BHONRILAL Vs. KAUSHALIYA

JUDGEMENT

(1.) THE petitioner having been found guilty of disobedience of order of injunction restraining him from entering into second marriage, has been ordered to be detained in the civil prison for one month, by the Munsif, Gangapur City, by his order dated 24-3-1967. The said order has also been confirmed in appeal by the senior Civil Judge, No. 1 Gangapur City.

(2.) NON-PETITIONER Mst. Kashaliya filed a suit against the petitioner with tbe allegation that she was bis legally wedded wife and had been living with him till four months before the filing of the suit. As the petitioner severely beat her, she came to her father's house. Thereupon the petitioner informed her father that he would marry again and bad in fact arranged a second marriage with the daughter of Bhonrilal of Malarnadoongar. She, therefore, prayed for the issue of a permanent injunction restraining the petitioner from marrying the daughter of bhonrilal of Malarnadoongar or any other girl. On the application of the non-petitioner under Order 39, Rule 2, C. P. C. the petitioner was restrained from entering into second marriage till the final disposal of the suit. The order of injunction was passed by the court on 28th May, 1966 in the presence of the petitioner and was duly communicated to him. On 2nd June, 1966, the non-petitioner submitted an application under Order 39, rule 2 (3) C. P. C. to take proceedings against the petitioner for disobedience of the order of injunction inasmuch as be had married Smt. Tofa daughter of bhonrilal of Malarnadoongar on 29th May, 1966. Notice was issued to the petitioner and in reply he submitted that on account of the prohibitive order passed against him he gave up the idea of second marriage, but as the daughter of Bhonrilal of Malarnadoongar had already been anointed with oil, she was married to his younger brother Bimsingh and not with the petitioner. No objection about the legality of the marriage was taken in this reply. The learned Munsif held an enquiry to find out whether Mst. Tofa daughter of bhonrilal of Malarnadoongar was married to the petitioner or to his younger brother on 29th May, 1966. Both parties produced evidence in support of their rival contentions, and it is significant to note that neither the petitioner gave his own statement nor did he examine Mst. Tofa as his witness. However, Rambilas who had conducted the marriage as a priest, was examined on his behalf. The learned Munsif on a careful scrutiny of the evidence produced by the parties arrived at the conclusion that Mst. Tofa was married to the petitioner and he had thus intentionally disobeyed the order of injunction issued against him on the previous day i. e. , on 28th May, 1966. On appeal by the petitioner the learned Senior Civil Judge concurring with the finding of the learned Munsif, dismissed the appeal. It is against this order that the present revision application has been filed and it has been contended on behalf of the petitioner that the Courts below worngly found the fact of marriage of the petitioner with Mst. Tofa proved without there being any evidence that the ceremonies essential for a valid marriage had been gone through. It is contended that two ceremonies essential to the validity of a marriage as noted by Mulla in his book 'principles of Hindu Law', Thirteenth Edition are whether the marriage be in the Brahma form or the Asura form, namely- (1) invocation before the sacred fire, and (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The marriage may also be completed by the performance of ceremonies other than those referred to above where it is allowed by the custom of the caste to which the parties belong. It is pointed out that in the present case the non-petitioner did not set up any custom of the caste to show that any other ceremonies were considered sufficient as constituting the marriage and so it was essential to prove the aforesaid two ceremonies. It is further contended that in a case of the present nature where the question of liberty of a citizen is involved by his being detained in a Civil prison, proof of marriage as is necessary, in Criminal Prosecution for offences under Sections 494 and 497 of the Indian Penal Code is required. Reliance is placed on Bhaurao shankar v. State of Maha-rashtra, AIR 1965 SC 1564, Kanwal Ram v. Himachal pradesh Administration, AIR 1966 SC 614; Gopal v. The Emperor, AIR 1925 Rang 328; Ganga Patra v. Emperor, AIR 1928 Pat 481; Phankari v. The State, AIR 1965 j and K 105; The Empress v. Pitamber Singh, (1880) ILR 5 Cal 566; Empress of india v. Kallu, (1883) ILR 5 All 233 and Queen Empress v. Dal Singh, (1898) ILR 20 All 166 which relate to prosecutions under Sections, 494, 497 and 498 of the indian Penal Code and on Rampiayar v. Deva Rama, AIR 1923 Rang 202; surjyamoni Dasi v. Kali Kanta Das, (1901) ILR 28 Cal 37 which relate to suits for restitution of conjugal rights. It is contended that in the present case there is no evidence of Saptapadi i. e. , taking of seven steps by the petitioner and Mst. Tofa jointly before the sacred fire. The evidence led by the non-petitioner only shows that phera ceremony was performed and a priest was called for that purpose. This is however, not sufficient to constitute a valid marriage.

(3.) ON the other hand learned counsel for the non-petitioner urges that the question of the validity of marriage performed on 29th May, 1966 in the house of bhonrilal was never called in question by the petitioner in the courts below. Even in the revision petition this objection has not been taken and it is for the first time that this question has been raised during the course of arguments. It is urged that in the court below the controversy was confined to the fact whether Mst. Tofa was married to the petitioner or to his younger brother Bhimsingh. It is next urged that once the fact of marriage is established it shall be presumed that it was a valid marriage and all the ceremonies essential for constituting a valid marriage had been performed. Reliance is placed on Inderun Valungypooly Taver v. Ramasawmy pandia Talaver, (1869-70) 13 Moo Ind App 141 ; Brindabun Chandra v. Chundra kurmokar, (1886) ILR 12 Cal 140; Khushalchand Lal-chand v. Bai Mani, (1887) ILR 11 Bom 247; Bai Diwali v. Moti Karson, (1898) ILR 22 Bom 509; Mouji Laj v. Chandrabati Ku-mari, (1911) ILR 38 Ca! 700 (PC); Sitabai Sadashiva v. Vithabai namdeo, AIR 1959 Bom 508 and Kashi Nath v. Bhagwan Das, AIR 1947 PC 168. It was also urged that in the present case there was evidence that a marriage party reached the house of the bride's father, a priest was called and phera ceremony took place. It is urged that Phera ceremony is tantamount to the taking of seven steps by the bride and the bridegroom jointly.