Sangeetha R. Krishna v. Ranjith R. S/o K.R. Raju and Omana K.S.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** **Mat.Appeal.No.419 OF 2017** **AGAINST OP 371/2013 DATED 19-12-2016 OF FAMILY COURT, PALA** ## **APPELLANT/PETITIONER:** **SANGEETHA R.KRISHNA AGED 24 YEARS, D/O.M.R.RADHAKRISHNAN NAIR AND SOBHANA RADHAKRISHNAN NAIR, MADATHIL HOSUE, VALLICHIRA PO, KOTTAYAM DISTRICT, REP. BY HER FATHER AND POWER OF ATTORNEY HOLDER M.R.RADHAKRISHNAN NAIR, MADATHIL HOUSE, VALLLICHIRA P.O., KOTTAYAM DISTRICT.** **BY ADVS. SRI.M.P.KRISHNAN NAIR SRI.V.B.NARAYANAN SRI.T.V.AJAYAKUMAR** ## **RESPONDENT/RESPONDENT:** **RANJITH.R S/O.K.R.RAJU AND OMANA K.S., KANJIRATHUNGAL HOUSE PADINJATTIN KARA PO, KOTTAYAM DISTRICT 686 571.** Mat.Appeal No.419/17 **-:2:-** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02-12-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal No.419/17 ## **-:3:-** ## **JUDGMENT** Dated this the 2[nd] day of December, 2020 ## _Bechu Kurian Thomas, J._ Appellant claimed that there was no valid marriage between her and the respondent. The Family Court, Pala concluded that the evidence disclosed ceremonies in the nature of a Gandharva form of marriage and held that there was a legal and valid marriage between the parties and consequently dismissed the petition. Appellant challenges the judgment dated 19.12.2016 in O.P. No.371 of 2013 on the files of the Family Court, Pala. 2. Appellant and respondent are Hindus belonging to Nair community and Ezhava community respectively. It was averred in O.P. No.371 of 2013 that, as friends, the respondent induced the appellant to join him for a picnic to Alappuzha on 20.10.2012, along with their friends and enroute, under the guise of offering prayers at a temple at Cherthala, photographs of the appellant wearing garlands with the respondent were taken without her consent. Almost a month later, respondent accompanied her when she wanted to purchase books and at the instigation of the Mat.Appeal No.419/17 ## **-:4:-** respondent, they took a room in a hotel at Ernakulam to rest. It was alleged that, while she was so resting, respondent entered the room and bolted it from inside and in the meantime, he had made false entries in the hotel register to the effect that they were married. On feeling suspicious about the conduct of the respondent, appellant called her father, who came and picked her up. Later, while the appellant was employed at Chattisgarh, respondent filed a petition for habeas corpus, claiming that the appellant was married to him and that she is under illegal custody of her parents. Appellant alleged that, respondent had manipulated the photographs with the garlands at the temple at Cherthala. Appellant pleaded that there was no legal marriage between her and the respondent. According to the appellant, essential and mandatory religious rites or ceremonies were not performed in the temple and that the temple and Sree Narayana Karuna Vilasini Yogam have no competency to conduct Hindu marriages or to issue certificates evidencing a valid marriage as per Hindu customs and essential ceremonies. It was alleged that the certificate issued by the SNKV Yogam as well as the Panchayat were false and void. Therefore, the appellant prayed for declaration of alleged marriage on 20.10.2012 as void abinitio. Mat.Appeal No.419/17 ## **-:5:-** 3. Respondent objected to the relief claimed by stating that both of them were in a live-in relationship and since their parents did not consent to their relationship, they decided to elope and they got married on 20.10.2012 at the Kalavamkodu Sree Saktheeswara Temple and thereafter they lived together as husband and wife at several places. He further stated that they had decided to leave for Kolkatta and that they took a room in Hotel Lucia at Ernakulam on 28.1.2013 and that the father of the appellant on getting information, forcibly took the appellant away and subsequently sent her to Chattisgarh. It was also pleaded that the temple where the marriage was performed and the SNDP trust, which is running the temple, are competent to conduct marriages and issue the marriage certificates. 4. The appellant examined herself as PW1 and also examined PWs 2 and 3 and marked Exts.A1 to A15. The respondent examined DWs 1 to 3 and marked Exts.B1 to B6. 5. As mentioned earlier, the Family Court, Pala, by judgment dated 19.12.2006 in O.P. No.371 of 2013, came to the conclusion that there was a valid marriage and dismissed the original petition. In spite of notice being served, the respondent has not appeared before this Court. For the last three years since admitting this case and even after several adjournments, Mat.Appeal No.419/17 ## **-:6:-** the respondent has not appeared in the case. In such circumstances, we proceed to consider the merits of the appeal in the absence of the respondent. 6. The sole point that arises for consideration is as to whether the marriage dated 20.10.2012 between the appellant and the respondent is legal, valid and conforms to the essential requirements of a marriage under Hindu law. 7. We have heard Adv.M.P.Krishnan Nair for the appellant and perused the record. 8. A Hindu marriage is considered as duly solemnised only upon all the formalities necessary to constitute a customary marriage of either party have been duly performed. It is held in **Chakki v. Ayyappan** (1988 (1) KLT 556) that the essential requirements of a Hindu marriage are (1) invocation before the sacred fire and (2) sapthapadi, i.e., taking seven steps by the bride and the groom jointly before the sacred fire. We propose to examine the point for decision by applying the above principle to the evidence on record. 9. The appellant’s specific case is that no valid marriage had taken place between her and the respondent on 20.10.2012. It was also specifically pleaded that as per the custom prevalent in the Nair as well as Ezhava Community, presentation of a Mat.Appeal No.419/17 ## **-:7:-** Pudava, exchange of ring, tying of thali and Sapthapadi are the essential requirements of a valid marriage and that in the present case, none of the aforesaid customary requirements were performed on 20.10.2012, allegedly when the marriage had taken place. It was further pleaded that the SNKV Yogam had no competency to conduct and solemnise a legally valid Hindu marriage and also that the deity in the temple is a mirror consecrated by the social reformer Sree Narayana Guru. According to the appellant, the only ceremony that she underwent was wearing a garland and watching her reflection in the mirror, which according to her is often done by persons who visit the said temple with a wish to get married in the near future. It was also specifically pleaded that apart from the SNKV Yogam having no right to conduct a legal marriage, Kanyadanam and the taking of seven steps in the midst of manthras chanted by priest, were all systematic formalities to be adhered to. However, according to the appellant, none of these ceremonies had taken place and therefore no legal marriage exists between parties. It was also pleaded that the marriage certificate, purported to have been issued, is false, without authority, apart from being null and void for want of observance of the mandatory rites and formalities of a legal marriage. **-:8:-** Mat.Appeal No.419/17 10. In the background of the aforesaid pleadings, the burden was entirely upon the respondent to prove the existence of a valid marriage. While appreciating the evidence on record, we notice that this is not a case where the parties claim to have consummated the marriage or lived together for any period of time, much less, even for a single day. Unlike in cases where the parties have resided together for a long period of time where the court may in certain circumstances presume the existence of a valid marriage, this is not a case where such an inference can be deduced from the circumstances proved in the case. In such circumstances as well, the burden is entirely upon the respondent to prove the existence of a valid marriage on 20.10.2012 between parties to non-suit the appellant. 11. PW1 in her evidence denied the performance of any of the ceremonies like tying of thali or sapthapadi or even performances of the marriage ceremonies under the auspicious of a Melshanti. She denied consummation of marriage thereafter with the respondent. In spite of detailed cross-examination, the respondent could not elicit any statement which could even remotely suggest the performance of a valid marriage on 20.10.2012. 12. DW1, on whom the burden rests to prove the existence Mat.Appeal No.419/17 **-:9:-** of a valid marriage, on the other hand, deposed that the time of marriage was fixed by an Astrologer and that apart from him and the appellant, there were seven other persons who had gone to the temple and that a priest of the temple chanted prayers and he tied the thali and exchanged garlands and walked around the mandapam. In order to support his evidence, he examined DW2, who was the secretary of the temple and DW3, his friend who had allegedly accompanied him to the temple. DW2 in crossexamination stated that he had not seen the wedding and that his knowledge of the wedding is based on Ext.P6, which is the copy of the marriage register. No reliance can be placed upon the deposition of DW2 regarding the performance of a valid marriage. Then, the only independent evidence available is that of DW3. DW3 has not deposed that he witnessed appellant and the respondent performing the sapthapadi etc. He stated that there was no exchange of rings or tying of thali by respondent to appellant. DW3 has not mentioned anything regarding giving of pudava, wearing of garlands that was done as part of the alleged wedding ceremony. In such circumstances, the self serving deposition of DW1, that they walked around ‘Kalyanamandapam’, cannot be taken to mean that there was sapthapadi. The failure of respondent to produce any of the individuals including the Mat.Appeal No.419/17 ## **-:10:-** priest and respondent’s other friends, throws doubt on the stand taken by respondent. In other words, the best evidence would have been that of the priest under whose supervision the marriage was solemnised. 13. The oral evidence adduced by the respondent does not prove the existence of a valid marriage between parties. There is no independent evidence on sapthapadi having been performed. Taking of sapthapadi is one of the sine qua non essentials for a valid marriage under Hindu Law. In the nature of the contentions that have been raised, since there is a lack of evidence to prove the existence of a valid marriage, the finding of the Family Court that there was a Gandharva form of marriage, is untenable and cannot be accepted. None had a case of any Gandharva form of marriage having been performed. Though the learned counsel for the appellant invited our attention to the observations in **Reema Aggarwal v. Anupam** [2004 (2) KLT 822(SC)] regarding invalidity of a Gandharva marriage, we need not consider that question in the circumstances of this case. Without specific proof of conduct of the essential ceremonies of a valid Hindu marriage especially sapthapadi, a court of law cannot give its legal imprimatur to any ceremony that has been conducted to regard it as a valid Hindu marriage as held in Mat.Appeal No.419/17 ## **-:11:-** ## **Bhaurao Shankar Lokhande and Another v. State of Maharashtra and Another** (AIR 1965 SC 1564). 14. It is also interesting to note at this juncture that none of the exhibits that have been marked in evidence shows any photographs, as have been brought in as part of the evidence. However, the Family Court in paragraph 6 of the judgment comes to a conclusion that the 'story of a garland ceremony is made up only for the purpose of explaining away the picture in the photographs which was taken at the time showing the petitioner and the respondent wearing garlands'. This observation fails our comprehension as to how such a conclusion could have been arrived at, when there were no photographs produced or marked in evidence. 15. The appellant had, during her evidence, denied her signature in Ext.A15 and Ext.B2. Ext.A15 and Ext.B2 are photocopies and not originals. Family Court compared the signatures on Ext.A15 and Ext.B2 and concluded that the signatures are similar. Comparison of signatures on photocopies, that too by the court, and coming to the conclusion that the signatures are similar, according to us, was not warranted and nor does it conform to a proper procedure. Even though Section 73 of the Indian Evidence Act permits the court to compare Mat.Appeal No.419/17 **-:12:-** signatures, it is essential that the comparison, if at all done, must be with original signatures and not with photocopies. The caution with which a court is called upon to tread this path in examination of evidence, need not be considered at great length in this judgment, for, in the absence of the original documents to compare the disputed signatures, the Family Court ought not have compared the signatures by itself and recorded findings against the appellant. Such procedure certainly vitiates the findings of the Family Court and is accordingly held so by us. 16. Since we have already found that there is no proof of a valid marriage under Hindu Law, having taken place between the appellant and the respondent, coupled with the fact that the parties to the alleged marriage have not resided together for any period of time as husband and wife, and also the denial by the appellant in Ext.A11 judgment of this Court regarding any alleged marriage as having taken place, Exts.B1 and B2 cannot be regarded as sufficient evidence to prove the existence of a valid marriage between the appellant and the respondent. 17. In the above circumstances, we are of the view that the declaration sought for by the appellant ought to have been granted. We therefore, while setting aside the judgment dated 19.12.2016 in O.P. No.371 of 2013, declare that no legal valid Mat.Appeal No.419/17 **-:13:-** marriage took place between the appellant and the respondent on 20.10.2012. The marriage certificate dated 21.10.2012 issued by the Secretary of Sree Narayana Karuna Vilasini Yogam is also declared as null and void. The point is answered in favour of appellant and against respondent. Hence the appeal is allowed and O.P. No.371 of 2013 on the files of the Family Court, Pala, is allowed as prayed for. Sd/- **S.V.BHATTI JUDGE** Sd/- **BECHU KURIAN THOMAS JUDGE** vps **/True Copy/ PS to Judge**