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.) The plaintiff's case is that he asked M.L. Shah to find a Brahmin who would perform the marriage ceremony, and M.L. Shah in his turn asked Girdhar Thakkar to get a Brahmin, and it was Girdhar Thakkar who found that Brahmin and brought him to Vinod Building on October 4 to perform the marriage ceremonies. Girdhar Thakkar is at present a detenu and, according to the plaintiff, it was Girdhar Thakkar alone who knew the where-abouts of the Brahmin. He saw Girdhar Thakkar the last time in May, 1941. At that time Girdhar Thakkar had told the plaintiff that he would be able to get the Brahmin to give evidence whenever the plaintiff wanted. After that, the plaintiff has made no attempt to secure the evidence of Girdhar Thakkar. The plaintiff does not even know where Girdhar Thakkar used to reside in Bombay and he has made no inquiries to find out from Girdhar Thakkar's residence as to whether anyone else in his house knew about this Brahmin. Although the plaintiff met M.L. Shah last April, he made no further inquiries of him about the Brahmin merely because, according to him, M.L. Shah had told him that he did not know the Brahmin's address but Girdhar Thakkar knew it. The plaintiff did not even take the trouble to ask M.L. Shah whether Shah could direct him to someone else who might know the address of the Brahmin nor did he ask Shah what Girdhar Thakkar's address in Bombay was.