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1997 Supreme(HP) 270
High Court Of Himachal Pradesh
LOKESHWAR SINGH
SANTOSH KUMARI - Appellant
Versus
DALIP CHAND - Respondent
RSA No. 175 of 1990
Decided On : 07/10/1997
Mis. Bhupender Gupta and Praneet Gupta, Advocates, for the Petitioners; Mr. Vijay Thakur, Advocate, for the Respondents 1; Ms. Menaka Chauhan, Advocate, for the Respondent 2.
The essential ceremonies for a valid Hindu marriage must be performed according to the law governing the parties, and the presumption of marriage arising from cohabitation and public recognition can be rebutted by positive evidence of the absence of a valid marriage.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 7 - MARRIAGE - VALIDITY - ESSENTIAL CEREMONIES - PROOF - PRESUMPTION - REBUTTAL.
Fact of the Case:
The appellant-defendant challenged the judgment and decree of the lower courts declaring that she was not the legally wedded wife of the plaintiff and that the defendant Aaroni was not his son. The plaintiff had filed a suit seeking a declaration to that effect, and the lower courts had dismissed the appeal and cross-objections, upholding the trial court's judgment.
Finding of the Court:
The High Court found that the defendant had failed to prove that she was legally married to the plaintiff according to the essential ceremonies required under the Hindu Marriage Act, 1955. The court held that the presumption of marriage arising from cohabitation and public recognition could be rebutted by positive evidence of the absence of a valid marriage.
Issues: 1. Whether the defendant was the legally wedded wife of the plaintiff. 2. Whether the defendant Aaroni was the son of the plaintiff and the defendant. 3. Whether the courts below erred in their findings on the validity of the marriage.
Ratio Decidendi: 1. Under Section 7 of the Hindu Marriage Act, 1955, a Hindu marriage is solemnized according to the customary rites and ceremonies of either party, and where such rites include saptapadi, the marriage becomes complete and binding when the seventh step is taken. 2. The defendant failed to prove the customary rites of her community or the performance of essential ceremonies in accordance with the usage or custom applicable to her community. 3. The presumption of marriage arising from cohabitation and public recognition can be rebutted by positive evidence of the absence of a valid marriage.
Final Decision: The High Court dismissed the appeal, upholding the judgment and decree of the lower courts.
LOKESHWAR SINGH PANTA, J.— The present second appeal has been preferred by the appellant-defendant against the judgment and decree dated 24-10-1989 passed by the District Judge, Mandi, Kullu and Lauhal & Spiti Camp at Kullu in Civil Appeal No. 75 of 1985/130 of 1988 dismissing the appeal of the appellant-defendant and thereby confirming the judgment and decree recorded by the Senior Sub-Judge, Kullu in Civil Suit No. 118 of 1983 on 29-4- 1985. The parties are referred to as plaintiff and defendants hereinafter in the judgment for the purpose of convenience
2. The relevant facts giving rise to this appeal are that the plaintiff filed a Civil Suit No. 118 of 1983 in the Court of Senior Sub-Judge, Kullu seeking declaration to the effect that defendant Smt. Santosh Kumari is not his wife and Master Aaroni defedant is not his son. At the time of filing of the suit, the plaintiff was employed as teacher in Govt. Middle School, Lossar in Spiti. He originally belongs to Kothidol, Post Office Gopalpur, Tehsil Sarkaghat, District Mandi. Defendants are residents of Phati and Kothi Jagatsukh, Tehsil and District Kullu. H.P It was asserted in the plaint that the defendants initiated proceedings against the plaintiff under Section 125 Cr.P.C. claiming maintenance for themselves and that in those proceedings maintenance allowance was allowed to second defendant Master Aaroni but it was dis-allowed to first defendant Smt. Santosh Kumari. The plaintiff averred that defendant Smt. Santosh Kumari is claiming herself to be his wife and defendant Aaroni as his son in the general public. It was then asserted that the defendants were requested not to claim the said status but they is not accede to the request, therefore, the suit was filed.
3. The suit was resisted and contested by the defendants, inter alia, raising various preliminary objections vis-a-vis its maintainability, jurisdiction, valuation for the purposes of Court fee and competency of the suit against the minor defendant. On merits, it was contended that defendant Smt. Santosh Kumari had contracted marriage in the form of Jhanjrara on 24-4-1974 and thereafter she continued to live a normal life and cohabited with the plaintiff by staying at the places where he was posted till the year 1977. Ultimately, she became pregnant from the plaintiff in the year 1977 when they were living at Kaza and lateron she was shifted to her parental house and consequently gave birth to defendant Master Aaroni at that place, it was further pleaded that on the birth of the son, a feast was also arranged at her parental house where the plaintiff was also present. Defendant Smt. Santosh Kumari further contended that in the maintenance proceedings initiated under Section 125 Cr.P.C, she and her son were awarded maintenance by the learned Chief Judicial Magistrate, Kullu and that order was under challenge before the higher Court. On the controversial pleadings of the parties, the learned trial Court framed the following issues :
1. Whether the defendant No. 1 is the legally wedded wife of the plaintiff ? OPD.
2. If issue No 1 is proved, whether defendant Aroni is the son of plaintiff and defendant-1 ? OPD
3. Whether this Court has no jurisdiction to try this suit ? OPD.
4. Whether the suit is not maintainable in the present form ? OPD.
5. Whether the suit is correctly valued for the purpose of Court fee and jurisdiction ? OPP.
6. Whether the minor defendant No. 2 has been properly sued and the suit against him is competent ? OPP.
7. Relief. The trial Court returned the findings on issues No. 2 & 5 in the affirmative and other issues were answered in the negative. The learned trial Court concluded that defendant Smt. Santosh Kumari was not legally wedded wife of the plaintiff, however, the son was held to have born to defendant Smt. Santosh Kumari from the loins of the plaintiff. All the preliminary issues were decided in favour of the plaintiff and against the defendants. Feeling aggrieved with the judgment and
