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2009 DIGILAW 1947 (MAD)

A. Sankaranarayanan v. Mani

2009-06-26

M.M.SUNDRESH

body2009
Judgment :- The defendant is the appellant. The suit has been filed by the respondent herein, as the plaintiff in the suit, seeking relief of declaration that she is the legally wedded wife of the appellant herein. The said suit was filed in O.S. No.9 of 1994 on the file of the I Additional Sub Court, Madurai, has been decreed and being aggrieved by the same, the appellant has preferred this appeal. 2. The case of the plaintiff in a nutshell is as follows: The plaintiff and the defendant have been living together for some time at Door No.46, S.S. Colony, Parthasarathi street, Madurai-16. Thereafter, the plaintiff got pregnant and as a result of the same, the marriage was solemnised on 13.12.1987 at Pillaiyar temple situated in Madurai Meenakshipuram. There was an exchange of garland and a chain was presented by the defendant while solemnizing the marriage. The marriage was solemnized in the presence of PW2 to PW4 and few other persons. On 21.06.1988 there was an attempt to settle the dispute between the plaintiff and the defendant since a demand was made by the defendant as dowry. On 22.05.1988, the defendant has left the plaintiff and on 06.07.1988 a male child was born to the plaintiff. However, the said child died at the time of delivery. Ex.A1 is the certificate showing the name of the defendant as the father of the child. Therefore, the present suit has been filed to declare that the plaintiff is a legally wedded wife of the defendant. 3. The case of the defendant is as follows: The very suit has been filed with mala fide intention to extract money from the defendant. The plaintiff is elder to the defendant and the plaintiff met the defendant at his residence only twice. The allegation that a son out of the wedlock is also not true. The averments that the marriage was solemnized in the presence of PW2 to PW4, is also denied. It is also stated in the written statement that the allegation regarding the demand for dowry has no factual basis. The Trial Court has framed the following issue. "Whether the plaintiff is a legally wedded wife of the defendant?" 4. On the side of the plaintiff, four witnesses have been examined and Ex.A1, which is the birth certificate of the child, has been marked. The Trial Court has framed the following issue. "Whether the plaintiff is a legally wedded wife of the defendant?" 4. On the side of the plaintiff, four witnesses have been examined and Ex.A1, which is the birth certificate of the child, has been marked. On the side of the defendant, he has examined himself as DW1 and marked Ex.B1 to Ex.B8 in support of his case. The Trial Court has decreed the suit by holding that the evidence of PW1 to Pw4 would clearly show that the marriage was solemnized between the plaintiff and defendant on 13.12.1987. The Trial Court has held that there are material discrepancies in the evidence of DW1 since at one place he says that he does not know the plaintiff very well and on the other hand he says that the plaintiff has taken care of him when he was young. The Trial Court has also held that Ex.A1 would clearly show the name of the defendant as the father and a finding of fact has been given that the defendant is having another name by Rajendran. The Court below has further held that the evidence of PW2 to PW4 are trustworthy and therefore, the marriage was conducted on 13.12.1987. The Court below has also held that the contention of the defendant that the plaintiff was living as a concubine of one Athimoolam has not been proved by the defendant. The statement of the defendant was that he was 10 years younger than the plaintiff, was also not proved. The further contention was that 13.12.1987 was not an auspicious day and therefore, the marriage could not be solemnized, was rejected since considering the fact that the plaintiff was already pregnant, the marriage was solemnized on that day and also in view of the fact that they have been living together already. 5. PW2 is the priest who performed the marriage on 13.12.1987 between the plaintiff and the defendant. In his chief examination he stated that the marriage was solemnized between the plaintiff and defendant at about 7.00 a.m. According to the PW2, by chanting mantras, he performed the marriage. The PW2 says that there was exchange of garland between the parties. The PW2 also says about the presence of the other persons while solemnizing the marriage. In his chief examination he stated that the marriage was solemnized between the plaintiff and defendant at about 7.00 a.m. According to the PW2, by chanting mantras, he performed the marriage. The PW2 says that there was exchange of garland between the parties. The PW2 also says about the presence of the other persons while solemnizing the marriage. The PW3 is a person, who was present at the time of the marriage also spoke about the exchange of garland between the plaintiff and the defendant and they were living together after the marriage. PW4 is the relative of the plaintiff, who has deposed the same line as that of PW2 and PW3. PW4 has stated about the fact that the plaintiff and the defendant were living together after the marriage. 6. According to PW4, the child was born out of the wedded lock between the plaintiff and the defendant. The defendant in his evidence says that there was no solemnization on that day and he was taken care by the plaintiff when his parents are absent. He further says that he has not married the plaintiff and no child was born out of the wedded lock. He also says that it is true that the plaint has been filed by showing his name as Sanakaranarayanan @ Rajendran which fact he has not denied in his written statement. 7. The Trial court on consideration of the facts and circumstances of the case, particularly after relying the evidence of PW1 to PW4, has given the finding that the marriage has been solemnized on 13.12.1987 between the plaintiff and the defendant and Ex.A1 would clearly show that the deceased child was born out of the wedlock. The Trial Court has also taken note of the contradiction made in the evidence of the defendant and also there was an exchange of garland between the parties and the tying of chain evidencing the solemnization of the marriage. 8. The learned counsel for the appellant submitted that there are discrepancies in the evidence of the plaintiff in so far as the printing of invitation is concerned. In one place the plaintiff says that the invitation is not printed but in other place she says that it has been printed. Similarly, PW4 also says that invitation is printed. 8. The learned counsel for the appellant submitted that there are discrepancies in the evidence of the plaintiff in so far as the printing of invitation is concerned. In one place the plaintiff says that the invitation is not printed but in other place she says that it has been printed. Similarly, PW4 also says that invitation is printed. Therefore, according to the learned counsel, the contradiction in the evidence coupled with the non production of invitation as well as the photographs taken would show that the marriage has not been solemnized. It is further submitted by the learned counsel that the evidence of PW2 to PW4 cannot be relied upon since they are interest witnesses being closer to the plaintiff. According to the learned counsel, the marriage has not been solemnized as per the custom and usage since Section 7 of the Hindu Marriage Act has not been followed as there is no tying of Thali. 9. The learned counsel has also relied upon the judgment reported in AIR 1989 NOC, Madras Indirani vs. Vellathal and others. He has also relied upon the judgment in 1965 SC 1564 Bhaura Shankar Lokhandi and another vs. State of Maharashtra and another as well as the judgment reported in 1996 1 CTC 658 S.C.Shanthi vs. P.Venkatesh in support of his contention that under Section 7, the marriage has to be solemnized as per the custom and usage. Hence, according to the learned counsel, in the absence of the same, the suit is liable to be dismissed. 10. On the other hand, the learned counsel for the respondent submitted that the Court below has considered the evidence on record particularly the evidence of PW2 to PW4 who are independent witnesses. According to the learned counsel that it has not been proved by the appellant that PW2 to PW4 are interest witnesses. The learned counsel further submitted that the Trial Court has also taken into consideration of the discrepancies in the evidence of DW1 in so far as the nature of relationship between the plaintiff and the defendant is concerned. The learned counsel further submitted that mere discrepancy in the evidence of the plaintiff and the non-production of the invitation card would not nullify the marriage. 11. According to the learned counsel that there is no specific pleading in the written statement about the non-compliance of Section 7 of the Hindu Marriage Act. The learned counsel further submitted that mere discrepancy in the evidence of the plaintiff and the non-production of the invitation card would not nullify the marriage. 11. According to the learned counsel that there is no specific pleading in the written statement about the non-compliance of Section 7 of the Hindu Marriage Act. The learned counsel has further contented that under Section 7(a) what is sufficient is any form of a marriage solemnized voluntarily between the parties and therefore the marriage has valid in law. It is further submitted by the learned counsel that once a marriage is proved the onus is on the person who denies the factum of marriage that the same has not been solemnized in accordance with the provision of the Hindu Marriage Act. 12. I have carefully considered the submissions made by the learned counsels for the appellant as well as the respondent. In the case on hand, the Court below has considered thoroughly the evidence of PW1 to PW4 before coming to the conclusion that the marriage has been solemnized. As held by the Court below PW2 to PW$ are independent witnesses and they have all given evidence that the marriage has been solemnized on a particular day between the plaintiff and the defendant. On the other hand it is the specific case of the defendant that there is no marriage at all on that day. Hence when the factum of the marriage has been proved that on the particular day as mentioned by the plaintiff there was a marriage between the parties, then the onus is heavily on the defendant to show that it has not been solemnized in accordance with the Hindu Marriage Act. It is not the case of the defendant even in his written statement that the marriage has not been solemnized as contemplated under Section 7 of the Hindu Marriage Act. Therefore this Court is of the opinion that in the absence of a specific plea in the written statement and in view of the specific stand taken by the defendant that there is no marriage at all the other contention has not been solemnized as contemplated under Section 7 does not deserve any consideration. 13. Therefore this Court is of the opinion that in the absence of a specific plea in the written statement and in view of the specific stand taken by the defendant that there is no marriage at all the other contention has not been solemnized as contemplated under Section 7 does not deserve any consideration. 13. Even otherwise as contended by the learned counsel for the respondent a perusal of Section 7(a) of Hindu Succession Act, 1955 would show what is sufficient is a solemnization of the marriage in any form. When once it was proved that there was a marriage solemnized between the parties then that would be sufficient to hold that there was a proper marriage in accordance with Section 7(a) of Hindu Succession Act, 1955. In the case on hand it has been proved on evidence that there was an exchange of garland between the parties which was followed by tying a chain by the defendant on the plaintiff. Therefore it has not been proved that even Section 7 has not be complied with. The judgment relied upon by the learned counsel for the appellant, in the opinion of this Court it is not applicable to the present case on hand. Even on a perusal of the Judgment of the Division Bench in AIR 1989 NOC 28 it is seen the exchange of garland or putting a ring or tying a Thali are traditionally recognized stages of marriage ceremony which bring into existence of a valid marriage. 14. Moreover one has to see the facts and circumstances of the present case. Here is a case where admittedly the plaintiff was pregnant at the time of the marriage. Therefore the close relatives of the plaintiff were not present resulting in the exchange of garland at the temple. The mere statement that the marriage was solemnized as per the custom and usage cannot be put against the plaintiff to say that the marriage has not been solemnized as per the custom and usage. Further the defendant has not established what is the actual custom prevailing in the community even though the plaintiff has stated that tying a Thali is part of a custom. Moreover the Court has to see the circumstances under which the marriage was solemnized. Further the defendant has not established what is the actual custom prevailing in the community even though the plaintiff has stated that tying a Thali is part of a custom. Moreover the Court has to see the circumstances under which the marriage was solemnized. It is not the case of the defendant that the marriage has been solemnized by force or coercion but on the other hand, it is the specific case that the marriage has not taken place on that date. Therefore taking into consideration of the said fact, this Court finds that no interference is called for. Therefore it is to be seen that the Court below has considered the entire evidence on record before coming to the conclusion. The Court below has also considered the conduct of the parties and held that the evidence of the defendant is not believable as against the evidence of the plaintiff. In this connection it is useful to refer the recent judgment of the Supreme Court reported in 2008 1 SSC 497 Jagdishsingh vs. Maduridevi wherein the Hon'ble Supreme Court was pleased to hold that when the Court of regional jurisdiction has considered the oral evidence and recorded the findings after issuing demeanour of witness and having applied his mind, the Appellate Court will be to keep that in mind and exercise proper care and caution while disturbing the said findings of the Court below. The Hon'ble Supreme Court has also said that the Trial Court has got the chance of seeing and hearing the witnesses. Hence following the said judgment of the Hon'ble Supreme Court, this Court finds that the judgment and decree of the Court below does not warrant any interference. Accordingly the appeal is dismissed. No costs. Consequently, the C.M.P. is closed.