Smt. Bibbe v. Smt. Ram Kali And Others

1. This appeal arises in the following circumstances. The plaintiff-respondents filed a suit for partition of a house situate in Katra Chand Khan old City, Bareilly. They claimed ⅔rds share in the said house and also claimed payment of damages. The house belonged to one Ram Swarup who died on 5-11-1967. The plaintiff No. 1 claimed to be the widow of Ram Swarup. The plaintiff No. 2 and the defendant No. 1 were said to be his daughters. It was said that Ram Swarup did not leave behind any other heir except the plaintiffs and the defendant No. 1. The defendant No. 2 was said to be not having any share in the property but she was asserting her right in the house. The suit for its partition was filed. The suit was resisted by the defendant No. 2 on the ground inter alia, that the plaintiff No. 1 was not the legally wedded wife of Ram Swarup and that the plaintiff No. 2 and the defendant No. 1 had also no share in the said house. The contention of the plaintiff No. 1 that she was married to Ram Swarup in the year 1958 was denied. The trial court recorded the statement of the defendant No. 2 under O. 10, R. 2 C.P.C She said that the plaintiff No. 1 had “Gar Par Aakar Baith Gai Thhi”. The trial court on a consideration of the evidence adduced by the parties held that the plaintiff No. 1 was not an heir nor the widow of Ram Swarup and as such was not entitled to any share in the disputed property. The trial court, however, held that the legal heirs of Ram Swarup were the plaintiff No. 2, the defendant No. 1 and the defendant No. 2 who are the daughters of Ram Swarup and are therefore entitled to a share of ⅓rd each in the house in dispute. It also held that there was no evidence that the husband of defendant No. 2 was a tenant of the accommodation in dispute; hence the question of damages did not arise. The suit for partition was accordingly decreed and it was declared that the plaintiff No. 1 has no share in the house in dispute. It was further declared that the plaintiff No. 2 was entitled to ⅓rd share in the house in dispute and that the defendant No. 1 had ⅓rd share. It was further declared that the defendant No. 2 had also ⅓rd share in the disputed house. Against that decision an appeal was filed by the plaintiff Smt. Ram Kali. The appellate court below held that the plaintiff Ram Kali was the widow of Ram Swarup. Consequently the appeal was allowed with costs and the decree was modified to the effect that the suit of the plaintiff shall stand decreed for partition and separation of ¼th share of Smt. Ram Kali, ¼th share of Smt. Hanso, ¼th share of Smt. Bibbe and ¼th share of Smt. Bimla, Smt. Bibbe has filed the second appeal.

2. For the appellant it was urged that the appellate court below erred in holding that Smt. Ram Kali is the widow of Ram Swarup. The submission was that Smt. Ram Kali had not alleged in the plaint that her marriage had been performed in accordance with the customary rites prevailing in her community in the year 1958 and as the same fact had not been pleaded the appellate Court below fell in error in considering the evidence adduced in that behalf and in setting aside the finding reached by the trial court. The parties to the dispute are Hindus. They are governed by the provisions of Hindu Law and the Hindu Marriage Act. The plaintiff No. 1 had stated in the plaint that she was married to Ram Swarup in the year 1958. In her deposition before the court below she had stated that when she became a widow her parents got her marriage settled with Ram Swarup and she was married with Ram Swarup in the year 1958. That being the position the said marriage would obviously be governed by the provisions of Hindu Marriage Act, 1955.

3. Section 7 of the H.M Act provides that a Hindu marriage maybe solemnized in accordance with the customary rites and ceremonies of either party thereto. Sub-sec. (2) of Sec. 7 of the Act provides that where such rites and ceremonies include the ‘saptapadi’ (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. So a Hindu marriage may be solemnized by the performance of ceremonies and customary rites which are recognized by the caste to which the parties belong. In other words, ceremony of marriage must be in accordance with the custom or usage applicable to either party and the ceremony must be such which is allowed by the custom of the caste to which the parties belong. It is now competent to any two persons who are Hindus to solemnize a ceremonial marriage under the Act and what is necessary is that solemnization of marriage must be in accordance with customary rites and ceremonies of either party to the marriage. The customs must of course be a valid custom and similarly ceremonies must be those which are requisite for the performance of marriage in the caste to which the parties belong. In the case of Bhaurao v. State Of Maharashtra (AIR 1965 SC 1564) it was pointed out that the word ‘solemnize’ means, in connection with a marriage, ‘to celebrate the marriage with proper ceremonies and in due form.’ It was observed further that therefore unless the marriage is ‘celebrated or performed with proper ceremonies and in due form’ it cannot be said to be ‘solemnized.’ That being the position it is essential for the purpose of Sec. 7 of the H.M Act that the marriage should be celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom, vide Bhaurao Shankar's case (supra). This authority was followed by the Supreme Court in another case Kanwal Ram v. The Himachal Pradesh Administration (AIR 1966 SC 614) and also in Smt. Priya Bala v. Suresh Chandra ((1971) 1 SCC 864 : AIR 1971 SC 1153). So if a party to a suit claims to have been married to a person he or she must establish that the marriage was solemnized in accordance with the customary rites and ceremonies of either parry-thereto. The customary rites and ceremonies must, therefore, be completed and proved.

4. In the case in hand the plaintiff No. 1 alleged that she was married to Ram Swarup in the year 1958. In her evidence she stated that she had become widow and then her parents settled the marriage with Ram Swarup which was performed by observing certain ceremonies. She did not allege in her plaint that the marriage was performed in accordance with the alleged custom known as ‘Kaz’ in the caste to which she belonged. The defendant No. 2 denied the factum of marriage and specifically pleaded that the plaintiff No. 1 was not a legally wedded wife of Ram Swarup. The defendant No. 2 further stated in her statement recorded under the provisions of O. 10 R. 2 C.P.C that the plaintiff No. 1 had “GHAR PAR AKAR BAITH GAI THHI.” These words were construed by both the courts below. The trial court held that the customary rites had not been proved and that at any rate the same had not been pleaded. The appellate court below emphasizing the said words of the defendant No. 2 made under O. 10 R. 2 C.P.C, and also other circumstances held that the marriage of plaintiff No. 1 had been solemnized in accordance with the usage or custom applicable to the parties in question. It is by now well settled that a decision cannot be based on facts not pleaded and that no evidence would be permissible to be led with regard to a fact which has not been pleaded. In the instant case the plaintiff No. 1 had claimed share in the house in dispute on the ground that she was widow of Ram Swarup who owned that house. She had therefore, to plead that she was legally wedded wife of Ram Swarup.

5. In other words, the marriage of the plaintiff No. 1 with Ram Swarup as a fact had to be pleaded and proved. It follows that essential ceremonies constituting the marriage must have been pleaded and proved in a case where her right was being disputed. Smt. Ram Kali had merely stated in the plaint that she was married to Ram Swarup. That was denied. She had to say that her marriage had been solemnized in accordance with the custom and usage applicable to her. That was, however, not done. The trial court considering all the facts and circumstances of the case had reached the conclusion that Smt. Ram Kali was not married to Ram Swarup. The appellate court below held to the contrary. The ceremony of marriage in accordance with the custom known as ‘Kaz’ in the community to which the plaintiff No. 1 belonged was no doubt not pleaded. The question is was it otherwise established in the case? The defendant No. 2 had categorically denied the marriage of Smt. Ram Kali with Ram Swarup. She had said with respect to Smt. Ram Kali “Ghar Par Aakar Baith Gai Thhi” These words do not indicate that the marriage of Ram Kali had taken place with Ram Swarup. On the other hand these words go to suggest that she was just a kept of Ram Swarup. No doubt Smt. Ram Kali had examined certain persons to show that some ceremony had been performed but there is no evidence to the effect that such ceremony of alleged marriage was in accordance with usage or custom applicable to her community. What were the ingredients of the custom known as “Kaz” were not sought to be pleaded or proved. In the case of a caste custom or a custom of any sub-caste it must have been shown to be ancient, certain and reasonable and not opposed to public policy and it cannot be enlarged beyond the usage by parity of reasoning since it is the usage that makes the law and not the reason of the thing. The antiquity notoriety and reasonableness of the alleged custom ‘Kaz’ was significantly not proved and established in the case in hand. The appellate court below, therefore, fell in error in holding that Smt. Ram Kali was the legally wedded wife of Ram Swarup. The trial court in my view was correct in holding that Smt. Ram Kali was not the legally wedded wife of Ram Swarup.

6. In the result the appeal is allowed. The decree passed by the appellate court below is set aside and the decree passed by the trial Court is maintained. Since none appears to contest the appeal I make no order as to costs.

7. Appeal allowed.