Shanta Devi and Others vs Ramlal Agarwal

Ramesh Madhav Bapat, J.—Very interesting question of law is raised in this appeal.

In order to appreciate the controversy between the parties, it is necessary to narrate few facts.

The appellants herein were the original defendants in O.S.No.1332 of 1994, which was filed by the plaintiff in the Court of the V Additional Judge, City Civil Court, Hyderabad. The plaintiff filed the suit for relief of declaration that the plaintiff has got a legal right to perform all ceremonies in connection with the marriages of Defendants 4 and 5 in accordance with the custom and religious rites prevailing in the plaintiff''s family and that for relief of permanent injunction restraining the Defendants 1 to 3 from performing any ceremonies in connection with the marriages of Defendants 4 and 5.

It is further averred by the plaintiff that the plaintiff and the first defendant are the husband and wife. Defendants 2 and 3 are the parents of Defendant No.1. Defendants 4 and 5 are the daughters of the plaintiff

It is the further case of the plaintiff that his relations with his wife were strained and therefore he filed O.P.No.67 of 1990 against the first defendant herein for dissolution of marriage by a decree of divorce. The same is pending on the file of the First Additional Judge, City Civil Court, Hyderabad. The first defendant is totally under the influence of her parents i.e., Defendants 2 and 3 herein. They were bent upon to disgrace the plaintiff in the Society. The first defendant is acting against the interest of their children.

It is the case of the plaintiff that he belongs to Agarwal Community. It is the custom in the Agarwal Community that the marriages of Agarwal Community girls are celebrated at the early age and therefore the plaintiff wanted to perform the marriages of his daughters i.e.., Defendants 4 and 5 as per the customary rites and ceremonies.

It is the further case of the plaintiff that it is the family custom to perform the marriages of their children as per "Ram Snehi Sampradha". The plaintiff is a religious person and he wants to observe all the customary riles prevailing in his family. In order to defeat the rights of the plaintiff, Defendants 1 to 3 selected a bridegroom for Defendant No.4 without the plaintiffs consent. It is further averred by the plaintiff that it is the primary duty of the family to give the girl in marriage. The right is vested only in the father. It cannot be performed by any one.

It is the further case of the plaintiff that he is fully competent and capable of discharging his moral and religious riles. The Defendants 1 to 3 denied the plaintiffs right and they want to perform the ceremonies of the marriage of 4th Defendant in accordance with their custom. It is further alleged by the plaintiff that as per the provisions of Hindu Marriage Act, the marriage to be held valid when it is performed only in accordance with the customs prevailing in the family. Under these circumstances, the plaintiff filed the present suit against the defendants with a prayer that his rights in performing the marriages of Defendants 4 and 5 as per prevailing customary rites in his family including ''Kanyadhan'' cannot be interfered with by the Defendants 1 to 3 and declaration to that effect was sought by the plaintiff!

Defendants 1 to 4 on appearance filed written statement on the ground that the first defendant is no more wife of the plaintiff as O.P.No.67 of 1990 filed by the plaintiff herein is allowed. The plaintiff never took any interest in the welfare of his children. He cannot impose any ancient out-moded customary'' rites and ceremonies of the plaintiff''s family on Defendant No.4. There are no differences between customary riles and ceremonies of the plaintiff''s family and the family of Defendants 2 and 3. In order to wreck vengeance on Defendants 1 to 3 and to harass 4th defendant, the Plaintiff filed the present suit.

It is the further case of Defendant No.4 that she is a Commerce Graduate, major and matured enough to decide about her personal affairs including marrying of a boy of her choice. Her engagement function was fixed on 24-10-1994. When she went to invite the plaintiff to attend the said function, he avoided deliberately to meet her. Instead of attending the function and blessing Defendant No.4, the plaintiff mischievously indulged himself in frivolous litigation of filing the present suit and obtained the ex parte injunction order. It was suspended by the Hon''ble High Court in C.M.P.No.16513/94 in C.MA.No.1372/94. The plaintiff got no right under law to perform or solemnise the marriage of Defendant No.4 in accordance with the customs of the family. The 4th Defendant is not prepared to go to the plaintiff''s house to lake blessings of the religious books and Acharyas. She has decided to undergo the marriage ceremony in a simple manner as per Hindu Marriage Act. With these averments, it was prayed by Defendants 1 to 4 that the suit filed by the plaintiff be dismissed with costs.

The 5th Defendant was added as a party defendant during the pendency of the suit. She also opposed the suit by filing a written statement and contended that she is a major. She is a graduate and it is her choice lo marry according lo her choice. The plaintiff has no right to interfere with her marriage. The plaintiff has no legal right to select bridegroom for her. The plaintiff is not a natural guardian of 5th Defendant. She has attained the age of majority. She decided to undergo the ceremony without ''Kanyadhan''. With these averments, it was prayed by 5th Defendant that the suit be dismissed with costs.

On the strength of the pleadings, the learned Judge framed the issues. Parties to the litigation led oral evidence. The plaintiff filed certain documents. They were marked as Exs.A1 to 31. Defendant No.5 herself got examined as DW1 and no documents were filed. On hearing both sides, the suit of the plaintiff came to be decreed.

Aggrieved by the aforesaid judgment and decree of the trial Court, the original defendants have filed the present appeal.

The learned Counsel Mr. C.R Sarathy appearing on behalf of the defendants-appellants herein submitted at the Bar that the learned Judge without considering the legal position, decreed the suit of the plaintiff. It was further submitted at the Bar that this Court while deciding L.P.A.No.74 of 1995 arising out of the order in CM.P.No.5843/95 in C.M.P.No.16513/94 in C.M.A.No.1372/94 dated 27-4-1995 preferred to the High Court against the order of the V Additional Judge, City Civil Court, Hyderabad dated 20-10-1994 in I.A.No. 1426/94 in O.S.No.1332/94 between the same Parties and arising out of O.P.No. 6771990 had disposed of the L.P.A. with the following directions :

(1) If the plaintiff intends to attend the marriage function of the Defendant No.5 the Defendants 1 to 3 shall not restrain him from attending the marriage ceremony ;

(2) If the plaintiff expresses his inclination to perform Kanyadan, he may do so. However, he cannot insist the participation of the first defendant in the ceremony along with him.

(3) The plaintiff shall have no right to interfere with the performance of the marriage of the Defendant No.5 or to insist upon other ceremonies to be held according to his choice.

The learned Counsel Mr. C.P. Samrhy further submitted at the Bar that the above order was passed by this Court only by way of interim order when the 4th Defendant was to be married. But in the present suit, the learned Judge ought to have decided the matter on merits as per the evidence led by both the Parties before it.

The learned Counsel for the defendants-appellants herein further submitted the Bar that during good old days, the marriages of the daughters used to be performed when they were very young and minor. During those times there was a concept of gifting the daughter in marriage which was commonly known as "Kanyadhan". The girl used to be a minor aid therefore gifting the daughter in marriage the consent of the father was necessary as the minor was incompetent to give consent. But since the Amendment in Child Marriage Restraint (Amendment) Act of 1978 the daughter/girl cannot be married unless she completes me age of 18 years and therefore Section 6 of Hindu Marriage Act was deleted.

I am in agreement with the submission made by the learned Counsel for the appellants. As per old custom the marriage of the girl used to take place at her age of eight and the boy used to be 10 to 12 years of age. Under those circumstances the consent of both the parents for the purpose of marriage was necessary. The position is totally changed because of the Child Marriage Restraint (Amendment) Act of 1978. The concept of giving the daughter in marriage is totally abolished.

While performing Hindu marriage the priest would chant vedle manthras. One of the manthras says :

The meaning of the said manthra is as under; The priest would say on behalf of the father of the bride to the father of the bride groom that I have given my 8 years old daughter to your son in marriage to whom I have brought up her as my son. Please look after her with love and affection'''' The concept of gift as staled earlier is already lost. But from above manthras we can definitely infer knowledge that in good old days the marriageable of the daughter was taken to be eight. The boy or the girl becomes major when the girl completes the age of eighteen and when the boy completes the age of twenty one for the purpose of marriage. In that event the consent of the parents is not necessary. The law permits the girl who has completed the age of 18 years and the boy who has completed the age of 21 years, can marry even ignoring the wishes of their parents. The parents of both the spouses have no legal rights to restrain them from marrying each other. The learned Counsel for the plaintiff-respondent pointed out the commentary by Mayne''s on Hindu Law and Usage, 14th Edition, Page 128 Para 111, which reads as under :

The meaning of the said manthra is as under; The priest would say on behalf of the father of the bride to the father of the bride groom that I have given my 8 years old daughter to your son in marriage to whom I have brought up her as my son. Please look after her with love and affection'''' The concept of gift as staled earlier is already lost. But from above manthras we can definitely infer knowledge that in good old days the marriageable of the daughter was taken to be eight. The boy or the girl becomes major when the girl completes the age of eighteen and when the boy completes the age of twenty one for the purpose of marriage. In that event the consent of the parents is not necessary. The law permits the girl who has completed the age of 18 years and the boy who has completed the age of 21 years, can marry even ignoring the wishes of their parents. The parents of both the spouses have no legal rights to restrain them from marrying each other. The learned Counsel for the plaintiff-respondent pointed out the commentary by Mayne''s on Hindu Law and Usage, 14th Edition, Page 128 Para 111, which reads as under :

Guardianship in marriage : As regards the persons who are authorised to give a girl in marriage, Narada says : ''A father shall give his daughter himself or a brother with the father''s consent, or a grand father, maternal uncle, kinsmen, or relatives. In default of all these, the mother, if she is qualified, if she is not, the remoter relations should give a girl in marriage. If there be none of these, the girl shall apply to the King, and having obtained his permission to make her own choice, choose a husband for herself According to Yajnavalkya, the order of guardianship for giving a girl in marriage is father, paternal grand father, brother, kinsmen (sakulya) and mother, provided the giver is free from defects like madness. This is the rule for the Mitakshara school. According to the Bengal school, the father, paternal grand father, brother, sakulya, maternal grand father, maternal uncle and mother, if of sound mind are entitled in succession to give the girl in marriage.

This commentary given by the learned Author and relied on by the learned Counsel for the plaintiff-respondent herein holds good before the Child Marriage Restraint (Amendment) Act, 1978 came into force. Section 6 of the Hindu Marriage Act and the commentary cited above has no legal relevance in the present era.

Now I proceed to scrutinise as to what are the essential ceremonies which require to be performed for a valid Hindu Marriage. Section 7 of the Hindu Marriage Act reads as under :

7(1) A Hindu marriage may be solemnised in accordance with the customary riles 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.

By reading Section 7 of the Hindu Marriage Act it is evident that the law requires that the marriage is to be performed as per the customs prevailing in the families of either party. In case, in some families there is no custom of performing the ceremony called "Saptapadi" and if there are other customary ceremonies, prevailing in the family or community, the marriage is valid even in the absence of ''Saptapadi''. The importance given, to call the marriage as valid marriage and binding on both the parties is the customary rites and ceremonies of either party thereto Under such circumstances, this Court is of the considered view that reading of Section 7 along with Section 6 of the Hindu Marriage Act, the father cannot claim that he has a right of performing the ceremony of "Kanyadan" of his own daughter. The concept of "danam" is totally abolished by Child Marriage Restraint (Amendment) Act of 1978.

The word "Danam" has a special meaning. The meaning of "Danam" as given in the Sanskrit English Dictionary by V.S. Apte 1965 Edition shows that ''Danam'' means giving, granting, teaching, delivering, handing over a gift donation and present.

As stated earlier in good old days father of the child used to gift the child (daughter) in marriage to the bridegroom with his full consent. The gift had also religious significance. The parents of the bride used lo think religiously that they would acquire ''Punyam'' by gifting their daughter in marriage to the bridegroom. Such concept does not exist today. The meaning of ''Kanyadanam'' is also given in Judicial Dictionary by Aiyar, 11th Edition, Page 661. The meaning is as follows:

Kanyadanam : The gift of a bride to the bridegroom by her parent or guardian. It also denotes any present given during marriage to the bride,'''' The gifting of a bride to the bridegroom had a meaning before 1976 but that meaning is totally lost because of Child Marriage Restraint Act, 1976.

The learned Counsel Mr. C.P. Sarathy appearing on behalf of the appellants herein relied upon a ruling reported in Venkata Subbarayiidu Chetty v. Tanguturu Venkataiah Shresti and another, AIR 1968 AP 107. It was laid down by this Court that two ceremonies are essential for solemnisation of the marriage (i) invocation before sacred fire and (2) Saptapadi, that is, taking seven steps by the bridegroom and the bride before the sacred fire. The learned Counsel also relied upon a ruling reported in S.C. Shanthi v. P. Venkatesh. Failure of respondent boy to prove that marriage was in accordance with Hindu customary rites - Marriage is held as invalid.

As stated in the foregoing paragraphs of the judgment that the law has given importance to the ceremonies and customs prevailing in either families thereto. In the present case, the 5th defendant wants to get her married not in accordance with the custom prevailing in her father''s family but in accordance with the custom prevailing in the family of the bridegroom.

Under these circumstances, this Court holds that "Kanyadanam'' is not essential ceremony in performing the valid marriage. Therefore, the appeal is accordingly allowed and the judgment and decree passed by the trial Court is hereby set aside. No costs.