JUDGMENT : Bibek Chaudhuri, J. 1. The instant Second Appeal is directed against the judgment and decree dated 27th June, 2008 passed by the learned Additional District Judge, 3rd Fast Track Court, Contai, Purba Medinipur in Title Appeal No.17 of 2006 renumbered as Title Appeal No.04 of 2007 affirming the judgment and decree passed on 30th September, 2005 by the Civil Judge (Junior Division), 1st Court, Contai in Title Suit No.123 of 1999. The appellant as plaintiff filed a suit for declaration and permanent injunction to the effect that the defendant is not legally married wife of the plaintiff. No marriage under the Hindu Law was solemnized by and between the plaintiff and the defendant. The said alleged marriage was never consummated and it was not performed on free will and voluntary consent on the part of the plaintiff/appellant. The plaintiff had also prayed for permanent injunction restraining the defendant/respondent from claiming as a legally married wife of the appellant. 2. A brief factual narration is necessary for the purpose of the instant appeal which is set out below : One Haripada Huzzait was a co-villager of the plaintiff. The defendant is a relative of the said Haripada Huzzait and she used to visit frequently to the house of Haripada. Due to village and political rivalry relation between the plaintiff and Haripada was not cordial. However, the father of the defendant and Haripada proposed to the plaintiff to marry the defendant which he rightly refused on 9th May, 1999. At about 6 p.m. when he was returning to his house from Contai, Haripada, the defendant, her father and some other persons obstructed him and started to put pressure upon him to take the defendant to his house as his legally married wife. The plaintiff refused to such proposal. He became mentally upset and somehow escaped. Since the defendant openly declared herself as the legally married wife of the plaintiff, it prompted him to institute the suit. The defendant contested the said suit by filing written statement. In her written statement, she denied all material allegations made out by the plaintiff in his plaint against her. 3. It is specifically denied that Haripada Huzzait was a relative of the said defendant. The defendant contested the said suit by filing written statement. In her written statement, she denied all material allegations made out by the plaintiff in his plaint against her. 3. It is specifically denied that Haripada Huzzait was a relative of the said defendant. The specific case of the defendant is that her marriage with the plaintiff was held on 10th June, 1998 corresponding to 26th Jaistha, 1405 B.S. One Benupada Panda was the priest and Ramkrishna Shil was the Barber in the said marriage. The marriage was performed following Hindu rites and ceremonies. However, the defendant was driven out from her matrimonial home on 1st Falgoon, 1405 B.S. Finding no other alternative, she took her shelter at her paternal home. She informed the matter to the local P.S. vide a G.D. Entry No.666. She also filed an application under Section 125 of the Code of Criminal Procedure praying for maintenance against the plaintiff in the Court of the Learned SDJM, Contai. Subsequently, the defendant tried to settle the dispute amicably but the plaintiff refused to accept her as his wife. 4. Upon the pleadings of the parties, the Trial Court framed as many as six issues. Parties led evidence in support of their respective cases and on due consideration of evidence on record, the learned Trial Judge dismissed the suit on contest. 5. It is important to note that issue Nos. 3 and 4 are the material issues before the Trial Court. The said issues are : 3. Was there any marriage between the plaintiff and the defendant as per Hindu rites and customs at any point of time? 4. Whether the plaintiff and the defendant at any point of time resided as husband and wife? 6. While dealing with the said issues, the learned Trial Judge considered the evidence of the plaintiff who deposed as P.W.1. In his evidence, according to the learned Trial Judge, the plaintiff admitted the defendant as a married woman. Secondly, the learned Trial Judge relied upon the evidence of the priest namely Benupada Panda and the barber Ramkrishna Shil. The learned Trial Judge also accepted the evidence of the local villagers namely Saktinath Giri, Jitendranath Samanta and Bimal Kumar Patra and others who deposed in favour of the defendant and stated that marriage was performed on 26th Jaistha, 1405 B.S. corresponding to 10th June, 1998 between the parties. The learned Trial Judge also accepted the evidence of the local villagers namely Saktinath Giri, Jitendranath Samanta and Bimal Kumar Patra and others who deposed in favour of the defendant and stated that marriage was performed on 26th Jaistha, 1405 B.S. corresponding to 10th June, 1998 between the parties. The learned Trial Judge relied upon the principle of presumption to the effect that where it is proved that the marriage was performed, it would be presumed that necessary ceremonies have also been duly performed and it is for the party who challenges the legality of the said marriage to rebut such presumption by producing reliable and cogent evidence. In this respect, he refers to a decision of the Orissa High Court, reported in AIR 1981 Orissa 107. 7. The plaintiff preferred an appeal before the learned First Appellate Court, the said appeal was dismissed on contest. 8. The instant Second Appeal was admitted for hearing under Order XLI Rule 11 of the Code of Civil Procedure on 21st November, 2008. The Hon’ble Division Bench while admitted the appeal, formulated the following substantial questions of law :- (a) Whether the learned courts below committed substantial error of law in holding that the marriage was performed after compliance of “Hom” and “Saptapadi” by totally misreading the deposition of the priest who allegedly performed the marriage ceremony wherein he said that he could not say whether the said 'Saptapadi’ was performed or not and that he did not know any “Mantra” of ‘Saptapadi’? (b) Whether the learned courts below committed substantial error of law in upholding the alleged marriage between the parties on misconsideration of the evidence adduced by the alleged priest wherefrom it would appear that the essential formalities required for completion of valid Hindu marriage were not performed? 9. I have heard learned Advocates for the appellant and the respondent. I have also perused the materials on lower court records. 10. The dispute between the parties and answer to the substantial questions of law so formulated by the Division Bench of this Court boil down to the questions as to whether a valid marriage was solemnized according to Hindu rites and ceremonies between the plaintiff and the defendant on 26th Jaistha, 1405 B.S. corresponding to 10th June, 1998. 11. Section 5 of the Hindu Marriage Act lays down the conditions for a Hindu marriage. It states as follows: - “Section 5. 11. Section 5 of the Hindu Marriage Act lays down the conditions for a Hindu marriage. It states as follows: - “Section 5. Conditions for a Hindu Marriage.- A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of the marriage; (ii) at the time of marriage, neither party – (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) 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 (c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.” 12. With regard to the condition Nos. (iii), (iv) and (v) no case is made out by the parties. The plaintiff, however, stated in his plaint that on 9th May, 1999 at about 6 P. M. when the said Haripada Huzzait, defendant, defendant’s father and some other persons allegedly surrounded him on the road and forced him to take the defendant to his house as his legal married wife, he was mentally perplexed. In his evidence he stated that on 9th May, 1999 at about 6 P.M., he lost his mental balance. He even could not remember as to whether any incident took place between him and the defendant on that very date and time. He lost his mental balance for some time on 9th May, 1999 but he was mentally fit on 26th Jaistha, 1405 B.S. The defendant in her written statement claimed that her marriage was solemnized on 26th Jaistha, 1405 B.S. according to Hindu rites and ceremonies. The said fact was corroborated by one Benupada Panda who claimed himself to be the priest of the said marriage and one Ramkrishna Shil who happened to be the barber of the said marriage. The said fact was corroborated by one Benupada Panda who claimed himself to be the priest of the said marriage and one Ramkrishna Shil who happened to be the barber of the said marriage. The plaintiff does not come up with any case that he was of unsound mind and incapable of giving free consent on 26th Jaistha, 1405 B.S. Therefore, conditions of Section 5 of the Hindu Marriage Act were fulfilled as against the plaintiff and the defendant on the date of alleged marriage. 13. Section 7 of the Hindu Marriage Act states about the ceremonies for a Hindu marriage. A Hindu marriage under the Act must be solemnized in accordance with the customary rites and ceremonies of at least one of the two parties thereto. It is provided in the Act that where the ceremonies include the essential rites of a : (a) invocation before the sacred fire; and (b) saptapadi, a marriage cannot be held to be solemnized without performance of such ceremonies. 14. Keeping in mind the aforesaid provision of a valid Hindu marriage let me now consider the evidence of the priest Benupada Panda and the barber Ramkrishna Shil who claimed that they gave marriage of the plaintiff with the defendant. It is found from the evidence of D.W.2 Benupada Panda that he was working as a priest for last 20 years before giving the evidence. He presided over 100/150 marriages. In his cross-examination he stated “I performed ‘Ashirbad’, ‘Nandimukh-Shradhya’, ‘Patrabaran’, ‘Kanya Sampradan’, ‘Mala Badal’, ‘homa’, ‘saptapadi’ at night.” Subsequently series of questions were asked as to how ‘saptapadi’ was performed. The priest gave certain answers which are not in accordance with established rituals under Hindu law. Therefore, question arises as to whether any marriage under Hindu law was performed between the plaintiff and the respondent. 15. Learned advocate for the appellant referring to a decision of the Hon’ble Supreme Court in S. Nagalingam versus Sivagami reported in (2001) 7 SCC 487 submits that where solemnization of Hindu marriage constitutes two essential ceremonies, namely ‘homa’ and saptapadi’ (taking seven steps around the sacred fire), if the said two essential ceremonies were not performed the marriage was held to be void in the eye of law. 16. 16. Learned counsel for the appellant has placed his reliance upon a Division Bench judgment of this Court in Joyita Saha vs. Rajesh Kumar Pandey reported in AIR 2000 Calcutta 109. It was held in the said judgment also that evidence on record showed that ceremonies like ‘saptapadi’ and also ‘Kanniyathan’ were not performed. Therefore, marriage was held to be not solemnized according to Hindu rites. On the self-same point the learned advocate for the appellant relies upon another decision of the Hon’ble Supreme Court in Bhaurao Shankar Lokhande and another vs. The State of Maharashtra and another reported in AIR 1965 Supreme Court 1564 and Santi Deb Berma vs. Smt. Kanchan Prava Devi: AIR 1991 SC 816 . He also refers to another decision in the case of Gopal Lal vs. State of Rajasthan reported in AIR 1979 Supreme Court 713. It is pertinent to mention here that the decisions in Bhaurao Shankar Lokhande (supra), Santi Deb Berma (supra) and Gopal Lal (supra) have dealt with the question of valid Hindu marriage while deciding scope and applicability of bigamy under Section 494 of the Indian Penal Code. It is seen that though Section 7 of the Hindu Marriage Act emphasizes the importance of ‘saptapadi’, it does not insist absolutely upon the performance of the said rituals. Even under the previous law, it was that a marriage may be complete by the performance of ceremonies other than those referred to above, where it was allowed by the custom of the caste to which the parties belong. ‘Kanyathaan’ is an essential ceremony. Its absence, however, may not invalidate marriage. The decision of Ram Lal Agarwal vs. Santi Debi in AIR 1999 Andhra Pradesh 251 may be relied in this regard. 17. As custom is transient law and expressly recognized by this Section in the matter of performance of the marriage ceremonies, it is open to any party called upon to establish validity of Hindu marriage to show that the customary rights and ceremonies of one of the spouses had been performed. The custom must, of course, be a valid custom whether it is a custom of Hindus in general or a custom of any sub-caste or custom of a particular locality or a family, it must be ancient, certain and reasonable and not opposed to public policy. The custom must, of course, be a valid custom whether it is a custom of Hindus in general or a custom of any sub-caste or custom of a particular locality or a family, it must be ancient, certain and reasonable and not opposed to public policy. It cannot be enlarged beyond the usage of parity of reasoning since it is the usage that makes the law and not the reason of the thing. In the instant case, both parties led evidence accepting the fact that ‘saptapadi’ and ‘homa’ were the two essential ingredients of the marriage between the parties. The religious and ceremonial customs prevalent between both the plaintiff and defendant include ‘saptapadi’ and ‘homa’. I have already recorded that in cross-examination the priest stated that ‘homa’ and ‘saptapadi’ were performed at night of marriage between the plaintiff and the defendant. The priest, however, could not state the ‘mantras’ (religious chanting) which are recited at the time of ‘saptapadi’. Failure to say or recite such ‘mantras’ does not invalidate the evidence of D.W. 2. It is also important to note that 11 witnesses were examined on behalf of the defendant. Amongst them apart from the priest and barber and the defendant, other witnesses are local villagers who supported performance of marriage between the plaintiff and the defendant. Hindu marriage Act defines ‘saptapadi’ as ‘seven steps by bride and bridegroom before the sacred fire’. Hindu Marriage Act never contemplates enchanting of ‘mantra’ during ‘saptapadi’. The substantial question of law in ground – ‘A’ was formulated raising question as regards valid performance of ‘saptapadi’ when the priest (D.W. 2) could not state any ‘mantra’ of ‘saptapadi’. When the Act does not state enchanting of any such ‘mantra’ during ‘saptapadi’, failure on the part of the priest to recite such ‘mantra’ does not invalidate a ceremonial Hindu marriage. 18. Both the Courts below discussed the factual evidence in great detail. Therefore, this Court is not in a position to hold that both the Courts below came to the finding on ‘mis-consideration of the evidence’. 19. The substantial questions of law are, accordingly, decided against the appellant. 20. For the reasons stated above, I do not find any merit in the instant appeal and the appeal be and the same is dismissed on contest without costs. 21. The Judgment and Decree passed by both the Courts below are hereby affirmed. 19. The substantial questions of law are, accordingly, decided against the appellant. 20. For the reasons stated above, I do not find any merit in the instant appeal and the appeal be and the same is dismissed on contest without costs. 21. The Judgment and Decree passed by both the Courts below are hereby affirmed. Lower Court Records be sent down to the Courts below forthwith. 22. Urgent photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties on usual undertakings.