Calcutta High Court
Mousumi Chakraborty vs Subrata Guha Roy on 7 February, 1991
Equivalent citations: 95 CWN 380, II (1991) DMC 74
1. This is an appeal filed by the appellant/ petitioner, who, filed a petition under Section 12 of the Hindu Marriage Act praying for a declaration that there was no marriage between her and the respondent under the Hindu Marriage Act, 1956 and that the purported registration under Section 8 of the Hindu Marriage Act dated 26th December, 1987 was a nullity. The Suit filed by her was dismissed by the learned District Judge, 13th Court, Alipore by an order and Judgment dated 19th January, 1990 passed in Matrimonial Suit No. 19 of 1988:
2. The case of the appellant/petitioner in short may be stated as follows :
The appellant was a student of B.A. Class in Vidyasagar College, Calcutta and the respondent was also a student of B.Sc Class in the said College and that during their study .in the said College, the appellant/petitioner and the respondent developed, a friendly relation between them and that the appellant/petitioner mixed with the respondent in free mind while the respondent cherished a desire to marry the petitioner. The parents of the appellant/petitioner arranged for her marriage and the date for blessing ceremony (Ashirbad) was fixed on 25th November, 1987.
3. It is the case of the appellant/petitioner that the appellant had invited the respondent in the said ceremony which was scheduled to be held on 25th November 1987, but on 24th November, 1987 the respondent called the appellant/petitioner over telephone to his residence and when the appellant/ petitioner went to his residence the respondent confined the petitioner/appellant 'in his house against her will. The guardian of the appellant/petitioner after thorough search with the help of the local people, rescued the appellant/petitioner from the residence of the respondent on 26th November 1987, It is also stated that the respondent took the appellant/petitioner to a Marriage Registration Office on 26th November 1987 and under pressure, threat and coercion compelled her to put her signature in the form and got the marriage registration - certificate on the basis of false statement to the effect that the marriage was already solemnised. It is also stated that one unknown person represented as brother of the appellant/petitioner and signed the said form for registration of the said alleged marriage. The signatories of the said form were the men of the respondent. It is stated that there was no marriage at all on 24th November 1987 under the Hindu Marriage Act between the parties. ]t is further stated that the signature of the appellant/petitioner was obtained under influence and coercion in the said form, but the statements recorded in the register of marriage were not at all correct. It is stated that after being released from the clutches of the respondent, she procured the marriage registration certificate and after perusing the same she filed the instant suit, for a declaration that the marriage registration was a nullity as there had been no marriage at all under the law.
4. The case of the respondent was that he has friendly relation with the appellant/petitioner and he never talked or proposed for marriage to the appel- lant/petitioner and that he had never detained the appellant in his house. According to the respondent their marriage as per Hindu rites took place in Kali Temple at Kalighat, Calcutta on 24th November, 1987. Thereafter, the appellant/petitioner and the respondent went to Ranaghat, a place far away from the city, with their common friends, namely Dilip Pal, Prabir Das and others for consumating the marriage and on 26th November 1987 they all returned to Calcutta and on the same date, the appellant and the respondent got their marriage registered before the Marriage Registrar of Alipore, Calcutta. It was stated that the marriage between them were duly performed and the registration certificate was signed and witnessed by the common friends of both of them. It was stated that the said marriage was an outcome of mutual love and understanding "between them. In support of the respondent's case the respondent exhibited certain letters written by the appellant and some photographs. It was stated that after registration of marriage, the appellant/petitioner was sent back to her house and that from there she had not returned to the matrimonial home. It was further stated that thereafter the respondent with his elder brother went to take "back the appellant, but the appellant's family members rudely behaved with them and insulted them. the respondent further claimed that they had co-habited at Ranaghat as husband and wife.
5. The Trial Court on the basis of the evidence and documents produced before the Court came to the conclusion that the appellant was eager to marry the respondent and the appellant was in deep love with the respondent and that a photograph was produced before the Trial Court in which it appeared that the appellant/petitioner and the respondent were sitting as newly married couple in a Baarghar. It also appeared from the photograph that the appellant and the respondent was sitting having vermilion in the forehead , of them appellant and Shankha in her hands and both of them were garlanded. Considering all these love letters and photograph and other materials on record, the Trial Court was of the view that there was no fraud or coercion on the part of the respondent as alleged by the appellant. It was further held that the marriage between the appellant and the respondent was held on consent of the appellant and the respondent. But the mother of the appellant did not know about the intimacy of the appellant and the Respondent. The learned Judge held that the marriage registration certificate was conclusive proof of marriage and accordingly held that the appellant was not entitled to get relief as prayed for and accordingly, the suit was dismissed.
6. Mr. Sanjay Bhattacharjee learned Advocate appearing with Mrs. Chandrima Bhattacharjee, learned Advocate on behalf of the appellant/petitioner contended that there was no valid marriage between the appellant and the respondent and that the marriage registration certificate is not a conclusive proof of marriage inasmuch as, marriage registration under Section 8 of the Hindu Marriage Act is a mere recording of the marriage after the marriage has been solemnised under the provision of the said Act as required udder the law for the purpose of faciliting the proof of the marriage. It was further submitted that the ceremonies for a Hindu Marriage were essential for a valid Hindu Marriage and unless ceremonies of Hindu Marriage have been observed, mere registration under the Act cannot go to show that there was a valid marriage.
7. In this contention, Mr. Bhattacharjee submitted that true there was some intimacy between the parties and that the appellant had written several love-letters but love-letters written by a girl did not prove that there was a valid marriage. Similarly, producing a photograph in which the appellant appears to be standing by the side of the respondent cannot be said to be conclusively proof of their marriage. The essential rites which are required for a valid marriage are "(a) Invocation before the sacred fire, and (b) Saptapadi," which have admittedly not taken place in the instant case. If the ceremonies for Hindu Marriage Act laid down in Section 7 of the Act had not been performed, mere registration, exchange of love letters and producing of photograph are not conclusive proof for holding that a valid marriage took place under the law.
8. In this connection, it appears from the deposition of the respondent that he had attended many Hindu Marriage ceremonies; but he did not notice the ceremony performed at the time of Hindu Marriage and that he had no knowledge regarding the ceremonies, those were required to be performed in the Hindu Marriage. In his deposition the respondent stated that his father knows about the ceremonies which were held in the Hindu Marriages and some of his friends were present at the time of marriage and those friends would depose regarding the marriage at Kalighat. In his deposition the respondent had specifically Stated that the said marriage took place under Special Marriage Act and that the same was a registered marriage.
9. Respondent's father, D.W. No. 1, Dilip Kumar Guha Roy in his deposition also stated that the marriage between Subrata and Mousumi was a registered marriage under Special Marriage Act, and further stated that in the evening of 26.11.87 after returning home he found Subrata with Mousumi having mark of vermilion and Sankha in hand and two or three friends of Subrata in his house. By seeing this at first he became excited, but some how he checked himself and then advised appellant Mousumi to go to her parents and inform them about the marriage and to obtain consent of Mousumi's parents. It was further stated by him that he and his family members tried to bring back the appellant, but the appellant did not turn up in their house.
10. One of the friends of the respondent Prabir Das in his deposition stated that the priest arranged everything for their marriage at Kalighat Temple and the priest recited mantras and
stated"...........................,................ ..." During cross-examination he stated that he had no knowledge regarding the ceremonies performed in Hindu Marriage, he stated that he did not know the address where the marriage took place, nor he know the name of the priest of the marriage.
11. Mr. Bhattacharjee also submitted that the case of the respondent that they went for staying at Ranaghat immediately after the marriage on 24th November, 1987, could not be believed at all, inasmuch as, the respondent in his deposition could not even tell the departure time of the train in which they had travelled from Calcutta to Ranaghat. The train number could not be remembered, but he could not tell even departure time of the train in which they travelled for going to Ranaghat. This clearly shows that the story of their going to Ranaghat and staying there, was false. Lastly Mr. Bhattacharjee submitted that the learned Judge had declared that there was a valid marriage, solely on the basis of the letters, photographs and the registration certificate, ignoring the fact that Hindu Marriage under the Act, must be solemnised in accordance with the customary rites and ceremonies. The appellant denied that she had any occasion to accompany the respondent at Kalighat for the purpose of marriage. Her stand was in the negative. The respondent who claimed that a marriage was in fact taken place, could not say that the rites and ceremonies including Saptapadi had taken place. None of the witnesses including those who were allegedly present at the time of marriage, could not also say that such rites and ceremonies including 'Saptapadi' had been performed jointly before the sacred fire. Nobody appeared on behalf of the respondent and the respondent did not contest the appeal.
12. In this particular case the appellant had filed a suit stating that there had been no marriage at all between her and the respondent. On the contrary the respondent claimed that there was a valid marriage. It is well settled principle that the burden of proof lies upon the party who substantially asserts the affirmative of the issue. The evidential burden in matrimonial case is that the burden is on the proponent, or in other words, the party, who claims that there was a valid marriage has to prove that marriage. The question is whether the production of marriage registration certificate raises a presumption and even if a presumption is there, whether the same could be rebutted. Section 8 of the Hindu Marriage Act 1955 provides for registration of Hindu Marriages; registration has been introduced for the purpose of facilitating the proof of Hindu Marriage. The registration is not the sole proof of marriage in order to become a valid marriage. Section 7 of the said Act provides that the validity of a marriage will depend on observance of "customary rites and ceremonies". The expression "customary rites and ceremonies" means such Shastric ceremonies, which the caste or community to which party belongs is customarily following. Customary rites and ceremonies to be accepted must be shown to have been followed definitely as an essence of marriage ceremony from ancient times and recognised such ceremonies as obligatory. Two essential ceremonies to the validity of a marriage are (a) Invocation before the sacred fire and. (b) Saptapadi. Absence of these essential ceremonies invalidates the marriage. In our view, two ceremonies essential to the validity of a marriage, as stated above, have to be proved and that where the factum of marriage is disputed essential ceremonies constituting the marriage must have to be pleaded and proved. Evidence regarding the performance of marriage according to Hindu rites must be brought on record to show that there had been a valid marriage. Unfortunately, in this particular case, from the evidence on record it is clear that these two ceremonies essential to the validity of the marriage were wholly absent. The respondent who asserted that there had been a valid marriage at Kali Temple, Kalighat, could not say even what were the essential ceremonies of Hindu Marriage performed in the matter and for that purpose stated that his friend Prabir Das would say about ceremony that took place during the marriage. The man who claimed to have been married, is supposed to be aware of the ceremonies which had been performed during his marriage. He could not tell anything and he has clearly confessed that even though he had attended many marriages, he did not know the ceremonies that are required to be performed for a Hindu Marriage and for that purpose in bis deposition he stated that his friend knew. His friend, Prabir Das, who alleged that he was present at the time of marriage, could not also say that these two essential ceremonies had been performed. The place where the marriage took place could not be pointed out by the witness. The name of the priest was not known to the parties and the 'barbar' whose presence was also necessary in such marriage, was also not present in the said alleged marriage. The question is, even assuming that some sort of show of marriage took place at Kalighat, can it be said that this sort of fake marriage .is a valid marriage in accordance with the provisions of Hindu Marriage Act and this sort of marriage which is unknown in the society in which customary rites and ceremonies are not performed at all, could take the place of regular and ceremonial Hindu Marriage which is accepted in the Society ?
13. Another important aspect of this case is that both the respondent and his father had categorically stated that it was the marriage under the Special Marriage Act and not under the Hindu Marriage Act. But as a matter of fact the marriage Registration Certificate which was produced, was a certificate under Hindu Marriage Act, 1955. The effect of registration under Special Marriage Act, 1854 and the effect of Hindu Marriage Act, 1955 are quite different.
14. Special Marriage Act, 1954 provides that any marriage celebrated whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872, or under this Act, maybe registered under this Chapter by a Marriage Officer, if the following conditions are fulfilled:-
(a) A ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since ;
(b) ...............
(c) ...............
(d) ...............
(e) ...............
(f) ...............
15. Section 5 of the said Act provides notice of intended marriage. When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the marriage officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately proceeding the date on which such notice is given. Thereafter, under Section 6 of the said Act, the Marriage Officer shall keep all notices given under Section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same. There is a provision for objection to marriage under Section 7 of the said Act. Section 8 of the said Act provides procedure to be followed on receipt of any objection. Section 9 of the said Act provides powers of Marriage Officer to hold inquiries for the purpose of deciding objections.
16. Admittedly, in this particular case, no notice was given under Section 5 of the said Act for the intended marriage and the registration was not made under the Special Marriage Act, 1954. But it was a case of marriage under the Hindu Marriage Act, 1955 and that in order to become a valid registered marriage under the provisions of the Hindu Marriage Act, two ceremonies essential had to be performed, namely, (I) Invocation before the sacred fire and (2) Saptapadi, and the absence of these two essential commodities invalidates the marriage. Such invalidity could not be cured simply by registration in accordance with the provisions of Section 8 of the said Act. If there was a valid marriage, registration of that marriage under Section 8 becomes the proof of a valid marriage under the Act.
17. In the instant case, the proponent namely, the respondent, who had claimed that there had been a valid marriage between the parties, failed to prove by any piece of evidence that the marriage was solemnized after observing the rites and ceremonies of the Hindu Marriage, particularly Invocation before the sacred fire and Saptapadi. These two ceremonies are essential and must be observed. Proof for performance of the essential ceremonies to make the marriage valid, is wholly absent and the respondent who is the proponent, failed to bring any evidence before the court to establish that there was a valid marriage. If there was no valid marriage, the registration also does not come to the rescue of the respondent to claim that there had been a valid marriage because of registration. Registration of Hindu Marriages provides that for the purpose of facilitating the proof of Hindu Marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose. The validity of the marriage does not depend on registration or omission to make any entry in the register. If there was any fraud, coercion or misrepresentation on the part of the respondent to compel the appellant to sign the registration form before the Hindu Marriage Registrar the same would be invalid.
18. In the instant case, it is fully established by the appellant that there was no marriage in accordance with the customary rites and ceremonies and it is fully established that two ceremonies essential to the validity of the marriage, namely (1) Invocation before the sacred fire, (2) Saptapadi, had not been performed at all. Secondly, the priest and the barbar could not be produced before the court by the proponent of the marriage. The proponent of the marriage had also admitted that he did not know what were the required formalities of a Hindu Marriage and none of the witnesses could say that the ceremonies which were essential to the validity of the marriage, had been performed at Kalighat or elsewhere.
19. Reading pleadings and the evidence it is clear to us that the appellant had not supressed any fact. The appellant admitted love-letters and also admitted that she went to the house of the respondent, whether of her own accord and at the instance of the respondent, is not very much significant. The appellant also stated that she had signed these papers, but she explained the circumstances under which she had signed. It is also on evidence by the deposition of the father of the respondent that he was shocked on coming to know of the same. This is an admitted position that the manner in which the so-called marriage was performed, was very much unusual. The respondent had claimed that the alleged marriage ceremony had taken place in the evening of 24(h November, 1987, when the blessing ceremony (Ashirbad) of the appellant for the purpose of her marriage with a bridge-groom, chosen by her parents, was fixed on 25th November. In deciding a case like this, we cannot be unmindful of the fact that girls, particularly of the age to which the appellant belongs, are admittedly weaker section of the community. She was not aware of the realities of life when she had written the love letters. It was suggested that she was blackmailed, coerced and forced to sign those papers. The girls of that particular age are weaker and they are unable to protect themselves and in the instant case, where it is clear that the girl was made a victim of the circumstances, in our view, the court below should not have held that there was a valid marriage solely on the basis of the love letters, photographs and registration certificate. The court below has committed a great mistake in failing to appreciate that in order to constitute a valid marriage, the essential ceremonies as provided under Section 7 of the Hindu Marriage Act must be observed and in the instant case we have no hesitation in holding that the marriage, if any, in this particular case, was a fake one. Mere signing before the Marriage Registrar cannot constitute a valid marriage under the Hindu Marriage Act. Love letters and photographs cannot take place of proof of a valid marriage under the provision of Hindu Marriage Act. It appears that there was love between a boy and a girl and that such love had developed in the School or College, this type of love which was grown in .the Schools, and Colleges, is called 'calf- love'. But this emotional and unreal love cannot have any impact on the question of validity of a marriage. Expressing of love through letters written emotionally and marriage to a man and accepting him as a husband by observing the essential ceremonies under the law, are quite two different things. Where the factum of marriage ,is disputed, essential ceremonies constituting the marriage, must be proved, a man who claims that he has married after observing essential ceremonies, does not know what are the essential ceremonies and cannot say what are the ceremonies which are performed at the time of marriage and during his evidence he stated that the ceremonies, that are required to be performed for such marriage, would be deposed to by one of his friends who was present at the time of marriage and at that time the essential ceremonies were observed. Unfortunately, the court below was persuaded to believe that there was a valid marriage solely on the basis of the love letters, photographs and the registration certificate. In our view, these things alone do not constitute a valid marriage. In order to establish a valid marriage, essential ceremonies had to be performed which in this particular case, admittedly had not been performed. Unless the essential ceremonies had been performed, the registration cannot cure the inherent defects in such marriage which goes to the root of the marriage.
21. The Supreme Court in the case of Bhaurao Shankar v. State of Maharastra, held that under the Hindu
Marriage Act the word "marriage" must be solemnized, means in connection with a marriage to celebrate a marriage with proper ceremony with due form. It was also held in that case that there are two ceremonies essential to the validity of a marriage viz. invocation of the sacred fire and saptapadi, that is taking seven steps by the bridgeroom and groom jointly before the sacred fire. Admittedly. in the instant case there was no marriage celebrated with proper ceremony and with due form.
22. The appellant challenged the validity of the alleged registration and that there was no marriage, according to law. The marriage was allegedly registered under the provisions of Section 8 of the Hindu Marriage Act, 1955. In this connection it is mentioned that both the respondents and the respondent's father in their deposition stated clearly that the marriage and that too was made under the provisions of the Special Marriage Act, 1954. Regarding the ceremonies that were required to be performed to make it to be a valid marriage, the respondent stated that be was not aware what were the necessary ceremonies that were required to be performed for a Hindu Marriage and in his deposition he has surprisingly stated that regarding the form of marriage that took place his friend would depose and tell the court. His friend Sri Prabir Das in his deposition also admitted that he had no knowledge regarding the ceremonies performed in Hindu Marriage. He could rot tell the name' of the priest or the place where the ceremony took place. Even though the appellant had no brother/of her own and none of his cousin brother was present when the registration was taken place. But it appears from the registration certificate that one person signed claiming to be a brother of the appellant and to this fact there was no denial by the respondent. This is only possible because the appellant was under the control of the respondent and whole thing happened under the supervision and control of the respondent. Admittedly, none other relations and friends were present at the time of alleged registration.
23. The principle is well settled that the ceremony is essential for a valid marriage prevailing in the community, must be performed and if there was no valid marriage in that event there could not be any valid registration under the provisions of Section 8 of the Hindu Marriage Act. A marriage not duly solemnised by performing the essential ceremonies is no marriage at all.
24. The deposition of the appellant before the trial court was clear and she stated everything and did not suppress anything. She had clearly admitted that she had written 17 letters to the respondent. The letters which were exhibited by the respondent, were admitted by her. She had clearly denied that any marriage took place between her and the respondent. She had, explained the circumstances under which she had been forced to sign the form at Alipore Marriage Registration Office and the circumstances under which she had signed the form clearly established that it was not voluntarily done.
25. We are of the view, the trial court should not have ignored the deposition of the girl so lightly. In our view, the appellant had clearly established that there was no valid marriage under the law. No ceremony was performed and in our view, the trial court was wholly wrong is not declaring the said marriage was a nullity. In our view, the trial court failed to appreciate the effect of Hindu Marriage under the Hindu Law and also failed to appreciate the scope and effect of registration under the provision of section 8 of the Hindu Marriage Act, 1955. Registration is valid only when it is found that there is a valid marriage.
26. Considering the facts and circumstances of the case, we set aside the judgment of the Trial Court dated 19th January, 1990 passed in Matrimonial Suit No. 18 of 1990 by the Additional District Judge, 13th Court, Alipore and the appellant is entitled to decree for declaration that the purported marriage registration made on 24.11.87 was invalid and that no marriage at all took place on 24th November, 1987 or any other date under the Hindu Marriage Act or in any other form and that the said alleged marriage allegedly held on 24th November, 1987 was a false one and as such the same was invalid and was a nullity.
27. In the result, the appeal is allowed. There will be no order as to costs.
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