High Court
Case Details
RSA 86/2002 BEFORE HON’BLE MR. JUSTICE A. C. UPADHYAY This second appeal is directed against the appellant judgment and decree dated 0 1.03.2002, passed by the learned Civil Judge (Sr. Division), Nagaon, in Title Ap peal No. 06/01, reversing the judgment and order passed by the learned Civil Jud ge (Jr. Division) No. 2, Nagaon, in Title Suit No. 33/99. 2. ef, as follows: The case of the appellant as pleaded in the plaint may be, stated in bri Late Deep
Legal Reasoning
Deep Kataki (since deceased) was the younger brother of the plaintiff, w 3. ho died at Gauhati Medical College on 27.08.96. He was unmarried till his death. Kakati was a diabetic patient for a long period and hence he rem ained unmarried till his death. At the time of his death, he worked as Senior As sistant at Assam State Electricity Board, Nagaon, and left some amount of money in his account of General Provident Fund, Gratuity and arrear of salary in the s aid organisation. Plaintiff, being the brother and legal representative of Deep Kataki, applied for a succession certificate before the Learned Dist. Judge, Nag aon, in respect of the dues left by his deceased brother Deep Kataki. The certif icate was granted to the plaintiff in Misc.(succ) Case No. 171/96, to receive th e amount standing in credit in the name of Late Deep Kataki. 4. The defendant (wife of the deceased) filed a petition under Section 383 of the Indian Succession Act, for revocation of the succession certificate issue d to the plaintiff by claiming herself as married wife of Late Deep Kataki. The petition was registered as Misc.(R) 186/97. The plaintiff denied the so-called c laim of the defendant. Therefore, the learned Dist. Judge, Nagaon, by its order dated 12.02.98 directed the defendant and the plaintiff to obtain requisite decl aration in respect of the status of the defendant from the competent civil Court . So, the plaintiff filed the suit praying for a declaration that the defe 5. ndant is not the legally married wife of Late Deep Kataki and for cost and other relief in accordance with law and equity. Defendant/wife appeared and contested the suit by filing written stateme 6. nt along with a counter claim. The defendant contended interalia that there is n o cause of action; the suit is not maintainable in law as well as in fact; plain tiff has no locus tandi to file the suit. The defendant denied the fact that Lat e Deep Kataki remained unmarried till his death as he was a diabetic patient, fo r a long period. The defendant denied plaintiff to be the legal representative o f Deep Kataki, and claimed that the defendant is the legally married wife of Lat e Deep Kataki. The defendant filed counter claim. The counter claim of the defendant, 7. in brief, is that both the defendants and Late Deep Kataki were in love for abou t 3 years and on 02.03.1995, their marriage was solemnised as per present social custom, in the society at the residence of Late Deep Kataki. Since then, they w ere living together as husband and wife. Their marriage was also registered on 2 2.06.95, vide deed No. 547(8). Furtehr more, all the brothers and sisters of Lat e Deep Kataki, except the plaintiff, have accepted the marriage. Due to serious illness, Deep Kataki was admitted at Gauhati Medical College, for treatment wher e he died on 17.08.1996. At the time of his death, the defendant was all along w ith her husband and took care of him. After the death, she also performed (cid:28)Shrad ha (cid:29) ceremony, of her husband. A certificate No. NMM.42/97/156 dated 07.06.1997 w as issued by an Extra Asstt. Commissioner on behalf of Deputy Commissioner, to t he effect that the defendant is the only heir and successor of late Deep Kakati. Further, defendant’s name was entered as nominee in the L.I.C. Policy of late D eep Kakati under No. 481433556, during the life time of Late Deep Kakati. 8. An amount of Rs. 22,560/- was sanctioned by the Chief Engineer (D), A.S. E.B., Paltanbazar, Guwahati, as gratuity of late Deep Kakati, subject to adjustm ent of outstanding liabilities and the letter was served upon the defendant. The Chief Engineer also sanctioned the family pension to the defendants. The defend ants had also received the pay of deceased Deep Kakati alongwith lumpsum amount of Rs. 5000/ against the pension from the Executive Engineer, A.S.E.B., Nagaon. The succession certificate though granted to the plaintiff but the operation was stayed on the petition of the defendant filed U/S 383 of the Indian Succession Act and directed the parties to obtain legal status of the defendant from the co mpetent civil court vide order dated 12.2.98. 9. The defendant prayed for a declaration that the marriage between the def endant and deceased Deep Kataki, was socially and legally solemnised and to decl are the status of the defendant as the widow of deceased Deep Kataki. The plaintiff contested the counter claim by filing written statement co 10. ntending therein that as all the brothers and sisters of Late Deep Kataki, were not made parties in the counter claim case, it is not maintainable in its presen t form etc. and denied all the allegations. It was also denied that the defendan t had love affairs with Late Deep Kataki and their marriage was solemnised on 02 .03.1995 at the residence of Late Deep Kataki by way of present social custom in the society and also by registered deed No. 547(8) dated 22.06.95 at the reside nce of Late Deep Kataki by all his brothers and sisters except the plaintiff, is not true. It is also denied that the defendant was all along with Late Deep Kat aki at Gauhati Medical College and took care of him and performed (cid:28)Shradha (cid:29) cere mony on the death of Deep Kataki. 11. On the pleadings of the parties learned trial Court framed the following issues, for decision of the suit. (cid:28)ISSUES: 1. 2. 3. 4. 5. o under law and equity? Whether there is any cause of action for the suit? Whether the suit is fails for non-joinder of necessary parties? Whether the defendant was legally married wife of late Deep Kataki? Whether the counter claim in the present suit is maintainable? What relief or reliefs, if any, the plaintiff or defendant is entitled t Additional issue 6. Whether the plaintiff’s suit is maintainable in its present form? (cid:29) 12. The plaintiff examined himself and exhibited certain documents in suppor t of its stand. On the other hand the defendant came forward to examine herself and 3 (three) other witnesses and also exhibited certain documents in order to e stablish her stand. The witnesses of the plaintiff as well as the defendants wer e thoroughly cross-examined by the counsel. The learned Trial Court on evaluation of the materials on record held th 13. at the defendant is not the legally married wife of Lt. Deep Kataki. Accordingly , the learned Trial Court on conclusion of the trial, decreed the suit of the pl aintiff against the defendant and also dismissed the counter claim of the defend ant. 14. Against the aforesaid judgment and decree, an appeal was preferred befor e the first Appellate Court. Learned appellate Court after careful evaluation o f the materials on record allowed the appeal by setting aside the impugned judgm ent and decree of dismissal passed by the Trial Court. The appellant Court also allowed the counter claim made by the defendant to hold and declare the status o f the defendant as the widow of deceased Lt. Deep Kataki. 15. The second appeal has been preferred by the plaintiff/appellant, as agai nst the decree of the 1st Appellate Court. This appeal is before us. The followi ng substantial questions of law were formulated by this Court for fair decision of the appeal, which are as follows: (cid:28)a) Whether performance of the marriage between the defendant with that of Late Deep Kakati under the Shankari form of marriage is a matter beyond the pleading of the defence? b) Whether the bare fact of that a man and woman living as husband and wife does not at any rate given them status of a husband and wife? (cid:29)
Legal Reasoning
16. Learned counsel for the appellant submitted that on evaluation of the ma terials on record it transpires that the customary marriage ceremony was neither pleaded nor it was proved to have been solemnised in terms with the prevailing custom, therefore, the marriage if any, solemnised by the defendant, cannot be s tated to be a legally valid marriage. 17. Learned counsel for the appellants pointed out that since the marriage w as not solemnised as per the Customary Rights and Ceremony as laid down in Secti on 7 (1) of Hindu Marriage Act. The marriage between the parties cannot be deeme d to have been solemnised. 18. Learned counsel for the appellants submitted that unless Saptapadi Gaman is performed by the Bride and Bridegroom a valid marriage cannot be said to hav e been solemnised. 19. However, on the facts and circumstances of the case it is the evidence o f the witnesses that the marriage ceremony was solemnised between the parties as per Sankari Pratha. Admittedly, both Lt. Deep Kataki and the deceased set toget her for performing the marriage as revealed by the witnesses. Saptapadi Gaman in literal terms is to perform 7 (seven) steps by the Bride and Bridegroom to comp lete the performance of a legally valid marriage. Therefore, it will be improper and impractical to imagine that Lt. Deep Kataki and the defendant did not take 7 (seven) steps for the purpose of performing the Saptapati Gaman to complete th e ritual. The priest, who performed the marriage ceremony clearly deposed that the marriage between the parties was solemnised in terms of the prevailing custo m. 20. We knew that unless the legality of the marriage is disputed on the spec ific ground of non-performer of essential ceremonies, a party proving the factum of marriage need not specifically prove further that all the ceremonies necessa ry to validate the marriage were also performed and in such a case, on the proof of the factum of marriage, a court shall presume performance of all essential c eremonies. The Hon’ble Supreme Court has endorsed the aforesaid proposition of l aw in Veerapa- vs. Michael reported in AIR 1963 SC 933. 21. P.W 1 i.e. the plaintiff in his disposition as well as in his plaint mer ely stated that late Deep Kataky his brother have not married the defendant. The re was no solemnisation of marriage between late Deep Kataky and defendant, but on evaluation of the evidence of D.W’s, I find found that a marriage ceremony between late Deep Kataky and the defendant took place in accordance with Sankari Partha on 2/03/95. D.W.3, Janmiram Bora, was the Acharyya, who had performed th eir marriage. Though, in his disposition he could explain the real meaning of Sa ptapadi Gaman but there was a natural presumption of the marriage of late Deep K ataky with the defendant. The LICI opened by late Deep Kataky i.e. Ext.-Unga, hi s wife as nominee. The voter list vide Ext.Ka, where the defendant is shown as w ife of Late Deep Kataky also clearly established the fact of marriage. Therefore , there is a strong presumption of marriage between late Deep Kataky and the def endant. 22. In addition to the above, except the plaintiff, no other brothers and s isters of late Deep Kataky, came forward to depose that the defendant was not th e legally married wife of late Deep Kataky. 23. The plaintiff neither in his plaint nor in his evidence challenged the i nvalidity of the marriage of late Deep Kakati and with the defendant, for not pe rforming certain ceremonies. It has been proved that the marriage took place bet ween late Deep Kakati and the defendant. Therefore, the Court will have to pres ume that necessary ceremonies have been performed since plaintiff failed to disp rove the marriage of Late Deep Kakati and the defendant. 24. The defendant has filed a counter claim against the plaintiff, with a pr ayer for a declaration that the marriage between herself with late Deep Kakati w as legally solemnised as per social customs. She also prayed the Court for decla ration of her status as the widow of late deceased Deep Kakati. Her counter clai m was dismissed by the trial Court stating therein that though her marriage was solemnised in accordance with social custom, but no essential performance of mar riage between them ever took place in accordance with present social customs. S uch non-performance was not ever pleaded by the plaintiff. 25. From the evidence on record, it appears that Late Deep Kataky himself ga ve the status of wife to the defendant. Therefore, the plaintiff’s challenge of the said status was for the property at stake. The evidence to rebut the presump tion of marriage must be strong, distinct, satisfactory and conclusive. A presum ption of marriage can only be negated by disapproving every reasonable possibili ties, as discussed above. 26. In the Voters’ List i.e. Ext.-Ka, it is shown that Amoya Kakati was livi ng in the same house with Late Deep Kakati. Late Deep Kakati himself gave her th e status of his wife in Ext.-Unga. Moreso, Ext.-Cha also proved that Amoya Kaka ti is the wife of Late Deep Kataky. From the above discussion, attended by the evidence on record, there is no iota of doubt regarding the solemnisation of the marriage between Late Deep Kakati and Amoya Kakati. 27. In view of above discussion and also from the evidence on record, it is clear that marriage between late Deep Kataky and defendant took place in accorda nce with Sankari Partha, which is prevailing in Assam. The Sankari Partha marria ge is socially recognised by the followers of the ’Mahaprabhu Shankardev’. Alth ough, the learned trial Court pointing out to Section 7(2) of the Hindu Marriage Act stated that the essential ceremony i.e. Saptapadi Gaman was not performed b etween Late Deep Kataky and the defendant, therefore, the marriage cannot be tre ated as legal, but the plaintiff has not challenged the validity of their marria ge for non performance of special ceremonies. Therefore, in terms of the Virrap pa vs. Michale (supra), there is no reason to disbelieve that performance of mar riage between Late Deep Kakati with the defendant. Thus, the Court can presume that the marriage was solemnised and all necessary ceremonies have been performe d. 28. vour of the defendant against the appellant.
Decision
In view of the above, the substantial questions of law are decided in fa 29. For the reasons discussed above, I am of the view that there is scope to interfere with the findings of the appellant Court. Therefore, the second appea l filed on behalf of the appellant stands dismissed. 30. Sent back the L.C.R. immediately.