Hindu Marriage Act, 1955 – ss.5, 7 and 11 – Succession in the estate on basis of a marriage – Claim for – Plaintiff, maternal grand-daughter of defendant No.1 claimed to have married ‘H’ her uncle (son of defendant No.1) on 7.3.1986 - ‘H’ had died on 15.10.1986 – Defendant No.1 had two sons (including ‘H’) and three daughters – Plaintiff sought share of the estate of defendant No.1, as wife of deceased ‘H’ – Trial court held that the plaintiff and ‘H’ had not attained the qualifying age at the time of registration of marriage in the office of sub-Registrar and thus, marriage was void ab initio – Also, there was no evidence of performance of necessary marriage ceremonies in terms of s.7 of the Hindu Marriage Act therefore, mere registration of an agreement of marriage was not sufficient to prove marriage – In the result, the Trial Court dismissed the suit – First Appellate Court held marriage to be valid and decreed the suit – Aggrieved, defendants filed second appeal, however, same was dismissed – On appeal, held: In the instant 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 – The entire case was based upon an agreement of marriage in which there was no assertion regarding solemnization of the customary ceremonies or the rites or that the parties had performed saptpadi in the manner contemplated u/s.7 of the Hindu Marriage Act, 1955, therefore, the plaintiff cannot succeed the estate of ‘H’ on basis of a marriage which she failed to prove.
Allowing the appeal, the Court
HELD: 1. 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 ‘H’ 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. [Para 13] [655-F-G; 656-A]
2. 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. [Para 14] [656-B-D]
3. 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.[Para 17] [658-C-D]
4. 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. [Para 18] [658E]
Varada Bhavanarayana Rao v. State of A.P. AIR 1963 SC 1715 : [1964] SCR 501 ; Salekh Chand (Dead) by LRs v. Satya Gupta & Ors. (2008) 13 SCC 119 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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