REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3050 OF 2010

RATHNAMMA & ORS. .....APPELLANT(S)

VERSUS

SUJATHAMMA & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. Defendant No.2, defendant No.5 and legal heirs of defendant No.4

are  in  appeal  aggrieved  against  the  judgment  passed  by  High

Court  of  Karnataka  on  3rd 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.

2. The following Genealogical Tree would be necessary to appreciate

the dispute between the parties:-

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“GENEALOGICAL TREE

Sonnappa  (Defendant No. 1)

Son Daughter Daughter Daughter 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)

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

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

Note :

*Sujathamma claims to be married to Hanumanthappa.”

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  -  Sujathamma,  maternal  grand-daughter  of  Sonnappa,

claims  to  have  married  Hanumanthappa  on  7th March,  1986.

Hanumanthappa  died  on  15th 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

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assertion  which  was  accepted  by  the  First  Appellate  Court  and

maintained by the High Court.

4. The plaintiff filed the civil suit with the assertion that the parties

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 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 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 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,

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first defendant and plaintiff colluded 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  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,

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  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 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

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marriage was registered on the said date.   

7.  Admittedly, Hanumanthappa died on 15th October, 1986 i.e. 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 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  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 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

1  for short, ‘Act’

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the deceased is said to be 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 1/3rd share of the total scheduled property.

8. Both sets of parties went in appeal.  The learned First Appellate

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 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 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.

9. The High Court in second appeal held that there was a marriage

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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 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 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

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 that there was no marriage and that the story of

marriage  was  created  to  take  the  share  of  the  deceased

Hanumanthappa in the property.

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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. –  

(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  

(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  

(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  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;

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 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 commencement of  this  Act  shall  be null

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and void and may, on a petition presented by either party  thereto,  against  the  other  party  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  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:-  

“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  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  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 asserted

by  the  defendants  that  the  marriage  of  the  plaintiff  with

2  AIR 1963 SC 1715 3  for short the “Evidence Act”

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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.  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 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.

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 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.

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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 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 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

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 at variance with the ordinary law, it has  to  be  proved  that  it  is  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,

4  (2008) 13 SCC 119

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adoption  during  the  lifetime  of  a  male  issue  was specifically prohibited.  In  addition,  I  have 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  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  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 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 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 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.  PW 3 as observed by the lower

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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  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 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 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 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.   

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19. Consequently,  the  present  appeal  is  allowed while  restoring the

judgment and decree of the learned Trial Court.   

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; NOVEMBER 15, 2019.

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