Utpal Kanti Das (Appellant)
Monju Rani Das (Respondent)
ATM Afzal CJ
Mustafa Kamal J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Judgment : July 22, 1997.
Marriage according to Hindu Law
Once celebration of a marriage in fact is established, there shall be a presumption of there being a marriage in law and observance of essential ceremonies even though every aspects of the elaborate program of the ceremonies such as saptapadi are not strictly observed…………………(17, 18 & 19)
SR Karmakar, Advocate-on-Record— For the Appellant.
SS Halder, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record — For the Respondent
Civil Appeal No. 41 of 1996.
(From the judgment and order dated 6 February 1994 passed by the High Court Division in Civil Order No. 653 of 1994).
Bimalendu Bikash Roy Choudhury J.- In this appeal by leave the defendant Utpal Kanti Das calls in question the propriety of the judgment and order dated 6 February 1994 passed by the High Court Division in Civil Order No.653 of 1994 summarily rejecting his revisional application against the judgment and decree dated 10 November 1993 passed by the learned Additional District Judge, Manikganj in Family Appeal No.1 of 1992 reversing those dated 18 January 1992 passed by the Family Court, Saturia dismissing Family Court Case No.8 of 1991 brought by the plaintiff and respondent Monju Rani Das for her maintenance.
2. The parties to the suit both belong to the Shudra caste of Hindu’ community. The plaintiff claimed maintenance @ Taka 1000/-per month with effect from 1st Aswin, 1396 BS from the defendant alleging that the defendant who was in love with her had married her on 6th October 1988 19th Aswin 1395 BS—according to the Hindu Shastra at Tarasree Kalimandir in presence of several persons. Subsequently on 8th October 1988 the plaintiff and the defendant together swore an affidavit before a Magistrate First Class, Faridpur confirming the marriage. After the plaintiff and the defendant had lived as man and wife at the place of service of the defendant, they came to the house of the plaintiff’s father. The defendant demanded TK.30,000.00 as dowry from the plaintiff’s father. As the plaintiff’s father was unable to pay the dowry the defendant left her behind at her father’s place never to take any further news of her or pay any maintenance for her. The defendant subsequently married one Rani Das of the district of Mymensingh.
3. The defendant resisted the claim pleading that there was no marriage between the plaintiff and the defendant although the plaintiff made overtures to marry him at the house of the plaintiffs maternal uncle where he lodged as a student. The defendant also disclaimed the affidavit which he said was fake. The defendant did not take any plea that the marriage was invalid for want of any Shastric ceremony.
4. The trial Court disbelieved that there was any marriage between the plaintiff and the defendant and doubted the affidavit. In consequence the said court dismissed the suit.
5. The appellate Court discussed the evidence of each of the witnesses and the circumstances refuting the findings of the trial Court and reversed the judgment clearly finding that there was due marriage between the plaintiff and the defendant that the affidavit was genuine and true and spouse had lived together as man and Accordingly, the appellate Court reversed the decision of dismissal and decreed the suit allowing maintenance of the plaintiff @ 500.00 per month.
6. A learned Single Judge of the High Court Division summarily rejected the revisional application of the defendant himself scrutinizing the evidence on record and observing that the Court being the final court of fact had appropriately reversed the judgment of the trial Court.
7. Leave was obtained to consider whether the High Court Division failed to determine what are requisites of a valid Hindu marriage and whether the essential requisites for a valid marriage were omitted in the instant case rendering the marriage invalid.
8. Mr. SR Karmaker appearing for the appellant relied on paragraph 437 of Mulla’s ‘Principles of Hindu Law’ (eleventh edition) and also on “A Treatise on Hindu Law’ by Golapchandra Sarkar Sastri (sixth edition), chapter III on marriage to argue that there are two ceremonies essential to the validity of a Hindu marriage, namely, (1) invocation before the sacred fire, and (2) Saptapadi, that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The evidence in the instant case that these two ceremonies were performed and therefore, the marriage even if performed was not completed.
9. As already noticed the plaintiff specifically claimed that her marriage with the defendant was performed in accordance with the Hindu Shastra and the defendant denied the marriage totally. He did not take any plea that any essential ceremonies attending celebration of marriage were omitted making the marriage invalid. The final court of fact, the appellate Court and the High Court Division in revision have settled the fact that there was a marriage ceremony between the parties in the temple of the deity Kali in presence of many person. Both the courts, however, laid stress upon exchange of garlands between the plaintiff and the defendant in proof of marriage omitting to mention the other ceremonies attending the marriage.
10. Although in view of the stand of the defendant it seems hardly necessary to find whether the marriage in question is invalid for want of any essential ceremony, we would like to dwell at some length upon the ceremonies usually observed in a Hindu marriage in Brahma form which is now prevalent amongst the Hindus, the other forms being obsolete.
11. On the forenoon of the day, when marriage is scheduled to be held the nandimukha or vriddhi sraddha is performed. The bride’s father or other male relation invokes the departed soul of the ancestors and makes offerings to them to get their blessings.
12. In the evening when the bridegroom wines in a procession to the bride’s place he and his party are received with great hospitality. The celebration of the marriage then starts with a ceremonious reception of the bridegroom by the father of the bride or his kinsman ending in making over to him his wearing apparels like Dhuti, Chadar, Ring, etc.
13. As the bridegroom dresses up in the new clothing and either keeps standing or seated on a cushion the bride circles him seven times at the end of which the bride and the bridegroom exchange flower and garlands.
14. This is followed by Sampradana or gift of the bride. A brief account of this ceremony has been graphically given by Sir Gurudas Banerjee in his Tagore Law Lecture for 1878 on Hindu Law of lairiage and Stridhana. “It consists in offering the bridegroom padya, or water for washing the feet, arghya or water mixed with flowers, durva grass, rice, and sandal paste, for washing the head, a stool or cushion to sit upon, and madhuparka, or a mixture of honey, curds, and clarified butter, each giving and taking being accompanied with a set formula, and the recitation of certain prayers; after which, along with other presents, the bride, whose right hand is joined with that of the bridegroom (these hands being tied with kusa grass), is formally given to the bridegroom by her father or other guardian in marriage and is formally accepted by the bridegroom, who then recites the following text called the Hymn to Love: “Who gave her? To whom did he give her? Love gave her. To Love he gave her. Love was the giver. Love was the taker. Love has pervaded the ocean. With Love I accept her. Love! may this be thine.” The giver next presents a price of gold as dakshina, or gratuity, to complete the gift of the bride to the bridegroom: and the skirts of the mantles of the affianced pair are then tied together, to indicate their union.”
15. Several other ceremonies that follow it have been described by the same author in sequence. “The next ceremony is the panigrahana, or the acceptance of the bride’s hand. This part of the ceremony commences with the kindling of the nuptial fire. Various oblations to it are then made, including the mahavyabriti homa, or the oblation in honour of the earth, sky, and heaven. In the course of these oblations, various texts are recited …………by the bridegroom: “May thou never admit sorrow to thy breast. May thou prosper in thy husband’s house, blest with his survival and viewing cheerful children.” The bride text treads upon a stone, while the bridegroom recites this text: “Ascend this stone: be firm like this stone. Distress my foe: and be not subservient to my enemies.” The bride is then made to walk seven steps. This is the most material of all the nuptial rites, as, according to the sages, marriage becomes complete and irrevocable on the completion of the seventh step. These steps typify deliberation, and the taking of the final step implies that the bride deliberately enters matrimonial life. The husband then addresses the wife thus: “Having completed seven steps, be my companion. May I become thy associate. May none interrupt thy association with me. May such as are disposed to promote our happiness, confirm thy association with me”. Water is next poured on the hands of the married pair, while the following prayer is recited: “May water and all the gods cleanse our hearts; may air do so; may the Creator do so; may the divine instructress unite our hearts.” The husband then joins his hands with the wife’s, and recites certain prayers, concluding thus: “Give the heart to my religious duties. May thy mind follow mine. Be thou consentient to my speech. May Brihaspati unite thee unto me.”
16. The above ceremonies are followed with slight variations amongst the followers of the different Vedas except where a different custom prevails for caste to which the parties belong.
17. It is obvious that nuptial rites in Hindu Shastra are so complicated that an exact observance of their details is not easy and is beyond the comprehension of the ordinary participants or the attendants of the ceremony. But once the celebration of a marriage in fact is established there shall be a presumption of there being a marriage in law and observance of the essential ceremonies.
18. In the instant case, there is evidence enough on record to show that the marriage between the parties had taken place and they lived together as married spouse. PW1, the plaintiff, PW 3, a common relation of the parties and PW 4, a co-villager of PW1 have all borne out that there was marriage in accordance with the Hindu Shastra. The affidavit, Exhibit-i which the defendant could not disprove by examining an expert is also to the same effect. Even the defendant and all his witnesses could not deny that the plaintiff wore vermilion and conch bangles which a married Hindu woman wears in this country. They could not disclose whom else she was married to. Those apart, It is in the evidence of almost all the PWs that the plaintiff and the defendant lived as husband and wife for about a year. From the circumstances revealed the appellate Court and the High Court Division arrived at the correct conclusion that there was in fact a marriage between the plaintiff and the defendant. As marriage in fact has been proved in this case, marriage in law must be presumed. In the absence of any evidence to the contrary it is, therefore, amply proved that the plaintiff and the defendant were married according to the Hindu Shastra.
19. Having denied the marriage altogether and in fact, having not raised the plea of invalidity of the marriage because of non-performance of an essential rite, it is futile for the defendant now to come to this court and plead that the marriage was bad in law for want of performance of any of the essential ceremonies, such as Saptapadi.
In the result, the appeal is dismissed without any order as to costs.
Source : 50 DLR (AD)(1998) 47