JUDGMENT 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. 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 decree of the learned trial Court, defendant Smt. Santosh Kumari filed an appeal challenging the findings of the Court below and the plaintiff filed cross-objections assailing the factum of status of defendant Master Aaroni as the son of the plaintiff from the loins of defendant Santosh Kumari. Feeling aggrieved with the judgment and decree of the learned trial Court, defendant Smt. Santosh Kumari filed an appeal challenging the findings of the Court below and the plaintiff filed cross-objections assailing the factum of status of defendant Master Aaroni as the son of the plaintiff from the loins of defendant Santosh Kumari. The learned District Judge dismissed the appeal as well as cross-objections and upheld the judgment and decree of the learned trial Court with no order as to costs. Dis-satisfied with the judgment and decree of the learned District Judge, defendant Santosh Kumari assailed the said judgment and decree in this appeal. During the pendency of the appeal, defendant Master Aaroni has attained majority and has been allowed to prosecute the appeal in his own right after discharging his mother as his natural guardian. 4. Heard learned counsel on both sides. Mr. Bhuepender Gupta learned counsel for the defendant has vehemently urged that both the courts below have mis-appreciated the evidence brought on record. He submitted that the ground of maintenance allowance in the proceedings under Section 125 Cr.P.C. to the defendant Smt. Santosh Kumari by the trial court has become final and as such this fact corroborates the version of defendant Smt. Santosh Kumar in respect of her status with the plaintiff. He has submitted that from the facts and circumstances of the case, it was apparent that the parties were residing together and the fact that the plaintiff was introducing the defendant Smt. Santosh Kumari as his wife to his colleagues and friends and that they were living together for sufficiently long time would deem to establish that the parties were living as husband and wife and under the law of presumption is in favour of defendant Smt. Santosh Kumari that she was the wife of the plaintiff. 5. Mr. Vijay Thakur learned counsel for the plaintiff contended that the onus heavily lay upon the defendant to establish that she was the legally wedded wife of the plaintiff and she could not discharge that onus by leading cogent and convincing evidence. In nutshell, he submitted that the judgment and decree passed by the learned District Judge should be upheld. In order to appreciate the respective contentions of the learned counsel for the parties, I deem it necessary to refer material evidence brought on record. 6. In nutshell, he submitted that the judgment and decree passed by the learned District Judge should be upheld. In order to appreciate the respective contentions of the learned counsel for the parties, I deem it necessary to refer material evidence brought on record. 6. The plaintiff in his deposition statted that he did not know Smt. Santosh Kumari nor had any relation with her. He denies the marriage with Smt. Santosh Kumari or keeping her at his place of posting at different places. He stated that he had no licit or illicit relation with defendant Smt. Santosh Kumari which ultimately gave birth to defendant Aaroni. Defendant Smt. Santosh Kumari deposed that she knew plaintiff when she was employed in Govt. Middle School, Goshal at Bahang a place located at a distance of about 3 Kms. from Manali. According to her deposition, she had contracted marriage with the plaintiff in Vashisht temple on 24-4-1974 and thereafter both of them continued to live as husband and wife at different places namely, Goshal and Kaza till the year 1977. When she became pregnant from the loins of the plaintiff, she came to her parental house where she delivered a child named Aaroni. She pleaded on oath that she got the plaintiff transferred from Middle School Goshal to Govt. Middle School, Kaza. It has been stated by the defendant that plaintiff arranged a party on the birth of Master Aaroni at Jagatsukh at her parental house and he was present there. She also stated that she lived with the plaintiff at Kaza and both of them introduced themselves before the public as husband and wife. She also deposed that the plaintiff himself had attested the identification card/visa for entry in spiti for the purpose of being checked at Check Post, Takkcha and also Wangtu via Kinnaur. She further deposed that Gazan Singh (DW-2) who was posted as food and Suplies Inspector at Kaza during the relevant period, visibed their house and treated them as husband and wife. It has come in her evidence that she had received money orders and telegrams from the plaintiff during the period she remained at Jagatsukh after the birth of her son. She produced on record joint photograph Ex P-4 with the plaintiff annexed with the maintenance proceedings file. 7. Sh Omesh Chand (DW-5) Head-master of Govt. It has come in her evidence that she had received money orders and telegrams from the plaintiff during the period she remained at Jagatsukh after the birth of her son. She produced on record joint photograph Ex P-4 with the plaintiff annexed with the maintenance proceedings file. 7. Sh Omesh Chand (DW-5) Head-master of Govt. Middle School, Kaza and DW-Gazan Singh have supported the defendants claim to the extent that she used to reside with the plaintiff at Kaza, during the period of his posting there. S/Shri Bahadur Singh (DW- 3) up-Pradhan of Jagatsukh and Khem Raj (DW-4) have also supported the claim of the defendant to the extent that they had seen Smt. Santosh Kumari with the plaintiff at her parental house residing together. This is the entire evidence brought on record by the parties. 8. Now adverting to the real controversy between the parties, it is noticed that there is variance in pleadings and proof of the marriage. In para-5 of her written statement, the defendant has stated that she contracted Jhanjrara/marriage with the plaintiff which was performed on 24-4-1974 according to the local custom. She has not whispered a word in her deposition that the marriage was contracted according to the local custom. However, in her statement on oath before the Court, she has stated that the marriage was solemnised at Vashisht temple. Admittedly, the parties are Hindu. According to Section 7 of the Hindu Marriage Act, 1955, a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies includes sapatapadi i.e., taking seven steps by bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. In the instant case, defendant has not stated at all as to what were the customary rites of either party with respect to contracting of marriage and what was the local custom in respect thereof. She has not stated as to who were the persons present in the marriage from the bridegroom side or from her own side at the time of the marriage. On the one hand, she stated in her written statement that the marriage was solemnized according to the local custom but she has not proved the customary rites at all. She has not stated as to who were the persons present in the marriage from the bridegroom side or from her own side at the time of the marriage. On the one hand, she stated in her written statement that the marriage was solemnized according to the local custom but she has not proved the customary rites at all. If her version that the marriage was solemnised in Vashisht temple is accepted, then it was also incumbent upon her to have proved the marriage by producing the record of the temple or atleast by producing its Pujari or some other person who had taken part in the marriage. The defendant had not cared to produce any witness on her behalf to prove the factum of marriage in the temple. There is no record brought on record by the defendant to show that the laintiff who is admittedly a government employee had entered the defendant as his wife in the service record. Even DW-Khem Raj in his deposition has categoricaly stated that he had not seen any marriage having been contracted between the parties. The plaintiff had produced Rup Dass (PW-3) as worker of Vashist Temple in support of his case. The witness said that no marriage was solemnized in his presence in the temple by the parties. Kali Dass (PW-2) who was also working as Peon in the Veterinary Pharmacist Hospital, Kaza during the period 1975 to 1978 stated that he had been visiting the quarter of the plaintiff and during the relevant period, he had not seen the defendant living with the plaintiff. Thus, examining the evidence of the defendant Smt. Santosh Kumari in detail, her evidence was not enough to prove that she got married with the plaintiff alter essential ceremonies had been performed. Where factum of marriage is disputed essential ceremonies constituting the marriage must have been pleaded and proved. Person alleging marriage must plead and prove that marriage had been solemnised in accordance with the custom and usage applicable to either of them Defendant Smt. Santosh Kumari has not proved that ceremonies had been performed in accordance with usage or custom applicable to her community. Defendant Santosh Kumari has given evidence to the effect that the marriage was solemnised in the temple. She has not stated any thin more than this. Defendant Santosh Kumari has given evidence to the effect that the marriage was solemnised in the temple. She has not stated any thin more than this. The other evidence adduced has not been considered to be of any use in his regard. No evidence was adduced that Saptapadi was performed in case of the marriage between Smt. Santosh Kumari and the plaintiff and that it has not been proved that there was any custom prevalent amongst the parties that those essential ceremonies are not necessary for the purpose of solemnization of the marriage. The factum of joint photograph of the parties Ex. P-4 produced on record and other documents will not be a proof of the fact that all the essential ceremonies necessary for marriage have been performed by the parties. 9. Sh. Bhupender Gupta learned counsel for the defendant has urged that where the parties have lived together for sufficiently long spell of time as husband and wife and were treated as husband and wife by their relatives, friends and other general public then there was always a presumption in favour of their marriage under Section 50 and 114 of the Evidence Act. In the present case, the parties lived together for about four years and that they were treated as husband and wife by their relatives, friends and other general public. In support of his submissions, he has placed relaince upon Subhash Popatlal Shah v. Lata Subhash Shah, 1994 Marriage Law Journal 234 and Smt Gitika Bagchi v. Subhabrota Bagchi, 1994 Marriage Law Journal 498. 10. I have given my best cosideration to the observations made in the above cited judgments of the High Courts and am of the view that the ratio of those decisions are not applicable in the present case. The apex Court in S.P.S. Balasubramanayam v. Suruttayan alias Andali Padayachi and others, AIR 1994 Supreme Court 133, in paragraph 4 of the report observed that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable. In the present case the presumption has been rebutted by the plaintiff by adducing positive evidence on record that they had never married nor lived together as husband and wife. In the absence of evidence of valid marriage, no presumption regarding its validity can be raised. But the presumption is rebuttable. In the present case the presumption has been rebutted by the plaintiff by adducing positive evidence on record that they had never married nor lived together as husband and wife. In the absence of evidence of valid marriage, no presumption regarding its validity can be raised. Such presumption can be raised only where it is established that the marriage was duly solemnized but some un-essential ceremonies were not performed or there was some defect in the completion of the ceremonies. But such a presumption cannot be raised where there is direct evidence that essential ceremonies were not performed at the time of marriage. The apex Court in Bhaurao Shankar Lokhande and another v. The State of Maharashtra and another, AIR 1965 Supreme Court 1564 has said that if the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife. The apex Court further observed that the word solemnize means, in connection with a marriage to celebrate the marriage with proper ceremonies and in due form, according to the shorter Oxford Dictionary It follows, therefore, that unless the marriage is celebrated or performed with proper ceremonies and due form it cannot be said to be solemnized. It is, therefore, essential, for the purpose of Section 17 of the Act that the marriage should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom. This settled proposition of law was followed by the apex Court in Kanwal Ram and others v. The Himachal Pradesh Administration, AIR 1966 Supreme Court 614. In the light of the settled position of law, referred to above, the defendant has failed to prove that she was legally married wife of the plaintiff and no presumption of her being wife can be gathered from the evidence brought on record. In the light of the settled position of law, referred to above, the defendant has failed to prove that she was legally married wife of the plaintiff and no presumption of her being wife can be gathered from the evidence brought on record. To conclude, both the Courts below have concurrently found the essential rites for a marriage according to the law governing the parties and that there is no evidence that the essential ceremonies have been performed when the plaintiff is stated to have married defendant Smt. Santosh Kumari. For all the above reasons, the contentions of Mr. Bhupender Gupta learned counsel have to be rejected. Consequently, the appeal fails and is accordingly dismissed with no order as to costs. Appeal dismissed.