appellant as well as the respondent. In the case on hand, the

Court below has considered thoroughly the evidence of P.W.I to P.W.4 before coming to the conclusion that the marriage has been solemnized.

As held by the Court below P.W.2 to P.W.4 are independent witnesses and they have all given evidence that the marriage has been solemnized on

a particular day between the plaintiff and the defendant. On the other hand it is the specific case of the defendant that there is no marriage at all on

that day. Hence when the factum of the marriage has been proved that on the particular day as mentioned by the plaintiff there was a marriage

between the parties, then the onus is heavily on the defendant to show that it has not been solemnized in accordance with the Hindu Marriage Act.

It is not the case of the defendant even in his written statement that the marriage has not been solemnized as contemplated u/s 7 of the Hindu

Marriage Act. Therefore this Court is of the opinion that in the absence of a specific plea in the written statement and in view of the specific stand

taken by the defendant that there is no marriage at all the other contention that marriage has not been solemnized as contemplated u/s 7 does not

deserve any consideration.

Even otherwise as contended by the learned counsel for the respondent a perusal of Section 7(1) of Hindu Marriage Act, 1955 would show

what is sufficient is a solemnization of the marriage in any form. When once it was proved that there was a marriage solemnized between the parties

then that would be sufficient to hold that there was a proper marriage in accordance with Section 7(1) of Hindu Marriage Act, 1955. In the case

on hand it has been proved on evidence that there was an exchange of garland between the parties which was followed by tying a chain by the

defendant on the plaintiff. Therefore it has not been proved that even Section 7 has not be complied with. The judgment relied upon by the learned

counsel for the appellant, in the opinion of this Court it is not applicable to the present case on hand. Even on a perusal of the Judgment of the

Division Bench in Indirani Vs. Vellathal and Others, , it is seen the exchange of garland or putting a ring or tying a Thali are traditionally recognized

stages of marriage ceremony which bring into existence of a valid marriage. Moreover, one has to see the facts and circumstances of the present

case. Here is a case where admittedly the plaintiff was pregnant at the time of the marriage. Therefore, the close relatives of the plaintiff were not

present resulting in the exchange of garland at the temple. The mere statement that the marriage was solemnized as per the custom and usage

cannot be put against the plaintiff to say that the marriage has not been solemnized as per the custom and usage. Further the defendant has not

established what is the actual custom prevailing in the community even though the plaintiff has stated that tying a Thali is part of a custom.

Moreover the Court has to see the circumstances under which the marriage was solemnized. It is not the case of the defendant that the marriage

has been solemnized by force or coercion but on the other hand, it is the specific case that the marriage has not taken place on that date.

Therefore, taking into consideration of the said fact, this Court finds that no interference is called for. Therefore, it is to be seen that the Court

below has considered the entire evidence on record before coming to the conclusion. The Court below has also considered the conduct of the

parties and held that the evidence of the defendant is not believable as against the evidence of the plaintiff. In this connection it is useful to refer the

recent judgment of the Supreme Court reported in Jagdish Singh Vs. Madhuri Devi, wherein the Hon''ble Supreme Court was pleased to hold that

when the Court of original jurisdiction has considered the oral evidence and recorded the findings after issuing demeanour of witness and having

applied his mind, the Appellate Court will be to keep that in mind and exercise proper care and caution while disturbing the said findings of the

Court below. The Hon''ble Supreme Court has also said that the Trial Court has got the chance of seeing and hearing the witnesses. Hence,

following the said judgment of the Hon''ble Supreme Court, this Court finds that the judgment and decree of the Court below does not warrant any

interference. Accordingly the Appeal is dismissed. No costs. Consequently, the C.M.P. is closed.