S. Selvaraj vs Martha Vanitha Peter and Others

Ratnam, J.—The plaintiff in O.S. 310 of 1977, District Munsif''s court, Tiruchirapalli, is the appellant in this second appeal. That suit was

laid by the appellant praying for a declaration that the first respondent is not the legally wedded wife of the appellant or that she did not have the

status of the wife of the appellant and that the appellant is not the father of the second respondent and that he is not responsible for the birth of the

second respondent and for a permanent injunction restraining the respondents from, either by themselves or through third parties, claiming rights

against the appellant and his properties either as wife or as son. The appellant and the first respondent are admittedly persons professing Roman

Catholic Christian faith. The first respondent is also related to the appellant. According to the case of the appellant, though the first respondent, her

mother and sisters were freely moving with him he never suspected them and taking advantage of their so moving freely with the appellant, the

mother and sisters of the first respondent hatched a conspiracy to implicate the appellant in a marriage and with that object in view, they also

exercised influence over the appellant and compelled and coerced him into entering into an agreement on 5th July, 1975, in and by which, the

appellant and the first respondent agreed to live as husband and wife. The appellant claimed that no form of marriage as per the provisions of the

Indian Christian Marriage Act, 1872 (Act XV of 1872) (hereinafter referred to as the Act for short), or by Special Marriage Act was gone

through and the mere agreement entered into between the parties would not bring into existence the relationship of husband and wife between the

appellant and the first respondent. The further case of the appellant was that he was not a willing party to the execution of the agreement and when

he realised that a fraud had been played upon him in the matter of entering into the agreement dated 5th July, 1975, it was duly cancelled by

another document dated 13th August, 1975. The appellant and the first respondent, according to the appellant, never lived as husband and wife

either before or after 5th July, 1975 and that the first respondent was falsely giving out that she became pregnant through the appellant and a son

was also born as a result of the relationship between the appellant and the first respondent with a view to spoil the future of the appellant.

According to the case of the appellant, at the instance of the first respondent, departmental proceedings were also taken against him for attempting

to marry another girl and he was acquitted in those proceedings. The false implication that the first respondent is the legally wedded wife of the

appellant and that the second respondent was born as a result of intimacy between the appellant and the first respondent, according to the

appellant, necessitated the institution of the suit praying for the reliefs set out earlier.

In the written statement filed by the first respondent, she contended that the marriage of the appellant with her was duly celebrated by

performing various religious ceremonies, including exchange of rings and garlands on 5th July, 1975 and the marriage was also duly registered in

the Office of the Sub Registrar at Pattukottai and that thereafter they lived as husband and wife. The first respondent further contended that after

living together with the appellant, she became pregnant and the second respondent was born to the appellant and herself and that there was no

compulsion or coercion or exercise of any undue influence or hatching of any conspiracy as pleaded by the appellant. The execution of the

agreement on 5th July, 1975 before the Sub Registrar at Pattukottai was claimed by the first respondent to have been voluntary. The cancellation

by the deed dated 13th August, 1975 of the agreement dated 5th July, 1975 was characterised by the first respondent as of no consequence in

law. The appellant, according to the first respondent, was attempting to marry his aunt''s daughter for the second time, though he had been already

married to the first respondent and this led to the filing of a petition to the higher authorities to hold an enquiry into the matter. The first respondent

thus refuted the claim of the appellant to the reliefs prayed for in the suit and prayed for its dismissal.

Before the trial Court, on behalf of the appellant Exs.A1 to A8 were marked and the appellant was examined as P.W. 1, while, on behalf of the

respondents Exs.B1 to B18 were filed and the first respondent and two others gave evidence as D.Ws. 1 to 3. Even before the trial court, it was

the admitted case of the parties that the marriage between the appellant and the first respondent had not been solemnised in a Church. Likewise, it

was also not established either by the appellant or by the first respondent that the Sub Registrar, Pattukottai is a Marriage Registrar, clothe with the

authority to solemnise a marriage under S.5 of the Act. Considering the oral as well as the documentary evidence, the trial court found that though

the appellant had not married the first respondent, before the execution of the agreement dated 5th July, 1975, a marriage between them had been

duly solemnised in the presence of the Sub Registrar of Pattukottai and that the appellant and the first respondent had access to each other on

several occasions after the marriage and in the absence of proof of non-access by the appellant, the appellant is the father of the second

respondent. On those conclusions, the suit was dismissed. Aggrieved by this, the appellant preferred an appeal in A.S. 410 of 1978 before the

Sub Court, Tiruchirapalli. Before the appellate Court, the appellant filed an application I.A. 88 of 1979 for permission to examine the then Sub

Registrar of Tiruvonam, Orathanad taluk, on the ground that his examination was essential for a proper adjudication of the matters in controversy.

Considering the appeal on its merits, the learned Subordinate Judge, relying on the agreement dated 5th July, 1975 and some letters, telegrams and

photography, found, agreeing with the trial court, that there was a marriage between the appellant and the first respondent, that they lived together

as husband and wife and that the second respondent was born out of such relationship. Dealing with I. A. 88 of 1979, the learned Subordinate

Judge, relying upon the agreement dated 5th July,. 1975 and some correspondence, took the view that it is for the appellant to prove that there

was no marriage on 5th July, 1975 and having failed to examine the Sub Registrar, Pattukottai earlier, it is not open to the appellant to fill up the

lacuna. On the aforesaid reasoning, and conclusions, I.A. 88 of 1979 and the appeal were dismissed. It is the correctness of this, that is questioned

by the appellant in this second appeal.

Learned counsel for the appellant referring to Ss.4 to 6, 38 to 40 and 54 of the Act and relying upon the terms of the agreement, Ex.B7 dated

5th July, 1975 (Ex.A1 is the registration copy) and the evidence of P.W. 1 and D.W. 1 contended that no marriage was solemnised as

contemplated under the provisions of the Act between the appellant and the first respondent and that any other form of marriage, even if it had

been gone through by the parties, would be void and therefore the respondent cannot claim the status of wife and son, of the appellant. Reliance in

this connection was placed by the learned counsel upon the decision in Kochan Nadar v. Rayappan Nadar AIR 1955 T.C.R. 182, and

Sethuratnam Pillai v. Lucy Baskara Josephine 1977-II-M.L.J. 141. Per contra, learned counsel for the respondents submitted that even in Ex. B7,

there is an acknowledgement of the marriage between the appellant and that taken along with the subsequent conduct of the parties, would be

sufficient to infer the solemnisation of a marriage between the appellant and the first respondent. The decision in K.J.P. David Vs. Nilamani Devi, ,

was referred to by the learned counsel in this connection.

Thus, the main question that arises for consideration is whether there was a valid marriage between the appellant and the first respondent. While

the appellant had denied any such marriage, the first respondent maintained that there was such a marriage. Admittedly the appellant and the first

respondent are Roman Catholic Christians. As before the courts below, even here, there was no dispute that the marriage between the appellant

and the first respondent was not solemnised in a Church. To establish the marriage between the appellant and the first respondent, the agreement

under Ex.B7 dated 5th July, 1975 has been relied upon. Before referring to the terms of the agreement, Ex.B7, it is necessary to advert to the

evidence of the appellant and first respondent examined as P.W. 1 and D.W. 1 respectively, regarding the events that took place prior to Ex.B7.

P.W. 1 in the course of his evidence, has stated that neither before nor after Ex.B7, any marriage was solemnised according to religious practices.

D.W. 1 admitted in the course of her cross examination that the marriage took place only by Ex.B7. From the aforesaid evidence, it is obvious that

prior to Ex.B7, nothing had been done by way of solemnisation of any marriage between the appellant and the first respondent. Ex.B7 is styled as

The further recitals therein are as under : -

From the recitals extracted above, it is seen that the parties to Ex.B7 contemplated marriage only through the agreement, Ex.B7 and pursuant to

that, agreed to live as husband and wife. Under the provisions of the Act which governs the marriage between the appellant and the first

respondent, a marriage has to be solemnised in accordance with the provisions there of. S.4 of the Act provides for this and proceeds to declare

that any such marriage solemnised otherwise than in accordance with such provision, shall be void. Therefore, having regard to the religion

professed by the appellant and the first respondent, in order to constitute a valid marriage between them, its solemnisation in accordance with the

provisions of the Act is essential and vital and in its absence, even if a marriage had been otherwise solemnised between them, it would be void. S.

5 of the Act enumerates the persons by whom such marriages can be solemnised. As noticed even at the outset, in this case, there is no

solemnisation of the marriage between the appellant and the first respondent in any Church or by any of the persons contemplated under sub-Ss.

(1) to (3) and (5) of S.5 of the Act. The agreement Ex.B7 referred to earlier, had been presented before the Sub Registrar at Pattukottai, for the

purpose of registration. No doubt some evidence has also been let in to show that there was exchange of rings as well as garlands in the presence

of the Sub Registrar of Pattukottai at the time of the registration of Ex.B7. Whether that would amount to solemnisation of a marriage by or in the

presence of a Marriage Registrar appointed under S. 5(4) of the Act may now be considered. Part V of the Act deals with the procedure to be

followed with reference to marriages solemnised by or in the presence of a Marriage Registrar, Marriage Registrars are Christians, appointed by

the State Government under S. 7 of the Act, either by name or as holding any office for the time being to be Marriage Registrars for any district

subject to its administration. S. 38 of the Act contemplates the issue of a notice in writing by one of the parties to a marriage intended to be

solemnised by or in the presence of a Marriage Registrar of the District within which the parties have dwelt, and if the parties dwell in different

Districts, like notice shall be given to the Marriage Registrar of each district. S.39 of the Act provides for the publication of such notice on its

receipt by the Marriage Registrar and under S. 40 of the Act, the Marriage Registrar is obliged to file such notice and keep them with the records

of the office and is also bound to enter a copy of the notice called the Marriage Notice Book, which shall be open for inspection to all persons at

all reasonable times without payment or any fee. S. 54 of the Act provides for the Registration of the Marriage solemnised by or before the

Marriage Registrar in the Marriage Register Book in the prescribed form and also in a certificate attached to the Marriage Register book as a

counter foil. It is further provided that the entry of such marriages in the certificates as well as the Marriage Register Book, shall be signed by the

person by or before whom the marriage has been solemnised and also by the Marriage Registrar present at such marriage, whether or not such

marriage was solemnised by him and the parties married, and attested by two credible witnesses, other than the Marriage Registrar and the person

solemnising the marriage. In this case there is no evidence in the first place that the Sub-Registrar at Pattukottai was competent to discharge the

duties and responsibilities of a Marriage Registrar appointed under the Act. There is also no material to show that the Sub-Registrar at Pattukottai,

who Registered Ex.B7, was either a Christian or he was appointed as a Marriage Registrar under S. 7 of the Act. Likewise, there is no evidence

to show that the procedure with reference to the solemnisation of the marriage by or in the presence of a Marriage Registrar, as indicated in Ss.

28, 38, 39, 40 and 54 of the Act, had been adhered to. In the absence, therefore, of evidence establishing that the marriage between the appellant

and the first respondent was solemnised under S. 5(4) of the Act, by or in the presence of a Marriage Registrar appointed under the Act in

accordance with its provisions, it follows that the so-called marriage between the appellant and the first respondent solemnised otherwise than in

accordance with such provisions or the Act, under the latter part of S. 4 of the Act, is void.

It only remains to refer to the argument of the learned counsel for the respondents that there was an acknowledgement of the marriage by the

execution of Ex.B7, and the subsequent conduct probabilising such marriage. The relevant terms of Ex.B7 have already been set out and it is

difficult to spell out an acknowledgement of a marriage already solemnised in accordance with the provisions of the Act. The use of the expression-

rules out any prior solemnisation of a marriage and its acknowledgement under the terms of Ex.B7. There is also no conduct attributable to the

appellant whereby he had acknowledged either the first respondent as his wife or the second respondent as his son. The correspondence relied on

by the learned counsel for the respondents had been exchanged between the appellant and the first respondent as well as her sister prior to Ex.B7

and there is no acceptable evidence of any conduct of the appellant accepting the first respondent as his wife after 5th July, 1975. Even in the

decision in K.J.P. David v. Nilamani Devi AIR 1980 Ori. 164, relied on by the learned counsel for the respondents the validity of the marriage has

been upheld on the basis of a contemporaneous admission regarding such a marriage as well as the subsequent correspondence, in which the

husband has referred to the defendant as his wife and had described himself also as her husband. Such conduct, as pointed out earlier, is totally

lacking in this case. That decision cannot, therefore be pressed into service by the respondents.

That leaves for consideration the two decisions relied on by the learned counsel for the appellant. In Kochan Nadar v. Rayappan Nadar AIR

1955 T.C.R. 182, it has been pointed out that when a man and a woman are Roman Catholic Christians, a marriage according to the Christian

rites alone would be valid and as on the admission of the parties, the marriage did not take place in a church and no priest officiated the

ceremonies, the court found that such a marriage did not take place and the mere execution of a document few weeks prior to the alleged marriage

to provide for dowry, would be of no consequence. Earlier, it has been pointed out that, in this case also, there has been solemnisation of a

marriage between the appellant and the first respondent who are admittedly Roman Catholic Christians in the manner contemplated under the

provisions of the Act and applying the decision to the facts of this case it follows that there was no valid marriage between the appellant and the

first respondent and therefore the second respondent could not be considered to have been born in lawful wedlock.

In so far as the decision in Sethuratnam Pillai v. Lucy Baskar Josephine 1977-2 M.LJ. 141, it has no application on the facts and in the

circumstances of the present case, for, there is no question there of cohabitation of a man and a woman for a long number of years professing

themselves to be husband and wife and treated as such by friends, relatives and others residents in the place. It is seen from the evidence of D.W.

2, that the appellant and the first respondent parted company on 3-8-1975 and between the date of Ex.B7 (5th July, 1975) and 3rd August, 1975,

they could not have, by their conduct, manifested to the world that they are husband and wife or others had accepted them as such. The period

between Ex.B7 and the date on which the appellant and the first respondent parted, is too short to infer a marriage between them by their

cohabitation and conduct. Consequently, the decision in Sethuratnam Pillai''s case1, have no application to the facts of this case. Thus, on a careful

consideration of the facts and evidence as well as the effect of the provisions of the Act, referred to earlier, the conclusion is inescapable that no

valid marriage had been solemnised between the appellant and the first respondent and therefore, the first respondent cannot claim to be the wife

of the appellant. It follows that the second respondent cannot be considered to be born in lawful wedlock between the appellant and the first

respondent. Consequently, the second appeal is allowed, the judgments and decrees of the courts below dismissing the suit instituted by the

appellant, are set aside and there will be a decree in the suit as prayed for. Each party is directed to bear his or their costs in the second appeal.