Ramesh Chandra Adhikari Vs. Bulbuli, 3 LNJ (AD) (2014) 49

Case No: Civil Petition For Leave To Appeal No. 431 of 2009

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Abul Kalam Mainuddin,,

Citation: 3 LNJ (AD) (2014) 49

Case Year: 2014

Appellant: Ramesh Chandra Adhikari

Respondent: Bulbuli

Subject: Hindu Law,

Delivery Date: 2016-02-04

Ramesh Chandra Adhikari Vs. Bulbuli
3 LNJ (AD) (2014) 49
APPELLATE DIVISION
(CIVIL)
 
A. B. M. Khairul Haque, C. J.
Md. Muzammel Hossain, J.
S. K. Sinha, J.

Judgment on
06.01.2011
  Ramesh Chandra Adhikari
. . . Petitioner
-Versus-
Bulbuli
. . . Respondent
 

Hindu Law—How marriage in the Hindu Shastriya Law can be proved—In the instant case from the material evidence on record we find that there was evidence of compromise by the plaintiff and the defendant in presence of P.W. 4; that voter list Exhibit-1 shows that the defendant is the husband of the plaintiff and there was also evidence of joint photograph as husband and wife. All these evidences support the case of the plaintiff-respondent that there was a valid marriage between the petitioner and the respondent. . . . (11)

Hindu Law—Marriage in the Brahma Form—Marriage in Asura Form—There are two ceremonies essential to the validity of a marriage whether the marriage be in the Brahma form or the Asura form. The ceremonies are (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. In the instant case marriage was performed in fact and therefore we can safely presume that marriage is valid in law and all the necessary ceremonies have been performed. There is no evidence to the contrary to show that no marriage ceremony was solemnized according to Hindu Shastra. In the instant case the respondent proved that the ceremonies prescribed by the Shastra were performed. The defendant-petitioner as D.W.1 did not depose that no “Saptapadi” was performed before the sacred fire. Therefore, the petitioner having not raised the plea of invalidity of marriage because of non-perfor-mance of an essential rite any plea to the effect that the marriage is bad in law for want of any essential ceremony such as Saptapadi is not tenable in law. . . . (20 and 21)

Marriage under Hindu Law is treated as sacrament not a contract-But it requires some change in view of the very many problems being faced by the Hindu Community—Marriage under the traditional Hindu Law is a holy union for the performance of religious duties. It is a sacrament for the purification of the body from inherited taint. It is not a contract. Of course the marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations—In view of the modern social dimensions the Hindu Community in this Country in respect of marriage, divorce and inheritance faces multifarious problems. In many cases the alleged husband does not recognize marriage or deny the existence of marriage with the female partner and the female partner also faces difficulty in respect of her right to inheritance and the issues of the marriage are also sometime disowned by the male partner to be the legitimate offspring of their wed-lock and as such, the children sometimes find difficulty to get recognition and their right of inheritance. In consequence of these varying problems being faced by the Hindu Community in this Country where the society has advanced and the women are also very much conscious about their rights  and status in respect of marriage, divorce, inheritance, we believe  time  has  come to think about the social needs and the demand of different Hindu Women right activists and other social and non-government organizations  for codification of the Hindu Law of marriage and succession. . . . (23)

Chellammal and others Vs. Ranganatham Pillai and others, (1911) ILR 34 Mad 277; Mrs. Valsamma Paul Vs. Cochin University and others, AIR 1996 SC 1011; Swarajya Lakshmi Vs. Dr. G. G. Padma Rao, AIR 1974 SC 165; V. Tulasamma and others Vs. V. Sesha Reddi (Dead) By L. Rs, AIR 1977 SC 1944; A. L. V. R. S. T. Veerappa Chettiar Vs. S. Michael Etc, AIR 1963 SC 933; Utpal Kanti Das Vs. Monju Rani Das, 17 BLD (AD) 289; Bhaurao Shankar Lokhande and another Vs. State of Maharashtra and another, AIR 1965 SC 1564 ref.
 
For the Petitioner: Mr. Abul Kalam Mainuddin, Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.
For the Respondent: None Represented
 
Civil Petition For Leave To Appeal No. 431 of  2009
(From the judgment and order dated 29.10.2008 passed by the High Court Division in Civil Revision No. 2325 of 2005)
 
JUDGMENT

Md. Muzammel Hossain, J.

This petition for leave to appeal under Article 103 of the Constitution of Peoples’ Republic of Bangladesh is directed against the judgment and decree dated 29.10.2008 passed by a Single Bench of the High Court Division in Civil Revision No. 2325 of 2005 discharging the Rule and affirming the judgment and decree dated 02.10.2004 passed by the learned District Judge, Narail in Family Appeal No. 03 of 2004 dismissing the appeal and affirming those dated 20.01.2004 passed by the learned Senior Assistant Judge and Family Court, Narail in Family Suit No. 87 of 2000 decreeing the suit.

The present respondent as plaintiff instituted Family Case No.87 of 2000 in the Court of Senior Assistant Judge and Family Court, Narail for maintenance against the defendant petitioner stating, interalia, that the plaintiff and the defendant being neighbours knew each other since their childhood; that during their study in Rajshahi University they came in close contact and fell in love with each other and subsequently, according to Hindu Shastra the defendant-petitioner married the plaintiff-respondent in the Rajshahi Kali Mondir in the month of December,1989 in presence of witnesses; that marriage ceremony was solemnized by the Puruhit and Shayamol, brother of the petitioner offered him and Maharaj Biswas (P.W.3), uncle of the respondent offered her to each other in the marriage. Thereafter, they lived together as husband and wife. After completion of their education from Rajshahi University both of them joined as lecturers in two different colleges. From the very beginning the petitioner demanded dowry and started to torture the plaintiff-respondent both physically and mentally as a result of which the plaintiff lodged complaint before the superintendent of police who on 15.03.1998 compromised the matter by a written agreement and again the defendant demanded dowry on 21.01.2000 and drove away the plaintiff from the house and refused to give maintenance on 20.10.2002 and hence the suit.

The present petitioner as defendant contested the suit by filing written statement, stating, interalia that he had not married the plaintiff-respondent and he has no relationship with her; that the plaintiff-respondent being influenced by superintendent of police forcibly entered into the house of the defendant-petitioner and managed to have a signature from him on blank stamp paper and thereafter filed the Suit.

The learned Assistant Judge and Family Court, Narail by the judgment and decree dated 20.01.2004 decreed the suit.

The defendant being aggrieved by the aforesaid judgment and decree dated 20.01.2004 preferred an appeal being Family Appeal No.03 of 2004 in the Court of District Judge, Narail who by the judgment and decree dated 02.10.2004 dismissed the appeal.

Being aggrieved by the aforesaid judgment and decree dated 02.10.2004 passed by the learned District Judge, Narail the defendant-petitioner  moved the High Court Division in Civil Revision No.2325 of 2005 and a Single Bench of the High Court Division by the impugned judgment and decree dated 29.10.2008 discharged the Rule affirming those passed by the learned District Judge.

Thereafter the defendant-petitioner being aggrieved by the impugned judgment and decree passed by a Single Bench of the High Court Division moved the instant civil petition for leave to appeal before this Division.

Mr. Abul Kalam Mainuddin, the learned Advocate appearing for the defendant-petitioner submits that the High Court Division failed to notice that there is no single evidence showing valid marriage under the Hindu Law by invocation before sacred fire and saptapadi performed by the couple and as such the impugned judgment and decree is liable to be set aside. He then submits that the plaintiff-respondent did not adduce any evidence of wedding ceremony but the courts below failed to consider this aspect of the matter and as such the impugned judgment and decree is liable to be set aside. Mr. Mainuddin finally submits that since the defendant-petitioner denied the marriage the onus lies upon the plaintiff-respondent to prove marriage between them but the plaintiff-respondent failed to prove their marriage and as such the impugned judgment and decree passed by the High Court Division is liable to be set aside.

We have heard the learned Advocate appearing for the petitioner, perused the impugned judgment and decree of the High Court Division and other materials on record.

The pertinent question in this case is whether the defendant-petitioner had married the plaintiff-respondent according to Hindu Law. It appears that the plaintiff-respondent as P.W.1 deposed in support of her case stating that she having fallen in love with the defendant-petitioner married him according to the ceremonies prescribed by the Hindu “Shastras” in presence of the brother of the petitioner; that she cannot say whether the ‘Brahmin’ who solemanized the ceremonies of the marriage is alive or not; that she stated the photograph which was taken during marriage; that she wore “Shakha and Sindur”; that she lived with him in a house as husband and wife and she left her husband’s house because of his torture and demand of dowry; that she lodged complaint to the superintendent of police; that there was a conciliation by local superintendent of police when the petitioner gave an undertaking to take her in his house where she stayed with him. The plaintiff-respondent also proved that marriage took place in the Rajshahi Kali Mondir in presence of the witnesses and brother of defendant-petitioner. The plaintiff-respondent’s neighbour Nirmal Kumar Gupta as P.W.2 corroborated the evidence of the plaintiff P.W.1 stating that the defendant married the plaintiff in Rajshahi in his presence; that the puruhit solemnized the marriage in Kalibari Rajshahi according to Hindu Shastra and the defendant-petitioner’s brother offered him; that a cameraman of Rajshahi took photograph of the marriage ceremony. The plaintiff-respondent’s uncle Maharaj Biswas as P.W.3 also corroborated the evidence of P.W.l and P.W.2 stating that he offered her niece in marriage to the defendant-petitioner and the Puruhit solemnized the marriage by reciting “mantra” in the Kalibari Rajshahi in his presence and Nirmal went to Rajshahi with him. P.W.1 to P.W.3 by their evidence proved that after the marriage both the plaintiff and the defendant lived together in the same house in Rajshahi as husband and wife. P.W.4-Tarafdar Rezaul Islam, a resident of the locality and common friend of both of them deposed that he has no enmity with the defendant-petitioner and P.W.4 also corroborated the plaintiff-respondent’s statement in respect of compromise agreement in the Office of the Superintendent of Police where the defendant and other witnesses were present. The defendant did not deny the fact of this compromise in the presence of P.W.4. Exhibit-l-voter-list shows that the defendant has been shown as the husband of the plaintiff and they have also joint photograph as husband and wife marked as Exhibit-3. Both the trial court and the court of appeal below as the final court of facts on consideration of both oral and documentary evidence on record found that they united in marriage and there is a relationship of husband and wife between them.

According to Mulla there is an extreme strong presumption of the validity of marriage and the legitimacy of children born out of the lawful marriage if from the time of the alleged marriage both the parties are recognized by all persons concerned as man and wife and also described in important documents and on important occasions. It has been held in the case of Chellammal and others –Vs- Ranganatham Pillai and others, (1911) ILR 34 Mad 277 that the fact that a woman was living under the control and protection of a man who generally lived with her and acknowledged her children arises strong presumption that she is the wife of that man. But the same presumption can be rebutted showing that no marriage could have taken place. In the instant case from the material evidence on record we find that there was evidence of compromise by the plaintiff and the defendant in presence of P.W.4; that voter list Exhibit-1 shows that the defendant is the husband of the plaintiff and there was also evidence of joint photograph as husband and wife. All these evidences support the case of the plaintiff-respondent that there was a valid marriage between the petitioner and the respondent. However, there is also an argument in the modern society that recognition by family of both the parties or community is not a pre-condition for a valid marriage. While considering this aspect of marriage Supreme Court of India in the case of Mrs. Valsamma Paul vs Cochin University and Others, AIR 1996 SC 1011, observed as under:

“Though it was consistently held that recognition is a circumstance to be taken into consideration, marriage being personal right of the spouses they are entitled to live, after marriage, openly to the knowledge of all the members of the community or locality in which they live and by such living they acquire married status. In the light of the constitutional philosophy of social integrity and national unity, right to equality assured by the human rights and the Constitution of India, on marriage of a man and a woman, they become members of the family and entitled to the social status as married couple, recognition per se is not a pre-condition but entitled to be considered, when evidence is available. It is common knowledge that with education or advance of economic status, young men and women marry against the wishes of parents and in many a case consent or recognition would scarcely be given by either or both the parties or parents of both spouses. Recognition by family or community is not a pre-condition for married status.”

The concept of marriage in Hindu Law has been propounded in several cases decided by the Indian Supreme Court. In the case of Swarajya Lakshmi vs Dr. G.G. Padma Rao, AIR 1974 SC 165, it was observed, “Marriage according to Hindu Law, is a sacrament and a holy union for the performance of religious duties.”

In the same way in the case of V. Tulasamma & Others vs V. Sesha Reddi (Dead) By L. Rs, AIR 1977 SC 1944, it was observed, “Under the Shastric Hindu Law, a marriage, unlike a marriage under the Mohammadan Law which is purely contractual in nature, is a sacrament – a religious seremony which results in a sacred and a holy union of man and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth as a partner of her husband becoming a part and parcel of the body of the husband.”
 
The Hindu Shasrya Law enjoins all men to marry for the purpose of procreating a son necessary for the continuation of line of paternal ancestors and for the spiritual benefit of their soul. It is known to all that the ancient Hindu law recognized eight forms of marriage, of which four were approved forms and the others were unapproved forms. The approved forms were Brahma, Daiva, Araha and Prajapatya and the unapproved forms were Asura, Gandharva, Rakshasa and Paisacha. Presently two forms of marriage are recognized, namely, (i) the Brahma form, which is one of the approved forms; and (ii) the Asura form, which is one of the unapproved forms. In the case of A.L.V.R.S.T. Veerappa Chettiar vs S. Michael Etc, AIR 1963 SC 933, the essence of the Asura marriage was discussed by the Supreme Court of India in following terms:

“The essence of the said marriage is the sale of a bride for a price and it is one of the unapproved forms of marriage prohibited by Manu for all the four castes of Hindu society. The vice of the said marriage lies in the receipt of the price by the bride’s father or other persons entitled to give away the bride as a consideration for the bride. If the amount paid or the ornaments given is not the consideration for taking the bride but only given to the bride or even to the bride’s father out of affection or in token of respect to them or to comply with a traditional or ritualistic form, such payment does not make the marriage an A’sura marriage.”
 
The distinction between the approved and unapproved forms of marriage is that wife married in a approved form becomes ‘Patni’ but in an disapproved form she does not become ‘Patni’. In this modern days the distinction between ‘Brahma’ or ‘Asura’ form of marriage is immaterial. In above mentioned case (AIR 1963 SC 933) it was held that whenever a question arises whether a marriage is a Brahma or Asura, the presumption is that the marriage is in Brahma form and the burden is upon the person who asserts the contrary to prove that the marriage was either an Asura or any other form.
 
According to the Principles of Hindu Law by Mulla 21st Edition (2010) when a question arises as to whether a marriage was in the ‘Brahma’ form or the ‘Asura’ form, the court would presume, even where the parties are Shudras; that it is in the ‘Brahma’ form i.e. no consideration for the marriage passed from the bridegroom to the father or other guardian of the bride. But this presumption may be rebutted by showing that the marriage was in the ‘Asura’ form. The Apex Courts of the Sub-continent including this Court in a number of cases held that where a question arises as to whether a marriage was in approved or in unapproved form, the presumption is that it was in approved form unless the contrary is proved. If the celebration of marriage in fact is established then there shall be a presumption of there being a marriage in law and the observance of the essential ceremonies. Generally there are two ceremonies essential to the validity of a marriage either in the Brahma form or in the Asura form, namely, (i) invocation before the sacred fire, and (ii) saptapadi, i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire.
 
The marriage becomes completed when the seventh step is taken. Before that step it is imperfect and revocable. (Chunilal –Vs- Surajram (1909) 33 Bom. 433).  In the case of Kally Churn –Vs- Dukhee (1880) ILR 5 Cal.692 it has been held that apart from the complete performance of the two ceremonies a marriage may be completed when custom of the caste allows otherwise. The essential requisite for recognition of such a custom is that it must be sufficiently ancient and definite and the members of the caste or sub-caste or family must recognise it as obligatory. But those customs  cannot be altered by the will and pleasure of the caste or sub-caste to whom the parties belong. When the caste has been able to establish its usage regulating the form and the requisites of a valid marriage, such a usage being transcendent law is obligatory and is binding upon the parties. The Courts are bound to recognise the usage giving effect to the same. In the case of Utpal Kanti Das –Vs- Monju Rani Das reported in 17 BLD (AD) 289, this Division enumerated the usual ceremonies of Hindu Marriage which are as follows:

(a)     On the forenoon of the day fixed for marriage “Nandimukha” or “Vriddhi Sraddha” is performed. The bride’s father or other male relation invokes the departed souls of the ancestors and make offerings to them to get their blessings.
(b)     In the evening when the bridegroom comes in a procession to the bride’s place the bridal party is received with great hospitality and the bridegroom is given a ceremonious reception by the near relations of the bride, making over to him new wearing apparels.
(c)     The bridegroom dressed up in new clothings is then circled by the bride seven times, at the end of which the bride and the bridegroom exchange garlands of flowers.
(d)     Then follows ‘sampradana’ or gift of the bride to the bridegroom.”

This Division further observed as under:

“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.” [17 BLD (AD) 289 at page 292]
 
In the same judgment [17 BLD (AD) 289) at paragraph 8 his Lordship referred to the submission of the learned counsel for the appellant wherein it was argued that on paragraph 437 of Mulla’s “Principles of Hindu Law” (eleventh edition) and also on “A Treatise of Hindu Law” by Golapchandra Sarkar Sastri (sixth edition), chapter III on marriage, two essential ceremonies to the validity of a Hindu marriage have been categorically enumerated. They are, namely, (1) invocation before the sacred fire, and (2) steps by the bridegroom and the bride jointly before the sacred fire which is known as saptapadi.
 
Supreme Court of India in the case of Bhaurao Shankar Lokhande & Anr vs State of Maharashtra & Anr, AIR 1965 SC 1564 while determining what the essential ceremonies for a valid marriage are, cited Mullas Hindu Law, 12th Edition as authority where in it has been stated as under:

“(1) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the Brahma form or the Asura form, 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.
(2) A marriage may be completed by the performance of ceremonies other than those referred to in subsection (1), where it is allowed by the custom of the caste to which the parties belong.”

From the above discussion it is abundantly clear that there are two ceremonies essential to the validity of a marriage whether the marriage be in the Brahma form or the Asura form. The ceremonies are (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.

On meticulous scrutiny of the evidence of the witnesses and other materials on record it has been proved that in the instant case marriage was performed in fact and therefore we can safely presume that marriage is valid in law and all the necessary ceremonies have been performed. There is no evidence to the contrary to show that no marriage ceremony was solemnized according to Hindu Shastra. In the instant case the respondent proved that the ceremonies prescribed by the Shastra were performed. The defendant-petitioner as D.W.1 did not depose that no “Saptapadi” was performed before the sacred fire. Therefore, the petitioner having not raised the plea of invalidity of marriage because of non-performance of an essential rite any plea to the effect that the marriage is bad in law for want of any essential ceremony such as Saptapadi is not tenable in law.  

It is well established that the marriage between man and woman is inseparable under Hindu Law. In Shastriya Hindu Law marriage is treated as sacrament not a contract. It appears that the trial court having considered the material evidence on record rightly found that the marriage between the plaintiff-respondent and the defendant-petitioner was duly completed by the performance of the essential ceremonies which have made the marriage valid in law; that they lived together as husband and wife till she was driven out from the house of her husband and the court of appeal below as the final court of facts made concurrent findings of facts and rightly affirmed the judgment and decree passed by the trial Court and the High Court Division being the revisional Court having considered the evidence of the witnesses and findings of the courts below found that there are concurrent findings of facts by both the trial court and the court of appeal below and as such there is no illegality in the impugned judgment and decree passed by the High Court Division.

Marriage under the traditional Hindu Law is a holy union for the performance of religious duties. It is a sacrament for the purification of the body from inherited taint. It is not a contract. Of course the marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. In view of the modern social dimensions the Hindu Community in this Country in respect of marriage, divorce and inheritance faces multifarious problems. In many cases the alleged husband does not recognize marriage or deny the existence of marriage with the female partner and the female partner also faces difficulty in respect of her right to inheritance and the issues of the marriage are also sometime disowned by the male partner to be the legitimate offspring of their wed-lock and as such, the children sometimes find difficulty to get recognition and their right of inheritance. In consequence of these varying problems being faced by the Hindu Community in this Country where the society has advanced and the women are also very much conscious about their rights  and status in respect of marriage, divorce, inheritance, we believe  time  has  come to think about the social needs and the demand of  different  Hindu  Women  right activists and other social and non-government organizations for codification of the Hindu Law of marriage and succession. We are not unmindful about the other fractions of the society, who are not in favour of any codification of the Hindu Law in this Country. We are very much conscious about the extreme sensitive issue involved in this particular matter. But our view is that far reaching and fundam-ental changes could be achieved  and  we   shall  be able to  have  fair  and  equitable  solution to some of the most difficult questions relating to the law of marriage and succession in consequent thereof. It is our earnest desire and belief that an uniform and comprehensive system governing all Hindus containing a series of coherent provisions carefully considered after having gone through by eminent pundits and researc-hers and law commission a codification of Hindu Law of marriage and succession should be enacted. We have seen that our closest neighbour India has enacted Hindu Marriage Act, 1955 which embodied all the necessary provisions of Hindu Law and thereby promu-lgated all rules of the law of marriage or custom or usage having the force of law in respect of all these matters which are properly dealt with in the Act of 1955. The Hindu Marriage Act, 1955 supersedes any other law contained in any central or state legislation in force immediately before the enactment of the Act. We are of the view that enactment of codified Hindu Law is not only a pious desire of a section of the Hindu rights activists or some of  the NGOs  of  this country but also majority people of the country.  In our deep anxiety we have noticed that time has come for the legislators to think about the codification of the Hindu Law of Marriage and Succession in Bangladesh. Sometimes, Female Partners and the children are being deprived of their rights.

To our utter dismay some-times we find that the male partner disowned the very existence of the marriage including the children born out of the wed-lock. In the instant case we have also found that both the plaintiff-respondent and the defendant-petitioner having fallen in love with each other during their university days ultimately united in marriage at Rajshahi Kali Mandir in presence of witnesses and relations of both the parties. The High Court Division rightly found that the Trial Court and the Court of appeal below made concurrent findings of facts that there was a valid marriage in law between the parties. But to our utter surprise the defendant-petitioner, the husband of the plaintiff-respondent denied the very existence and validity of the marriage between them which is very unfortunate. Had there been proper codification of Hindu Law of marriage and succession with a provision for registration of marriage definitely the male partner could not have denied the solemnization of marriage ceremony between the parties. However, time has come for the legislature to think about this burning issue to find out correct solution to the problem by proper enactment or codification of Hindu Law of marriage and succession. If the codification of the Hindu Law is made, it is our considered view that most of the matrimonial problems now being faced by both the parties can be resolved or minimized with least trouble.
  
Since there is no misreading or non-consideration of any material evidence on record, the High Court Division rightly passed the impugned judgment and decree in discharging the Rule and affirming the judgment and degree passed by the learned District Judge, Narail. In view of the above findings and observations we do not find any merit in the leave petition.

Accordingly, the leave petition is dismissed with cost of Tk. 5,000/- (five thousand).
 
Ed.