AYODHYA PRASAD Vs. SHANTI

JUDGEMENT

(1.) THIS is an appeal from a decision of the Additional District Judge of Satna rejecting the husband appellant's application under section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights.

(2.) THE appellant's case was that he was married to the respondent -Shanti in Samvat -2016; that after the marriage Shanti lived with him for some time and then went to her mother's residence; and that since then despite his repeated requests Shanti was refusing to live and cohabit with him. The suit was resisted by Shanti mainly on the ground that she never married the appellant; that if there was any marriage, it was not legal and valid as at the time of the alleged marriage she was a minor and could be given away in marriage only by her natural guardian, who was the mother; and that her mother never gave her away In marriage to the appellant.

(3.) HAVING heard learned counsel for the parties, we have reached the conclusion that this appeal must be dismissed. In the present case, as both the fact and the validity of the marriage were disputed, the trial Court was required to find specially whether the rites and ceremonies necessary to constitute a legal marriage were performed. The learned Additional District Judge has given no finding as to the performance of the requisite ceremonies. All that he did was to find that the marriage between the parties took place. This is not enough. As has been held in Suriyamoni Dasi Vs. Kali Kanta Das ILR 28 Cal 37, and Rampiayar VS. Deva Rama AIR 1923 Rangoon 202, when in a suit for restitution of conjugal rights the validity of the marriage itself is disputed, it is not enough to find that the marriage took place, leaving it to be presumed that the rites an' ceremonies necessary to constitute a legal marriage in the particular case were performed the Court must find specifically what these rites and ceremonies are and whether they were performed. The learned Additional District Judge did not at all consider the question of performance of the necessary rites and ceremonies and give a finding on those rites and ceremonies and their performance in the present case. On a consideration of the evidence on record, we find that the plaintiff has utterly failed to prove that the rites and ceremonies necessary to constitute a legal marriage were performed at the time of his alleged marriage with Shanti. In his evidence the appellant said nothing as to the performance of these rites and ceremonies. He only said that he was married to Shanti and that Ramkumar gave her away in marriage with the consent of her mother. Baldeo Prasad, a Pandit who deposed to have conducted the marriage, said in his evidence that 'Kanyadan' was done by Ramkumar and the marriage was performed according to the rites. He said nothing as to what rites and ceremonies were actually performed. The statements of other witnesses produced by the appellant also give no indication as to what rites and ceremonies are necessary in barber -community to which the parties belong and whether these rights and ceremonies were actually performed in the present cast'. This sort of evidence cannot be accepted as sufficient proof of the essential fact that the marriage of the parties was performed with the necessary rites and ceremonies. In our opinion, there is no evidence at all of a valid marriage, and on this ground alone the appellant's petition for restitution of conjugal rights must fail.