MUSAMMAT BALDEI Vs. ABHEY RAM

JUDGEMENT

(1.) IN this case the plaintiff-respondent, Abbey Ram, is a minor suing, through his father Nawal, for restitution of conjugal, rights as against his own wife, Musammat Baldei, and certain other persons who are alleged to be keeping her from him. The substantial defence set up was that Musammat Baldei had never gone through any ceremony of marriage of any sort or kind with Abhey Ram, but that she had, as a matter of fact, boon married to Tika Ram, a brother of Abhey Ram, since deceased. The lower Appellate Court has found in favour of the plaintiff upon all essential issues of fact and the defendants have come to this Court in second appeal. There was in the Courts below some controversy as to the age of the first defendant, Musammat Baldei, as to which the lower Appellate Court seems to have come to the conclusion that this lady was under eighteen years of age when the suit was filed, but had apparently attained the ago of eighteen years and ceased to be a minor by the time the appeal came to be disposed of. The order passed by the learned Subordinate Judge in view of this finding appears to be correct and I do not quite understand why it is challenged in the third paragraph of the memorandum of appeal to this Court. Another point taken on behalf of the appellants is that the evidence on the record, falls short of what is legally sufficient to prove the marriage between Abhey Ram and Musammat Baldei. I think there is no force in this contention. This was not a case in which it was admitted that some sort of ceremony had been gone through between the parties : but the validity of the said ceremony as constituting a legal marriage was in question. It was an admitted fact that Musammat Baldei had been married to a son of Nawal s with all the cermonial necessary to constitute a legal marriage. The case for the plaintiff was that Abhey Ram was the son of Nawal to whom Musammat Baldei was married : whereas the defendants contended that she was married to Tika Ram. On the evidence before him I think the learned Subordinate Judge was quite entitled to come to a finding in favour of the marriage set up by the plaintiff. There is, however, a further contention that this finding is vitiated by the fact that it rests in part on inadmissible evidence. On the pleadings of the parties the question of the time of the death of Tika Ram, brother of Abhey Ram, and also of the age of the said Tikaram at the time of his death became relevant facts, as bearing on the question whether Musammat Baldei could ever have been married to the said Tika Ram. The plaintiff tendered evidence on this point which has undoubtedly produced some effect on the mind of the lower Appellate Court. Amongst other evidence the plaintiff put in the witness box Jiram, the village chowkidar, who gave evidence that Tika Ram, son of Nawal, had been born so many years before the institution of this suit and had died so many years after birth. The witness added that he had caused entries of the fact of Tika Ram s birth and the fact of his death, to be made in a register of births and deaths, which it was part of his duty as a village watchman to keep up. Ho produced two volumes of these registers, one containing a note of the fact of the birth of Tika Ram son of Nawal, and the other of the fact of his death each under its proper date. The contention for the appellants is that these registers have been wrongly admitted in evidence. The learned Subordinate Judge has held that the entries in question are capable of being proved under Section 35 of the INdian Evidence Act (1 of 1872). He cites no direct authority in support of this view, and seems to me to have been misled by a note in a wellknown commentary on the INdian Evidence Act which refers to a different matter,- namely, the records of a Registrar appointed under Act VI of 1886. I have only been able myself to find one authority in point, and this is the case of Sampat v. Gauri Shankar 1.0 INd. Cas. 713 : 14 O. C. 68 : decided by the then Judicial Commissioner of Oudh, now Mr. Justice Chamier. It is there laid down that, although a chowkidar s register may be a public or official book within the meaning of Section 35 of the INdian Evidence Act, it cannot be put in evidence, unless the entries therein are shown to have been made by the chowkidar himself. Now the village watchmen are generally illiterate and they are not expected to write up these registers themselves. The practice is what has been frankly stated by the witness Jiram in the present case. The village watchman gets the entries written up to his dictation by the patwari of the village, or by any other literate man whom he may find willing to oblige him. The real question to my mind is whether the entries thus caused to be written to his dictation by the village chowkidar cannot be said to have been made" by him within the meaning of Section 35 of the INdian Evidence Act. I should hesitate to dissent from the authority of Mr. Justice Chamier on this point : but 1 am content to say that I feel some doubt as to the correctness of his view. There is nothing, however, in the reported judgment of the Oudh case to show that the village watchman was produced as a witness in that case, and it seems to me that the evidence given by Jiram chowkidar in the present case makes it necessary to look at the question of the admissiblity of these registers from another point of view. Jiram gave certain evidence as to the birth and death of Tika Ram and was cross-examined as to the sources of his information. He was certainly entitled to depose that he had caused to be entered the fact of Tika "Ram s birth and the fact of his death in the registers kept by him, under their proper dates. IN my opinion the witness having thus given his evidence the plaintiff : was entitled to put in these registers for what they might be worth in corroboration of Jiram s deposition, as containing the record of statement made by the witness referring to the same facts of or about the time when the facts took place (vide Section 157 of the INdian. Evidence Act). The question of the value of these entries as corroborative of Jiram s evidence and of the degree of credit to be attached to the statement of Jiram was one for the lower Appellate Court. Finally, it is contended on behalf of the appellants that this is a case in which the Court in its discretion should have refused to grant the plaintiff the relief sought for. Reference is made to the case of Husaini Begam v. Muhmnmad Rustam Ali Khan 29 A. 222 : A.W.N. (1907), 27 : 4 A.L.J. 60. in which this Court held that the husband suing for restitution of conjugal rights had disentitled himself by his previous conduct from claiming any such relief. I find no real analogy between the two cases. The present plaintiff is a minor, and it cannot be said that he personally has done anything of which his wife is entitled to complain. The plaintiff s father, Nawal, may not be actuated by the highest motives in pressing the present suit : but he is surely entitled to look after the worldly interests of his own son and on the facts found he has an undoubted right to vindicate for his son the possession of the person of Musammat Baldei, who is alleged to be living with the defendant Bhagwana, the husband of her deceased sister. For these reasons I dismiss this appeal with costs including fees on the higher scale.