Bhonrilal v. Mst. Kaushaliya — 1969 DIGILAW 23 (RAJ)

BHARGAVA, J.—The petitioner having been found guilty of disobedience of order of injunction restraining him from entering into second marriage, has been ordered to be detained in the civil prison for one month, by the Munsif, Gangapur City, by his order dated 24-3-1967. The said order has also been confirmed in appeal by the Senior Civil Judge, No. 1 Gangapur City. 2. Non-petitioner Mst. Kaushaliya filed a suit against the petitioner with the allegation that she was his legally wedded wife and had been living with him till four months before the filing of the suit. As the petitioner severely beat bet, she came to her fathers house. Thereupon the petitioner informed her father that he would marry again and had in fact arranged a second marriage with the daughter of Bhonrilal of Malarnadoongar. She, therefore, prayed for the issue of a permanent injunction restraining the petitioner from marrying the daughter of Bhonrilal of Malarnadoongar or any other girl. On the application of the non-petitioner under O. 39, r. 2, C.P.C. the petitioner was restrained from entering into second marriage till the final disposal of the suit, The order of injunction was passed by the court on 28th May, 1966 in the presence of the petitioner and was duly communicated to him. On 2nd June, 1966, the non-petitioner submitted an application under O. 39 r. 2(3) C.P.C. to take proceedings against the petitioner for disobedience of the order of injunction inasmuch as he had married Smt. Tofa daughter of Bhonrilal of Malarnadoongar on 29th May, 1966. Notice was issued to the petitioner and in reply he submitted that on account of the prohibitive order passed against him he gave up the idea of second marriage, but as the daughter of Bhonrilal of Malarnadoongar had already been anointed with oil, she was married to his younger brother Bhimsingh and not with the petitioner, No objection about the legality of the marriage was taken in this reply. The learned Munsif held an enquiry to find out whether Mst. Tofa daughter of Bhonrilal of Malarnadoongar was married to the petitioner or to his younger brother on 29th May, 1966. Both parties produced evidence in support of their rival contentions, and it is significant to note that neither the petitioner gave his own statement nor did he examine Mst. The learned Munsif held an enquiry to find out whether Mst. Tofa daughter of Bhonrilal of Malarnadoongar was married to the petitioner or to his younger brother on 29th May, 1966. Both parties produced evidence in support of their rival contentions, and it is significant to note that neither the petitioner gave his own statement nor did he examine Mst. Tofa as his witness, However, Rambilas who had conducted the marriage as a priest, was examined on his behalf. The learned Munsif on a careful scrutiny of the evidence produced by the parties arrived at the conclusion that Mst. Tofa was married to the petitioner and he had thus intentionally disobeyed the order of injunction issued against, him on the previous day i.e., on 28th May, 1966. On appeal by the petitioner the learned Senior Civil Judge concurring with the finding of the learned Munsif, dismissed the appeal. It is against this order that the present revision application has been filed and it has been contended on behalf of the petitioner that the courts below wrongly found the fact of marriage of the petitioner with Mst. Tofa proved without there being any evidence, that the ceremonies essential for a valid marriage had been gone through. It is contended that two ceremonies essential to the validity of a marriage as noted by Mulla in his book *Principles of Hindu Law, Thirteenth Edition at page are whether the marriage be in the Bramha form or the Asura form, namely(1), invocation before the sacred fire, and (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The marriage may also be completed by the performance of ceremonies other than referred to above where it is allowed by the custom of the caste to which the parties belong. It is pointed out that in the present case the non-petitioner did not set up any custom of the caste to show that any other ceremonies were considered sufficient as constituting the marriage and so it was essential to prove the aforesaid two ceremonies. It is further contended that in a case of the present nature where the question of liberty of a citizen is involved by his being detained in a civil prison, proof of marriage as is necessary, in criminal prosecutions for offences under sec. It is further contended that in a case of the present nature where the question of liberty of a citizen is involved by his being detained in a civil prison, proof of marriage as is necessary, in criminal prosecutions for offences under sec. 494 and 497 of the Indian Penal Code is required. Reliance is placed on Bhaurao Shankar Lokhande vs. The State of Maharashtra (1) Kanwal Ram vs. The Himachal Pradesh Administration (2), Gopal vs. The Emperor (3), Ganga Patra vs. Emperor(4), Phan-kari vs. The State(5), The Empress vs. Pitamber Singh(6), Empress of India vs. Kallu(7) and Queen Empress vs. Dal Singh(8) which relate to prosecutions under secs. 494, 497 and 498 of the Indian Penal Code and on Rampiayar vs. Deva Rama(9) Surjyamoni Dasi vs. Kali Manta Das(10) which relate to prosecutions under secs, 494, 497 and 493 of the Indian Penal Code and on Rampiaya vs. Deva Rama(9) Surjvamoni Dasi vs. Kali Manta Das(10) which relate to suits for restitution of conjugal rights. It is contended that in the present case there is no evidence of Sap apad i.e., taking of seven steps by the petitioner and Mst. Tofa jointly before the sacred fire. The evidence led by the non-petitioner only shows that phera ceremony was preformed and a priest was called for that purpose. This is however, not sufficient to constitute a valid marriage. 3. On the other hand learned counsel for the non-petitioner urges that the question of the validity of marriage performed on 29th May, 1966 in the house of Bhonrilal was never called in question by the petitioner in the courts below. Even in the revision petition this objection has not been taken and it is for the first time that this question has been raised during the course of arguments. It is urged that in the court below the controversy was confined to the fact whether Mst. Tofa was married to the petitioner or to his younger brother Bhimsingh. It is next urged that once the fact of marriage is established it shall be presumed that it was a valid marriage and all the ceremonies essential for constituting a valid marriage had been performed. Tofa was married to the petitioner or to his younger brother Bhimsingh. It is next urged that once the fact of marriage is established it shall be presumed that it was a valid marriage and all the ceremonies essential for constituting a valid marriage had been performed. Reliance is placed on Inderun Valungypooly Taver vs. Ramaswamy Pandia Talaver and Thungamma Nachiar (11), Brindabun Chandra Kurmokar vs. Chundra Kurmokar(12), Khushalchand Lalchand vs. Bai Mani(13), Bai Diwali vs. Moti Karson(14), Moujilal vs. Chandrabati Kumari, (P.C.)(15), Sitabai Sadasheo vs. Vithabai Mamdeo(16) and Kashi Nath vs. Bhagwan Das(l7). It was also urged that in the present case there was evidence that a marriage party reached the house of the brides father, a priest was called and Phera ceremony took place It is urged that Para ceremony is tantamount to the taking of seven steps by the bride and the bride-groom jointly. 4. As to the last submission it may be pointed out that under the Hindu Law the ceremony called the Saptapad is the taking seven steps by the bridegroom and the bride jointly before the sacred fire and it is not to be confused with taking of seven rounds of the fire. The distinction in the two is borne out from the following description of the Sanskara of marriage given by Kane in the History of Dharamasatra, Vol. 2—Pt. 1 at page 531 : "There are certain rites that are preliminary, there are then a few rites that are of the essence of the Sanskara Viz., Panigrahana, homa, going round the fire and the saptapadi, and there are certain rites like the seeing of the Pole Star etc., that are subsequent to the central rites. The essential rites are mentioned by cell sutrakaras, but as to the preceding and subsequent rites there is a great divergence in the details. Even as regards the essential rites the sequence in which they take place differs. For example, while the Asv. gr. (1.7.7) describes going round the fire before saptapadi, while the Ap. gr. describes saptapadi (IV. The essential rites are mentioned by cell sutrakaras, but as to the preceding and subsequent rites there is a great divergence in the details. Even as regards the essential rites the sequence in which they take place differs. For example, while the Asv. gr. (1.7.7) describes going round the fire before saptapadi, while the Ap. gr. describes saptapadi (IV. 16) before the act of going round the fire (VII)." The learned authority than explains Agniparinayana as "the bride-groom going in front takes the bride round the fire and water jar." It is while doing this that he utters the words amohasmi, and Saparapadi (taking seven steps together.) This is done to the north of the fire; there are seven small heaps of rice and the bridegroom makes the bride step on each of these seven with her right foot beginning from the west. 5. However, the important point to be considered is whether in the absence of proof of the ceremony of Sapatpadi having been gone through the petitioner can be held liable for disobedience of the injunction against him. No doubt having regard not only to section 50 of the Evidence Ac:, but to general principle that strict proof is required in all criminal cases it has been held that in all offences where marriage is an ingredient of the offence there must be proof that marriage has been celebrated strictly in accordance with the requirements of custom and law applicable to the parties. But no decision has been cited to show that the above principle should also be extended to contempt proceedings for disobeying the order of injunction. Proviso to section 50 Evidence Act is not applicable to contempt proceedings and the contemner is also not a person accused of any offence. I am, therefore, of the view that the decisions relied upon on behalf of the petitioner are not helpful to him in the present proceeding. The main concern of the court in proceedings under O. 39, r. 2(3) is to see how far as the act done in disobedience of the order is in disregard to its authority. The two courts below found on evidence that the petitioner had acted in disobedience of the order of injunction and there is no room for interference by this Court in revision application. 6. The two courts below found on evidence that the petitioner had acted in disobedience of the order of injunction and there is no room for interference by this Court in revision application. 6. Another reason why interference with the lower courts order is not called for is that the objection about the validity of marriage was not taken by the petitioner at any earlier stage. The petitioner in reply to the notice only denied his own marriage with Mst. Tofa and asserted that the marriage was performed with his younger brother Bhim Singh—a fact which the courts below have found untrue. The petitioner cannot therefore, be allowed to turn round and question the validity of the marriage. There is no reason to suppose that the petitioner who was keen to enter into second marriage, as is clear from his reply, would have gone through it without due performance of ceremonies necessary for a valid marriage according to law or usage of his caste. If the objection about validity of marriage had been taken at the ear- liest stage in reply to the notice given by the court, the non-petitioner would have had the opportunity to meet the objection and prove that all the ceremonies necessary to constitute a legal marriage had been performed. The proceedings under Order 39 r. 2(3) cannot be regarded as akin to a criminal prosecution where he prosecution is required to prove its case against the accused beyond all reasonable doubt. 7. The revision application has, therefore, no force and is hereby rejected. In the circumstances of the case I make no order as to costs.