S.C. Shanthi vs P. Venkatesh

Jagadeesan, J.—The petitioner in H.M.O.P. No. 354 of 1984 on the file of the VI Assistant Judge, City Civil Court at Madras is the

appellant herein. The appellant has filed the O.P. for declaration that the marriage held between the appellant and the respondent on 10-2-1984 is

a nullity. The case of the appellant is that the respondent, taking advantage of the tender age of the appellant, stealthily made arrangement as if both

had gone through a form of marriage at No. 14, Sowrimuthu Street, Mannady, Madras-1, under the Hindu Marriage Act and got it registered in

the Sub-Registrar''s Office on 10-2-1984. The Appellant has completed just 18 years. No such marriage had taken place and the petitioner had

never given any consent. The respondent exercised fraud, undue influence, misrepresentation and coercion on the appellant. The appellant''s

parents had not given their consent. The appellant and the respondent had gone through a form of marriage under the Hindu Marriage Act, 1955.

The appellant is living with her parents and the marriage was not consummated.

The respondent contested the claim of the appellant contending that the appellant is a fully matured girl and the marriage was celebrated with full

knowledge and consent and free will of the appellant. 7 he appellant and the respondent loved each other and as a result of which the marriage in

accordance with the Hindu Marriage Aet and Hindu Customary rites was celebrated. The other averments made by the appellant in her petition

had been denied.

The appellant had examined one witness apart from examining herself as P.W. 1, P.W. 2 is the owner of the house bearing Door No. 14,

Sowrimuthu Street, Madras-1 where the marriage is said to have been taken place. The respondent had examined two witnesses apart from

examining himself as R.W. 1 R.Ws. 2 and 3 are friends of R.W. 1, the respondent herein.

The trial Court, after considering the evidence both oral and documentary, allowed the O.P.

The respondent filed an appeal in C.M.A. No. 193 of 1987 on the file of the VI Additional Judge, City Civil Court at Madras. The appellate

Judge allowed the appeal by his judgment dated 21-4-1988 against which the present Appeal has been filed.

The learned counsel for the appellant attacked the findings of the lower Appellate Court on the following grounds; (1) Since the marriage

certificate clearly shows that the marriage has taken place in accordance with the Hindu Marriage Act (Section 7-A), the Appellate Court is not

correct in its finding that there is no need for tying ''thali'' and a mere exchange of garlands is enough. (2) When the respondent specifically pleads

that the marriage has been performed only in accordance with the Hindu Rites, the lower Appellate Court has given a finding that the marriage has

been taken place under the Special Marriage Act. (Varnacular matter omitted) (3) The lower Appellate Court has come to the conclusion that the

appellant has filed the O.P. only at the instance of her parents, since she has admitted that she exchanged letters with the respondent.

In order to consider the contentions of the appellant it is necessary to refer to the relevant portions in the evidence of the parties. P.W. 2 who is

residing at No. 14, Sowrimuthu Street, Mannady, Madras, has categorically given evidence that on 10-2-1984, no marriage took place between

the appellant and the respondent in the said house. As stated already, on the side of the respondent, R.W. 2 and R.W. 3 had been examined.

R.W. 2 in his evidence, has stated as follows :

(Varnacular matter omitted)

From the evidence of R.W. 2, it is clear that the marriage ceremonies were there only for about ten minutes and there was an ''Iyar'' who did the

rituals and there was ''homam''. Even though in the Chief Examination, he has stated that only for ten minutes, the appellant and respondent were

there for the marriage, in the cross-examination, he has stated that it took half-an-hour for the completion of the marriage. R.W. 2, even though he

claims to have been present throughout the marriage, has not stated anything about the respondent tying ''thali'' on the neck of the appellant. R.W.

3 who also claims to be a family friend, also claims to have attended the marriage. According to him, no invitation was printed; the invitees have

been invited orally. For a love marriage, there need not be any ''Saptapati'' form and there was no ''Mana-varai''. However, R.W. 2 specifically

stated that there was a ''Manavarai''. R.W. 2 also does not speak anything about the tying of ''thali''.

The true extract of Hindu Marriage Register (Marriage Certificate) which has been marked as Ex. A-3 clearly shows that the marriage is in

accordance with Section 7-A of the Hindu Marriage Act. For a Hindu Form of marriage, three essential features are necessary, viz. (i) Homam; (ii)

Tying of ''thali'', and (iii) ''Saptapati''. Neither R.W. 2 nor R.W. 3 speaks about these essential features. The respondent, in his counter, had

categorically stated that the respondent and the petitioner loved each other and as a result of that, marriage, in accordance with the Hindu Marriage

Act and Hindu Customary Rites, was celebrated. When he pleads that the marriage has taken place in accordance with the Hindu Customs and

Rites, it is for him to establish the same. In the absence of any evidence to show that the marriage took place in accordance with the Hindu

Customary Rites, it cannot be stated that it is a valid marriage. It has been held by a Division Bench of this Court in Shaji Vs. Gopinath, that, even

for registration of the marriage, the marriage ought to have been solemnised in accordance with the provisions of the Hindu Marriage Act. Their

Lordships have held as follows:--

It is clear from the above provisions that there has to be solemnisation of the marriage in accordance with the provisions of the Hindu

Marriage Act before the same is registered u/s 8 of the said Act. In the present case, the uncontradictcd version of the plaintiff in the plaint and the

deposition is to the effect that there was no marriage of any form at any time before the registration. According to the evidence, there was only

registration of marriage and either before or after the parties did not live as husband and wife"".

The one more ground which the appellant urged is the reliance placed by the appellate Judge on the admission made by the appellant in the

evidence about the exchange of letters. Even though the appellant had admitted with regard to the exchange of certain letters, the contents of such

letters are not before the Court, since the respondent has failed to produce these letters before Court and mark the same in these proceedings. In

the absence or any letters before the Cout, it is not proper for the Court to presume that the respondent has written only love letters. Even

assuming that the appellant had exchanged love letters with the respondent, still when it comes to the question of marriage, the Court has to

consider whether the parties had willingly married each other. Here, the appel lant denies the marriage, whereas, the res pondent claims that there

is valid marriage between the parties. As staled already, in the absence of any evidence to show that there was a valid marriage between the

appellant and the respondent, it cannot be said that the so-called marriage that took place on 10-2- 1984 between the parties is a valid one. The

appellate Court has totally erred in coming to the conclusion that there was a valid marriage. Hence the finding of the Appellate Court is liable to be

set aside. Therefore, the Civil Miscellaneous Second Appeal is allow ed and the order of the Trial Court is restored. However, there will be no

order as to costs.

Appeal allowed.