Much as I pity the lot of the unfortunate appellant who has been made a pawn in a discreditable game played by some of her misguided relatives, I do not find any ground on which I can interfere with the decision of the lower appellate Court.
The plaintiff sued for a declaration that the defendant was not his legally wedded wife; and the allegations in the plaint imply either that there was no marriage in fact or in any event, it did not amount to a valid marriage. It is common ground that the marriage, if any, took place under abnormal circumstances. The plaintiff was undoubtedly a young man—it makes very little difference whether he was 18 or 20 at the time—and the defendant's witnesses agree that the plaintiff's parents who were well-to-do people were not likely to agree to his marrying the defendant.
[Here his Lordship notices the respective contentions of the parties and the defects in the judgment of the lower Court and proceeds].
In substance, the story as accepted by the learned Judge seems to me to amount to this: (in the words of the summary of the plaint given in paragraph I of the first Court's judgment, namely) that, on some pretext, the plaintiff was taken to the neighbouring village by D.W 1, that D.W 1 and D.W 5 had without the plaintiff's knowledge made arrangements there beforehand for some of the formalities of the marriage ceremony, that when the plaintiff found himself in that house he was asked to marry the defendant to which he did not agree and that while this conversation was going on the plaintiff was asked to tie the thali to the defendant which he refused to do, that thereupon D.W 1 held the plaintiff's hand and made him tie the thali to the defendant, and that the plaintiff thereafter ran away from the place to his parent's house. If this is to be taken to be the true version, I am not able to say that the learned Judge was wrong in holding that there was no legal relationship of husband and wife created between the parties by whatever ceremonial gone through at the time.
If I were satisfied as to the truth of the defendant's story that after the events of the evening, the plaintiff and defendant did in fact live as man and wife for a period of three days, I should have unhesitatingly upheld the marriage, because, at best the plaintiff would have only been a reluctant party to the ceremony and any locus penitentiae that he might have been entitled to on that footing he must be held to have lost by having chosen to live with the lady as husband for a time. Even the learned District Munsif does not seem to have accepted that version and the District Judge clearly rejects it. So far as it is open to me to look into the evidence, I have examined it carefully and I am not satisfied that part of the story is wholly reliable. The three days' period seems to me to have been suggested by the fact that three days after this incident, the plaintiff joined his father in the execution of certain gift deeds in favour of his sisters. D.W 1 admits, though D.W 5 denies, that very evening the plaintiff's parents were on the track with a view to prevent the marriage if possible. D.W 1 would have it that the parents came to the defendant's house in the night and rebuked them though D.W 5 would deny even that. Having regard to the plaintiff's subsequent conduct and the position of the plaintiff's family and the proximity of their house, I find it difficult to accept the defendant's version that the plaintiff was allowed to remain in the defendant's house for three days.
Mr. Raghava Rao asked me to say that the plaintiff's evidence at best only shows that he reluctantly submitted to a proposal put before him by D.W 1 and D.W 5. I do not think that is a correct statement of the effect of the evidence. The plaintiff's evidence, if true, implies that his hand was merely moved by D.W 1 and that the plaintiff by himself had no voluntary part in the matter. Mr. Raghava Rao next contended that even if this should be taken to be the finding of the lower appellate Court on the evidence, the Court is not justified in applying to a Hindu marriage the principles of the law of contract and holding the marriage to be inoperative or void. I agree that the Hindu marriage is a sacrament and not a civil contract and that it will not be permissible to apply to a Hindu marriage all the principles of the Law of Contract, at least for the reason that in most marriages sanctioned by the Hindu Law the infant spouses have no contracting capacity. It seems to me, however, too much to argue from this that even fundamental principles like freedom of consent by some responsible person if not by the spouses themselves, ought to be ignored. I am not for a moment saying that the absence of the parents' consent will always invalidate the marriage. According to the plaintiff's case, the plaintiff was never a willing party to the marriage; and if on the evidence the Court holds that he never wanted to be a party to the marriage, the mere fact that somebody else caught hold of his hand and made him tie a thali round the lady's neck ought not, it seems to me, to be held to constitute a marriage, because it will be making a travesty of the so-called sacrament.
The reported decisions no doubt happen to be instances of objections raised from the point of view of the bride, such as absence of consent by her father and so on, and they have therefore laid stress upon the necessity for the gift of the girl by some competent person. But there is no reason to hold that is the only possible kind of invalidation. In cases like Khushalchand Lalchand v. Bai Mani(1), Brindabun Chandra Kurmokar v. Chundra Kurmokar(2) and Venkatacharyulu v. Rangacharyulu(3) and in the observations of Sir Gurudas Banerji (on pages 56 and 57 of the 5th edition of his book on Marriage) a reservation has been made in respect of a ceremonial brought about by fraud or force. There is no scope here for the application of the principle of Factum Valet, because this is not a case of a mere violation of some ‘directory’ text.
Mr. Raghava Rao suggested that if one is to apply the principles of the Law of Contract, fraud or coercion must have been exercised by the other party to the contract and that is not the case here. As I am not proceeding on the theory that the Law of Contract as such is applicable to the present case, I do not feel pressed by this contention. It seems to me that whoever may be responsible for it, if the husband never intended to go through the form which he is compelled to go through as a kind of automaton, he cannot be held to have gone through the marriage at all. In this view, I must hold that the lower appellate Court was right in decreeing the plaintiff's suit.
The Second Appeal fails and must be dismissed with costs.
I willingly grant leave, in the hope that during the pendency of the appeal the parties will have the good sense to come to some honourable settlement or at least that the appellate Court may find some way of helping the appellant.
N.R.RAppeal dismissed.