It is clear from the above provisions that there has to be solemnization of the marriage in accordance with the provisions of the Hindu Marriage Ad before the same is registered under Section 8 of the said Act. In the present case, the uncontradicted 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.
1. This appeal is by the plaintiff in O.S. 16/92 on the file of Additional Family Court, Madras. The prayer in the suit is to declare that the marriage registered on 22-8-91 according to the Certificate No. 221/91 on the file of the Registrar of Hindu Marriages is not a valid marriage at all and to set aside the said Certificate as null and void.
2. The case of the plaintiff/ appellant is as follows :--
She is a final year B.A. student in Bhiraj College, Madras, she was introduced to the defendant sometime back by a common friend. The defendant gave a flowery picture of the education and the status in life and represented to her that he was going to U.S.A. soon and he could get a visa for her loo. He promised to get her a good employment in U.S.A. immediately on her completion of education. He took her signatures in the forms of application for passport. On 22-8-91 he induced her to go to the office of the sub- Registrar. T. Nagar, fraudulently representing her that a marriage certificate should be obtained for the purpose of getting a Visa in her name and she should be described as wife. The plaintiff signed the necessary forms before the Registrar and false declarations were given by the defendant in the office of the Registrar. Thereafter they went to their respective houses and they never lived together as husband and wife. But it was then discovered by the plaintiff that the representations made by the defendant were dishonest and false and he made her to sign in the forms on false pretext. The Marriage Registration Certificate was null and void and the plaintiff is entitled to a declaration as such.
3. The defendant, after receiving summons in the suit remained ex parte. He was set ex parte. The plaintiff gave evidence in support of her case. The learned Judge of the Additional Family Court dismissed the suit holding that the plaintiff and the defendant liked each other, loved each other and thereafter they had their marriage registered at the Sub-Registrar's Office without any inducement or external pressure on them. The learned Judge held that on the basis of the evidence of P.W. 1 it was not possible to grant relief, as prayed for in the suit.
4. The aggrieved plaintiff has preferred this appeal. The respondent could not be served in the ordinary process and substituted service was ordered by publication in newspapers. Such publication has been effected but yet the respondent has not chosen to enter appearance. We declare that the respondent has been served in accordance with law on account of the publication in the newspapers. We set him ex parte. The respondent's name was called three times by the Court Officer and nobody has appeared for the respondent.
5. The only evidence on record is that of the plaintiff. She has stated that the defendant became her friend about a year prior to the deposition. They have met about five times. He assured her that after her completion of B.A., he would get her employment in U.S.A. For that purpose, he told her that a certificate would be necessary, showing her as his wife. They went to the office of the Registrar at Nagar and registered the marriage. Immediately thereafter, she went to her house and he went to his place and further as assured by him, he did not get her any employment.
6. A perusal of the evidence shows that there was no form of marriage gone through between the plaintiff and the defendant at any time. What all has happened is only the registration of a marriage under the provisions of the Hindu Marriage Act. Section 7 of the Hindu Marriage Act provides that a Hindu Marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and 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.
7. In the State of Tamil Nadu, an amendment was introduced by Act 21 of 1967, Section 7-A was inserted in the Hindu Marriage Act. The relevant part of the Section reads us follows :--
"7-A. Special provision regarding suyama-riyathai and seerthiruththa marriages.-
(1) This Section shall apply to any marriage between any two Hindus, whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnised in the presence of relatives, friends or other persons.-
(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or as the case may be, her husband;
(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or
(c) by the tying of the thali, (2) (a) Notwithstanding anything contained in Section 7, but subject to the other provi- sions of this Act, ail marriages to which this Section applies solemnised after the commencement of the Hindu Marriage (Madras Amendment) Act, 1067, shall be good and valid in law.
(b) Notwithstanding anything contained in SECTION 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any Court, but subject to sub-section.
(3) all marriages to winch this Section applies solemnized at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnization of each of such marriage, respectively, good and valid in law."
8. Section 8 of the Hindu Marriage Act provides for registration of Hindu Marriages for the purpose of facilitating the proof of such marriages. Under that section, the Stale Government is empowered to 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. Thus the section contemplates registration only of marriages which had already taken place. The ceremonies for the marriage are prescribed by Section 7 of the Act. Now Section 7 of the Act is introduced by Madras Amendment Act 21/1967. A marriage has to be solemnised in the presence of relatives, friends or other persons in the manner prescribed in that Section. In a case where the provisions of Section 7 or Section 7-A are not complied with, there is no question of there being a Hindu Marriage between a man and woman, as contemplated by the Act. Without such a marriage (sic)ther as prescribed under Section 7 or as prescribed under Section 7-A, there cannot be registration of marriage between man and woman under the provisions of Section 8 of the Act.
9. The State Government has framed Rules Known as the Madras Hindu Marriage (Registration) Rules. 1967. Rule 5 prescribes that an application for the registration of a Hindu Marriage shall be in Form land it shall be presented to the Marriage Registrar either in person by the husband or wife at any time during office hours on a working day or be sent to him by registered post, acknowledgment due so as to reach his within thirty days from the date of marriage. The proviso to the said Rule enables the Registrar to entertain an application after the expiry of the said period. Rule 6 prescribes payment of fees for application for registration of marriage. Rule 8 provides that the Marriage Registrar shall scrutinise the application. Rule 9 provides far issue of notice to the parties before registration and Rule 10 prescribes the appearance of parties to the marriage and witnesses before the Marriage Registrar. Rule 12 provides that the Hindu Marriage Register shall be in Form 11 and shall be maintained by the Marriage Registrar. Form No. 1 referred to in Rule 5 contains several columns. Column 11 relates to the date of solemnization of the marriage and column 12 refers to the place of solemni-zation of the marriage. Column 13 reads:--
"We hereby declare,--
(i) that a valid marriage was solemnised between us and that the marriage is capable of being registered under Section 8 of the Hindu Marriage Act, 1955 (Central Act 25 of 1955);
(ii) that the conditions laid down in Sec-lions 5 and 6 of the said Act have been satisfied:
(iii) that the particulars given in this application are true to the best of our knowledge and belief; and
(iv) that the three witnesses who have signed-below were present at the time of solemnization of the marriage."
10. Form No. II which prescribes the form of register provides for entries being made in the register, Form No. II is under Rule 12 relating to the Hindu Marriage Register. Columns 5 to 8 are in the following terms:
"5. Name and address of the person who solemnised the marriage.
6. Whether the marriage solemnised under customary rites and ceremonies of either parties to the marriage as required under Subsections (1) and (2) of Section 7 of the Act.
7. Place, namely, the village, taluk and district where the marriage was solemnised, with full address.
8. The date on which the marriage was solemnised."
11. It is clear from the above provisions that there has to be solemnization of the marriage in accordance with the provisions of the Hindu Marriage Ad before the same is registered under Section 8 of the said Act. In the present case, the uncontradicted 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.
12. It is unfortunate that the learned Judge of the Family Court has not even chosen to mark the marriage Certificate as an exhibit, though it was produced along with the plaint. It is more unfortunate that the learned Judge has not chosen to apply his mind to the provisions of the Hindu Marriage Act and the Rules framed thereunder by the State Government.
13. The view taken by the learned Judge that the parties loved each other and there was no fraud or coercion in the matter of registration, even if correct, is not sufficient to dismiss the suit and deny the relief to the plaintiff, as prayed far by her. On the evidence before the Court, the only conclusion possible is that there was no marriage at all, as contemplated by the provisions of the Hindu Marriage Act and that there could not have been any valid registration of a marriage between the plaintiff and the defendant.
14. In the result, the appeal is allowed. The judgment and decree of the Additional Family Court, Madras in O.S. 16/92 are set aside. There will be a decree in the suit in favour of the plaintiff, declaring that the Certificate No. 221/91 by the Registrar of Hindu Marriages, T. Nagar, Madras is null and void and that there was no marriage between the plaintiff and the defendant at any time. There will be no order as to costs.
15. Appeal allowed.
Print Page
Madras High Court
Shaji vs Gopinath on 24 January, 1995
Equivalent citations: AIR 1995 Mad 161, II (1995) DMC 486
Bench: Srinivasan, S Subramani
1. This appeal is by the plaintiff in O.S. 16/92 on the file of Additional Family Court, Madras. The prayer in the suit is to declare that the marriage registered on 22-8-91 according to the Certificate No. 221/91 on the file of the Registrar of Hindu Marriages is not a valid marriage at all and to set aside the said Certificate as null and void.
2. The case of the plaintiff/ appellant is as follows :--
She is a final year B.A. student in Bhiraj College, Madras, she was introduced to the defendant sometime back by a common friend. The defendant gave a flowery picture of the education and the status in life and represented to her that he was going to U.S.A. soon and he could get a visa for her loo. He promised to get her a good employment in U.S.A. immediately on her completion of education. He took her signatures in the forms of application for passport. On 22-8-91 he induced her to go to the office of the sub- Registrar. T. Nagar, fraudulently representing her that a marriage certificate should be obtained for the purpose of getting a Visa in her name and she should be described as wife. The plaintiff signed the necessary forms before the Registrar and false declarations were given by the defendant in the office of the Registrar. Thereafter they went to their respective houses and they never lived together as husband and wife. But it was then discovered by the plaintiff that the representations made by the defendant were dishonest and false and he made her to sign in the forms on false pretext. The Marriage Registration Certificate was null and void and the plaintiff is entitled to a declaration as such.
3. The defendant, after receiving summons in the suit remained ex parte. He was set ex parte. The plaintiff gave evidence in support of her case. The learned Judge of the Additional Family Court dismissed the suit holding that the plaintiff and the defendant liked each other, loved each other and thereafter they had their marriage registered at the Sub-Registrar's Office without any inducement or external pressure on them. The learned Judge held that on the basis of the evidence of P.W. 1 it was not possible to grant relief, as prayed for in the suit.
4. The aggrieved plaintiff has preferred this appeal. The respondent could not be served in the ordinary process and substituted service was ordered by publication in newspapers. Such publication has been effected but yet the respondent has not chosen to enter appearance. We declare that the respondent has been served in accordance with law on account of the publication in the newspapers. We set him ex parte. The respondent's name was called three times by the Court Officer and nobody has appeared for the respondent.
5. The only evidence on record is that of the plaintiff. She has stated that the defendant became her friend about a year prior to the deposition. They have met about five times. He assured her that after her completion of B.A., he would get her employment in U.S.A. For that purpose, he told her that a certificate would be necessary, showing her as his wife. They went to the office of the Registrar at Nagar and registered the marriage. Immediately thereafter, she went to her house and he went to his place and further as assured by him, he did not get her any employment.
6. A perusal of the evidence shows that there was no form of marriage gone through between the plaintiff and the defendant at any time. What all has happened is only the registration of a marriage under the provisions of the Hindu Marriage Act. Section 7 of the Hindu Marriage Act provides that a Hindu Marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and 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.
7. In the State of Tamil Nadu, an amendment was introduced by Act 21 of 1967, Section 7-A was inserted in the Hindu Marriage Act. The relevant part of the Section reads us follows :--
"7-A. Special provision regarding suyama-riyathai and seerthiruththa marriages.-
(1) This Section shall apply to any marriage between any two Hindus, whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnised in the presence of relatives, friends or other persons.-
(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or as the case may be, her husband;
(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or
(c) by the tying of the thali, (2) (a) Notwithstanding anything contained in Section 7, but subject to the other provi- sions of this Act, ail marriages to which this Section applies solemnised after the commencement of the Hindu Marriage (Madras Amendment) Act, 1067, shall be good and valid in law.
(b) Notwithstanding anything contained in SECTION 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any Court, but subject to sub-section.
(3) all marriages to winch this Section applies solemnized at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnization of each of such marriage, respectively, good and valid in law."
8. Section 8 of the Hindu Marriage Act provides for registration of Hindu Marriages for the purpose of facilitating the proof of such marriages. Under that section, the Stale Government is empowered to 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. Thus the section contemplates registration only of marriages which had already taken place. The ceremonies for the marriage are prescribed by Section 7 of the Act. Now Section 7 of the Act is introduced by Madras Amendment Act 21/1967. A marriage has to be solemnised in the presence of relatives, friends or other persons in the manner prescribed in that Section. In a case where the provisions of Section 7 or Section 7-A are not complied with, there is no question of there being a Hindu Marriage between a man and woman, as contemplated by the Act. Without such a marriage (sic)ther as prescribed under Section 7 or as prescribed under Section 7-A, there cannot be registration of marriage between man and woman under the provisions of Section 8 of the Act.
9. The State Government has framed Rules Known as the Madras Hindu Marriage (Registration) Rules. 1967. Rule 5 prescribes that an application for the registration of a Hindu Marriage shall be in Form land it shall be presented to the Marriage Registrar either in person by the husband or wife at any time during office hours on a working day or be sent to him by registered post, acknowledgment due so as to reach his within thirty days from the date of marriage. The proviso to the said Rule enables the Registrar to entertain an application after the expiry of the said period. Rule 6 prescribes payment of fees for application for registration of marriage. Rule 8 provides that the Marriage Registrar shall scrutinise the application. Rule 9 provides far issue of notice to the parties before registration and Rule 10 prescribes the appearance of parties to the marriage and witnesses before the Marriage Registrar. Rule 12 provides that the Hindu Marriage Register shall be in Form 11 and shall be maintained by the Marriage Registrar. Form No. 1 referred to in Rule 5 contains several columns. Column 11 relates to the date of solemnization of the marriage and column 12 refers to the place of solemni-zation of the marriage. Column 13 reads:--
"We hereby declare,--
(i) that a valid marriage was solemnised between us and that the marriage is capable of being registered under Section 8 of the Hindu Marriage Act, 1955 (Central Act 25 of 1955);
(ii) that the conditions laid down in Sec-lions 5 and 6 of the said Act have been satisfied:
(iii) that the particulars given in this application are true to the best of our knowledge and belief; and
(iv) that the three witnesses who have signed-below were present at the time of solemnization of the marriage."
10. Form No. II which prescribes the form of register provides for entries being made in the register, Form No. II is under Rule 12 relating to the Hindu Marriage Register. Columns 5 to 8 are in the following terms:
"5. Name and address of the person who solemnised the marriage.
6. Whether the marriage solemnised under customary rites and ceremonies of either parties to the marriage as required under Subsections (1) and (2) of Section 7 of the Act.
7. Place, namely, the village, taluk and district where the marriage was solemnised, with full address.
8. The date on which the marriage was solemnised."
11. It is clear from the above provisions that there has to be solemnization of the marriage in accordance with the provisions of the Hindu Marriage Ad before the same is registered under Section 8 of the said Act. In the present case, the uncontradicted 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.
12. It is unfortunate that the learned Judge of the Family Court has not even chosen to mark the marriage Certificate as an exhibit, though it was produced along with the plaint. It is more unfortunate that the learned Judge has not chosen to apply his mind to the provisions of the Hindu Marriage Act and the Rules framed thereunder by the State Government.
13. The view taken by the learned Judge that the parties loved each other and there was no fraud or coercion in the matter of registration, even if correct, is not sufficient to dismiss the suit and deny the relief to the plaintiff, as prayed far by her. On the evidence before the Court, the only conclusion possible is that there was no marriage at all, as contemplated by the provisions of the Hindu Marriage Act and that there could not have been any valid registration of a marriage between the plaintiff and the defendant.
14. In the result, the appeal is allowed. The judgment and decree of the Additional Family Court, Madras in O.S. 16/92 are set aside. There will be a decree in the suit in favour of the plaintiff, declaring that the Certificate No. 221/91 by the Registrar of Hindu Marriages, T. Nagar, Madras is null and void and that there was no marriage between the plaintiff and the defendant at any time. There will be no order as to costs.
15. Appeal allowed.
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