Ram Awadh And Others v. Krishna Nand Lal And Others

1. This is a defendants' second appeal in a suit for injunction and possession in respect of certain land. According to the plaintiff Krishna Nand Lal, his family was a Hindu joint family and his brother Kalindri Lal was not married and died issueless and another brother Chhotkun Lal was blind. The family owned some houses, some of which had fallen down. Two houses remained. Kalindri Lal used to live in the house in suit. The 8th defendant Smt. Jagrani was a Bharin by caste and the daughter of Bhuleshwar who was a resident of a nearby village. She left her Sasural and went back to her father's village and used to do menial work in different houses at the village where the plaintiff resided and in this manner she came to serve in the plaintiff's house. Kalindri Lal died in the year 1964 and now fire-wood and Bhusa used to be stored in the house in which he was living. The plaintiff and the 9th defendant Gyan Swarup, who is the plaintiff's cousin being his father's brother's son used it occasionally for sitting, but mostly it was under lock. The houses of defendants Nos. 1 to 7 and of defendant No. 8 Smt. Jagrani were near each other. After Kalindri Lal's death, they took Smt. Jagrani in their service and having brought her under their influence, secretly got executed a sale deed dated 3rd May, 1967 by her in their favour in respect of the house in suit. The sale deed is wholly fictitious and without consideration. She had no right to execute the sale deed. The plaintiffs did not know of this transaction for some time but when they heard a rumour about it, they made enquiries and obtained a copy of the sale deed and since defendants Nos. 1 to 7 were not prepared to have it cancelled, it became necessary to file the suit.

2. Apart from denying the plaintiffs' case that Kalindri Lal was a member of the plaintiff's Hindu joint family and that the house was joint family property as per written statement filed by defendants Nos. 1, 3, 4 and 5, the main plank of the defence was that Kalindri Lal had married defendant No. 8 some 35 years ago, the written statement being dated 26th October, 1968, in accordance with Arya Samaj rites and they had both lived as husband and wife since then. It was also pleaded that some 20 years ago they gave birth to a daughter which was lost at the age of about 7 or 8 years. The exclusive possession of Kalindri Lal and after him of defendant No. 8 was also pleaded and it was said that the sale deed was for consideration, lawful and valid, and that the defendants Nos. 1, 3, 4 and 5 were put into possession thereof. The first issue framed by the trial court was whether Smt. Jagrani is the widow of Kalindri Lal, and since that is the only issue which now survives for consideration, I need not refer to the other issues raised at the trial. The finding of the trial court was that Smt. Jagrani is the widow of Kalindri Lal and in view of that finding and its findings on other issues the trial court dismissed the suit. But on appeal the lower appellate court reversed the same and decreed the suit.

3. I have heard learned counsel for the parties at some length in this case but I find that this appeal must fail.

4. It was the specific case of the defendant that Kalindri Lal married Smt. Jagrani according to Arya Samaj rites. Arya Samaj rites follow the strict Vedic rites of marriage but the defendants probably used the expression Arya Samaj rites as an euphemism for a non-conformist or an irregular marriage, for there was a time when even the validity of an ‘Arya Marriage’ was doubted on account of the willingness of Arya Samajists to solemnise marriage between persons of different castes, or with converts to Hinduism or widows, and the Arya Marriage Validation Act, 1940 had to be passed to declare them to be valid and to have always been valid. Smt. Jagrani stated as D.W 1:

“Kalindri ke chacha ne shadi karaya tha. Koi Pandit shadi nahi karaya tha. Unke chacha ne havan karaya tha aur Kalindri Lal ne sindur dala tha. Aur kuchh nahi hua.”

5. This does not amount to a marriage according to Arya Samaj rites, for the Saptapadi is one of the essential features of an Arya Samaj Marriage. The principal difference between a Hindu marriage according to the Arya Samaj rites and the customary rites prevalent in this part of the country, apart from formal differences of ritual, lies in the fact that while according to the strict Vedic rites observed by the Arya Samajists, the bride-groom and the bride make only four rounds of the sacred fire, on the other hand according to the customary rites prevalent in these parts of the country, seven rounds have come to be generally performed and even thought to be an essential marriage rite rather than the Saptapadi. According to law, a marriage is complete only when the seventh step of Saptatpadi is taken, where Saptapadi is one of the rites required to be performed under the customary rites of the party according to which the marriage is solemnized, but it is generally believed in these parts of the country that a marriage is complete on the completion of the seventh round of the sacred fire, made by the bride-groom and the bride together. The seven rounds of the sacred fire is not the same thing as Saptapadi Saptapadi is a ceremony which follows immediately after the four rounds of the sacred fire taken by the bride-groom and the bride according to the strict Vedic rites or after the seven rounds of sacred fire according to the current customary rites.

6. In S. Bulli Appana v. Subamal (AIR 1938 Rang 111) it was urged that the marriage was not valid because what the parties had done in that case was to walk round the sacred fire seven times instead of ‘the bride merely taking the seven steps required in the Saptapadi ceremony.’ The court below had held that the bride had in that case taken seven steps in the course of carrying out the said rite, and the fact that she had taken more steps than seven did not invalidate the marriage. This naturally raised the question whether there was any prescribed form of Saptapadi, or the manner of taking the seven steps by the bride-groom and the bride jointly before the sacred fire, which it may be necessary to adhere to in order that the seven steps taken may constitute the ceremony of Saptapadi. Reliance was placed on the decision in Rampiayar v. Deva Rama (ILR 1 Rang 129 : AIR 1923 Rang 202) in which it was held that there could be no Saptapadi by merely taking five rounds of the receptacle of fire, on the assumption that seven steps and seven rounds mean the same thing. This assumption has been criticised in S. Bulli Appana's case. In Sitabai v. Vithabai (AIR 1959 Bom 508) also it has been held that seven steps should not be confused with seven rounds, and that “the only requirement of the ceremony called the Saptapadi gamana is that seven steps should be taken round the nuptical fire.” S. Bulli Appana's case and Sitabai's case, both turn on the meaning attributed to the word pada which forms part of the term Saptapadi, and in both of them the word was taken in the literal sense of the word ‘step’ into which it has been translated into English. In S. Bulli Appana's case the following three texts are cited from Sir Hari Singh Gour's Hindu Code, 3rd Edition, Sir Ernest Trevelyan's work on Hindu law, 3rd Edition, and Sir Gooroodas Banerjee's Tagore Law Lectures on the Hindu Law of Marriage and Stridhana, on the meaning of Saptapadi. They are:—

“(1) Of all the ceremonies, the one which is most insisted on and which has outlived the rest is the Saptapadi or advancing seven steps, consisting in the bridal pair facing and approaching each other step by step till they join hands on the completion of the seventh step which, is then regarded as the final and irrevocable step.” (Sir Hari Singh Goui's Hindu Code, 3rd Edition, p. 286).

(2) The bride and bridegroom walk round the fire, and then comes the most material of marriage rites. The bride is conducted by the bridegroom, and directed by him to step successively into seven circles, a text being recited at each step.” (Sir Ernest Trevelyan's Hindu Law, 3rd Edition, p. 54).

(3) 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”. (Sir Gooroodas Banerjee's Tagore Law Lectures on the Hindu Law of Marriage and Stridhana)”. The elucidation of the meaning of Saptapadi, given in parenthesis in Section 7(2), of the Act, has apparently been taken verbatim from Mulla's principles of Hindu Law. (See Section 437(1), at p. 547 of the 11th Edition, and p. 517 of the 14th Edition). The more important ones of the ceremonies are, apart from the puja and the yajna or the homa, the kanyadana, the panigrahana, the treading of stone, the rounds of sacred fire, and the Saptapadi. According to the Vedic rites only four rounds of the sacred fire were prescribed, but custom has made them into seven. Indeed, according to the Sanskrit Shabdartha Kaustubha, the term Saptapadi has been explained as meaning a marriage rite in which the bridegroom and the bride, tied with a knot, take seven rounds of the sacred fire. (1977, IV Den., pp. 1217-18, under the word saptapadi, at page 1218). It may be that in certain parts of the country the true Vedic rite of four rounds of the sacred fire, followed by saptapadi, has been modified into seven rounds followed by a saptapadi combined with seven promises. The precise form of saptapadi as contained in a standard book on Vivah Vidhi along with the comments of the author thereof, is as follows:

(Matter in vernacular. Omitted here.— Ed.)

7. There is a slight ritual variation in the form of Saptapadi of an Arya Samajist marriage, but the basic mantras are similar.

8. Before the enactment of the Hindu Marriage Act, 1955, the two ceremonies essential for solemnizing a valid Hindu marriage were, according to para 437(1) of Mulla's Hindu Law: (1) invocation before the sacred fire and (2) Saptapadi i.e the taking of seven steps by the bridegroom and the bride jointly before the sacred fire and the marriage became complete when the seventh step was taken. A marriage could also be solemnized by performance of other ceremonies which were allowed by the custom and the caste to which the parties belonged, and in some cases, as in the case of re-marriage of a widow, it was sometimes said that no religious ceremony was necessary for the same. But in the present case the defendants did not plead that the alleged marriage between Kalindri Lal and Smt. Jagrani was solemnized in accordance with some customary rites different from the standard Hindu ceremonies of invocation before the sacred fire and saptapadi. Indeed, as observed above, they specifically pleaded that Kalindri Lal was an Arya Samajist and the marriage was solemnized in accordance with Arya Samaj rites. According to Arya Samaj rites, the invocation before the sacred fire and the Saptapadi are both essential. However, according to the statement of Smt. Jagrani, D.W, quoted above, Saptapadi does not appear to have been performed. Thus on the pleadings and the evidence of the defendants themselves, there could be no marriage, as we understand it in law, between Kalindri Lal and Smt. Jagrani.

9. Learned counsel for the appellants, however, sought to invoke certain presumptions of law for upholding the relation between Kalindri Lal and Smt. Jagrani as a valid and lawful marriage. It was suggested by the learned counsel that they had both lived together for a long number of years and were shown to be husband and wife in the electoral roll and the Kutumb register, and further that the factum of marriage between them having been proved, the law will presume that the essential ceremonies for completing it were also performed.

10. Learned counsel for the respondents on the other hand invited my attention to a series of cases where strict proof of the ceremonies of marriage has been insisted upon. Those cases are, to cite only two of them: Bhaurao v. State Of Maharashtra (AIR 1965 SC 1564) and Kanwal Ram v. H.P Administration (AIR 1966 SC 614). Both these cases were of prosecution for an offence under Section 494, I.P.C and strict proof of the marriage in question was insisted upon. Learned counsel for the appellants is right in urging that the principle of those cases will not apply to the present case and in case the marriage in question had been so ancient that all evidence of ceremonies by which it was solemnized had disappeared or was not forthcoming, a presumption of valid marriage might have been raised by mere proof of the fact of marriage or by proof of the fact that the two had been living together as husband and wife for a long number of years and were treated and accepted as such by the society. This was, however, not a case of that kind. Specific allegations were made about the ceremonies according to which the alleged marriage was solemnized and evidence was led to prove them. Apart from the deficiencies of evidence of Smt. Jagrani D.W 1 herself, which have already been noticed above, the lower appellate court has on an appraisal of the evidence disbelieved it. The lower appellate court was the final court of fact and it has not been shown to me that its finding suffers from any error of law. Moreover, following the rule laid down by the Supreme Court in Gokul Chand v. Pervin Kumari (AIR 1952 SC 231), I do not think it possible to say, having regard to the facts and circumstances of the case, that Kalindri Lal and Smt. Jagrani were lawfully wedded husband and wife.

11. It is not necessary for me to discuss the evidence or to state those facts and circumstances as they have been fully brought out by the lower appellate court in its judgment.

12. In the result this appeal must fail and is dismissed with costs.

13. Appeal dismissed.