RATHNAMMA & ORS.versusSUJATHAMMA & ORS.

                          [2019] 14 S.C.R. 647                           647


                      RATHNAMMA & ORS.                                   A
                                  v.
                     SUJATHAMMA & ORS.
                  (Civil Appeal No. 3050 of 2010)
                       NOVEMBER 15, 2019                                 B
      [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
      Hindu Marriage Act, 1955 – ss.5, 7 and 11 – Succession in
the estate on basis of a marriage – Claim for – Plaintiff, maternal
grand-daughter of defendant No.1 claimed to have married ‘H’ her
                                                                         C
uncle (son of defendant No.1) on 7.3.1986 - ‘H’ had died on
15.10.1986 – Defendant No.1 had two sons (including ‘H’) and
three daughters – Plaintiff sought share of the estate of defendant
No.1, as wife of deceased ‘H’ – Trial court held that the plaintiff
and ‘H’ had not attained the qualifying age at the time of
registration of marriage in the office of sub-Registrar and thus,        D
marriage was void ab initio – Also, there was no evidence of
performance of necessary marriage ceremonies in terms of s.7 of
the Hindu Marriage Act therefore, mere registration of an
agreement of marriage was not sufficient to prove marriage – In
the result, the Trial Court dismissed the suit – First Appellate Court
held marriage to be valid and decreed the suit – Aggrieved,              E
defendants filed second appeal, however, same was dismissed –
On appeal, held: In the instant case, the plaintiff has not proved
custom of marriage to her mother ’s brother and/or judicial
precedent recognizing such marriage – In the absence of any
precedent or custom of such marriage, no judicial notice can be          F
taken of a custom – The entire case was based upon an agreement
of marriage in which there was no assertion regarding
solemnization of the customary ceremonies or the rites or that the
parties had performed saptpadi in the manner contemplated u/s.7
of the Hindu Marriage Act, 1955, therefore, the plaintiff cannot
succeed the estate of ‘H’ on basis of a marriage which she failed        G
to prove.
      Allowing the appeal, the Court
      HELD: 1. The High Court has committed illegality in
holding that since the defendants have denied marriage, it cannot
                                                                         H
                                 647
648           SUPREME COURT REPORTS                    [2019] 14 S.C.R.


A     be asserted by the defendants that the marriage of the plaintiff
      with ‘H’ was not a valid marriage. The plaintiff has led evidence
      to the effect that the marriage was solemnized in the office of
      Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to be
      not a certificate of registration of marriage under the Special
      Marriage Act, 1954 and that there is no evidence that any
B
      ceremony has taken place. In the agreement of marriage (Ex.P/
      1), it is only stated that both parties are of same caste and with
      the permission and consent of both of their fathers, they have
      entered into this agreement of marriage. This type of marriage
      is not recognized in law as Section 7 of the Act contemplates
C     that the marriage can be solemnized in accordance with
      customary rites and ceremonies of either party thereto and where
      such rites and ceremonies include the Saptpadi, the marriage
      becomes complete and binding when the seventh step is taken.
      [Para 13] [655-F-G; 656-A]
D            2. The plaintiff has not led any evidence of solemnization
      of marriage as provided under sub-clause (2) of Section 7 of the
      Act or by leading any evidence of customary rites and
      ceremonies. The burden to prove marriage was on the Plaintiff
      alone. The defendants have denied marriage of the Plaintiff,
      therefore, the burden to prove marriage was on the plaintiff
E     alone. Apart from such fact, the marriage cannot be said to be
      taken place in terms of Section 5(v) of the Act which is to the
      effect that the parties are not sapindas to each other, unless the
      custom or usage governing each of them permits of a marriage
      between the two. Such marriage is a void marriage but, on a
F     petition, preferred by either party thereto. [Para 14] [656-B-D]
            3. In the present case, the plaintiff has not proved custom
      of marriage to her mother’s brother and/or judicial precedent
      recognizing such marriage. In the absence of any precedent or
      custom of such marriage, no judicial notice can be taken of a
      custom as argued by the learned counsel for the plaintiff. In the
G
      absence of any pleading or proof of custom, the argument that
      in Vokkaliga community, such marriage can be performed cannot
      be accepted as no judicial precedent was brought to the notice
      of the Court that such a custom exists in the Vokkaliga
      community nor there is any instance quoted in evidence of
H     existence of such custom.[Para 17] [658-C-D]
       RATHNAMMA & ORS. v. SUJATHAMMA & ORS.                              649


      4. The burden to prove the marriage was on the plaintiff.           A
The plaintiff has failed to prove the marriage. The entire case
is based upon an agreement of marriage in which there is no
assertion regarding solemnization of the customary ceremonies
or the rites or that the parties had performed saptpadi in the
manner contemplated under Section 7 of the Act, therefore, the            B
plaintiff cannot succeed the estate of Hanumanthappa on the
basis of a marriage which she has failed to prove. [Para 18] [658-
E]
      Varada Bhavanarayana Rao v. State of A.P. AIR 1963
      SC 1715 : [1964] SCR 501 ; Salekh Chand (Dead)                      C
      by LRs v. Satya Gupta & Ors. (2008) 13 SCC 119
      – relied on.
                       Case Law Reference
[1964] SCR 501                     relied on             Para 12
                                                                          D
(2008) 13 SCC 119                  relied on             Para 16
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3050
of 2010.
      From the Judgment and Order dated 03.04.2008 of the High
Court of Karnataka at Bangalore in Regular Second Appeal No. 1931         E
of 2005.
      Devadatt Kamat, Sr. Adv., Aditya Bhat, Javedur Rahman, Rajesh
Inamdar, Ashwin G. Raj, Ms. Shrinidhi Rao, Rauf Rahim, Advs. for the
Appellant.
                                                                          F
     E. C. Vidya Sagar, Ranjit Kumar, Gopi Chand, Advs. for the
Respondents.
      The Judgment of the Court was delivered by
      HEMANT GUPTA, J.
      1. Defendant No.2, defendant No.5 and legal heirs of defendant      G
No.4 are in appeal aggrieved against the judgment passed by High Court
of Karnataka on 3 rd April, 2008 dismissing their second appeal
maintaining the judgment and decree passed by the First Appellate Court
on 2nd July, 2005 whereby the suit for partition filed by plaintiff
Sujathamma was decreed.                                                   H
650            SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A           2. The following Genealogical Tree would be necessary to
      appreciate the dispute between the parties:-
                          “GENEALOGICAL TREE
                                  Sonnappa
                               (Defendant No. 1)
B




                  Son         Daughter         Daughter            Daughter
C            Hanumanthappa   Sonnamma        Kenchamma           Lakshmamma
                 (dead)     (Def No. 1(a))  (Def No. 1(b))       (Def No. 1(c))
                         (*Sujathamma is the daughter
                         of Muniyappa and Sonnamma)


D          Son                                     Rathnamma
      Venkatarayappa                               (Def No. 2)
          (dead)



E
            Gowramma             Rajappa       Naryanaswamy
            (Def No. 3)         (Def No. 4)     (Def No. 5)

            Note :
            *Sujathamma claims to be married to Hanumanthappa.”
F
             3. Defendant No. 1 Sonnappa died during the pendency of the
      suit leaving behind two sons - Venkatarayappa and predeceased son -
      Hanumanthappa and three daughters - Sonnamma, Kenchamma and
      Lakshmamma. Sonnamma, Kenchamma and Lakshmamma have been
      brought on record as legal heirs of defendant No. 1. The plaintiff -
G     Sujathamma, maternal grand-daughter of Sonnappa, claims to have
      married Hanumanthappa on 7th March, 1986. Hanumanthappa died
      on 15 th October, 1986. The claim of the plaintiff is that she is
      entitled to the share of the estate of Sonnappa, as wife of deceased
      Hanumanthappa. It is the said assertion which was accepted by the
H     First Appellate Court and maintained by the High Court.
        RATHNAMMA & ORS. v. SUJATHAMMA & ORS.                                      651
                [HEMANT GUPTA, J.]

       4. The plaintiff filed the civil suit with the assertion that the parties   A
are related to each other as members of joint Hindu Undivided Family.
The plaintiff asserted that the first defendant i.e. Sonnappa is her
fathter-in-law. Since the property is said to be ancestral property and
that property stands in the name of the first defendant Sonnappa,
therefore, plaintiff claims that she is entitled to the share of
                                                                                   B
Hanumanthappa as his wife.
       5. The daughter of the first defendant was married to the father
of the plaintiff. The stand of the defendants is that the father of the
plaintiff managed to obtain signatures of the first defendant by way of
malafide practices and that the first defendant never consented for the
marriage of his second son Hanumanthappa as he was suffering from                  C
juvenile diabetes mellitus coma, cardio respiratory arrest and such other
symptoms. The plaintiff was about 14 years of age at the time of death
of Hanumanthappa and that she was not fit for marriage. It was
asserted that if any document is produced by the plaintiff to show that
she was married, it is a concocted one. By way of a separate written               D
statement, defendant Nos. 2 to 5 denied the allegations of the plaintiff.
It was pleaded as under:
       “12. The plaintiff is not entitled to any reliefs. The true facts of
       the case are that the plaintiff is grand daughter of first defendant
       and the plaintiff’s mother, first defendant and plaintiff colluded          E
       with each other and they have filed this suit in order to grab the
       properties, the plaintiff is not at all wife of the said late
       Hanumanthappa. Even as on the date of the death of said
       Hanumanthappa, the said plaintiff was aged about 14 years. Even
       the said Hanumanthappa was also suffering from Juvenile
       Diabetes Mellitus coma, Cardio respiratory arrest and such other            F
       symptoms. Even he was not in position to marry or to give
       consent for marriage since 6 years and never marriage of the
       plaintiff with late Hanumanthappa had been taken place.”
       6. The parties went to trial with one of the issues being whether
the plaintiff is wife of late Hanumanthappa. To prove the said issue,              G
the plaintiff examined herself as PW-1. PW-2 is the father of the plaintiff
whereas PW-3 to PW-5 are the witnesses of an agreement to marriage
dated 7th March, 1986, who were examined to prove plaintiff’s marriage
with Hanumanthappa. PW-6 was examined to prove the age of the
deceased Hanumanthappa. PW-7 to PW-9 are the daughters of                          H
652                SUPREME COURT REPORTS                     [2019] 14 S.C.R.


A     deceased defendant No. 1. As per the birth certificate (Ex.P/30), the
      date of birth of Hanumanthappa is 20th June, 1966, that makes him 19
      years 9 months at the time of his marriage. On the other hand, the
      plaintiff in her statement stated her age as 15 years at the time of
      marriage. However, the defendants have produced Ex.D/3, Register
      of Admission of the School, by confronting PW-6, Headmaster of the
B
      School. As per Ex.D/3, the plaintiff was born on 5th June, 1975. As
      per the plaintiff, an agreement of marriage was registered on 7th March,
      1986. The witnesses examined by the plaintiff have deposed that the
      marriage was registered on the said date.
             7. Admittedly, Hanumanthappa died on 15th October, 1986 i.e.
C
      within eight months of the alleged marriage. The plaintiff, apart from
      the oral evidence, relies upon a photograph (Ex.P/28) wherein the
      plaintiff and Hanumanthappa are seen together. PW-2 to PW-5 have
      deposed that the photograph (Ex.P/28) was taken in Malur after
      performing marriage in Sub-Registrar’s office. The learned trial court
D     found that Hanumanthappa was 19 years 9 months old at the time of
      marriage and the plaintiff, as admitted by her in cross-examination, was
      15 years of age at the time of marriage. It was, thus, held that the
      plaintiff and the deceased have not attained the qualifying age at the
      time of registration in the office of Sub-Registrar and, thus, marriage
      was void ab initio. It is also held that there is no evidence of
E
      performance of necessary marriage ceremonies in terms of Section 7
      of the Hindu Marriage Act, 19551, therefore, mere registration of an
      agreement of marriage is not sufficient to prove marriage. The trial court
      also took into consideration the statement of plaintiff admitting that the
      deceased was suffering from some diseases earlier to the marriage and
F     her father performed marriage in a hurry with an intention to get the
      property. Plaintiff deposed that she belongs to Vokkaliga community and
      marriages were performed in the house and no marriage in the family
      was performed in the Sub-Registrar’s office. The learned trial court
      held that the marriage of the plaintiff with the deceased is said to be
G     proved but marriage is void ab initio in terms of Section 24 of the
      Special Marriage Act, 1954 as both have not attained the qualifying age
      for marriage. In the result, the trial court dismissed the suit and held
      that defendant Nos. 2 to 5 are entitled to 1/3 rd share of the total
      scheduled property.

H     1
          for short, ‘Act’
        RATHNAMMA & ORS. v. SUJATHAMMA & ORS.                                       653
                [HEMANT GUPTA, J.]

       8. Both sets of parties went in appeal. The learned First Appellate          A
Court affirmed the findings of the trial court that marriage of the plaintiff
with deceased Hanumanthappa is established and that Ex.D/3, the date
of birth certificate of the plaintiff is not admissible as it is not an authentic
document. In the absence of proof of date of birth, the First Appellate
Court held that the trial court committed an error in coming to the                 B
conclusion that the plaintiff has not attained the age of marriage. The
learned First Appellate Court held that Ex.P/1 is not a proof of
solemnization of marriage under the provisions of the Special Marriage
Act, 1954 as it is only a contract of marriage which was registered.
No marriage certificate has been issued by the competent authority,
therefore, the parties cannot be deemed to have married under the                   C
Special Marriage Act, 1954. However, the First Appellate Court held
that since the parties are Hindus and that if the marriage is neither void
or voidable under the Act, therefore, the provisions of age of marriage
are only directory in nature and not mandatory. The marriage was held
to be valid, consequently, the suit was decreed.                                    D
      9. The High Court in second appeal held that there was a
marriage between plaintiff and Hanumanthappa and that the certificate
(Ex. P/1) is neither marriage certificate nor issued to evidence the
marriage in terms of provisions of the Special Marriage Act, 1954 but
only a piece of evidence supporting the version of the plaintiff that her           E
marriage has taken place with Hanumanthappa. The High Court said
that in law, a customary Hindu marriage can be proved only on
establishing that the parties to the marriage had gone through the
necessary observances but since the defendants have denied the
marriage itself, they cannot be permitted to turn around to contend that
                                                                                    F
it was not a valid marriage.
       10. Learned counsel for the defendants argued that the plaintiff
never asserted that she married Hanumanthappa either under the
Special Marriage Act, 1954 or a marriage under custom. In fact, the
plaintiff has not pleaded that she married Hanumanthappa except
                                                                                    G
asserting that defendant No. 1 is her father-in-law. The defendant No.
1 Sonnappa is maternal grand-father of the plaintiff, whereas
Hanumanthappa was son of defendant No. 1, meaning thereby, the claim
of the plaintiff is that she married her Uncle. It is not disputed that
Hanumanthappa was suffering from various diseases and died within
eight months of the alleged marriage. The stand of the defendants is                H
654            SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A     that there was no marriage and that the story of marriage was created
      to take the share of the deceased Hanumanthappa in the property.
           11. Before we proceed further, some relevant provisions of the
      Hindu Marriage Act, 1955 need to be extracted hereunder:
            “5. Conditions for a Hindu marriage. –
B
                  (i) xx                   xx                  xx
                  (ii) at the time of the marriage, neither party,-
                      (a) is incapable of giving a valid consent of it in
                          consequence of unsoundness of mind; or
C
                      (b) though capable of giving a valid consent has been
                          suffering from mental disorder of such a kind or
                          to such an extent as to be unfit for marriage and
                          the procreation of children; or

D                     (c) has been subject to recurrent attacks of insanity
                          or epilepsy;
                 (iii) xx                  xx                  xx
                 (iv) the parties are not within the degrees of prohibited
                      relationship unless the custom or usage governing each
E                     of them permits of a marriage between the two;
                  (v) the parties are not sapindas of each other, unless the
                      custom or usage governing each of them permits of a
                      marriage between the two;

F                     xx                   xx                  xx
            7. Ceremonies for a Hindu marriage.- (1) A Hindu marriage
            may be solemnized in accordance with the customary rites and
            ceremonies of either party thereto. (2) Where such rites and
            ceremonies include the saptapadi (that is, the taking of seven
G           steps by the bridegroom and the bride jointly before the sacred
            fire), the marriage becomes complete and binding when the
            seventh step is taken.
                      xx                   xx                  xx
            11. Void marriages.- Any marriage solemnized after the
H           commencement of this Act shall be null and void and may, on a
           RATHNAMMA & ORS. v. SUJATHAMMA & ORS.                                  655
                   [HEMANT GUPTA, J.]

          petition presented by either party thereto, against the other party     A
          be so declared by a decree of nullity if it contravenes any one
          of the conditions specified in clauses (i), (iv) and (v), Section 5.”
       12. One of the issues framed was whether the plaintiff is wife
of Hanumanthappa. Since the entire claim of the plaintiff is based upon
her marriage with Hanumanthappa, the burden of proof as to any                    B
particular fact lies on the person who wishes the Court to believe in its
existence is the established principle of law. This Court in Varada
Bhavanarayana Rao v. State of A.P.2, held that in terms of Section
102 of the Evidence Act, 18723, the burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all were
given on either side. It was held as under:-                                      C

          “15. That being the position, the question on which of the
          contending parties the burden of proof would lie has to be decided
          on the relevant provisions of the Evidence Act. Section 101 of
          the Evidence Act provides that whoever desires any court to give
          judgment as to any legal right or liability dependent on the            D
          existence of facts which he asserts, must prove that those facts
          exist. Section 102 provides that the burden of proof in a suit or
          proceeding lies on that person who would fail if no evidence at
          all were given on either side. Section 103 provides that the burden
          of proof as to any particular fact lies on that person who wishes       E
          the Court to believe in its existence, unless it is provided by any
          law that the burden of proof of that fact shall lie on any particular
          person.”
       13. We find that the High Court has committed illegality in
holding that since the defendants have denied marriage, it cannot be              F
asserted by the defendants that the marriage of the plaintiff with
Hanumanthappa was not a valid marriage. The plaintiff has led evidence
to the effect that the marriage was solemnized in the office of Sub-
Registrar vide Ex.P/1. Ex.P/1 has been rightly found to be not a
certificate of registration of marriage under the Special Marriage Act,
1954 and that there is no evidence that any ceremony has taken place.             G
In the agreement of marriage (Ex.P/1), it is only stated that both parties
are of same caste and with the permission and consent of both of their
fathers, they have entered into this agreement of marriage. This type
2
    AIR 1963 SC 1715
3
    for short the “Evidence Act”                                                  H
656               SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A     of marriage is not recognized in law as Section 7 of the Act
      contemplates that the marriage can be solemnized in accordance with
      customary rites and ceremonies of either party thereto and where such
      rites and ceremonies include the Saptpadi, the marriage becomes
      complete and binding when the seventh step is taken.
B           14. The plaintiff has not led any evidence of solemnization of
      marriage as provided under sub-clause (2) of Section 7 of the Act or
      by leading any evidence of customary rites and ceremonies. The burden
      to prove marriage was on the Plaintiff alone. The defendants have
      denied marriage of the Plaintiff, therefore, the burden to prove marriage
      was on the plaintiff alone. Apart from such fact, the marriage cannot
C     be said to be taken place in terms of Section 5(v) of the Act which is
      to the effect that the parties are not sapindas to each other, unless
      the custom or usage governing each of them permits of a marriage
      between the two. Such marriage is a void marriage but, on a petition,
      preferred by either party thereto.
D            15. Hanumanthappa, a party to the marriage died soon after the
      so-called marriage. Therefore, the question required to be examined is
      whether the alleged marriage which is between the persons of less than
      21 years and 18 years and between the prohibited degree is a valid
      marriage. The plaintiff will be entitled to the estate of Hanumanthappa
E     only if she proves her valid marriage. The plaintiff has not pleaded any
      custom permitting marriage within the prohibited degree nor there is
      any proof of solemnization of any marriage by customary ceremonies
      and rites, therefore, the plaintiff will not be entitled to succeed only on
      the basis of alleged registration of an agreement of marriage. In the
      absence of customary ceremonies or the custom permitting marriage
F     between the prohibited degree, the plaintiff has no legal right to claim
      the share in the property only on the basis that some of the witnesses
      produced by her admitted that she married Hanumanthappa.
            16. This Court in a judgment reported as Salekh Chand (Dead)
      by LRs v. Satya Gupta & Ors. 4 while dealing with the claim of
G     adoption under the Hindu Adoption and Maintenance Act, 1966, held
      as under:
               “21. In Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad
               299] it was held that where custom is set up to prove that it is
      4
H         (2008) 13 SCC 119
 RATHNAMMA & ORS. v. SUJATHAMMA & ORS.                                657
         [HEMANT GUPTA, J.]

at variance with the ordinary law, it has to be proved that it is     A
not opposed to public policy and that it is ancient, invariable,
continuous, notorious, not expressly forbidden by the legislature
and not opposed to morality or public policy. It is not disputed
that even under the old Hindu Law, adoption during the lifetime
of a male issue was specifically prohibited. In addition, I have
                                                                      B
observed that such an adoption even if made would be contrary
to the concept of adoption and the purpose thereof, and
unreasonable. Without entering into the arena of controversy
whether there was such a custom, it can be said that even if
there was such a custom, the same was not a valid custom.
22. It is incumbent on party setting up a custom to allege and        C
prove the custom on which he relies. Custom cannot be extended
by analogy. It must be established inductively and not by a priori
methods. Custom cannot be a matter of theory but must always
be a matter of fact and one custom cannot be deduced from
another. It is a well-established law that custom cannot be
                                                                      D
enlarged by parity of reasoning.
23. Where the proof of a custom rests upon a limited number of
instances of a comparatively recent date, the court may hold the
custom proved so as to bind the parties to the suit and those
claiming through and under them; but the decision would not in
that case be a satisfactory precedent if in any future suit between   E
other parties fuller evidence with regard to the alleged custom
should be forthcoming. A judgment relating to the existence of a
custom is admissible to corroborate the evidence adduced to prove
such custom in another case. Where, however a custom is
repeatedly brought to the notice of the courts, the courts, may
hold that the custom was introduced into law without the              F
necessity of proof in each individual case.
24. Custom is a rule which in a particular family or a particular
class or community or in a particular district has from long use,
obtained the force of law. Coming to the facts of the case PW
1 did not speak anything on the position either of a local custom     G
or of a custom or usage by the community; PW 2, Murari Lal
claimed to be witness of the ceremony of adoption, he was
brother-in-law of Jagannath, son of Pares Ram who is said to
have adopted Chandra Bhan. This witness was 83 years old at
the time of deposition in the court. He did not speak a word either
with regard to the local custom or the custom of the community.       H
658                SUPREME COURT REPORTS                     [2019] 14 S.C.R.


A           PW 3 as observed by the lower appellate court was only 43 years
            old at the time of his deposition whereas the adoption had taken
            place around 60 years back. He has, of course, spoken about
            the custom but that is not on his personal knowledge and this is
            only on the information given by PW 2 Murari Lal. He himself
            did not speak of such a custom. The evidence of the plaintiff
B           was thus insufficient to prove the usage or custom prevalent either
            in the township of Hapur and around it or in the community of
            Vaish.”
            17. In the present case, the plaintiff has not proved custom of
      marriage to her mother’s brother and/or judicial precedent recognizing
C     such marriage. In the absence of any precedent or custom of such
      marriage, no judicial notice can be taken of a custom as argued by the
      learned counsel for the plaintiff. In the absence of any pleading or proof
      of custom, the argument that in Vokkaliga community, such marriage
      can be performed cannot be accepted as no judicial precedent was
      brought to the notice of the Court that such a custom exists in the
D     Vokkaliga community nor there is any instance quoted in evidence of
      existence of such custom.
             18. The burden to prove the marriage was on the plaintiff. The
      plaintiff has failed to prove the marriage. The entire case is based upon
      an agreement of marriage in which there is no assertion regarding
      solemnization of the customary ceremonies or the rites or that the parties
E     had performed saptpadi in the manner contemplated under Section 7
      of the Act, therefore, the plaintiff cannot succeed the estate of
      Hanumanthappa on the basis of a marriage which she has failed to
      prove.
            19. Consequently, the present appeal is allowed while restoring
F     the judgment and decree of the learned Trial Court.


      Ankit Gyan                                                  Appeal allowed.



G




H