Smt. Parvathamma vs Sri. K.B. Jayadevappa

K. Sreedhar Rao, J.—This appeal is filed against the Judgment and Decree dated 18.12.1996 passed in R.A. No. 34 of 1996 on the file of the Additional Civil Judge, Shimoga arising out of the Judgment and Decree dated 20.12.1995 in O.S. No. 376 of 1987 on the file of the Additional Munsiff, Shimoga.

The Appellant is the Plaintiff filed a suit for declaration that she is the legally wedded wife of the Defendant-Respondent and for a permanent injunction against the Defendant from entering into second marriage. The Plaintiff contends that out of the wed-lock and co-habitation with the Defendant, she has given birth to one Kumari Dakshayinamma. It is said that the Defendant and his parents started ill-treating the Plaintiff forcing her to undergo abortion. When the Plaintiff refused, she was driven out of the house in the first week of July 1987. According to the Plaintiff, the marriage was solemnised on 28.4.1986 in Basavanna Temple at Belalakatte Village of Shimoga Taluk. The Defendant in the written statement denied the relationship of Plaintiff as his wife and denied his marriage with her and also denies his paternity to the child. Three witnesses P Ws. 2 to 4 are examined apart from the Plaintiff. The Defendant has examined himself as DW. 2 and D Ws. 3 to 6 are examined as witnesses in support of the Defendant''s case. The trial Court based on the pleadings and the oral evidence held that the Plaintiff is the legally wedded wife of the Defendant and decreed the suit granting injunction against the Defendant not to marry another lady. The First Appellate Court has reversed the finding, set aside the Judgment and Decree and dismissed the suit of the Plaintiff holding that the Plaintiff has failed to prove her marriage with the Defendant. As a result, the present appeal is filed.

The admission Judge has formed the following point of law for consideration:

Whether the First Appellate Authority has crept into error in appreciating the evidence and thereby the Judgment and decree of the First Appellate Court is capricious and unreasonable and liable to be interfered with? What orders?

In the evidence before the trial Court, the Defendant had agreed that he was prepared to offer himself for D.N.A. Finger-printing test. An application was filed before the trial Court seeking DNA finger-printing test to confirm the paternity of the child. The application was allowed. However, in Revision No. 818 of 1993 this Court based on the ruling of Supreme Court reported in Surta Singh Vs. Pritam Singh, to set aside the order of reference to DNA finger-printing test. A fresh application came to be filed before this Court, the Respondent has filed objection.

The learned Counsel for the Appellant relied on the ruling of the Supreme Court in the case of Sharda v. Dharmpal, reported in AIR 2003 SCW 1950 to contend that the constitutional right under Article 21 is not violated by compelling a person to undergo the scientific test to prove the disputed fact.

The Learned Counsel for the Respondent relied on the ruling of the Supreme Court in the case of Smt. Kanti Devi and Another Vs. Poshi Ram, to contend that when the provisions of invoking presumption or otherwise under Sections 101, 104 and 112 are available, it is not necessary to make a reference to DNA test, although the results of the DNA Test is scientifically accurate, but, it is not enough to escape from the conclusiveness of Section 112 of the Evidence Act.

Sri S.V. Prakash, Learned Counsel for the Appellant, however, submitted that he is prepared to argue the appeal on merits and does not press the application for DNA finger-printing test. Accordingly, the matter is taken up for disposal on merits.

The careful scrutiny of the Judgment of the Appellate Court discloses the following grounds to reverse the finding of the trial Court and in dismissing the suit of the Plaintiff:

(a) The Appellate Court holds that the Plaintiff has failed to state and prove the necessary customary rites that were observed in performance of the marriage. The Appellate Court dilating on this aspect observes that "Sapthapadi" is an essential requirement of marriage is not pleaded and proved.

(b) There is a custom of "Betrothal Ceremony", performed before the marriage called in coloquial language "Veelya Shastra". The Plaintiff says that this Betrothal function was performed a month prior to the marriage. PW 3 states that the Betrothal function was performed a day before the marriage. Whereas, PW 2 states that no Betrothal function took place. PW 4 in the cross examination at the earliest says that he does not know where the Betrothal Function took place. Later on, states that he participated in the Betrothal Function, which took place on the previous night to the marriage day. In view of the discrepancy in evidence, the Appellate Court dis-believes the theory of Betrothal Function and the theory of marriage.

(c) The Appellate Court holds that there is no evidence to show that the Plaintiff and the Defendant co-habited as husband and wife continuously for a long period of time to raise an inference of a valid marriage. In this regard, refers to the discrepancies in the evidence of the witnesses. According to the legal notice issued by the Plaintiff, she claims that after the marriage the Plaintiff and Defendant lived together for one year two months. But, in evidence, she claims that she resided with the Defendant for about 5 to 6 months in the house of the Defendant. Immediately, after the marriage PW 1 states that herself and Defendant stayed in the parents house for one month and thereafter she kept consortium with the Defendant for about 5 to 6 months, whereas, the witnesses say that only for a day, the Plaintiff and Defendant resided in the house of the parents of the Plaintiff and thereafter the Defendant and Plaintiff resided separately for about 5 to 6 months. In view of the discrepancies, the Court finds that the co-habitation of the Plaintiff and Defendant is not proved and the period stated cannot be considered as sufficient period and long duration to invoke the presumption.

(d) The Appellate Court finds that the parents of the Plaintiff had participated in the marriage, but, they are not examined. Hence, draws adverse inference.

(e) The Appellate Court finds that the Plaintiff has not examined the purohit Eshwaraiah although available. Therefore, draws adverse inference against the Plaintiff.

In view of the aforesaid reasons, the appellate Court finds that the Plaintiff has failed to prove the marriage with the Defendant and thus reversed the finding of the trial Court.

The Learned Counsel for the Appellant submits that before the trial Court a memo was filed intimating that the purohit, who performed the marriage is won over by the other side and he is not willing to support the case of the Plaintiff, thus, explained the reason before the trial Court for non-examination of the purohit and suggestion is also made in the cross-examination of DW1 that he has tampered with the witness and has won over the purohit. However, the said suggestion is denied. For non examination of the parents, a simplistic explanation is given, that the parents were not examined because they would be considered as interested witness, therefore, thought that no harm would be caused, if they are not examined.

The Appellate Court finds that the rituals and customary rites necessary for the Hindu Marriage is not stated and proved. The religious rituals are normally intricate aspects, one, who is well versed with the scriptures and religious aspects can alone competently speak about the necessary customs and rituals to be observed for a valid marriage. The parties belong to "Lingayat community". The inference of the trial Court that the Sapthapadi is a necessary requirement is a thorough wrong understanding. In Lingayat Community for a marriage "Sapthapadi" is not essential. The evidence of the Plaintiff and the witnesses convincingly establish that the marriage was performed in a temple guided by the priest of the community. Therefore, it is a matter of an inference that necessary rituals would have been observed and a doctrine of factum valet also would come to the aid of a Plaintiff to a great extent to support her contention about a valid marriage. Merely because, Plaintiff has not stated or established the essential customary rites, it need not be a ground to dis-believe the version of the Plaintiff.

In the monumental work "Castes and Tribes of Southern India" by "E. Thurston", the elaborate details of the marriage of Lingayat Community is recorded thus:

For a bethothal, the bridegroom''s family come to the bride''s house on an auspicious day in company with a Jangam. They bring a sire (woman''s cloth), a kuppasa (jacket), two coconuts, five pieces of turmeric, five limes, betel leaf and areca nut. They also bring flowers for the susaka (a cap of flowers made for the bride), gold and silver ornaments, and sugar and areca nut for distribution to guests. The bride puts on the new cloths with the ornaments and flowers, and sits on a folded kumbli (blanket), on which fantastic devices have been made with rice. Some married women fill her lap with coconuts and other things brought by the bride-groom''s party. Music is played, and the women sing. Five of them pick up the rice on the kumbli, and gently drop it on to the bride''s knees, shoulders and head. They do this three times with both hands. Sugar and betel are then distributed, and one of the bride''s family proclaims the fact that the bride has been given to the bridegroom. One of the bridegroom''s family then states that the bride is accepted. That night the bride''s family feed the visitors on sweet things dishes made of hot or pungent things are strictly prohibited.

The marriage ceremony, which often takes place some years later, occupies from one to four days according to circumstances. In the case of a four-day marriage, the first day is spent in worshiping ancestors. On a second day, rice and oil are sent to the local mutt, and oil alone to the relatives. New pots are brought with much shouting, and deposited in the god''s room. A pandal (booth) is erected, and the bridegroom sits under it side by side with a married female relative, and goes through a performance which is called Surige. An enclosure is made round them with cotton thread passed ten times round four earthen pitchers placed at the four corners. Five married women come with boiled water, and wash off the oil and turmeric, with which the bride and the bridegroom and this companion have been anointed. The matrons then cloths them with the new clothes offered to the ancestors on the first day. After some ceremonial, the thread forming the enclosure is removed, and given to a Jangam. The Surige being now over, the bridegroom and his relatives are taken back to the god''s room. The bride and her relatives are now taken to the pandal, and another Surige is gone through. When this is over, the bride is taken to her room, and is decorated with flowers. At the same time, the bridegroom is decorated in the god''s room, and, mounting on a bullock, goes to the village temple, where he offers a coconut. A chaplet of flowers called bashingam is tied to his forehead, and he returns to the house. In the god''s room a panchakalasam, consisting of five metal vases with betel and vibhuti (sacred ashes) has been arranged, one vase being placed at each corner of a square, and one on the middle. By each kalasam is a coconut, a date fruit, a betel leaf and areca nut, and one peice (a copper coin) tied in a handkerchief. A cotton thread is passed round the square, and round the centre kalasam another thread, one end of which is held by the family guru, and the other by the bridegroom who sits opposite to him. The guru wears a ring made of kusa grass on the big toe of his right foot. The bride sits on the left hand side of the bridegroom, and the guru ties their right and left hands respectively with kusa grass. Hastapuja then follows. The joined hands of the bride and bridegroom are washed, and bilva (Aegle Marmelos) leaves and flowers are offered. The officiating priest then consecrates the tali and the kankanam (wrist-thread), ties the latter on the wrists of the joined hands, and gives the tali to the bridegroom, who ties it round the bride''s neck, repeating some words after the priest. The tying of the tali is the binding portion of the ceremony. Before the tali is given to the bridegroom, it is passed round the assembly to be touched by all and blessed. As soon as the bridegroom ties it on the bride, all those present throw over the pair a shower of rice. The bridegroom places some cummin seed and jaggery (crude sugar) on the bride''s head, and the bride does the same to the bridegroom. Small quantities of these articles are tied in a corner of the cloth of each, and the cloths are then knotted together. The bride worships the bridegroom''s feet, and he throws rice on her head. The newly married couple offer fruits to five Jangams, and present them with five piece. The relatives worship the bride and bridegroom, wash their feet and offer presents, and the proceedings of the day terminate. On the third day, friends and relatives are fed, and on the fourth day bride and bridegroom ride in procession through the village, on the same bullock, the bride in front. On return to the house they throw scented powder (bukkittu) at each other, and the guests join in the fun. Then follows the wedding breakfast, to which only the near relatives are admitted. The married couple worship Jangams and the elders, and take off the kankanam or consecration thread from their wrists, and tie it at the doorway. The five matrons who have assisted, and the marriage is now complete. In a one-day marriage, the above ceremonies are crowded into the short time allotted.

From the above excerpts, it reveals that at the time of marriage the bride and bridegroom are seated and surrounded by Kalasam on the four sides. Each Kalasam connected with the other by a cotton thread forming a square. The priest chants sacred hymns and tying of tali concludes the binding portion of the ceremony.

In the evidence of the Plaintiff and the witnesses it clearly establishes that the Tali was tied and marriage was performed with the guidance of a priest of the community. In that view of the matter, the reasons given by the Appellate Court and conclusions arrived at are perverse and bad in law.

Regarding the co-habitation and consortium there may be discrepancy in the statement of PW1 and other witnesses. According to PW 1, she stayed in her parents house for a month and thereafter shifting to a Defendant''s house and resides 5 to 6 months as per evidence. The witnesses say that the Plaintiff and Defendant resided only for day in the house of parents of Plaintiff and thereafter they resided separately together. This discrepancy is a venial discrepancy, would not go to the root of the matter to impeach the veracity of the version. The essential part of the evidence of the Plaintiff and witness discloses that after the marriage Plaintiff and Defendant resided together considerably for about 5 to 6 months and this period of co-habitation is a quite substantial period to invoke the presumption of the relationship of husband and wife in law and this co-habitation is amply and substantially testified by the individual witnesses P Ws 2 to 4. Infact, PW4 is a close relative of the Defendant supports the case of the Plaintiff and they also supports the case of the Plaintiff that the child is born out of the wedlock between the Plaintiff and the Defendant.

Sri Jayakumar S. Patil, Learned Counsel submits that the evidence in the case is virtually one of the oath against oath and contends no greater credence could be given to the Plaintiff''s version on charitable consideration, that Plaintiff is a lady. I do not agree with the contention of Sri Jayakumar S. Patil. I find good reasons to accept the version of the Plaintiff, because, in the Course of defence, the Defendant had denied his stay in Belalakatte Village at any time earlier and there was no occasion to develop love resulting in marriage, much less to meet her and he says that he is stranger to the village. PW 4, who is none other than the uncle of the Defendant and other witnesses of Belalakatte Village have testified to the fact that the Plaintiff was residing in Belalakatte Village and he was infact, an office bearer, an activist for "Raitha Sangha" of that village unit. Therefore, rightly the trial Court has dis-believed the version of the Defendant that he was never a resident of Belalakatte Village.

The Defendant in the written statement simply denies his relationship with the child saying that he is not the father of the child. He further states that at the instance of one Parameshwarappa and his uncle, the false proceedings are instituted to harass him. But, however, in the course of evidence, the Defendant goes to make a calumnious imputation against the Plaintiff that the child is born out of illicit relationship with Parameshwarappa. It is for the first time, the Defendant states so in the evidence. In view of blatant false and prevented version, it does not inspire the confidence of the Court to accept the evidence of the Defendant. Therefore, in the face of an unimpeachable version of the Plaintiff and the independent witnesses, who have supported her case, the reasons given by the Appellate Court to reject the oral evidence of the Plaintiff and her witnesses are perverse. The legal inference is contrary to logic and wisdom.

In that view of the matter, the point formulated is answered in affirmative. The appeal is allowed. The Appellate Court Judgment and Decree is set aside and the Judgment of the trial Court is confirmed.