Judgement This application under Section 115 of the Code of Civil Procedure is directed against the order dated 9-8-85 passed by the District Judge, Dibrugarh in Title Suit (D) No. 8/1981 holding the opposite party Sowala Gogoi to be the legally married wife of the petitioner, Khiteswar Phukan. 2. The opposite party Sowvala Gogoi filed a petition before the District Judge, Dibrugarh under Section 10 of the Hindu Marriage Act, 1955 (hereinafter the Act) read with Section 4 of the Marriage Law (Amendment) Act, 1976 for a decree for judicial separation contending, inter alia, that she was the wife of the petitioner having been married to him on 14th ;March, 1980 according to Hindu rites. The petitioner resisted the said petition by contending that the opposite party was not his wife and that she was never married to him. During the pendency of the said petition the opposite party filed another application under Section 24 of the Act claiming payment of alimony at the rate of Rs. 500 -per month. The said application was also opposed by the petitioner on the ground, inter alia, that the opposite party was not his wife and. as such, not entitled to any maintenance. The learned District Judge allowed the petition under Section 24 and ordered payment of alimony pendente lite at the rate of Rs. 200/- per month. A revision petition was filed against the said order before the High Court which was numbered as Civil Revision Revision No.299/82. The High Court by judgment and order dated 16-5-84 set aside the order passed by the District Judge, on the ground that while passing the impugned order the learned District Judge did not follow the legal principles in that regard and did not consider the relevant factors necessary for the purpose. The District Judge was directed to rehear the application under Section 24 as well as the petition under Section 10 of the Act. In pursuance of the aforesaid direction of the High Court, the learned District Judge heard the matter afresh, examined witnesses and by the impugned order dated 9-5-85 held that the opposite party was the legally married wife of the petitioner. It is this order that has been challenged by the present revision petition. 3. Before dealing with the contentions of the parties, it will be appropriate to briefly state the facts of the case. It is this order that has been challenged by the present revision petition. 3. Before dealing with the contentions of the parties, it will be appropriate to briefly state the facts of the case. The case of the opposite party, Sowala Gogoi was that the petitioner Khiteswar had married her according to the Hindu Marriage rites on 14-3-80 and thereafter she lived with him as his wife in his official quarter and also sometimes with his parents at their ancestral home at Asamiya Gaon. When she stayed with the parents of the petitioner, the petitioner who was working at Namrup, visited her from time to time. However, after sometime he stopped visiting her all together and even did not make any enquiry about her. She, therefore, went to Namrup herself. On arrival there, she was not allowed to enter the house. She had to pass time in the Varendah. She stayed for five days and nights in the Verandah before she was allowed to enter the house. She was ill-treated, hit and tortured. On March 23, 1980 at about 7 in the morning, the petitioner soon after he returned from his duty, started beating her. As a result, she had to return to her parents house. Later she filed the petition for judicial separation. An application was also filed claiming maintenance. 4. All the aforesaid facts were denied by Khiteswar. It was contended that the opposite party Sowala was never married to him. His version of the case was that in the month of March, 1980, Sowala, all on a sudden appeared in his quarter and stayed there as his guest for a few days. After much pursuation she was sent back to her parents house but instead of going there, she went to his parents house and stayed with them for some days. Again she came to Namrup and stayed there for some days in his quarter in spite of being repeatedly asked not to do so. In fact, she wanted to marry the petitioner and expressed her desire to do so. But the petitioner did not agree. She was never accepted by him as his wife and he never lived with her as man and wife. She ultimately left his house and went to her parents house. There was no marriage between them as alleged. In fact, she wanted to marry the petitioner and expressed her desire to do so. But the petitioner did not agree. She was never accepted by him as his wife and he never lived with her as man and wife. She ultimately left his house and went to her parents house. There was no marriage between them as alleged. When the petitions were filed before the District Judge, he refuted all allegations made by her against him and categorically denied any marriage between them. 5. The learned District Judge considered the rival contentions to decide whether the opposite party Sowala Gogoi was the married wife of the petitioner. The opposite party examined herself and five other witnesses in support of her case. The petitioner examined himself. On consideration of the contentions and the evidence on record, the learned District Judge arrived at a finding that the opposite party was the legally married wife of the petitioner and by the impugned order and held accordingly. This order is the subject matter of the present revision before us. 6. The contention of the petitioner is that the learned District Judge committed manifest error of law in arriving at the aforesaid finding, because in order to hold that there was a valid marriage between the parties, there must be evidence to show that the marriage was solemnised in accordance with customary rites and ceremonies of either party thereto. According to the petitioner neither there were pleadings regarding solemnisation of marriage in accordance with the customary rites nor any evidence to that effect. The opposite party as well as her witnesses were not consistent even about the date of the alleged marriage. The opposite party herself made contradictory statements in that regard. 7. I have carefully scrutinised the statements made by the opposite party in her petitions before the District Judge and in her deposition. It appears that in her petition before the District Judge, she had stated that she was married to the petitioner on 14th March, 1980 whereas in her deposition before the Court, she stated that the petitioner had fixed 23rd March, 1980 for the marriage. Nothing, however, was stated whether the alleged marriage, in fact took place on that date and if so, where and in what manner. The two versions are thus self-contradictory. Nothing, however, was stated whether the alleged marriage, in fact took place on that date and if so, where and in what manner. The two versions are thus self-contradictory. Besides, there are many other glaring contradictions and discrepancies in respect of other material particulars regarding the marriage and the events leading to it. Nothing has been said about the solemnisation of the marriage either in the petitions or in deposition. The only statement that could be traced is the one made in the application under Section 10 of the Act to the effect that - " She was married to the petitioner according to Hindu marriage rites on 14th March, 1980." But this statement stands totally contradicted by her own deposition on oath wherein she stated that " the petitioner fixed 23rd March, 1980 for the marriage." The irresistible conclusion is that the statement made in the petition regarding the solemnisation of marriage on 14th March, 1980 is not correct. There is no evidence of any solemnisation of marriage with the customary rites and ceremonies. Her clear case is that she used to live from time to time with the petitioner as a result of which she became pregnant. She got aborted on 23rd March, 1980 and thereafter she began to live in the quarter permanently. The petitioner took her to his village home on 23rd March at 2 a. m. where she was welcomed as a bride by his sister. She has nowhere stated about solemnisation of the marriage or the rites or ceremonies performed in connection therewith. 8. The other witnesses examined on her behalf also made statements which were at variance with each other. Their statements also go counter to the statement made by the opposite party in her petition that the marriage took place on 14th March, 1980 and since then she had been staying with the petitioner. One of the witnesses, Srimati Jogamaya Boro (P.W.2) stated that on 23-3-80 she was told by the father of the opposite party that his daughter was not in the house for four days, meaning thereby four days prior to 23rd March, 1980. This statement clearly indicates that till 19th March she was with her parents. The other witnesses also did not make any categorical statement about the solemnisation of the marriage in accordance with the customary rites or ceremonies. This statement clearly indicates that till 19th March she was with her parents. The other witnesses also did not make any categorical statement about the solemnisation of the marriage in accordance with the customary rites or ceremonies. In fact, the witnesses were neither consistent about date of the marriage nor the solemnisation thereof or the customary rites and ceremonies. The most surprising part is that the girl Sowala Gogoi herself made self-contradictory statements even regarding the date of marriage. 9. The question for determination, therefore, is whether on the basis of such pleadings and evidence, and in the absence of sufficient proof of solemnisation of marriage in accordance with the customary rites and ceremonies, a valid marriage can be said to have been held under the provisions of the Act. 10. I have heard at length Mr. D.N.Baruah, the learned counsel for the petitioner and Mr. P. Khataniar, the learned counsel for the opposite party. 11. The real dispute to be decided in this case relates to the factum of marriage. The onus of proving that a valid marriage took place in accordance with law lies on the person alleging marriage. He has to plead and prove the solemnisation of marriage in accordance with the customary rites and ceremonies. The requisite ceremonies have been dealt with by Section 7 of the Hindu Marriage Act, 1955, hereinafter "the Act" which reads: "7. Ceremonies for a Hindu marriage. (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) 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." 12. A Hindu marriage, therefore, has to be solemnised in accordance with the customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the "Saptapadi" it is necessary to perform the same and the marriage becomes complete and binding when the seventh step is taken. 13. The legislative intent behind Section 7 of the Act is clear from the use of the expression " solemnized" "Solemnized" means to perform with proper ceremonies and due form. Where such rites and ceremonies include the "Saptapadi" it is necessary to perform the same and the marriage becomes complete and binding when the seventh step is taken. 13. The legislative intent behind Section 7 of the Act is clear from the use of the expression " solemnized" "Solemnized" means to perform with proper ceremonies and due form. As observed by the Supreme Court in Bhaurao v. State of Maharashtra, AIR 1965 SC 1564 : (1965 (2) Cri LJ 544) " unless the marriage is celebrated or performed with due ceremonies and due form it cannot be said to be " solemnized". Such a marriage is no marriage at all. This is so because marriage in the Hindus is recognised as one of the sanskaras and, as such, it is performed with the necessary religious rites. The religious rites and ceremonies vary in different parts of the country as well as in different communities, caste etc. It is in the recognition of such existing state of affairs that the legislature while making law on the subject did not prescribe the ceremonies requisite for solemnisation of the marriage. It has been left to the parties to choose a form of ceremonial marriage which is in accordance with the custom or usage of either party. 14. It is for the party who claims to have been married to a person to show that the customary rites and ceremonies were performed. The mere conduct of a person indicating that he had accepted the other party as his wife is not enough to grant the relationship the status of a legal marriage. It is not a substitute for a solemnization of marriage according to customary rites and ceremonies. Besides, observance of customs and ceremonies applicable to the community must be specifically pleaded and proved. In the absence of pleadings, it might not be open to the party concerned to even lead evidence in that regard. 15. The essential attributes of a custom are that it must be ancient, certain and reasonable. It must have been observed without interruption. It must be uniform and obligatory. It must not be immoral or opposed to public policy. Besides it must be established by clear and unambiguous evidence. It cannot be enlarged beyond the usage by parity of reasoning since it is the usage and usage alone that makes it a valid custom. It must have been observed without interruption. It must be uniform and obligatory. It must not be immoral or opposed to public policy. Besides it must be established by clear and unambiguous evidence. It cannot be enlarged beyond the usage by parity of reasoning since it is the usage and usage alone that makes it a valid custom. However, ceremonies and customs may be obligatory or non-obligatory. While determining the validity of a Hindu marriage, if it is found as a matter of fact that certain ceremonies and customs connected with marriage were not obligatory but directory, then non-performance of any such non-obligatory or directory, ceremony or custom would not affect the validity of a marriage if the other mandatory ceremonies and customs have been observed. 16. In the case in hand, the opposite party Sowala alleged that she was married to Khiteswar and on that basis filed petition under Section 10 of the Act praying for judicial separation and application under Section 24 of the Act for maintenance pendente lite. Section 10 presupposes solemnisation of marriage between the parties to the proceedings. Similarly, Section 24 refers to " wife" or " husband" which again presupposes a marriage solemnised in the manner laid down under Act. The learned District Judge, therefore, rightly took up for decision the question whether Smt. Sowala was married to Khiteswar or not. It arrived at a finding that she was legally married to Khiteswar. The question for determination is whether this finding is sustainable in law or not. 17. 1 have carefully considered the entire evidence on record. I am of the opinion that the opposite party Sowala had not been able to prove solemnisation of marriage in accordance with the requisite ceremonies and custom. On the face of categorical denial by the petitioner, it was incumbent upon her to prove by positive evidence that marriage had been solemnised between them in accordance with the customary rites and ceremonies which she totally failed to do. There is not a word about the performance of any ceremony or customary rite. Even pleadings in regard to prevalent custom and observance of customary rites and ceremonies are absent. No evidence has been led to prove the condition precedent for a valid Hindu marriage. There is not a word about the performance of any ceremony or customary rite. Even pleadings in regard to prevalent custom and observance of customary rites and ceremonies are absent. No evidence has been led to prove the condition precedent for a valid Hindu marriage. In fact, the entire case is based on the alleged statement made by the petitioner that they had been married and the alleged conduct of his sister in welcoming her "as a bride." The question is whether on the basis of any inference drawn from certain alleged statements or conduct of one of the parties, it can be held that marriage had been solemnised as contemplated by law. The answer in clear term is no. There is no scope for speculation or inference in such matters. The factum of marriage has to be established by proper pleading and requisitive evidence. In that view of the matter, it is difficult in the instant case to hold that marriage was solemnised between Sowala and Khiteswar. 18. I, therefore, hold that the learned District Judge was not correct in holding that the opposite party Sowala was the legally married wife of the petitioner Khiteswar. The impugned order dated 9-5-85 is, therefore, set aside. The revision petition is allowed. 19. In view of the facts and circumstances of the case, I make no order as to costs. Petition allowed.