JUDGMENT : This appeal is directed against the judgment and decree dated 11.11.2002 in A.S.No.106/1992 of the Additional District Court-II, Mavelikara (hereinafter referred to as 'the first appellate court') arising from the common judgment and decree dated 10.1.1992 in O.S.No.10/1990 of the Munsiff's Court, Haripad (hereinafter referred to as 'the trial court'). 2. The plaintiff, who is the appellant, filed O.S.No.10/1990 before the trial court. The defendant is the respondent. The parties are hereinafter referred to as referred in O.S.No.10/1990 unless otherwise stated. 3. The plaint allegations in brief are as under:- The plaintiff is a member of Hindu Ezhava community and he is conducting a studio at Nangiarkulangara under the name and style 'Prasad Studio'. He is also a final year student of T.K.M. Engineering College at Kollam. The defendant is a member of the Hindu Ullada community and she was a total stranger to the plaintiff till February, 1989. During the month of February 1989, the defendant had come to the plaintiff's studio for taking photographs. When they got acquainted with each other, on 13.12.1989, the defendant came to the lodge wherein the plaintiff was residing and asked him to accompany her up to Varkala for collecting some books for her departmental test. On that day, they stayed together at Ananda Tourist Home, Varkala. While they were staying at the Ananda Lodge, 12 persons including the defendant's brother came to the room with a garland and a 'thali' and compelled the plaintiff to marry the defendant. Because of their threat, the plaintiff was compelled to tie the 'thali' around her neck and thereafter garlanded her. One of them took the photographs of the function. The next day, the plaintiff and the defendant were taken to the Sub Registry Office at Navaikulam and a marriage agreement was registered out of coercion and fraud. It is a void document. The plaintiff did not intend to marry the defendant. There was no marital relationship between the plaintiff and the defendant. The marriage agreement is void. After the registration of the agreement, the plaintiff was under the custody of her relatives till 15.12.1989 after which the plaintiff managed to escape from their illegal custody in the night of 15.12.1989. On 19.12.1989, an attempt was made to take the plaintiff and the defendant to the Panchayat Office, Cheppad for registration of the marriage. The above action was opposed by the plaintiff. On 19.12.1989, an attempt was made to take the plaintiff and the defendant to the Panchayat Office, Cheppad for registration of the marriage. The above action was opposed by the plaintiff. However, the next day, they managed to take both the plaintiff and the defendant to the Panchayat Office, Navaikulam and succeeded in their attempt to get the marriage registered. Hence, the plaintiff filed the suit for a declaration that the agreement dated 14.12.1989 of the SRO, Navaikulam is void and for other reliefs. 4. The defendant filed a written statement contending that they were in love for the last two years and their marriage was solemnized at the residence of the relative at Navaikulam on 10.12.1989 according to the customary rites and ceremonies. The plaintiff's relatives were against the marriage. The suit was filed at the instance of the plaintiff's relatives. She denied the allegation that she was instrumental in taking him to Ananda Tourist Home at Varkala on 13.12.1989. She affirmed that the marriage agreement on 14.12.1989 was with the consent of the parties out of their own free will. 5. The defendant filed O.S.No.157/1990 against the plaintiff restraining him from conducting any other marriage during the subsistence of the valid marital relationship between the plaintiff and the defendant till the disposal of O.S.No.10/1990. The plaintiff filed written statement contending that the marriage agreement between the parties is null and void and the defendant is not the wife of the plaintiff. 6. Both suits (O.S.Nos.10/1990 & 157/1990) were tried together by the trial court. Treating O.S.No.10/1990 as the leading case the entire evidence was adduced. 7. During the trial, PWs.1 to 8 were examined and marked Exts.A1 to A4 on the plaintiff's side. DWs.1 and 2 were examined and marked Exts.B1 to B8 on the defendant's side. 8. On evaluation of the evidence, the trial court held that the parties are governed under the provisions of the Hindu Marriage Act and execution of a mere agreement is not sufficient to constitute a valid Hindu marriage between the parties. The trial court further held that in order to constitute a valid Hindu marriage, the marriage must have been in accordance with the customary rites and the ceremonies prescribed under Section 7 of the Hindu Marriage Act. The trial court further held that in order to constitute a valid Hindu marriage, the marriage must have been in accordance with the customary rites and the ceremonies prescribed under Section 7 of the Hindu Marriage Act. The trial court held that in view of the recital contained in the plaint that the plaintiff and the defendant were married according to the customary rites and ceremonies on 10.12.1989, even if the marriage agreement is declared as null and void, the defendant is entitled to succeed in her claim on the strength of the customary marriage. The declarative relief being a discretionary relief, the trial court disallowed both declaration and consequential mandatory injunction. So far as the photographs are concerned, the trial court was of the view that no evidence was adduced to prove the same. Since no relief was granted in the leading case, O.S.No.157/1990 was dismissed. 9. Challenging the common judgment and decree in O.S.No.10/90 of the trial court, the plaintiff filed A.S.No.106/92 before the first appellate court. The first appellate court dismissed the appeal filed by the plaintiff confirming the judgment and decree of the trial court. Hence, this appeal. 10. When this Regular Second Appeal came up for admission on 14.11.2003, this Court issued notice to the respondent on the following substantial question of law:- “Whether the courts below were justified in denying the prayer for declaration that there is no relationship of husband and wife between the plaintiff and defendant when there is no proof of customary form of marriage between the parties?” 11. Heard Sri.John K.George, the learned counsel for the appellant and Smt.Resmi Nandanan, the learned counsel (legal aid) for the respondent who is appointed by the High Court Legal Services Committee. 12. The learned counsel for the appellant submits that the respondent is not the legally wedded wife of the appellant. According to the learned counsel, the appellant was a student of the T.K.M. Engineering College at Kollam during the relevant time. He submits that the appellant fell in romantic love with the respondent during adolescence. The learned counsel further submits that hormonal developments, triggered by brain and body developments, are strongly implicated in the intense feelings of sexual attraction and falling in love during early and late adolescence. He submits that the appellant fell in romantic love with the respondent during adolescence. The learned counsel further submits that hormonal developments, triggered by brain and body developments, are strongly implicated in the intense feelings of sexual attraction and falling in love during early and late adolescence. It is a fact that on 13.12.1989, the appellant was enticed to Varkala by the respondent in collusion with her relatives to trap him to marry her. They stayed in a lodge at Varkala during the night. The learned counsel further submits that on that day, the relatives of the respondent conducted a surprise check inside the room just to trap the appellant and wrongfully restrained him. Thereafter, he was under their custody and he was forced to obey whatever suggested by the relatives of the respondent. In fact, there was no marriage at all and the alleged marriage agreement dated 14.12.1989 was not executed out of the free will and consent of the appellant. He further submits that the alleged marriage pleaded is to give genuineness to the alleged marriage agreement. Elaborating on the submission, the learned counsel for the appellant submits that the very same defendant filed O.S.No.157/90 before the trial court for injunction simpliciter restraining the appellant from marrying anybody till the disposal of O.S.No.10/90 of the trial court which is the subject matter in this appeal. O.S.No.157/1990 was dismissed. Since relief was declined in the said case instituted by the respondent, the respondent ought to have preferred an appeal. No appeal was preferred. Hence, the judgment and decree in O.S.No.157/1990 became final. Thus, it is submitted that the respondent could not prove the factum of marriage in her case and her suit was ultimately dismissed. Thus, it is submitted that the question of marriage cannot be re-agitated by the respondent in this appeal. 13. Per contra, the learned counsel (legal aid) for the respondent submits that the respondent is a member of one of the socially and educationally backward communities in the State. According to the learned counsel, the appellant married her out of his own free will in accordance with customary rites and in order to strengthen the customary marriage, a valid marriage agreement was executed between the appellant and the respondent before the Sub Registrar. The learned counsel submits that the appellant cleverly cheated the respondent in order to spoil her future. The learned counsel submits that the appellant cleverly cheated the respondent in order to spoil her future. The learned counsel further submits that requisite pleadings and proof are lacking to substantiate the factum of fraud, undue influence and coercion on the part of the respondent and her relatives. 14. Admittedly, the parties are Hindus and are governed under the provisions of the Hindu Marriage Act, 1955 (for short 'the Act'). It is a settled principle of law that mere registration of an agreement of a marriage is not sufficient to prove a marriage. To prove a customary marriage it is necessary on the part of the defendant to adduce requisite evidence for proving marriage ceremonies in accordance with Section 7 of the Act. One of the issues framed was whether Ext.A3 marriage agreement is valid. Since the entire claim of the plaintiff is based upon the marriage with the defendant, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, is the established principle of law. The Apex Court in Varada Bhavanarayana Rao v. State of A.P. & others [ AIR 1963 SC 1715 ] held that in terms of Section 102 of the Evidence Act, 1872, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. It was held as under:- “15. That being the position, the question on which of the contending parties the burden of proof would lie has to be decided on the relevant provisions of the Evidence Act. Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall lie on any particular person.” 15. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall lie on any particular person.” 15. When the plaintiff has denied the marriage, it cannot be asserted by the defendant that the marriage of the plaintiff with the defendant was a valid marriage. Ext.A3 marriage agreement proves that both parties are Hindus and with the permission and consent of both the parties, they have entered into an agreement of marriage. As noticed, this type of marriage is not recognized as per Section 7 of the Hindu Marriage Act. It contemplates that the marriage can be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the 'saptpadi', the marriage becomes complete and binding when the seventh step is taken. 16. Going by the evidence, the defendant has not led any evidence of solemnization of marriage as provided under sub-clause (2) of Section 7 of the Act or by leading any evidence of customary rites and ceremonies. The burden to prove the marriage was on the plaintiff alone particularly when the plaintiff denied the marriage with the defendant. In the counter suit also, the plaintiff who was the defendant therein denied the marriage. In the absence of customary ceremonies, the defendant has no legal right to claim a valid marriage between the parties. The entire case is based upon an agreement of marriage in which there is no assertion regarding the rites or that the parties had performed 'saptpadi' in the manner contemplated under Section 7 of the Act. 17. As per the evidence of the defendant, a customary marriage was held on 10.12.1989 at the initiation of the plaintiff and Ext.A3 marriage agreement was executed on 14.12.1989. The above stand of the defendant is not correct. The endorsement on the stamp paper is that the same was purchased by her on 28.11.1989 in the name of the defendant. This would show that she had purchased the stamp papers two weeks before the alleged marriage and was making preparation to get married by virtue of an agreement for marriage. The defendant suffered a decree in O.S.No.157/1990 in which the validity of Ext.A3 marriage agreement was considered. This would show that she had purchased the stamp papers two weeks before the alleged marriage and was making preparation to get married by virtue of an agreement for marriage. The defendant suffered a decree in O.S.No.157/1990 in which the validity of Ext.A3 marriage agreement was considered. The defendant did not file an appeal challenging the dismissal of her suit. The appeal is a continuation of the suit and the defendant, who lost the case on the same set of facts in the joint trial held, ought to have filed an appeal to qualify her to contest the appeal filed by the plaintiff particularly when the marriage agreement was an issue between the parties in her suit as well. 18. Since the subject matter of the two suits and the parties to the two suits were the same, O.S.No.10/1990 was ordered to be tried along with O.S.No.157/1990. In both the suits, common issues were framed with regard to the issues which arose substantially in both the suits. Findings were recorded against the plaintiff and the defendant in the above two suits. As per the common judgment and decree dated 10.1.1992, the trial court dismissed both the suits. Admittedly, the plaintiff has preferred A.S.No.106/92 before the first appellate court. If so, the findings recorded in the common issues and dismissal of O.S.No.157/90 will operate as res judicata against the respondent/defendant in A.S.No.106/92 in the light of the decision of the Full Bench of this Court reported in Janardhanan Pillai v. Kochunarayani Amma [ 1976 KLT 279 (F.B.)]. The matter is also covered by the subsequent decisions of the Supreme Court in Premier Tyres Limited v. Kerala State Road Transport Corporation [ AIR 1993 SC 1202 ] and Ram Prakash v. Smt.Charan Kaur and another [ AIR 1997 SC 3760 ]. In view of this matter, this Court cannot entertain the validity of marriage between the plaintiff and the defendant. The defendant is legally bound by the decree in O.S.No.157/90. As the defendant does not challenge the decree in O.S.No.157/90, she must face the consequences of her failure to appeal against the decree which has become final and conclusive between the parties. The defendant is legally bound by the decree in O.S.No.157/90. As the defendant does not challenge the decree in O.S.No.157/90, she must face the consequences of her failure to appeal against the decree which has become final and conclusive between the parties. There is absolutely no necessity to go into other aspects of Ext.A3 marriage agreement especially on the factual side, the decree for dismissal in O.S.No.157/90 has become final between the parties which has created a legal bar for the defendant to assail Ext.A3 marriage agreement. 19. The plaintiff adduced reliable evidence to prove that the marriage agreement dated 14.12.1989 is not a valid agreement to prove the customary marriage. No evidence was also adduced to prove the custom. Hence, Ext.A3 marriage agreement is liable to be set aside. The suit is decreed granting a decree for declaration that Ext.A3 agreement dated 14.12.1989 of the Sub Registry Office, Navaikulam is invalid. So far as mandatory injunction is concerned, no evidence was adduced to prove that the photographs were taken as alleged by the plaintiff and that the photographs were under the custody of the defendant. Hence the trial court and the first appellate court rightly disallowed the prayer for mandatory injunction directing the defendant to produce the photographs along with the negatives. The substantial question of law is answered as above. Resultantly, the appeal is allowed in part. The judgment and decree of the first appellate court confirming the judgment and decree of the trial court stand set aside. The suit is decreed in part declaring that Ext.A3 agreement dated 14.12.1989 of the Sub Registry Office, Navaikulam is not a valid agreement as per the scheme of the Hindu Marriage Act. The prayer for mandatory injunction is declined. There will be no order as to costs. Pending applications, if any, stand closed.