NIRMAL DASS BOSE v. KM. MAMTA GULATI — 1996 DIGILAW 1159 (ALL)

S. P. SRIVASTAVA, J. ( 1 ) FEELING aggrieved by the annulment of his marriage solemnized under the Special Marriage Act, 1954, the husband appellant has approached this Court in appeal praying forthe setting aside of the decree of nullity granted against him by the Court below. ( 2 ) DURING the pendency of this appeal, to explore the possibility of conciliation the appellant and the contesting respondent were required to appear in chambers. However, the effort to bring about a conciliation could not materialise and from the observations as noted in the order dated 21-3-96, it was apparent that Mamta Gulati, the respondent-has reached a point of no return. In the aforesaid circumstances, the appeal has been heard on merits. ( 3 ) I have heard Sri Rajesh Tandon, learned Counsel for the appellant and Sri Ranjit Saxena, learned Counsel representing the plaintiff respondents and have carefully perused the record. ( 4 ) THE matrimonial petition No. 2 of 1987 was filed by the respondent describing herself as Km. Mamta Gulati, apparently disowning the matrimonial status, asserting that she belonged to a respectable family of Dehradun and her father was a Government Employee in a department of the Ministry of Defence and her uncle had a well established taxi business which was being run in the name and style o Gulati Taxi Service and who was also doing business in the Motor spare parts disclosing her date of birth to be 25/08/1968. It was alleged that she knew the appellant Nirmal Das Bose for the past three years who used to meet her whenever she went to her college where she was studying and pursuing the undergraduate course of study and it was during this period that he had developed friendship with her. It was claimed that the appellant came forward with a proposal to marry her and she was so much dominated and influenced by the defendant who had gone to the extent of telling her that incase of her refusal he will kill her, that she could not refuse and on 11-11-85 the defendant met her in the market and took her in his taxi car to the house of his friend and from there taking two of his friends he took her to the residence of Sri Ashok Kumar Agarwal. Advocate, the Marriage Officer. Advocate, the Marriage Officer. Dehradun where she signed some papers and alter the signatures had been appended the defendant dropped her near her residence. It was asserted that not only during the period anterior to 11/11/1985 but also during the subsequent period, she had always been residing with her parents. She had not disclosed the factum of marriage to her parents on account of fright. But after some time she told the fact to her father who made enquiries from which it transpired that the defendant has misrepresented in regard to his age, his education, his income, his property his family and had the plaintiff known about the real facts she would have never agreed to the marriage. It was alleged that the consent of the defendantrespondent was obtained by coercion and fraud and also by keeping the plaintiff under hypnotic influence of the appellant. She asserted that the alleged marriage was never consummated and she never lived with the defendant at any time as his wife. It was also asserted that there were irreconcilable cultural differences between her and the defendant and the way of the life of the appellant was such that it was not possible for her to live with him. She also alleged that she had a genuine apprehension that if she was made to live with the appellant then she will suffer mentally physically and emotionally and the cruelty already suffered by her from the whole conduct of the appellant was unbearable. It was also indicated that the appellant had abused and threatened her uncle, brothers and cousins saying that if they do not get the case withdrawn, he would kill them. Report to this effect was lodged with the police on 21-71993, It was also alleged that the appellant husband had threatened the counsel engaged by her in the case that he would kill him if the case was not withdrawn, A report in this connection was lodged with the police on 2-9-1993, She also asserted that the appellant had threatened her if she did not withdraw the case he would kill her, a report with the police in respect whereof was lodged on 17-91993, On the aforesaid allegations, the respondent prayed that the marriage between the parties be declared void and be annulled. In the alternative it was prayed that the alleged marriage between. the parties be dissolved by a decree of divorce. In the alternative it was prayed that the alleged marriage between. the parties be dissolved by a decree of divorce. ( 5 ) THE appellant contested the suit by filing a written statement. It was claimed that he was a taxi operator and he knew the respondent for the last about thirteen years that is to say since she was about seven years of age. He claimed that he had worked as Driver for operating the taxi of her uncle and had been visiting him from much before the date of the marriage. It is also asserted that he had not given the proposal of marriage to her but on the contrary, she had compelled him to marry her and he had not influenced her in any manner whatsoever. The allegation that he hadgiven threats to kill her if he did not agree to marry him was denied. On the other hand it was claimed that she had consented to the marriage of her own free will. The allegations that he had forcibly took her to the house of his friend and from there to the residence of the Marriage Officer had been denied. It was claimed that she had fixed the date and time of meeting at the residence of Marriage Officer and he had reached there as agreed. It was asserted that at the residence of Sri Ashok Kumar Agrawal, the Marriage Officer, the marriage of the parties was performed and solemnised according to the law and the parties had signed the register and other paper; at the residence of Marriage Officer in the presence of the witnesses of their own free will knowing fully the consequences of the marriage. It was also claimed that the marriage had been consummated after 11-11-1986. The allegation; in regard to coercion and undue influence and fraud were denied. ( 6 ) THE appellant claimed to be 29 years of age and having passed the high school examination from Siliguri. He claimed to have owned a taxi since the end of the year 1982. It was also claimed that the marriage had been consummated after 11-11-1986. The allegation; in regard to coercion and undue influence and fraud were denied. ( 6 ) THE appellant claimed to be 29 years of age and having passed the high school examination from Siliguri. He claimed to have owned a taxi since the end of the year 1982. He however, admitted that he did not own any house and all his relations resided in Siliguri It was admitted that he had worked as a Driver of Sri Dilip Gulati, the uncle of the respondent for running his taxi car asserting that the petition had been filed under coercion and threat from her parents and other relation; with wrong statements. The appellant challenged the maintainability of the petition praying for its dismissal with special costs. ( 7 ) THE trial court on an appraisal of the evidence and materials brought on record, came to the conclusion that it was fully established that no declaration was made by the parties at the time of marriage as provided for under S, 12 (2) of the Special Marriage Act and the alleged marriage between the parties could not be held to be complete and binding in view of the stipulations contained in the proviso to S. 12 (2) of the Special Marriage Act and consequently considering the implication; arising under S. 12 (2) of the Special Marriage Act. the trial court holding the marriage to be not complete and binding concluded that such a marriage had to be treated as null and void. ( 8 ) THE trial Court further came to the conclusion that the notice of intended marriage contemplated under S. 5 of the Special Marriage Act had not been entered in the marriage notice book and no notice under Ss. 5 and 6 of the aforesaid Act had been issued in the present case. The trial Court concluded that even on this ground the alleged marriage between the parties was liable to he treated as null and void and not binding upon them. The trial court noticed that the assertion of the respondent to the effect that he had passed the High School examination was not correct. It was further found that the respondent had admitted that in the year 1986, he had no taxi car owned by him but was simply a Driver. The trial court noticed that the assertion of the respondent to the effect that he had passed the High School examination was not correct. It was further found that the respondent had admitted that in the year 1986, he had no taxi car owned by him but was simply a Driver. The trial court also found that the assertion of the respondent that he had not misrepresented to the petitioner was not correct and the assertions of the petitioner about misrepresentation as indicated in paragraph 9 of the plaint/petition stood substantial. It was also found that the marriage had never been consummated. The trial court had observed that according to his own case, the present appellant knew Mamta Gulati since she was of the age of six years and had succeeded in creating such an influence that the girl was reeling under his reign and domain. It was observed that it stood well proved on the record that she was under the hypnotic influence of the appellant. Even according to him the Court observed, he knew her since the age of six years and he mostly brought her from the school therefore was in a position to put her in a hypnotic influence. The trial court observed that the facts established on the record were clearly indicating that the consent of Mamta Gulati was obtained by coercion and fraud. ( 9 ) THE trial Court came to the conclusion that since the marriage between the parties was null and void, the matter relating to the cruelty raised by Mamta Gulati for a decree of divorce was not required to he gone into as it was wholly unnecessary. In fact the trial court observed that in view of the findings justifying a decree of nullity contemplated under S. 5 of the Special Marriage Act, the claim put forward under S. 27 of the said Act had become in fractious. In the aforesaid view of the matter, the trial Court holding the marriage between the parties to he not binding declared that same to he null and void granting a decree to that effect annulling the marriage. ( 10 ) THE provisions contained in S. 12 of the Act are to the following effect:"12. In the aforesaid view of the matter, the trial Court holding the marriage between the parties to he not binding declared that same to he null and void granting a decree to that effect annulling the marriage. ( 10 ) THE provisions contained in S. 12 of the Act are to the following effect:"12. Place and from of solemnization.- (1) marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance there from as the parties may desire, and upon such conditions and the payment of such additional fees as may be proscribed. (2) The marriage may be solemnized in any form which the parties may choose to adopt. Provided that it shall not be complete and binding on the parties; unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties, ". I. (A) take thee (B) to be my lawful wife (or husband)". ( 11 ) IT may further be noticed that as provided for under S. 13 of the Act on a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall he deemed to be conclusive evidence of the fact that a marriage under this Act had been solemnized and that all formalities respecting the signatures of witnesses have been complied with. ( 12 ) A viod marriage is no marriage. It is a marriage which does not exist from its beginning. In other words no legal consequences flow from a void marriage. It does not confer a status of husband and wife on the parties or status of legitimacy of children of such a marriage. Further, it does not give rise to any rights and obligations against each other as well as against the third person. It must be emphasised that it is not the decree of court which renders such a marriage void as the court merely declares the marriage to be null and void. In case. the marriage is void, the Court merely makes a judicial declaration of that fact. Void marriage cannot either be approbated or gratified. ( 13 ) THE provisions contained in S. 24 of the Act provide as follows :24. Void marriage- (1) Any marriage solemnized under this Act shall be null and void and may. In case. the marriage is void, the Court merely makes a judicial declaration of that fact. Void marriage cannot either be approbated or gratified. ( 13 ) THE provisions contained in S. 24 of the Act provide as follows :24. Void marriage- (1) Any marriage solemnized under this Act shall be null and void and may. on it petition presented by either party there to against the other party, be so declared by a decree of nullity if- (i ) any of the specified in clauses (a) (b) (c) and (d) of S. 4 has not been fulfilled: or (ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit. (2) Nothing contained in this section shall apply to any marriage deemed to he solemnize under this Act within the meaning of S. 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of S. 15:provided that no such declaration shall be made in any case where an appeal has been preferred under S. 1. 7 and the decision of the district Court has became final. " ( 14 ) AS has been noticed above, the provision contained in S. 12 of the Act clearly indicate that while a marriage contemplated under the Act may be solemnized in any form which the parties may choose to adopt yet it shall not he complete and binding on the parties unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties that I. (A ). take thee (B), to be my lawful wife or husband. The absence of such a declaration at the proper time has the effect of making any marriage not binding on the parties treating the same to be incomplete. In this regard, it seems to me. that the statutory provisions contained under S. 12 of the Act are of a mandatory nature and once it is established that the declaration contemplated therein had not been made in the manner prescribed, the marriage solemnized at the office of Marriage Officer has to be held to be incomplete conferring no material status on the parties. that the statutory provisions contained under S. 12 of the Act are of a mandatory nature and once it is established that the declaration contemplated therein had not been made in the manner prescribed, the marriage solemnized at the office of Marriage Officer has to be held to be incomplete conferring no material status on the parties. Obviously in such a situation, the alleged marriage has to he held to be void with no consequences as indicated hereinabove which may, flow from a marriage in law in respect whereof a certificate has been entered in the Marriage Certificate Book as provided for under Section 13 (2) of the Act. ( 15 ) IN the aforesaid view of the matter, it seems to me that the provision, contained in S. 24 of the Act which indicate certain grounds on which the marriage solemnized under the Act shall he treated to be null and void, cannot be held to be exhaustive of the grounds specified under that section which ought to be treated and token as only enumerative. I must hasten to add however, that once the facts attracting the grounds indicated in S. 24 (1) of the Act subject to the exception provided for under sub-section (2) thereof are proved to exist, no marriage in fact can be recognised as a Marriage in law and no marital status as referred to hereinabove can flow from such a marriage but as indicated hereinabove, the grounds mentioned in Section 24 (b) of the Act cannot be deemed to be the only grounds on which any marriage claimed to be solemnized under the Act is to be treated to be null and void. There may be other grounds leading to the same effect and one of such other ground has been specifically provided for under the Act itself under S. 12 (2) of the Act. There may be other grounds leading to the same effect and one of such other ground has been specifically provided for under the Act itself under S. 12 (2) of the Act. In this connection, it may further be emphasised that the expression "it shall not be complete and binding on the parties as used in S. 12 (2) of the Act carries with it the legislative intent that the omission to fulfil the requirements stipulated under the proviso to S. 12 (2) of the Act is of a fatal nature and prevents the conferment of the marital status on the parties to the marriage where the requirement is not complied with leading to the inevitable conclusion that such a marriage is void and of no legal consequence. The proviso to S. 12 (2) of the Act carves out an exception to the presumption ordinarily available in favour of there being a marriage in law where a marriage in fact is established. Such a presumption is effectively rebutted in case any of the conditions contemplated under S. 24 of the restraint indicated under S. 4 of the Act are established or in a case it is established that the manadatory requirement prescribed under the proviso to S. 12 (2) of the Act had not been complied with. ( 16 ) LEARNED counsel for the appellant has strenuously urged that the husband appellant was entitled to the benefits arising under the provision contained in S. 13 (2) of the Act which provides that on a certificate being entered into the Marriage Certificate book by the Marriage Officer, the Certificate has to be deemed to be conclusive evidence of the fact that a marriage under the Act had been solemnized and that all formalities respecting the signatures of the witnesses had been complied with. Reliance upon the aforesaid provision is placed to meet the situation which emerges from the facts and circumstances brought on record indicating that inspite of objection having been raised nothing was brought on record to establish that the requirement contemplated under the proviso to sub-section (2) of S. 12 of the Act had been complied with. In her deposition before the Court. Mamta Gulati had stated that she remained at the residence of the Marriage Officer for about half an hour and had signed on some papers. In her deposition before the Court. Mamta Gulati had stated that she remained at the residence of the Marriage Officer for about half an hour and had signed on some papers. She had categorically stated that apart from signing on certain papers at the residence of the Marriage Officer, nothing else was done. She had further stated that the only thing which the Marriage Officer did was that he got the signatures appended on certain papers and then went away. Even the appellant in his deposition has stated that apart from putting signatures nothing else was done at the time of the alleged marriage. The Marriage Officer who was examined as a defence witness had stated that he had got the marriage solemnised between Mamta Gulati and Surendra Kumar Bose. At the time of solemnization both had signed in his presence and the witnesses had also signed in his presence. He had further stated that he had asked the parties about their willingness to marry and when they had expressed the willingness then he had got the marriage solemnized. The Marriage Officer had also described the procedure adopted by him about solemnization of marriage. According to him the procedure adopted by him was that he enquired from the parties about their willingness to marry and if the parties expressed their willingness then he got their signatures on the register. From his statement it appears that apart from the enquiring about willingness to marry and obtaining signature of the parties, nothing else was required to be done in order to make the marriage complete and binding. ( 17 ) ANOTHER defence with Kishore Kumar had stated that the only thing which happened before the Marriage Officer was that the parties had signed before him. Apart from putting their signature, nothing else was done at the residence of Marriage Officer at the time of the marriage in question. Even Anil Tandon who was examined as another defence witness had also stated that apart from putting signatures nothing else was done before the Marriage Officer. The evidence brought on record therefore does not indicate at all that the marriage was solemnized in any recognised particular form which the parties must have chosen to adopt. Further, the appellant had failed to establish that the requirement contemplated under S. 12 (2) of the Act had been complied with. The evidence brought on record therefore does not indicate at all that the marriage was solemnized in any recognised particular form which the parties must have chosen to adopt. Further, the appellant had failed to establish that the requirement contemplated under S. 12 (2) of the Act had been complied with. ( 18 ) IN this connection, it may be noticed that formalities of a marriage vary from place to place and depend on castes, creeds, customs, religions and many other factors but in any event in modern times marriage celebrated without strict formalities does not get much judicial favour excepting however, the cases where the marriage is solemnized according to the principles of the particular religion. There may be custom etc. having the force of unmodified law where particular formalities or ceremonies stand prescribed in the absence where of marriage in law cannot come into existence. Such instances may be found in the marriages performed in accordance with the principles of Hindu Law where marriage is a sacrament or Muslim Law, where marriage is a contract. Such instances may also be found even in codified law where performance of a particular ceremony is insisted upon without which the marriage in law cannot come into existence. It seems to me that the provisions contained in the Special Marriage Act make a statutory departure in those cases where marriages are solemnized in the proceedings under the aforesaid Act where parties to a marriage are left to choose any form of marriage irrespective of the caste, creed, religion or custom etc. However, even, if the parties choose a form of marriage where no particular ceremony is required to be performed without which a marriage in law cannot be deemed to have come into existence yet the parties to the marriage are statutorily required to undergo the procedure contemplated under the proviso to S. 12 (2) of the Act which is akin to a ceremony without the performance whereof a marriage under law solemnized in the proceedings under the Act cannot he treated to be complete and binding on the parties. ( 19 ) THE words conclusive evidence have not been defined. However, evidence has been defined in S. 3 of the Indian Evidence Act. Conclusive proof has been defined in S. 4 of the said Act. ( 19 ) THE words conclusive evidence have not been defined. However, evidence has been defined in S. 3 of the Indian Evidence Act. Conclusive proof has been defined in S. 4 of the said Act. The definition of conclusive proof is as follows:"when one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it. "it is, therefore, obvious that an artificial probative effect is thus given by the law to certain facts and no evidence is allowed to he produced with a view to combating that effect. The provision contained in S. 13 (2) of the Special Marriage Act, 1954 however, does not use the expression conclusive proof but instead the expression used therein is conclusive evidence. What is provided is that on a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive, evidence of the fact that a marriage under the Act has been solemnized and that all formalities respecting the signatures of the witnesses have been complied with. The Legislative intent therefore, appears to be that on establishing that a Marriage Certificate Book, the other fact about the solemnization of the marriage and compliance of the formalities respecting the signatures of the witnesses have to be taken as duly complied with obviating the necessity to produce evidence in this regard. In other words, the aforesaid facts in the event of a certificate having been entered into the Marriage Certificate Book by the Marriage Officer need not be proved by formal evidence but the said certificate itself may be regarded as evidence of the fact stated therein without formal proof. When evidence which is made conclusive is adduced, the Court has no option but to hold that the facts exist. When evidence which is made conclusive is adduced, the Court has no option but to hold that the facts exist. In its decision in the case of Smt. Somwanti v. State of Punjab, reported in AIR 1963 SC 151 , the Apex Court had clarified that since evidence means and includes all statements which the Court permits or requires to be made, when the law says that a particular kind of evidence would he conclusive as to the existence of a particular fact it implies that that fact could be proved either by that evidence or by some other evidence which the court evidence is adduced, it would be open to the court to consider whether upon that evidence the fact exists or not. Where, on the other hand, evidence which is made conclusive is adduced the court has no option but to hold that the fact exists. If that were not so, it would be meaningless to call a particular piece of evidence as conclusive evidence. Once the law says that certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. The Apex Court clarified in its aforesaid decision in the case of Somwanti (supra) that in substance, there is no difference between conclusive evidence and conclusive proof indicating that statutes may use the expression conclusive proof where the object is to make a fact non-justifiable but the Legislature may use some other expression such as conclusive evidence for achieving the same result. The aim of both is to give finality to the establishment of the existence of a fact from the proof of another. ( 20 ) IN the aforesaid view of the matter, there can be no escape from the conclusion that on the establishment of the fact that the certificate had been entered in the Marriage Certificate Book by the Marriage Officer, the Court has no option but to proceed on the assumption that a marriage under the Act had been solemnised and the formalities respecting the signatures of witnesses had been complied with. However, apart from the above two facts about solemnization of marriage and the formalities respecting the signatures of the witnesses no other fact is to be deemed to have been established. However, apart from the above two facts about solemnization of marriage and the formalities respecting the signatures of the witnesses no other fact is to be deemed to have been established. In such a circumstance, it seems to me, that the establishment of the fact about the certificates being entered in the Marriage Certificate Book by the Marriage Officer by itself cannot lead to the conclusion that the requirement contemplated by the proviso to sub-section (2) of Section 12 of the Special Marriage Act. 1954 was also complied with and the fact in connection therewith cannot be deemed to have been proved merely on the proof of the fact of the entering of the certificate by Marriage Officer in the Marriage Certificate Book. The parties therefore, have to establish as a fact that each party had said to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties what is required to be said before a marriage in law could come into existence. ( 21 ) IN the present case, what I find is that there is absolutely no evidence on the record which could be deemed to have established the facts contemplated under the proviso to sub-section (2) of S. 12 of the Special Marriage Act, 1954 on the proof of which facts alone, the marriage in question could be deemed to have a binding effect. The mandatory requirement contemplated under the aforesaid proviso having not been established, the Marriage in question cannot be deemed to have been established as a marriage in law with the consequences flowing therefrom to which a reference has already been made hereinabove. ( 22 ) THERE is yet another aspect of the matter which cannot be lost sight of. In the present case there was a total absence of any ceremony or function connected with the marriage. The fact that the parties ever lived together as husband and wife since the date of the alleged marriage was also not established. There is nothing on the record to show that the alleged marriage was ever consummated. The appellant was a grown up person of about 35 years of age as found by the court below, while the respondent lady was a young and inexperienced college student of about 18 years of age. There is nothing on the record to show that the alleged marriage was ever consummated. The appellant was a grown up person of about 35 years of age as found by the court below, while the respondent lady was a young and inexperienced college student of about 18 years of age. From the facts brought on record, it seems to me that the appellant might have taken advantage of the innocence, inexperience and tender age of the respondent and obtained her signatures on the Marriage certificate and other forms by making fraudulent misrepresentation to her without fully apprising her of their contents. In such a circumstance, the Apex Court in its decision in the case of Jolly Das alias Moulick v Tapan Ranjan Das, reported in (1994)4 SCC 363 : ( 1994 AIR SCW 2836) had held such a marriage to be a sham marriage. In that case except the certificate issued by the Marriage Officer, there was no trace of the marriage. The Apex Court treating such a marriage to be a sham marriage in spite of the certificate having been entered by the Marriage Officer in the Marriage Certificate Book had passed a decree declaring the marriage to be a nullity. ( 23 ) THE ratio of the aforesaid decision is clearly attached to the facts and circumstances of the present case established on record. ( 24 ) THE trial court has recorded a finding that no notice as contemplated under Ss. 5 and 6 of the Special Marriage Act had been issued in the present case. This defect has been held to be fatal and found to be sufficient by itself for the grant of the declaration that the marriage was null and void and binding on the parties. ( 25 ) THE purpose of the notice contemplated under Ss. 5 and 6 of the Special Marriage Act is to provide an opportunity to any person to object to the marriage on the ground that it would contravene one or more of the conditions specified in S. 4. The relevant portion of S. 4 enumerating the conditions is to the following effect :"4. Conditions relating to solemnization of special marriages.- Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnised under this Act. The relevant portion of S. 4 enumerating the conditions is to the following effect :"4. Conditions relating to solemnization of special marriages.- Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnised under this Act. if at the time of the marriage the following conditions are fulfilled. namely :- (a) neither party has a spouse living: (b) neither party - (i) is incapable of giving a valid consent to it in consequence of unsoundness of mind: or (ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children: or (iii) has been subject to recurrent attacks of insanity or epilepsy. (c) the male has completed the age of twenty one years and the female the age of eighteen years. (d) the parties are not within the degree of prohibited relationship:provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the decree of prohibited relationship; and (e) Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends. Explanation- In this section, "custom", in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family;provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied- (i) that such rule has been continuously and uniformly observed for a long time among those members; (ii) that such role is certain and not unreasonable or opposed to public policy; and (iii) that such role, if applicable only to a family, has not been discontinued by the family. " ( 26 ) ON the facts and circumstances as brought on record, there is nothing to indicate that any of the aforesaid conditions could be said to have been attracted. " ( 26 ) ON the facts and circumstances as brought on record, there is nothing to indicate that any of the aforesaid conditions could be said to have been attracted. In any case, failure of providing, an opportunity to file an objection could not in any manner have the effect of curing the defect in a case where even if subsequently such a decree was discovered which prohibited the solemnization of the marriage under the Act as indicated in S. 4 of the Act. The provisions contained in S. 4. of the Act prohibit the solemnization of a marriage between any two persons if at the time of the marriage any of the conditions as enumerated therein stood fulfilled. It is therefore, obvious that even if a situation had arisen, wherein the Marriage Officer could not come to know of the existence of any of the aforesaid conditions which could have prohibited the solemnization of marriage that by itself could not have the effect of bringing into existence a marriage in law. On establishing the aforesaid conditions/facts, a declaration regarding the nullity of marriage could none the less be granted even if an opportunity to file an objection in that regard had not been provided by the Marriage Officer by issuing a notice contemplated under Ss. 5 and 6 of the Act. In this view of the matter, it seems to me that the non-compliance of the requirement contemplated under Ss. 5 and 6 of the Special Marriage Act is not by itself fatal as found by the Court below but is only an irregularity which does not go to the root of the matter and cannot be taken to nullify a marriage in fact evidenced by the certificate of marriage contemplated under the Act. It further seems to me that the question as to whether the marriage infact evidenced by such a certificate could be treated to be a marriage in law with the consequences attached to it as indicated hereinbefore has to be determined on the basis of the evidence and the materials brought on record and the facts found to have been proved and established. ( 27 ) IN view of my conclusions indicated hereinabove and considering the evidence and the materials brought on record, I find no justifiable ground for taking a view contrary to the ultimate decision taken by the trial court. ( 27 ) IN view of my conclusions indicated hereinabove and considering the evidence and the materials brought on record, I find no justifiable ground for taking a view contrary to the ultimate decision taken by the trial court. ( 28 ) THIS appeal therefore, fails and is hereby dismissed. ( 29 ) HOWEVER, parties are directed to bear their own costs. Appeal dismissed. .