The burden of proof lies on the party asserting the fact of marriage, and the performance of essential rites is mandatory to sustain a marriage under Hindu Rites and Customs.

G.M. AKBAR ALI,J.,

1. A.S.No.11 of 2009 is filed under Sec.96 C.P.C against the judgment and decree, dated 24.05.2007 passed in O.S.No.7 of 2005 by the learned Additional District Judge, Fast Track Court No.1, Coimbatore, while C.M.A.No.2428 of 2009 under Section 19 of the Family Court as against the order passed by the learned Judge of the Family Court, dated 24.5.2007, in HMOP No. 83 of 2006.

2. Since both the matters are interconnected and the issues stemming therefrom require joint consideration, they are heard together and disposed of by this common judgment.

3. The appellant filed a suit in O.S.No.7 of 2005 against the respondent before the learned Additional District Judge, Fast Track Court No.1, Coimbatore, for a declaration that no marriage, between herself and the 1st respondent, took place on 16.9.2004 and for a consequential permanent injunction restraining the first respondent from projecting himself as her husband on the strength of the Marriage Registration Certificate dated 27.9.2004 issued by the 2nd respondent and also for a mandatory injunction to direct the 2nd defendant/Registrar of Marriage to cancel the marriage registration. The 1st respondent has filed HMOP No.83 of 2006 under Sec.9 of the Hindu Marriage Act 1955 for restitution of conjugal rights.

4. The facts, which led to repudiation of the alleged marriage by the appellant and filing of the petition by the 1st respondent/husband are detailed below:

5. The appellant, after completing her M.B.A, was employed as a Receptionist in CMS college of Science and Commerce at Coimbatore. She is the only daughter of her parents and the parents are affectionate towards her.

6. The respondent, a Civil Engineer, was also employed in the same Institution. He was steadily and progressively projecting himself to the appellant as a person of virtues. Over the passage of time, the appellant and the respondent became friends. The respondent induced the appellant and proposed that they should get married as they had many things in common and that they could lead a very happy life as husband and wife.

7. The appellant belong to Kerala Nayar community and her mother tongue is Malayalam and the defendant belonged to different community. The appellant being dutiful to her parents, never had any intention to go against the wishes of her parents. The respondent, on many occasions, had requested the appellant to run away from the family, but the, appellant always refused.

8. That being so, two months prior to the filing of the suit, a lady came to the house of the appellant and introduced herself as the sister of the respondent and showed a marriage certificate, dated 27.9.2004, issued by the 2nd respondent/ Sub Registrar, reflecting as of a marriage between the appellant and the respondent as if took place on 16.9.2004 in the house of the respondent and the same was solemnized in accordance with the customary manner by one S.P. Chandrasekar of Coimbatore.

9. As far as the appellant is concerned, there was no such marriage ever took place and she has never been to the respondent’s house, nor participated in any marriage ceremony by exchanging the garlands, tying of thali and walking around sacred fire. The respondent induced the appellant and asked her to come and sign before the Notary Public to swear under the pretext that they would not get married without the permission of the parents of both sides.

10. In September 2004, one day, the respondent took the appellant to the Sub Registrar office under the pretext that she is supposed to be a witness for a marriage. Thus, the respondent is clearly seemed to have manipulated the affidavits, marriage certificates etc., by misrepresentation and therefore, the alleged marriage is non-est, null and void and consequently the marriage registration has no sanctity in the eye of law.

11. The respondent filed a habeas Corpus Petition before this court as if the appellant is in illegal custody, thereby, the appellant was