JADAVKUMAR LILADHAR MAINTHIA Vs. PUSHPABAI MAINTHIA NEE

JUDGEMENT

(1.) THE plaintiff's evidence is that after the marriage ceremony was performed by the Brahmin he wrote out a document in plaintiff's presence and signed it. Mr. Bhagwati says that he is not in a position to call this Brahmin and he tenders this document under Section 32, Sub-clause (5), of the Indian Evidence Act, 1872. Section 32 makes statements of relevant facts relevant in cases where the person making the statement is dead or cannot be found or has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable. In this case Mr, Bhagwati urges that the Brahmin cannot be found and, therefore, Section 32 is applicable.

(2.) IT will be noticed that the statement tendered is with reference to one of the most important issues in the case, namely, whether the requisite and essential ceremonies constituting a valid Hindu marriage were or were not performed, and Mr. Bhagwati seeks to make the statement of the Brahmin relevant without giving an opportunity to the other side to cross-examine the maker of that statement. Under these circumstances it is clear that the Court must very carefully consider what attempts have been made by the plaintiff to secure the evidence of this person before permitting the statement itself to become evidence without the testimony of that person being tested by cross-examination.

(3.) I further hold that the statement tendered by Mr. Bhagwati does not fall within the terms of Sub-clause (5). Sub-clause (5) only makes those statements relevant which relate to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship the person making the statement had special means of knowledge. What the statement says is that the marriage of the plaintiff with defendant No.1 was performed according to rites prescribed by religious scriptures, that is, in the presence of fire and by going through all the ceremonies pertaining to "Hastamilap ", "Mangalfera" and "Saptapadi"; and then it mentions who were the persons present at the marriage ceremony. It is clear to my mind that the statement relates to the performance of marriage ceremonies and not to the existence of any relationship. These ceremonies were antecedent to the coming into existence of the relationship between the plaintiff and defendant No.1 by marriage. The Brahmin really talks of the creation of a relationship by certain ceremonies rather than the existence of such relationship. Mr. Bhagwati undoubtedly tenders this statement not to prove that the relationship of the marriage existed between the plaintiff and defendant No.1 but to prove that the Brahmin performed the essential ceremonies required in a Hindu marriage. Such a statement clearly does not fall within the ambit of Sub-clause (5).