In a restitution of conjugal rights case, the factum of marriage can be proved through evidence, and the presumption of due performance of ceremonies applies, placing the burden of proof on the party challenging the validity of the marriage to prove the non-performance of essential ceremonies.

( 1 ) IN assailing the decree for the restitution of conjugal rights granted by the trial judge under Section 9 of the Hindu Marriage Act in favor of the respondent-wife and against the appellant - husband, Mr. Mitra, the learned Counsel for the appellant-husband, has very seriously urged that there was no marriage in fact between the parties to warrant the decree and that, even if there was a marriage in fact, there was no marriage in law as ceremonies essential to constitute a Hindu marriage have not been if there was a marriage in fact, there was no marriage in law as ceremonies essential to constitute a Hindu marriage have not been proved to have been performed in this case. Having heard the learned counsel for both the parties considerable length and having gone through the records ourselves, we are, however, satisfied that a marriage, both in fact and in law, between the parties has been satisfactory proved to warrant he decree under appeal.

( 2 ) AS to the marriage in fact, the evidence adduced by and on behalf of the petitioner in support of the marriage is good in quality and great in quantity. It is great in quantity because as many as 15 witnesses have been examined on behalf of the petitioner; it is good in quality because a great deal of the evidence has come from persons who are likely to know about the facts and yet are independent and have no personal interest in the petitioner's case. PW-2 Manick, who attended the marriage as the barber for the bride groom-respondent, PW-3 Gobindalal who attended the marriage as a co-villager of the respondent, PW-4 Budded who attended the Bowbhat ceremony as a co-villager of the respondent, PW-5 Gadadhar who also attended the marriage and is a resident of a neighboring village, PW-6 Ramaprassanna and PW-7 Dharanidhar who are residents of the neighboring village and who attended the marriage as belonging to the bride groom's party, PW-9 Ramgopal who is a co-villager of the petitioner and who attended the marriage, PW-11 Dwijapada who is he post Master of the petitioner's village, PW-13 Biseswar who is resident of the neighboring village who attended the marriage and PW-14, another co-village who attended the marriage, have all stated, clearly, categorically and consistently, that the petitioner Kalpana was married to the respondent Sridhar and that they all attended the marriage ceremony. We have not been able to find any reason to disbelieve all these witnesses and to reject their testimony. PW-1, the petitioner herself and PW-15, her father, have also deposed about the marriage in appreciable details. The petitioner, when she deposed, was a young girl of 17/18 years and her father and other members of he family reside in a village in the District of Birdhum. The outlook, the way of life, the social prejudices of the village societies

even today being as they are, it is difficult to believe that the petitioner and her father would falsely claim the respondent to have been married to the petitioner at this great risk that if the case failed, the petitioner would lose all the chances of being suitably married in her whole life.

( 3 ) OF the 5 witnesses examined on behalf of the respondent, D W 1 Gopal and D W 2 Durgapada have clearly admitted that they were asked by the respondent to depose that there was no marriage between the petitioner and the respondent while DW 3 Laxminarayan and DW 5 Shyamapada are the sister's husband and the maternal uncle of the respondent and DW 4 Sridhar is the respondent himself. Therefore, while the first two witnesses are not at all reliable, the remaining 3 witnesses are not also disinterested and independent. The respondent DW-4, While denying any marriage between him and the petitioner has stated that the petitioner's father, PW 15, proposed to the mother of the respondent for the marriage of his daughter with the respondent, but his mother refused, but though it is in evidence that the mother was about 60/61 y