whether the plaintiff is wife of Hanumanthappa. Since the entire claim of the plaintiff is based
upon her marriage with Hanumanthappa, 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.
This Court in Varada Bhavanarayana Rao v. State of A.P., held that in terms of Section 102 of the Evidence Act, 18723, 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.”
13. We find that the High Court has committed illegality in holding that since the defendants have denied marriage, it cannot be asserted by the defendants that the marriage of the plaintiff with
Hanumanthappa was not a valid marriage. The plaintiff has led evidence to the effect that the marriage was solemnized in the office of Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to
be not a certificate of registration of marriage under the Special Marriage Act, 1954 and that there is no evidence that any ceremony has taken place.
In the agreement of marriage (Ex.P/1),
it is only stated that both parties are of same caste and with the
permission and consent of both of their fathers, they have entered
into this agreement of marriage. This type of marriage is not
recognized in law as Section 7 of the Act contemplates that the
marriage can be solemnized in accordance with 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.
14. The plaintiff 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 marriage was on the Plaintiff alone. The
defendants have denied marriage of the Plaintiff, therefore, the
burden to prove marriage was on the plaintiff alone. Apart from
such fact, the marriage cannot be said to be taken place in terms of
Section 5(v) of the Act which is to the effect that the parties are not
sapindas to each other, unless the custom or usage governing each
of them permits of a marriage between the two. Such marriage is a
void marriage but, on a petition, preferred by either party thereto.
15. Hanumanthappa, a party to the marriage died soon after the socalled marriage. Therefore, the question required to be examined is whether the alleged marriage which is between the persons of
less than 21 years and 18 years and between the prohibited degree is a valid marriage. The plaintiff will be entitled to the estate of Hanumanthappa only if she proves her valid marriage. The plaintiff
has not pleaded any custom permitting marriage within the prohibited degree nor there is any proof of solemnization of any marriage by customary ceremonies and rites, therefore, the
plaintiff will not be entitled to succeed only on the basis of alleged registration of an agreement of marriage.
In the absence of customary ceremonies or the custom permitting marriage between the prohibited degree, the plaintiff has no legal right to claim the
share in the property only on the basis that some of the witnesses
produced by her admitted that she married Hanumanthappa.
with great respect to the Apex court - a marriage between uncle and niece is not prohibited degree in southern states
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3050 OF 2010
RATHNAMMA & ORS. .....APPELLANT(S)
VERSUS
SUJATHAMMA & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. Defendant No.2, defendant No.5 and legal heirs of defendant No.4
are in appeal aggrieved against the judgment passed by High
Court of Karnataka on 3rd April, 2008 dismissing their second
appeal maintaining the judgment and decree passed by the First
Appellate Court on 2nd July, 2005 whereby the suit for partition filed
by plaintiff Sujathamma was decreed.
2. The following Genealogical Tree would be necessary to appreciate
the dispute between the parties:-
1
“GENEALOGICAL TREE
Sonnappa
(Defendant No. 1)
Son Daughter Daughter Daughter
Hanumanthappa Sonnamma Kenchamma Lakshmamma
(dead) (Def No. 1(a)) (Def No.1(b)) (Def No.1(c))
(*Sujathamma is the daughter
of Muniyappa and Sonnamma)
Son
Venkatarayappa Rathnamma
(dead) (Def No. 2)
Gowramma Rajappa Naryanaswamy
(Def No. 3) (Def No. 4) (Def No. 5)
Note :
*Sujathamma claims to be married to Hanumanthappa.”
3. Defendant No. 1 Sonnappa died during the pendency of the suit
leaving behind two sons - Venkatarayappa and predeceased son -
Hanumanthappa and three daughters - Sonnamma, Kenchamma
and Lakshmamma. Sonnamma, Kenchamma and Lakshmamma
have been brought on record as legal heirs of defendant No. 1. The
plaintiff - Sujathamma, maternal grand-daughter of Sonnappa,
claims to have married Hanumanthappa on 7th March, 1986.
Hanumanthappa died on 15th October, 1986. The claim of the
plaintiff is that she is entitled to the share of the estate of
Sonnappa, as wife of deceased Hanumanthappa. It is the said
2
assertion which was accepted by the First Appellate Court and
maintained by the High Court.
4. The plaintiff filed the civil suit with the assertion that the parties
are related to each other as members of joint Hindu Undivided
Family. The plaintiff asserted that the first defendant i.e. Sonnappa
is her fathter-in-law. Since the property is said to be ancestral
property and that property stands in the name of the first
defendant Sonnappa, therefore, plaintiff claims that she is entitled
to the share of Hanumanthappa as his wife.
5. The daughter of the first defendant was married to the father of the
plaintiff. The stand of the defendants is that the father of the
plaintiff managed to obtain signatures of the first defendant by way
of malafide practices and that the first defendant never consented
for the marriage of his second son Hanumanthappa as he was
suffering from juvenile diabetes mellitus coma, cardio respiratory
arrest and such other symptoms. The plaintiff was about 14 years
of age at the time of death of Hanumanthappa and that she was
not fit for marriage. It was asserted that if any document is
produced by the plaintiff to show that she was married, it is a
concocted one. By way of a separate written statement, defendant
Nos. 2 to 5 denied the allegations of the plaintiff. It was pleaded as
under:
“12. The plaintiff is not entitled to any reliefs. The
true facts of the case are that the plaintiff is grand
daughter of first defendant and the plaintiff’s mother,
3
first defendant and plaintiff colluded with each other
and they have filed this suit in order to grab the
properties, the plaintiff is not at all wife of the said late
Hanumanthappa. Even as on the date of the death of
said Hanumanthappa, the said plaintiff was aged
about 14 years. Even the said Hanumanthappa was
also suffering from Juvenile Diabetes Mellitus coma,
Cardio respiratory arrest and such other symptoms.
Even he was not in position to marry or to give
consent for marriage since 6 years and never marriage
of the plaintiff with late Hanumanthappa had been
taken place.”
6. The parties went to trial with one of the issues being whether the
plaintiff is wife of late Hanumanthappa. To prove the said issue,
the plaintiff examined herself as PW-1. PW-2 is the father of the
plaintiff whereas PW-3 to PW-5 are the witnesses of an agreement
to marriage dated 7th March, 1986, who were examined to prove
plaintiff’s marriage with Hanumanthappa. PW-6 was examined to
prove the age of the deceased Hanumanthappa. PW-7 to PW-9 are
the daughters of deceased defendant No. 1. As per the birth
certificate (Ex.P/30), the date of birth of Hanumanthappa is 20th
June, 1966, that makes him 19 years 9 months at the time of his
marriage. On the other hand, the plaintiff in her statement stated
her age as 15 years at the time of marriage. However, the
defendants have produced Ex.D/3, Register of Admission of the
School, by confronting PW-6, Headmaster of the School. As per
Ex.D/3, the plaintiff was born on 5th June, 1975. As per the plaintiff,
an agreement of marriage was registered on 7th March, 1986. The
witnesses examined by the plaintiff have deposed that the
4
marriage was registered on the said date.
7. Admittedly, Hanumanthappa died on 15th October, 1986 i.e. within
eight months of the alleged marriage. The plaintiff, apart from the
oral evidence, relies upon a photograph (Ex.P/28) wherein the
plaintiff and Hanumanthappa are seen together. PW-2 to PW-5
have deposed that the photograph (Ex.P/28) was taken in Malur
after performing marriage in Sub-Registrar’s office. The learned
trial court found that Hanumanthappa was 19 years 9 months old
at the time of marriage and the plaintiff, as admitted by her in
cross-examination, was 15 years of age at the time of marriage. It
was, thus, held that the plaintiff and the deceased have not
attained the qualifying age at the time of registration in the office
of Sub-Registrar and, thus, marriage was void ab initio. It is also
held that there is no evidence of performance of necessary
marriage ceremonies in terms of Section 7 of the Hindu Marriage
Act, 19551
, therefore, mere registration of an agreement of
marriage is not sufficient to prove marriage. The trial court also
took into consideration the statement of plaintiff admitting that the
deceased was suffering from some diseases earlier to the marriage
and her father performed marriage in a hurry with an intention to
get the property. Plaintiff deposed that she belongs to Vokkaliga
community and marriages were performed in the house and no
marriage in the family was performed in the Sub-Registrar’s office.
The learned trial court held that the marriage of the plaintiff with
1 for short, ‘Act’
5
the deceased is said to be proved but marriage is void ab initio in
terms of Section 24 of the Special Marriage Act, 1954 as both have
not attained the qualifying age for marriage. In the result, the trial
court dismissed the suit and held that defendant Nos. 2 to 5 are
entitled to 1/3rd share of the total scheduled property.
8. Both sets of parties went in appeal. The learned First Appellate
Court affirmed the findings of the trial court that marriage of the
plaintiff with deceased Hanumanthappa is established and that
Ex.D/3, the date of birth certificate of the plaintiff is not admissible
as it is not an authentic document. In the absence of proof of date
of birth, the First Appellate Court held that the trial court
committed an error in coming to the conclusion that the plaintiff
has not attained the age of marriage. The learned First Appellate
Court held that Ex.P/1 is not a proof of solemnization of marriage
under the provisions of the Special Marriage Act, 1954 as it is only
a contract of marriage which was registered. No marriage
certificate has been issued by the competent authority, therefore,
the parties cannot be deemed to have married under the Special
Marriage Act, 1954. However, the First Appellate Court held that
since the parties are Hindus and that if the marriage is neither void
or voidable under the Act, therefore, the provisions of age of
marriage are only directory in nature and not mandatory. The
marriage was held to be valid, consequently, the suit was decreed.
9.The High Court in second appeal held that there was a marriage
6
between plaintiff and Hanumanthappa and that the certificate
(Ex. P/1) is neithe r marriage certificate nor issued to evidence the
marriage in terms of provisions of the Special Marriage Act, 1954
but only a piece of evidence supporting the version of the plaintiff
that her marriage has taken place with Hanumanthappa. The High
Court said that in law, a customary Hindu marriage can be proved
only on establishing that the parties to the marriage had gone
through the necessary observances but since the defendants have
denied the marriage itself, they cannot be permitted to turn around
to contend that it was not a valid marriage.
10. Learned counsel for the defendants argued that the plaintiff never
asserted that she married Hanumanthappa either under the Special
Marriage Act, 1954 or a marriage under custom. In fact, the
plaintiff has not pleaded that she married Hanumanthappa except
asserting that defendant No. 1 is her father-in-law. The defendant
No. 1 Sonnappa is maternal grand-father of the plaintiff, whereas
Hanumanthappa was son of defendant No. 1, meaning thereby, the
claim of the plaintiff is that she married her Uncle. It is not
disputed that Hanumanthappa was suffering from various diseases
and died within eight months of the alleged marriage. The stand of
the defendants is that there was no marriage and that the story of
marriage was created to take the share of the deceased
Hanumanthappa in the property.
7
11. Before we proceed further, some relevant provisions of the Hindu
Marriage Act, 1955 need to be extracted hereunder:
“5. Conditions for a Hindu marriage. –
(i) xx xx xx
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of 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
or epilepsy;
(iii) xx xx xx
(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;
xx xx xx
7. Ceremonies for a Hindu marriage.- (1) A
Hindu marriage may be solemnized in accordance
with the customary rites and ceremonies of either
party thereto. (2) Where such rites and ceremonies
include the saptapadi (that is, the taking of seven
steps by the bridegroom and the bride jointly before
the sacred fire), the marriage becomes complete
and binding when the seventh step is taken.
xx xx xx
11. Void marriages.- Any marriage solemnized
after the commencement of this Act shall be null
8
and void and may, on a petition presented by either
party thereto, against the other party be so
declared by a decree of nullity if it contravenes any
one of the conditions specified in clauses (i), (iv)
and (v), Section 5.”
12. One of the issues framed was whether the plaintiff is wife of
Hanumanthappa. Since the entire claim of the plaintiff is based
upon her marriage with Hanumanthappa, 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. This
Court in Varada Bhavanarayana Rao v. State of A.P.
2
, held that
in terms of Section 102 of the Evidence Act, 18723
, 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.”
13. We find that the High Court has committed illegality in holding that
since the defendants have denied marriage, it cannot be asserted
by the defendants that the marriage of the plaintiff with
2 AIR 1963 SC 1715
3 for short the “Evidence Act”
9
Hanumanthappa was not a valid marriage. The plaintiff has led
evidence to the effect that the marriage was solemnized in the
office of Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to
be not a certificate of registration of marriage under the Special
Marriage Act, 1954 and that there is no evidence that any
ceremony has taken place. In the agreement of marriage (Ex.P/1),
it is only stated that both parties are of same caste and with the
permission and consent of both of their fathers, they have entered
into this agreement of marriage. This type of marriage is not
recognized in law as Section 7 of the Act contemplates that the
marriage can be solemnized in accordance with 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.
14. The plaintiff 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 marriage was on the Plaintiff alone. The
defendants have denied marriage of the Plaintiff, therefore, the
burden to prove marriage was on the plaintiff alone. Apart from
such fact, the marriage cannot be said to be taken place in terms of
Section 5(v) of the Act which is to the effect that the parties are not
sapindas to each other, unless the custom or usage governing each
of them permits of a marriage between the two. Such marriage is a
void marriage but, on a petition, preferred by either party thereto.
10
15. Hanumanthappa, a party to the marriage died soon after the socalled marriage. Therefore, the question required to be examined
is whether the alleged marriage which is between the persons of
less than 21 years and 18 years and between the prohibited degree
is a valid marriage. The plaintiff will be entitled to the estate of
Hanumanthappa only if she proves her valid marriage. The plaintiff
has not pleaded any custom permitting marriage within the
prohibited degree nor there is any proof of solemnization of any
marriage by customary ceremonies and rites, therefore, the
plaintiff will not be entitled to succeed only on the basis of alleged
registration of an agreement of marriage. In the absence of
customary ceremonies or the custom permitting marriage between
the prohibited degree, the plaintiff has no legal right to claim the
share in the property only on the basis that some of the witnesses
produced by her admitted that she married Hanumanthappa.
16. This Court in a judgment reported as Salekh Chand (Dead) by
LRs v. Satya Gupta & Ors.
4
while dealing with the claim of
adoption under the Hindu Adoption and Maintenance Act, 1966,
held as under:
“21. In Mookka Kone v. Ammakutti Ammal [AIR 1928
Mad 299] it was held that where custom is set up to
prove that it is at variance with the ordinary law, it
has to be proved that it is not opposed to public
policy and that it is ancient, invariable, continuous,
notorious, not expressly forbidden by the legislature
and not opposed to morality or public policy. It is not
disputed that even under the old Hindu Law,
4 (2008) 13 SCC 119
11
adoption during the lifetime of a male issue was
specifically prohibited. In addition, I have observed
that such an adoption even if made would be
contrary to the concept of adoption and the purpose
thereof, and unreasonable. Without entering into the
arena of controversy whether there was such a
custom, it can be said that even if there was such a
custom, the same was not a valid custom.
22. It is incumbent on party setting up a custom to
allege and prove the custom on which he relies.
Custom cannot be extended by analogy. It must be
established inductively and not by a priori methods.
Custom cannot be a matter of theory but must
always be a matter of fact and one custom cannot be
deduced from another. It is a well-established law
that custom cannot be enlarged by parity of
reasoning.
23. Where the proof of a custom rests upon a limited
number of instances of a comparatively recent date,
the court may hold the custom proved so as to bind
the parties to the suit and those claiming through
and under them; but the decision would not in that
case be a satisfactory precedent if in any future suit
between other parties fuller evidence with regard to
the alleged custom should be forthcoming. A
judgment relating to the existence of a custom is
admissible to corroborate the evidence adduced to
prove such custom in another case. Where, however
a custom is repeatedly brought to the notice of the
courts, the courts, may hold that the custom was
introduced into law without the necessity of proof in
each individual case.
24. Custom is a rule which in a particular family or a
particular class or community or in a particular
district has from long use, obtained the force of law.
Coming to the facts of the case PW 1 did not speak
anything on the position either of a local custom or of
a custom or usage by the community; PW 2, Murari
Lal claimed to be witness of the ceremony of
adoption, he was brother-in-law of Jagannath, son of
Pares Ram who is said to have adopted Chandra
Bhan. This witness was 83 years old at the time of
deposition in the court. He did not speak a word
either with regard to the local custom or the custom
of the community. PW 3 as observed by the lower
12
appellate court was only 43 years old at the time of
his deposition whereas the adoption had taken place
around 60 years back. He has, of course, spoken
about the custom but that is not on his personal
knowledge and this is only on the information given
by PW 2 Murari Lal. He himself did not speak of such
a custom. The evidence of the plaintiff was thus
insufficient to prove the usage or custom prevalent
either in the township of Hapur and around it or in
the community of Vaish.”
17. In the present case, the plaintiff has not proved custom of marriage
to her mother’s brother and/or judicial precedent recognizing such
marriage. In the absence of any precedent or custom of such
marriage, no judicial notice can be taken of a custom as argued by
the learned counsel for the plaintiff. In the absence of any pleading
or proof of custom, the argument that in Vokkaliga community,
such marriage can be performed cannot be accepted as no judicial
precedent was brought to the notice of the Court that such a
custom exists in the Vokkaliga community nor there is any instance
quoted in evidence of existence of such custom.
18. The burden to prove the marriage was on the plaintiff. The plaintiff
has failed to prove the marriage. The entire case is based upon an
agreement of marriage in which there is no assertion regarding
solemnization of the customary ceremonies or the rites or that the
parties had performed saptpadi in the manner contemplated under
Section 7 of the Act, therefore, the plaintiff cannot succeed the
estate of Hanumanthappa on the basis of a marriage which she has
failed to prove.
13
19. Consequently, the present appeal is allowed while restoring the
judgment and decree of the learned Trial Court.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
NOVEMBER 15, 2019.
14
upon her marriage with Hanumanthappa, 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.
This Court in Varada Bhavanarayana Rao v. State of A.P., held that in terms of Section 102 of the Evidence Act, 18723, 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.”
13. We find that the High Court has committed illegality in holding that since the defendants have denied marriage, it cannot be asserted by the defendants that the marriage of the plaintiff with
Hanumanthappa was not a valid marriage. The plaintiff has led evidence to the effect that the marriage was solemnized in the office of Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to
be not a certificate of registration of marriage under the Special Marriage Act, 1954 and that there is no evidence that any ceremony has taken place.
In the agreement of marriage (Ex.P/1),
it is only stated that both parties are of same caste and with the
permission and consent of both of their fathers, they have entered
into this agreement of marriage. This type of marriage is not
recognized in law as Section 7 of the Act contemplates that the
marriage can be solemnized in accordance with 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.
14. The plaintiff 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 marriage was on the Plaintiff alone. The
defendants have denied marriage of the Plaintiff, therefore, the
burden to prove marriage was on the plaintiff alone. Apart from
such fact, the marriage cannot be said to be taken place in terms of
Section 5(v) of the Act which is to the effect that the parties are not
sapindas to each other, unless the custom or usage governing each
of them permits of a marriage between the two. Such marriage is a
void marriage but, on a petition, preferred by either party thereto.
15. Hanumanthappa, a party to the marriage died soon after the socalled marriage. Therefore, the question required to be examined is whether the alleged marriage which is between the persons of
less than 21 years and 18 years and between the prohibited degree is a valid marriage. The plaintiff will be entitled to the estate of Hanumanthappa only if she proves her valid marriage. The plaintiff
has not pleaded any custom permitting marriage within the prohibited degree nor there is any proof of solemnization of any marriage by customary ceremonies and rites, therefore, the
plaintiff will not be entitled to succeed only on the basis of alleged registration of an agreement of marriage.
In the absence of customary ceremonies or the custom permitting marriage between the prohibited degree, the plaintiff has no legal right to claim the
share in the property only on the basis that some of the witnesses
produced by her admitted that she married Hanumanthappa.
with great respect to the Apex court - a marriage between uncle and niece is not prohibited degree in southern states
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3050 OF 2010
RATHNAMMA & ORS. .....APPELLANT(S)
VERSUS
SUJATHAMMA & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. Defendant No.2, defendant No.5 and legal heirs of defendant No.4
are in appeal aggrieved against the judgment passed by High
Court of Karnataka on 3rd April, 2008 dismissing their second
appeal maintaining the judgment and decree passed by the First
Appellate Court on 2nd July, 2005 whereby the suit for partition filed
by plaintiff Sujathamma was decreed.
2. The following Genealogical Tree would be necessary to appreciate
the dispute between the parties:-
1
“GENEALOGICAL TREE
Sonnappa
(Defendant No. 1)
Son Daughter Daughter Daughter
Hanumanthappa Sonnamma Kenchamma Lakshmamma
(dead) (Def No. 1(a)) (Def No.1(b)) (Def No.1(c))
(*Sujathamma is the daughter
of Muniyappa and Sonnamma)
Son
Venkatarayappa Rathnamma
(dead) (Def No. 2)
Gowramma Rajappa Naryanaswamy
(Def No. 3) (Def No. 4) (Def No. 5)
Note :
*Sujathamma claims to be married to Hanumanthappa.”
3. Defendant No. 1 Sonnappa died during the pendency of the suit
leaving behind two sons - Venkatarayappa and predeceased son -
Hanumanthappa and three daughters - Sonnamma, Kenchamma
and Lakshmamma. Sonnamma, Kenchamma and Lakshmamma
have been brought on record as legal heirs of defendant No. 1. The
plaintiff - Sujathamma, maternal grand-daughter of Sonnappa,
claims to have married Hanumanthappa on 7th March, 1986.
Hanumanthappa died on 15th October, 1986. The claim of the
plaintiff is that she is entitled to the share of the estate of
Sonnappa, as wife of deceased Hanumanthappa. It is the said
2
assertion which was accepted by the First Appellate Court and
maintained by the High Court.
4. The plaintiff filed the civil suit with the assertion that the parties
are related to each other as members of joint Hindu Undivided
Family. The plaintiff asserted that the first defendant i.e. Sonnappa
is her fathter-in-law. Since the property is said to be ancestral
property and that property stands in the name of the first
defendant Sonnappa, therefore, plaintiff claims that she is entitled
to the share of Hanumanthappa as his wife.
5. The daughter of the first defendant was married to the father of the
plaintiff. The stand of the defendants is that the father of the
plaintiff managed to obtain signatures of the first defendant by way
of malafide practices and that the first defendant never consented
for the marriage of his second son Hanumanthappa as he was
suffering from juvenile diabetes mellitus coma, cardio respiratory
arrest and such other symptoms. The plaintiff was about 14 years
of age at the time of death of Hanumanthappa and that she was
not fit for marriage. It was asserted that if any document is
produced by the plaintiff to show that she was married, it is a
concocted one. By way of a separate written statement, defendant
Nos. 2 to 5 denied the allegations of the plaintiff. It was pleaded as
under:
“12. The plaintiff is not entitled to any reliefs. The
true facts of the case are that the plaintiff is grand
daughter of first defendant and the plaintiff’s mother,
3
first defendant and plaintiff colluded with each other
and they have filed this suit in order to grab the
properties, the plaintiff is not at all wife of the said late
Hanumanthappa. Even as on the date of the death of
said Hanumanthappa, the said plaintiff was aged
about 14 years. Even the said Hanumanthappa was
also suffering from Juvenile Diabetes Mellitus coma,
Cardio respiratory arrest and such other symptoms.
Even he was not in position to marry or to give
consent for marriage since 6 years and never marriage
of the plaintiff with late Hanumanthappa had been
taken place.”
6. The parties went to trial with one of the issues being whether the
plaintiff is wife of late Hanumanthappa. To prove the said issue,
the plaintiff examined herself as PW-1. PW-2 is the father of the
plaintiff whereas PW-3 to PW-5 are the witnesses of an agreement
to marriage dated 7th March, 1986, who were examined to prove
plaintiff’s marriage with Hanumanthappa. PW-6 was examined to
prove the age of the deceased Hanumanthappa. PW-7 to PW-9 are
the daughters of deceased defendant No. 1. As per the birth
certificate (Ex.P/30), the date of birth of Hanumanthappa is 20th
June, 1966, that makes him 19 years 9 months at the time of his
marriage. On the other hand, the plaintiff in her statement stated
her age as 15 years at the time of marriage. However, the
defendants have produced Ex.D/3, Register of Admission of the
School, by confronting PW-6, Headmaster of the School. As per
Ex.D/3, the plaintiff was born on 5th June, 1975. As per the plaintiff,
an agreement of marriage was registered on 7th March, 1986. The
witnesses examined by the plaintiff have deposed that the
4
marriage was registered on the said date.
7. Admittedly, Hanumanthappa died on 15th October, 1986 i.e. within
eight months of the alleged marriage. The plaintiff, apart from the
oral evidence, relies upon a photograph (Ex.P/28) wherein the
plaintiff and Hanumanthappa are seen together. PW-2 to PW-5
have deposed that the photograph (Ex.P/28) was taken in Malur
after performing marriage in Sub-Registrar’s office. The learned
trial court found that Hanumanthappa was 19 years 9 months old
at the time of marriage and the plaintiff, as admitted by her in
cross-examination, was 15 years of age at the time of marriage. It
was, thus, held that the plaintiff and the deceased have not
attained the qualifying age at the time of registration in the office
of Sub-Registrar and, thus, marriage was void ab initio. It is also
held that there is no evidence of performance of necessary
marriage ceremonies in terms of Section 7 of the Hindu Marriage
Act, 19551
, therefore, mere registration of an agreement of
marriage is not sufficient to prove marriage. The trial court also
took into consideration the statement of plaintiff admitting that the
deceased was suffering from some diseases earlier to the marriage
and her father performed marriage in a hurry with an intention to
get the property. Plaintiff deposed that she belongs to Vokkaliga
community and marriages were performed in the house and no
marriage in the family was performed in the Sub-Registrar’s office.
The learned trial court held that the marriage of the plaintiff with
1 for short, ‘Act’
5
the deceased is said to be proved but marriage is void ab initio in
terms of Section 24 of the Special Marriage Act, 1954 as both have
not attained the qualifying age for marriage. In the result, the trial
court dismissed the suit and held that defendant Nos. 2 to 5 are
entitled to 1/3rd share of the total scheduled property.
8. Both sets of parties went in appeal. The learned First Appellate
Court affirmed the findings of the trial court that marriage of the
plaintiff with deceased Hanumanthappa is established and that
Ex.D/3, the date of birth certificate of the plaintiff is not admissible
as it is not an authentic document. In the absence of proof of date
of birth, the First Appellate Court held that the trial court
committed an error in coming to the conclusion that the plaintiff
has not attained the age of marriage. The learned First Appellate
Court held that Ex.P/1 is not a proof of solemnization of marriage
under the provisions of the Special Marriage Act, 1954 as it is only
a contract of marriage which was registered. No marriage
certificate has been issued by the competent authority, therefore,
the parties cannot be deemed to have married under the Special
Marriage Act, 1954. However, the First Appellate Court held that
since the parties are Hindus and that if the marriage is neither void
or voidable under the Act, therefore, the provisions of age of
marriage are only directory in nature and not mandatory. The
marriage was held to be valid, consequently, the suit was decreed.
9.The High Court in second appeal held that there was a marriage
6
between plaintiff and Hanumanthappa and that the certificate
(Ex. P/1) is neithe r marriage certificate nor issued to evidence the
marriage in terms of provisions of the Special Marriage Act, 1954
but only a piece of evidence supporting the version of the plaintiff
that her marriage has taken place with Hanumanthappa. The High
Court said that in law, a customary Hindu marriage can be proved
only on establishing that the parties to the marriage had gone
through the necessary observances but since the defendants have
denied the marriage itself, they cannot be permitted to turn around
to contend that it was not a valid marriage.
10. Learned counsel for the defendants argued that the plaintiff never
asserted that she married Hanumanthappa either under the Special
Marriage Act, 1954 or a marriage under custom. In fact, the
plaintiff has not pleaded that she married Hanumanthappa except
asserting that defendant No. 1 is her father-in-law. The defendant
No. 1 Sonnappa is maternal grand-father of the plaintiff, whereas
Hanumanthappa was son of defendant No. 1, meaning thereby, the
claim of the plaintiff is that she married her Uncle. It is not
disputed that Hanumanthappa was suffering from various diseases
and died within eight months of the alleged marriage. The stand of
the defendants is that there was no marriage and that the story of
marriage was created to take the share of the deceased
Hanumanthappa in the property.
7
11. Before we proceed further, some relevant provisions of the Hindu
Marriage Act, 1955 need to be extracted hereunder:
“5. Conditions for a Hindu marriage. –
(i) xx xx xx
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of 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
or epilepsy;
(iii) xx xx xx
(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;
xx xx xx
7. Ceremonies for a Hindu marriage.- (1) A
Hindu marriage may be solemnized in accordance
with the customary rites and ceremonies of either
party thereto. (2) Where such rites and ceremonies
include the saptapadi (that is, the taking of seven
steps by the bridegroom and the bride jointly before
the sacred fire), the marriage becomes complete
and binding when the seventh step is taken.
xx xx xx
11. Void marriages.- Any marriage solemnized
after the commencement of this Act shall be null
8
and void and may, on a petition presented by either
party thereto, against the other party be so
declared by a decree of nullity if it contravenes any
one of the conditions specified in clauses (i), (iv)
and (v), Section 5.”
12. One of the issues framed was whether the plaintiff is wife of
Hanumanthappa. Since the entire claim of the plaintiff is based
upon her marriage with Hanumanthappa, 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. This
Court in Varada Bhavanarayana Rao v. State of A.P.
2
, held that
in terms of Section 102 of the Evidence Act, 18723
, 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.”
13. We find that the High Court has committed illegality in holding that
since the defendants have denied marriage, it cannot be asserted
by the defendants that the marriage of the plaintiff with
2 AIR 1963 SC 1715
3 for short the “Evidence Act”
9
Hanumanthappa was not a valid marriage. The plaintiff has led
evidence to the effect that the marriage was solemnized in the
office of Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to
be not a certificate of registration of marriage under the Special
Marriage Act, 1954 and that there is no evidence that any
ceremony has taken place. In the agreement of marriage (Ex.P/1),
it is only stated that both parties are of same caste and with the
permission and consent of both of their fathers, they have entered
into this agreement of marriage. This type of marriage is not
recognized in law as Section 7 of the Act contemplates that the
marriage can be solemnized in accordance with 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.
14. The plaintiff 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 marriage was on the Plaintiff alone. The
defendants have denied marriage of the Plaintiff, therefore, the
burden to prove marriage was on the plaintiff alone. Apart from
such fact, the marriage cannot be said to be taken place in terms of
Section 5(v) of the Act which is to the effect that the parties are not
sapindas to each other, unless the custom or usage governing each
of them permits of a marriage between the two. Such marriage is a
void marriage but, on a petition, preferred by either party thereto.
10
15. Hanumanthappa, a party to the marriage died soon after the socalled marriage. Therefore, the question required to be examined
is whether the alleged marriage which is between the persons of
less than 21 years and 18 years and between the prohibited degree
is a valid marriage. The plaintiff will be entitled to the estate of
Hanumanthappa only if she proves her valid marriage. The plaintiff
has not pleaded any custom permitting marriage within the
prohibited degree nor there is any proof of solemnization of any
marriage by customary ceremonies and rites, therefore, the
plaintiff will not be entitled to succeed only on the basis of alleged
registration of an agreement of marriage. In the absence of
customary ceremonies or the custom permitting marriage between
the prohibited degree, the plaintiff has no legal right to claim the
share in the property only on the basis that some of the witnesses
produced by her admitted that she married Hanumanthappa.
16. This Court in a judgment reported as Salekh Chand (Dead) by
LRs v. Satya Gupta & Ors.
4
while dealing with the claim of
adoption under the Hindu Adoption and Maintenance Act, 1966,
held as under:
“21. In Mookka Kone v. Ammakutti Ammal [AIR 1928
Mad 299] it was held that where custom is set up to
prove that it is at variance with the ordinary law, it
has to be proved that it is not opposed to public
policy and that it is ancient, invariable, continuous,
notorious, not expressly forbidden by the legislature
and not opposed to morality or public policy. It is not
disputed that even under the old Hindu Law,
4 (2008) 13 SCC 119
11
adoption during the lifetime of a male issue was
specifically prohibited. In addition, I have observed
that such an adoption even if made would be
contrary to the concept of adoption and the purpose
thereof, and unreasonable. Without entering into the
arena of controversy whether there was such a
custom, it can be said that even if there was such a
custom, the same was not a valid custom.
22. It is incumbent on party setting up a custom to
allege and prove the custom on which he relies.
Custom cannot be extended by analogy. It must be
established inductively and not by a priori methods.
Custom cannot be a matter of theory but must
always be a matter of fact and one custom cannot be
deduced from another. It is a well-established law
that custom cannot be enlarged by parity of
reasoning.
23. Where the proof of a custom rests upon a limited
number of instances of a comparatively recent date,
the court may hold the custom proved so as to bind
the parties to the suit and those claiming through
and under them; but the decision would not in that
case be a satisfactory precedent if in any future suit
between other parties fuller evidence with regard to
the alleged custom should be forthcoming. A
judgment relating to the existence of a custom is
admissible to corroborate the evidence adduced to
prove such custom in another case. Where, however
a custom is repeatedly brought to the notice of the
courts, the courts, may hold that the custom was
introduced into law without the necessity of proof in
each individual case.
24. Custom is a rule which in a particular family or a
particular class or community or in a particular
district has from long use, obtained the force of law.
Coming to the facts of the case PW 1 did not speak
anything on the position either of a local custom or of
a custom or usage by the community; PW 2, Murari
Lal claimed to be witness of the ceremony of
adoption, he was brother-in-law of Jagannath, son of
Pares Ram who is said to have adopted Chandra
Bhan. This witness was 83 years old at the time of
deposition in the court. He did not speak a word
either with regard to the local custom or the custom
of the community. PW 3 as observed by the lower
12
appellate court was only 43 years old at the time of
his deposition whereas the adoption had taken place
around 60 years back. He has, of course, spoken
about the custom but that is not on his personal
knowledge and this is only on the information given
by PW 2 Murari Lal. He himself did not speak of such
a custom. The evidence of the plaintiff was thus
insufficient to prove the usage or custom prevalent
either in the township of Hapur and around it or in
the community of Vaish.”
17. In the present case, the plaintiff has not proved custom of marriage
to her mother’s brother and/or judicial precedent recognizing such
marriage. In the absence of any precedent or custom of such
marriage, no judicial notice can be taken of a custom as argued by
the learned counsel for the plaintiff. In the absence of any pleading
or proof of custom, the argument that in Vokkaliga community,
such marriage can be performed cannot be accepted as no judicial
precedent was brought to the notice of the Court that such a
custom exists in the Vokkaliga community nor there is any instance
quoted in evidence of existence of such custom.
18. The burden to prove the marriage was on the plaintiff. The plaintiff
has failed to prove the marriage. The entire case is based upon an
agreement of marriage in which there is no assertion regarding
solemnization of the customary ceremonies or the rites or that the
parties had performed saptpadi in the manner contemplated under
Section 7 of the Act, therefore, the plaintiff cannot succeed the
estate of Hanumanthappa on the basis of a marriage which she has
failed to prove.
13
19. Consequently, the present appeal is allowed while restoring the
judgment and decree of the learned Trial Court.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
NOVEMBER 15, 2019.
14
