Satya Brata Sinha, J.:—This First Appeal is directed against the judgment and decree dated 28th September, 1989 passed by Sri R.N Kali 2nd Additional District Judge, Alipore, in M.S No. 93 of 1985, whereby and whereunder the learned Court below allowed the application filed by the plaintiff-respondent under s. 9 of the Hindu Marriage Act, 1953 (the Act for short) for restitution of conjugal rights.

2. The fact of the matter lies in a very narrow compass:

The husband-appellant allegedly married the plaintiff-respondent in ??? 1361 B.S according to the Hindu rites at village simuliapara, P.O Chand-para Bazar, P.S Gaighata, in the District of 24 Parganas. Out of the said wed-lock a daughter, namely, Shanti Saha was born in May, 1956. In the year 1957, the appellant allegedly left the matrimonial home. It is alleged that the appellant used to send money to the respondent by Money Order. However, from July, 1958, the appellant stopped paying maintenance to the respondent, and, therefore, she had to leave the matrimonal home, and came to live with her father.

3. In the year 1964, the appellant came to the respondent's house and brought her along with her daughter to the premises at 128/2, Beliaghata Main Road, P.S Beliaghata, Calcutta-10 and began to reside there with the respondent. According to the plaintiff-respondent, the appellant used to remain absent from home for days together and upon querry made in that regard, he used to answer that he had to remain busy in performing official duties. Allegedly owing to the aforesaid conduct of the appellant, a serious mistrust between the parties used to take place.

4. On or about 4.3.1980, the appellant deserted the respondent and since then the respondent had been residing in the aforesaid premises at Beliaghata with her daughter. In the year 1982, however, allegedly after diligent search, the respondent came to know of the whereabouts of the appellant and requested him to come back, but the same was turned down. It is alleged that the appellant married for the second time with one Smt. Krishna Saha and out of the said illegal wedlock, one son, namely, Subir and one daughter, namely, Sima Saha were born.

5. The appellant filed his written statement in the Court below denying and disputing the marriage between himself and the respondent. He has further denied and disputed that Santi Saha was his daughter. The appellant also denied and disputed the fact that he had ever made any correspondence with the respondent or had been sending money to her. The appellant further denied that he ever brought back the respondent and her daughter and had been living at the premises at Beliaghata Main Road, aforesaid,

6. The learned Court below in view of the aforesaid pleadings of the parties framed the following issues:—

“1. Is the suit maintainable as framed?

2. Has the Court jurisdiction to entertain the suit?

3. Is the petitioner a married wife of the respondent as claimed?

4. Has the respondent deserted the petitioner as alleged?

5. Is Shanti Saha a daughter born out of the wedlock between the petitioner and the respondent as claimed?

6. Is he petitioner entitled to get a decree for restitution of conjugal rights as prayed for?

7. To what relief/reliefs is the petitioner entitled?

7. Upon considering the materials on records the trial Court decree the plaintiff's suit

8. Mr. Roy Choudhury,, learned counsel appearing for the respondent-appellant, raised two contentions in support of his cases. He submitted that from perusal of the judgment of the Court below it would appear that the respondent had failed to prove any ceremony to prove a valid marriage, and thus no presumption that the appellant and the respondent were married can be drawn. In any event, it was submitted that as the plaintiff-respondent failed to prove the performance of essential ceremonies required for a valid marriage the marriage must be held to be invalid in law.

9. Learned Counsel has taken us through the evidence of the plaintiff's witnesses and submitted that they are wholly unreliable. It was submitted that the onus of proving a marriage and/or a valid marriage was on the respondent and as she failed to discharge the same, the Court below has committed a serious error in decreeing the suit. Learned Counsel in support of his contention relied on decisions in the case of Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, reported in AIR 1971 SC 1153, Dr. Dr N.G Dastane v. Mrs S. Dastane., reported in AIR 1975 SC 1534, Mousumi Chakraborty… v. Subrata Guha Roy…., reported in 95 CWN, 380, 91 CWN 456, 1976 Bom 264, 1988 SC 1797.

10. Learned Counsel further submitted that the reliance placed upon documentary evidence by the Court below namely, the Ration Card (Exhibits 3 series), Photo Graph of the appellant and Sikha Saha (Ext. 5) and the certificate issued by the West Bengal Board of Secondary Education (Ext. 4) were inadmissible in evidence.

11. Mr. Bhaskar Bhattacharya, learned Counsel appearing for the plaintiff-respondent, on the other hand, submitted that in view of the categorical assertions made by the appellant to the effect that he did not know the plaintiff-respondent at all, the question of proving performance of essential ceremonies of marriage does not arise. According to the learned Counsel, in any event, the plaintiff, by getting herself as well as P.Ws 3 and 4 examined, must be held to have proved the marriage by and between the appellant and the respondent. According to the learned Counsel, in such a situation, the onus of proving the essential ceremonies of marriage shifted to the appellant, which he failed to discharge. Reliance in this connection has been placed by him in the case of Mohd. Amin v. Vakil Ahmad, reported in AIR 1952 SC 385. It was further submitted that in view of the fact that the parties had been living as husband and wife for a long time, in law, a presumption of valid marriage would be raise and in support of the aforesaid contention relience has been placed by him in the case of Badri Prasad v. Deputy Director of Consolidation, reported in AIR 1978 SC 1557.

12. Mr. Bhattacharya has also drawn our attention to the materials on record, particularly to the evidence of the appellant and submitted that it would appear that the defence putforth by him is wholly unreliable and thus liable to be rejected out-right, inasmuch as he contradicted himself in material particulars in his examination in the proceeding under s. 125 of the Criminal Procedure Code.

13. He further submitted that from perusal of the assertions of the P.W 1 it would appear that no suggestion had been given to the said witness on behalf of the respondent disputing the letter written to her. According to the learned Counsel, even the explanation of the appellant to the effect that money orders have been sent by the office to Sri Nirendra Kumar Saha (P.W 4) by way of re-payment of loan must be rejected keeping in view the fact that no such question was put to the said witness nor any suggestion had been given to his during cross-examination. He further submitted that keeping in view the fact that the appellant admitted that the photograph of himself and Smt. Sikha Saha had been taken, the question of proving the same by examining the photographer does not arise inasmuch as a fact admitted need not be prove. Learned Counsel also submitted that the register of the ration card (Ext. 6) has been proved by P.W 6, wherein the appellant was shown as head of the family and thus the question of there being any doubt or dispute of the marriage of the appellant with the respondent does not arise. Learned Counsel further submitted that this Court should draw adverse inference as against the appellant in so far as he has not called for the original money order receipts, nor examined materials witnesses who could have supported his defence. In this connection, our attention has also been drawn to the fact that although the appellant in his deposition stated that during the period 1951-56 he was residing in the house of one Bhupati Gupta who could be a material witness on the point of marriage, but he was not examined. He further submitted that from perusal of the bus-conductor's licence granted to the appellant it would appear that the same was granted to him in 1950 and thus a presumption must arise that at that time, he was major and in that view of the matter the probability of his marriage with the respondent in the year 1954 i.e at the age of 22-23 cannot be ruled out.

14. The questions which in the facts and circumstances of this case arises as to whether any marriage took place between the appellant and the respondent as alleged and whether Smt. Sikha was born out of the said wedlock.

15. There cannot be any doubt that in case where the marriage is denied or disputed, the initial onus to prove the same lies on the person who has asserted the same. It is also well settled that the standard relating to appraisal of evidence in matrimonial cases is the same as in any other civil suit. Here both the parties have adduced their respective evidences, the Court has to come to a decision on appraisal of entire materials on records on the basis of preponderance of probabilities of the respective cases of the parties.

16. The respondent in support of her pleas, examined six witnesses, whereas the appellant save and except himself, did not examine any other witness whatsoever.

17. P.W 1 (Lila Rani Saha) is the plaintiff-respondent herself. She in her examination-in-chief supported her case. She stated that at the time of the marriage i.e in Asar, 1361 B.S the respondent was employed in the Indian Navy and he often used to go outside. She further stated that the appellant used to send money to her by money orders for the first six months, when he left for foreign countries. She further stated that she received letter from her husband while he was in foreign countries. She has also stated that after her marriage she resided with her husband (the appellant) upto 1958 in her matrimonial home at Chandpara. She in her evidence further stated that since 1964 the parties used to live at Beliaghata. In 1980 she came to know for the first time that her husband was living with another woman at Tollygunge. She had not been cross-examined with regard to her statement about receipt of any letter or money order from the appellant. She named the priest who performed the marriage, but she could not name the barber. She also could not state about the date of her marriage, nor she could state as to in which part of the month the marriage took place.

18. She also proved two letters, which were sent to her by the Shipping Master, Calcutta (Exts. 1 and 2).

19. Mr. Roychowdhury, learned Counsel, criticised the evidence of this witness by contending that her brothers and sisters were not examined, although she had four sisters and four brothers. He further submitted that it is unlikely that a married woman would not remember the date of her marriage, particularly when she remembers the date of birth of her daughter.

20. From perusal of the deposition of P.W 1 it appears that the appellant does not have any educational degree. He took some training before joining the Marchant Navy. It further appears than on first desertion by the appellant, the respondent made enquiries and also prayed for maintenance pursuant whereof the Shipping Office of the Ministry of Transport and Communication, issued a letter dated 28.5.1959 whereby the Marine Superintendent of the Indian Steamship Company Ltd. Calcutta, was requested to apprise the seaman concerned (appellant herein) and the office be informed about his wishes regarding maintenance of his family in due course. A copy of the said letter had also been sent to the respondent.

21. The respondent has also proved another letter dated 8th November, 1958 (Exhibit 2) from the Glad Stone Lyall & Co. Ltd. to the respondent, whereby she was advised to let the addressee know the date and name of the ship in which her husband (the appellant) signed, to enable it to find out the whereabouts of the appellant. She also categorically stated that she came to know after 1980 that the appellant had been living with another woman at Tollygunge and had not left on any foreign assignment. She stated in her cross-examination that Fulsajya had taken place in the matrimonial home. She also gave out the details of the original place of the appellant in East Pakistan, now in Bangladesh. She denied that the respondent used to live in 16.A Brindaban Mallick 1st lane, Calcutta, up-to March, 1956 and thereafter 17, Beliaghata, after March, 1956, and for some time 35 Munsiganj Road. She also denied that the appellant had any quarrel with Niren Babu over monetary matters. In my opinion, upon taking into consideration the entirty of her deposition it cannot be said that the respondent is wholly untrustworthy. It is true that she could not state the date of her marriage but that by itself could not disprove the marriage.

22. P.W 2 is Ramesh Chandra Das. In his evidence, he stated that he had seen the parties living at 128 Beliaghata Main Road from 1961-1962, which appears to be a mistake for 1964. He further stated that Shanti Saha is the daughter of the respondent, and Shanti Saha also used to reside with the parties, and he also used to send letters. He further stated that he used to call the appellant as ‘Mama’. He proved the letter dated 1.5.1976, wherein the name of Shantirani Saha figures. This letter was marked as Exhibit 3. He admitted that in the said letter the word ‘Shanti’ was inserted after scoring out some words. Nothing has been brought to us to show that this witness is un-reliable. In fact a part of the said letter is also addressed to Shanti Saha. Upon also scrutiny the letter it appears that the word ‘OK’ meaning him or her, was scored out and the word ‘Shanti’ was written which does not appear to be unnatural. The authenticity of the said letter has not been questioned, nor the respondent in his deposition gave any explanation in relation thereto. It may however be noted that name of ‘Shanti’ appeared at several places of this letter. This witness, thus, is competent to speak about the relationship of the parties from their conduct upon forming his own opinion in this regard.

23. P.W 3 is Shantirani Saha. She has stated that she passed the Higher Secondary Examination in 1976. She further stated that since 1980, she lost contact with her father and in 1982, she went to the office of the appellant at Calcutta and came to know that he was residing at 60 Mahatma Gandhi Road, Calcutta-41, whereafter she went there and according to her she pursuaded her father to come back to their house, but he did not acceed to her request. She stayed with her father for about 3/4 days, during which period she was subjected to torture by Krishna Saha, who also used to reside with her father. Negatives of the photographes were also identified by her and marked as Exhibits 5 series.

24. In her cross-examination, she stated that she was born at village Chandpara, but was unable to produce any certificate showing her birth registration. She also deposed that she had primary education in Pathsala at Chandpara, whereafter she was admitted in Purbakalikata Vidyanyatan, since 1964. According to her the appellant himself got her admitted in the aforesaid school, in relation whereof no question was put to her in cross-examination. She further stated that she visited the house of the elder brother of the appellant who used to reside at Shyamnagar. She stated to have also made enquiries about her father from her uncles i.e cousin brothers of her father. She further stated that the photograph of her along with her father was taken at Chabi Studio, Beliaghata.

25. A suggestion was given to the P.W 3 that the Photographes (Exhibit 5) where made collusively with the photographes, but curiously the appellant who examined himself as D.W 1 had categorically admitted that a photograph of his and Shanti Rani Saha was taken. He, however, gave certain explanation with regard thereto, which shall be considered at a later stage.

26. In my opinion, the evidence of the aforesaid witness is also turstworthy.

27. P.W 4 is Nirendra Kumar Saha, who is said to be materinal uncle of the appellant. It is not disputed that he had been living at 17 Beliaghata Main Road, since, 1949. He stated that the parties were married in Asar 1361, and he attended the marriage as member of the bridegroom's party. He also attended the ‘Boubhat’ ceremony. He also stated that apart from himself, Nalini Saha, the elder cousin brother of the respondent and many others attended the marriage. He also stated that P.W 3 is the daughter of the parties and indentified her in Court. He further stated that the parties along with their daughter used to reside at Beliaghata Main Road from 1964. He has also stated that he requested the parties to sort out their differences.

28. Mr. Roychowdhury submitted that this witness is not trustworthy, as he could not name the grandfather of the respondent either of his maternal side or his paternal side. This witness, however stated that he used to call the mother of the respondent as ‘Brindadi’.

29. It may be noticed that the P.W 1 has also stated the name of his mother-in-law as ‘Brinda’, although the appellant in his deposition alleged that the name of his mother was Sarnalata Saha. He further stated that he had good-relationship with the respondent. It is worth noting that no suggestion was given to him denying or disputing the relationship between himself and the appellant, nor any question was put to him as to the nature of the dispute between him and the appellant.

30. It may be noted that the appellant in his deposition at one stage stated that the money orders had been sent to the said witness at his instance by the office for the purpose of repayment of loan taken from him, but at a later stage he stated that he had himself advanced a sum of Rs. 8,000/- to P.W 4 in 1958.

31. The criticism of Mr. Roychowdhury although appears to have same substance but keeping in view the fact that the appellant had himself admitted that he had long acquaintence with this witness and had monetary transactions with him, this witness cannot be said to be unknown to the family and thus, he is expected to know their affairs and state about the relationship between the appellant and the respondent. The appellant himself has admitted that he had resided with P.W 4 for sometime and in that view of the matter also he must be held to be competent to depose about the relationship of the appellant and the respondent, assuming that a part of his deposition may not be relied upon. P.W 4 also, thus, in my opinion, is a competent witness to depose about the relationship of the parties and their conduct.

32. P.W 5 is Nisha Roy, who is the cousin sister of the respondent. She also attended the marriage. She stated that one of the sisters of the respondent had been suffering from Paralysis and the second sister was living in Chandan Nagar. Her marriage took place in the month of Asar, but she also could not state the actual date of the marriage. Nothing has been brought on records to discredit this witness.

33. P.W 6 is Jiban Chandra Das, who is the Inspector in the department of Food and Supplies. At the relevant time he was attached to Beliaghata Rationing Office. He brought a register relating to the registration of the names and others particulars of the card-holders relating to Ration Shop No. 2754 of Beliaghata. In his cross-examination, he proved the two ration cards, issued in the name of Shanti Saha and Lila Rani Saha (Exhibit 6). Surprisingly the appellant himself got two of the said ration cards proved (Ext. B Saries).

34. As against the aforesaid materials, the appellant only examined himself. He admitted, as was stated by P.Ws 1 and 4, that his native place was at Jessore. He has further stated that he came to Chandpur from Khulna in 1958, wherefrom he came to Calcutta and stayed at 16.A, Brindaban Mallick First Lane, from 1951 to 1956. He admitted that he got employment in the Marchant Navy in 1956, and had been residing at 17, Beliaghata Main Road, in the house of P.W 4. He further admitted that he was the maternal uncle by village courtsey. According to this witness he returned from his assignment from foreign countries and rented a room at 17 Beliaghata Main Road for three or four months and thereafter left in connection with his employment. He admitted that he returned in 1964, whereafter he joined the Calcutta Port Trust.

35. It is relevant to quote the following from his deposition.

“In 1976 when I went to the house of Niren Saha for getting some money from him which was to pay me. I came out of the house without finding him. On the way I met Shanti Saha and she wanted me to take her to a photographer's shop. I went there with her. There a passport size photograph was taken by Shanti Saha on her request a snap of myself and Shanti Saha was also taken.”

The said statement ex facie is untrustworthy and is wholly unreliable as an unknown man would not acceed to the request of a young girl to take photograph with her. Such an explanation cannot be believed. It is noteworthy that the consistent case of the appellant is that he did not know the respondent or her daughter at all. It may further be reiterated that P.W 4 Sikha Rani Saha was given the suggestion that the said photograph was brought into existence in collusion with the photographer. However, as would be noticed hereafter he in his deposition in the proceeding under s. 125 Cr. P.C admitted that she came to know about the respondent in 1958. In his cross-examination, he admitted that Nalini Kanta Saha, Gour are his cousin brothers, but none of them had been examined as witness Chandra Saha, Bidya Nath Saha, Netai Ch. Saha and Chitta Ranjan Saha are his cousin brothers, but none of them had been examined as witness on behalf of the appellant. He admitted that the respondent filed a Maintenance Suit against him in the Court of the Addl. Chief Judicial Magistrate at Sealdah and he lost that suit. He also stated that in 1958 he saw the respondent in the house of Niren Babu, but he could not say in which month he saw her. However, in the criminal court he admitted that he had known the respondent since 1964. He also admitted that Exhibit D would prove that he returned in 1958 from his assignment to foreign countries. In his evidence, he also admitted that he did not state in the criminal court that he was tenant in the house of Niren Babu in 1964, which stands contradicted by Exhibit D. There are also glaring contradictions in his deposition before the Court below and in his deposition before the criminal court. He has also stated that Gobind Lal Sen is the owner of the house at 35.C, Munshi Gunge Road, but he never stayed there, although his address had been shown there while staying in the Sailors Rest House, which also casts a doubt about his trustworthiness. He himself proved the receipts in acknowledgment of the payment at his instant by money order (Exhibit 7). He admitted that he had no paper to show that he owed any money to Niren Babu, but stated that the borrowed money from Niren Babu in 1956, but this fact was not stated by him in his deposition before the criminal court. According to him in 1959 Niren Babu borrowed Rs. 8,000/- from him when he was staying in his house after coming back from foreign countries whereas he stated in the maintenance suit that he had lent a sum of Rs. 6,000/- only to Niren Saha. According to his Bhupati Gupta was the owner of the house wherein he stayed from 1951 to 1956, but this witness was also not examined. Had the said witness been examined, he could have proved that the appellant had stayed in his house upto 1956 and thus could disprove the case of the respondent to the effect that the marriage between the appellant and the respondent took place in 1954 and thereafter they had been residing at their matrimonial home and out of the said wedlock Sikha Saha was born. Although he stated in his deposition that he purchased some land in the year 1960 and started construction as per the sanctioned plan of the Municipality, the said documents were neither proved nor called for from the authorities concerned as he deposed that the said documents have been deposited with the Government. He even did not file the certified copy of the said document. He, however, admitted that the said house was not habitable. He has also stated that he met the petitioner only once in 1958 in the house of Niren Saha and thus has given a gobye the case that he met the respondent in the house of Niren Saha in the year 1964 while he was staying there. This story is also unbelievable inasmuch as it is not expected that a lady would sue a man for restitution of conjugal rights and thereby claiming herself to be the legally wedded wife of a man whom she had not met more than forty years.

He has also stated that he did not use to reside in the house of Niren contradicting himself from his earlier deposition in the criminal Court. He further stated that he found the respondent alone in the house of Niren, with whom he was not acquainted at all. He admitted to have acquaintence with Ratan Das, resident of 130, Beliaghata Road, brother-in-law of Niren Saha, whom he came to know for the first time in 1956. He stated that he met Ratan Das in the house of Niren Saha. He further stated that Ratan was married. He admitted that he does not know any body by the name of Subai or Sumai in the house of Ratan. It may be noted that the name of Subai or Sumai appeared in the letter written by him to Ratan Das (Ext. 3) and in this view of the matter the submission of Mr. Roychowdhury to the effect that Sumai is the daughter of the appellant cannot be relied upon.

At this juncture, it is relevant to note that he did not deny that he wrote the letter to Ratan Das, which is Ext. 3. In my opinion, this witness is not at all trustworthy and the statements of this witness cannot be relied upon.

36. It is true that the initial onus of proving the marriage which is denied or disputed was on the respondent. But it is also well settled that where both parties have adduced their respective evidences, the question of onus of proof becomes academic. Reference in this connection may be made to in the case of Union of India v. Sugauli Sugar Works (P) Ltd., reported in 1976 (3) SCC Page 32. In case, however, where the marriage is alleged to have taken place a long time back, it may be difficult to prove the actual marriage and the necessary ceremonies performed. In this case, the petitioner/respondent has proved the marriage not only by examining herself, but also by examining two other witnesses who had attended the marriage. The evidence of P.Ws 4 and 5 who attended the marriage from both the sides of the bridegroom and bride respectively cannot be said to be untrustworthy, particularly in view of the fact that no material has been brought on record in course of cross-examination to dispute the fact that they had attended the marriage. In fact, the relationship of the petitioner-respondent with the P.Ws had not been denied or disputed.

Although the appellant has questioned the relationship by and between him and P.W 4, as alleged by the respondent, but he has atleast admitted that he had been knowing the P.W 4 from the very beginning. It may be noticed that even in the Sea Man's Register (Exhibit D) (page 23, Part-II of the paper book), the name of P.W 4 and his home address has been mentioned as 17, Beliaghata Main Road, as next of kin of the Seaman. If P.W 4 was not related to the appellant, there was absolutely no reason as to why the name of P.W 4 would have been given by the appellant himself as next of his kin. Although the exact date of said entry cannot be deciphered, the said entry must have been made sometime in between the years 1960-1962.

Thus the submission of Mr. Roychowdhury to the effect that the evidence of P.W 4 should not be relied upon at all, cannot be accepted, despite the fact that the witness had not been able to state the name of the grand-father of either maternal side or paternal side of the appellant.

37. It may be true that the documentary evidence particularly the ration cards, photographes or the certificate issued by the West Bengal Board of Secondary Education in favour of Smt. Shanti Saha by themself do not prove the matrimonial relationship between the appellant and the respondent or the respondent or the relationship of father and daughter by and between the appellant and P.W 3, but in my opinion, the cumulative effect of the documents must be considered for the purpose of answering the issues. For this purpose the judgment of the Criminal Court is the proceedings under s. 125 of the Code of Criminal Procedure may be relied upon as a piece of evidence, although the Civil Court is required to arrive at its own finding relating to the factum of marriage by and between the parties hereto. Apart from the oral evidence, the respondent-petitioner had taken an un-mistaken stand that as far back as in 1958, she made a prayer before the Shipping Office for her maintenance, wherein she described the appellant as her husband. It also appears from the money order coupons that money orders have been sent at the instance of the appellant. The explanation given by the appellant to the effect that the said money orders had been sent at his instance in favour of Niren Saha by way of repayment of advance or loan cannot be accepted as not only no such case has been made out in the written statement, such case has also not been made out in a proceeding before the criminal court under s. 125 of the Code of Criminal Procedure. The appellant who had special knowledge as to whom the money orders were meant for, had failed to bring any material on record in this regard. He could have produced a copy of the application filed by him before his employer praying therein that the said money orders were sent to Niren Saha, but he has failed to do so. At least he could have called for the said documents from the appropriate office of the Government.

Exhibit 2 which is dated 8th November, 1959, also clearly suggests that the petitioner-respondent had filed an application on 16.10.1958 enquiring whereabouts of her husband. Exhibit 2 in an unmistaken term proves that there had been some relationship, which must be presumed to be mental relationship by and between the appellant and the respondent.

It may be true that the ration cards filed by the respondent, which have been marked Exhibit ‘B’ series at the instance of the appellant may not be relied upon as they are dated 15.12.1981, in view of the fact that admitted the desertion took place in March, 1980. However, it is relevant to note here that the petitioner-respondent in her deposition categorically stated that the ration cards had been issued in the year 1964.

So far as the photograph is concerned, in view of the admission of the appellant that in fact the photograph of himself along with Sikha Saha had been taken in the year 1976, it was not necessary for the respondent to examine the photographs. In that view of the matter, in my opinion, the decision of the Bombay High Court in Laxman Ganpati Khot v. Anusuabai, reported in AIR 1976 Bom 264 cannot have any application in the facts and circumstances of the case.

The certificate granted by the Board is also a piece of evidence proving the relationship between the P.W 3 and the appellant as daughter and father, although as indicated hereinabove, the same may not be conclusive.

38. In Birad Mal Singhvi v. Anand Purohit, reported in AIR 1988 SC 1796, the Supreme Court held that an entry relating to date of birth made in the School Register is relevant and admissible under s. 35 of the Act but the entry regarding the age of a person in a School Register is of not much evidentiary value to prove the age of the person, in the absence of the material on which the age was recorded by seeking to prove the certificate which is a public document.

In the instant case the respondent did not intend to prove the age of her daughter but only wanted to bring on record a piece of evidence to show that in the certificate also the name of the appellant figures as father of Sikha Saha, P.W 4.

The said certificate is a public document and thus has evidentiary value.

I, however, hasten to add that thereby I do not intend to lay down a law that such evidence would be conclusive in nature.

39. In view of the aforesaid overwhelming evidences records as also the attending circumstance I am satisfied that the appellant had been able to bring on records sufficient materials to show that the parties had been living together as husband and wife for a long time.

40. In Mohd. Amin v. Vakil Ahmad, reported in AIR 1952 SC 358, it has been held as follows:

“18. Plaintiff 5 and Haji had been living as man and wife for 23 to 24 years openly and to the knowledge of all their relations and friends. Plaintiffs 1 to 4 were the children born to them. Plaintiff 5, Jahi and the children were all staying in the family house and all the relations including defendant 1 himself treated plaintiff 5 as a wife of Jaji and plaintiffs 1 to 4 as his children. There was thus sufficient evidence of habit and repute. Haji moreover purchased a house and got the sale deed executed in the names of plaintiffs 1 and 2 who were described therein as his sons. The evidence which was led by defendants 1 to 5 to the contrary was discarded by the High Court as of a negative character and of no value. Even when the deed of settlement was executed between the parties plaintiff 5 was described as the widow and plaintiffs 1 to 4 were described as the children of Haji. All these circumstances raised the presumption that plaintiff 5 was the lawfully wedded wife and plaintiff 1 to 4 were the legitimate children of Haji.”

In Badri Prasad v. Dy. Director of Consolidation, reported in AIR 1978 SC 1557 it has been held that when a long-cohabitation is proved, examination of priest as a witness is not necessary. The Court in such an event is entitled to raise presumption of a valid marriage. Reference in this connection may be made to in Linga Mallik v. Ajodhya Mallikani, reported in AIR 1974 Orissa 107.

41. So far as the legitimacy of Shikharani Saha is concerned, a presumption in that regard can also be drawn.

Reference was made of para 4-25 of Phipson on Evidence which is as follows:

“4-25. The legitimacy of a child born during wedlock is presumed; but if its parents are shown to have been judicially separated or to have been living apart under an order, more than nine months before its birth, the presumption is reversed. This presumption must now be regarded as greatly weakened. It is rebuttable in Civil Proceedings by evidence which shows that it is more probable than not that a person is illegitimate. ‘This means that the presumption of legitimacy now merely determnes the burder, of proof. Once evidence has been laid it must be weighed without using the presumption as a makeweight in the scale for legitimacy. So even weak evidence against legitimacy must prevail if there is not other evidence to counter-balance it. The presumption will only come in at that stage in the very rare case of the evidence being so evenly balanced that the Court is unable to reach a decision on it.”

42. As has been indicated hereinabove, the appellant in her cross-examination neither denied the writing of the letter by him to the respondent, nor denied the existence of materials as stated by P.Ws 4 and 5.

43. In the case of A.E.G Carapiet… v. A.Y Derderian…., reported in AIR 1961 Cal 359, this Court has clearly held that if a party to a lis in cross-examination failed to question about the material piece of evidence, placed on record by the witness, in his/her examination-in-chief, the same should be accepted as correct.

44. The case of Sridhar Dey… v. Kalpana Dey…., reported in 91 CWN page 456 upon, which a strong reliance has been placed by Mr. Roychowdhury, goes against his contention. In Sridhar's case a Division Bench of this Court held:

“4. The totality of the evidence leaves us it no doubt that there was a marriage between the petitioner and the respondent as alleged in the petition. But Mr. Mitra has argued that even assuming that there was a marriage between the parties, the marriage was not valid and legal to sustain a decree for restitution of conjugal rights as the ceremonies essential for a valid Hindu marriage have not been proved to have been performed. We have our doubts as to whether the respondent can be allowed to put forward such a case. Both in his pleading as well as at the trial, the only case made out by the respondent is an out-right denial of the marriage in fact and it was never his case at any stage that though there was a marriage in fact, the marriage was not legal and valid as the essential ceremonies were not performed. To allow the respondent to press such a case not made out by him in the pleading or the evidence would be causing gravest possible prejudice to the petitioner. The respondent having altogether denied the factum of marriage, and not its legality on the ground of non-performance of essential ceremonies, if the factum of marriage appears to have been proved, we would presume, in the absence of evidence to the contrary, due performance of all ceremonies necessary to constitute the marriage.”

45. The Division Bench thereafter negatived the contention that even in such a situation the validity of the marriage must be affirmatively proved by positive evidence.

46. The decision in the case of Mousumi Chakraborty… v. Subrata Guha Roy…., reported in 95 CWN page 380 was rendered on completely different circumstances. In that case, a suit was filed for a declaration that there was no marriage between the petitioner and the respondent under Hindu Marriage Act. In that case it was specifically pleaded that there was no valid marriage at all, inasmuch as the ceremonies essential for solemnisation of a marriage were not performed.

47. In Amjad Ali Khan v. Nawab Ali Khan, reported in 5 CLJ 1, upon which strong reliance has been placed by Mr. Roychowdhury was rendered in different fact situation. In that case it was held that there was no documentary evidence to prove the conduct of relations and friends of the parties. It was further held that the testimony of the witnesses who came for work to speak as to the fact of the marriage seem to be wholly untrustworthy.

48. In Dr. Dr N.G Dastane v. Mrs S. Dastane., reported in AIR 1975 SC 1534, the Supreme Court was not dealing with case where the marriage between the parties to the lis was itself in dispute. In that case it was held that the burden must lie on the petitioner to establish his or her case, as the burden lies on the party which affirms a fact and not on the party which denies it, as it is so much easier to prove a positive than a negative.

The Apex Court in that case held:

“23. ******

But does the law require, as the High Court has held, that the petitioner must prove his case beyond a reasonable doubt? In other words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order to judge whether the burden has been discharged?”

49. The Supreme Court upon consideration of several authorities, inter alia, held that the proceedings under s. 10 of the Hindu Marriage Act being essentially of a civil nature, the word “satisfied” in s. 23 must mean “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt”. These cannot be any quarell with the aforesaid proposition of law.

50. In Priya Bala Ghosh v. Suresh Chandra Ghosh, reported in AIR 1971 SC 1153, the Supreme Court was dealing with a prosecution under s. 494 of the Indian Penal Code.

It cannot be disputed that the degree of proof in a criminal case is much higher than a civil suit as has been held by the Supreme Court Dastane's case (supra).

In Priya Bala's case the question arose as to whether the second marriage allegedly performed by the respondent was valid. Such is not the case here. Priya Bala's case, therefore, has no application to the facts of the instant case. This aspect of the matter has also been elaborately considered in Sridhar Dey's case (supra).

51. Reference in this connection may also be made in the case of P. Nirmal v. Anthony Raj, a Special Bench decision of Karnataka High Court, reported in AIR 1985 Karnataka 47.

52. Moreover the learned Court below upon appraisal of the evidences brought on records accepted the plea of marriage. Such a finding based on oral testimonies of the witnesses shall not be ordinarily interfered with by the Appellate Court.

53. In Mandholal v. Official Assignee of Bombay, reported in AIR 1950 Federal Court page 21, it has been observed:

“It is true that a Judge of first instance can never be treated as infalliable in determining on which side the truth lies and like other tribunals he may go wrong on question of fact but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the Appeal court should not lightly interfere with the judgment.”

To the same effect is the judgment of the Supreme Court in Madhusudan Das v. Narayani Rai, reported in AIR 1983 SC 114. In this case, the learned trial Court had considered the testimonies of the witnesses examined on behalf of the plaintiff relating to the fact at issue. I find that the findings arrived at by the trial court are reasonable and as such there is no reason as to why this court would differ with the said findings on the aforementioned point.

54. In Rajbir Kaur v. S. Chokosiri and Co., reported in AIR 1988 SC 1845, the Apex Court upon consideration of a large number of decisions observed as follows:—

“18. Reference on the point could also usefully be made to A.L Goodhard's Article (71 LQR 402 at 405) in which the learned author point out:

‘A judge sitting without a jury must perform dual function. The first function consists in the establishment of the particular facts. This may be described as the perceptive function. It is what you actually perceive by the five senses. It is a datum of experience as distinct from a conclusion’.

‘It is obvious that, in almost all cases tried by a judge without a jury, an appellate Court, which has not had an opportunity of seeing the witnesses, must accept his conclusions of fact because it cannot tell on what ground he reached them and what impression the various witnesses made on him’.

(Emphasis supplied.)

The following is the statement of the same principle in ‘The Supreme Court Practice’ (White Book 1988 Edn. Vol. 1)

‘Great weight is due to the decision of a Judge of first instance whenever, in a conflict of testimony, the demeanour and manner of witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of these statements. But the parties to the cause are nevertheless entitled as well on questions of fact as on questions of law to demand the decision of the Court of Appeal, and that Court cannot excuse, itself from the task of weighing conflicting evidence, and drawing its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.’ (pp. 854-55).

“……..Not to have seen witnesses puts appellate judges in a permanent position of disadvantage against the trial Judge, and unless it can be shown that he has failed to use or has palpably misused his advantage for—for example has failed to observe inconsistencies or indisputable foct or material probabilities (ibid, and Yuill (1945)/15; Watt v. Thomas, (1947) AC 484).—the higher Court ought not to take the responsibilities of recersing conclusions so arrived at merely as the result of their own comparisons and criticisms of the witnesses, and of their view of the probabilities of the case” (p. 855)

“……..But while the Court of Appeal is always reluctant to reject a finding by a Judge of the specific or primary facts deposed to by the witnesses, especially when the finding is based on the credibility or bearing of a witness, it is willing to form an independent opinion upon the proper inference to be drawn from it……..” (p. 855)

A consideration of this aspect would be incomplete without a reference to the observations of B.K Mukherjee, J., in Sarju Pershad v. Jwaleshwari Pratap Narain Singh, 1950 SCR 781 at p. 783 : AIR 1951 SC 120 p. 121) which as a succinct statement of the rule cannot indeed be bettered:

“The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is—and it is nothing more than a rule of practice—that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact”.

19. The area in which the question lies in the present case is the area of the perceptive functions of the trial Jude where the possibility of errors of inference does not play a significant role. The question whether the statement of the witnesses in reqard to what was amenable to preception by sensual experience as to what they say and heard is acceptable or not is the area in which the well-known limitation on the powers of the appellate court to reappreciate the evidence falls. The appellate Court, if it seeks to reverse those findings of fact, must give cogent reasons to demonstrate how the trial Court fell into an obvious error.

With respect to the High Court, we think, that, what the High Court did was perhaps even an appellate Court, with full-fledged appellate Jurisdiction would, in the circumstances of the present case, have felt compelled to abstain from and reluctant to do. Contention (c) would also require to be upheld.”

55. In this case the evidence adduced by and on behalf of the petitioner respondent in support of the marriage is good in quality. The marriage in fact has been proved by the petitioner respondent. Keeping in view of the totality of the evidence I have no doubt that the petitioner respondent has been able to prove the marriage by and between herself and the appellant. As a logical corollary it has also to be held that Shantirani Saha was the daughter of the parties to the appeal.

56. In view of the defence of the appellant, the petitioner respondent must be held to have also proved the animus deserendi. For the reasons aforementioned there is no merit in this appeal which is accordingly dismissed with costs.

Samir Kumar Mookherjee, J.:—I agree with the conclusion.

Appeal dismissed.

K.G