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Leading Judgment on Admission Under Cross Examination Leading Judgment on Admission Under Cross Examination

Bronze medal Reporter Adv John Posted 5 Dec 2018 Post Comment Visitors: 393 Read More News and Blogs
Leading Judgment on Admission Under Cross Examination

This appeal by the petitioner is directed against the order dated 16-6-1977 passed by the Principal Civil Judge, Bangalore City, in M. C. No. 20 of 1972, on his file, dismissed the petition of the petitioner-wife instituted under Section 9 of the Hindu Marriage Act, 1955. Smt. Parameshwari Bai, the petitioner, averred that she was married by her father when she was a girl of 7 years to one Sakharam of Madras, a processor in CT61d. She got a sort by name Shankar Rao by him and when her son was 7 months old. her husband died in an accident. Consequently, she had to return to. Her parents' . house.' Her son was brought up in her parents' house. Later on, in about the year 1946, when she was so staying in her parents' house, one Venkoba Rao, a family friend, introduced to the members of the family the respondent in the petition, namely Muthoji Rao Scindia, who was then the District Superintendent of Police of Mysore.

Karnataka High Court

Parameshwari Bai vs Muthojirao Scindia on 29 July, 1980

Equivalent citations: AIR 1981 Kant 40, ILR 1981 KAR 78

Bench: G Sabhahit, D V Rao

1. This appeal by the petitioner is directed against the order dated 16-6-1977 passed by the Principal Civil Judge, Bangalore City, in M. C. No. 20 of 1972, on his file, dismissed the petition of the petitioner-wife instituted under Section 9 of the Hindu Marriage Act, 1955.

2. Smt. Parameshwari Bai, the petitioner, averred that she was married by her father when she was a girl of 7 years to one Sakharam of Madras, a processor in CT61d. She got a sort by name Shankar Rao by him and when her son was 7 months old. her husband died in an accident. Consequently, she had to return to. Her parents' . house.' Her son was brought up in her parents' house. Later on, in about the year 1946, when she was so staying in her parents' house, one Venkoba Rao, a family friend, introduced to the members of the family the respondent in the petition, namely Muthoji Rao Scindia, who was then the District Superintendent of Police of Mysore. The respondent was introduced. to her father and thereafter , he started visiting the house often. Venkoba Rao asked, her whether she. Would be Willing to, marry the respondent. For one or two years she did not give her consent: stating that she had to consult her parents. Venkoba Rao suggested to her that there was nothing wrong in a widow's remarriage and gave some instances of eminent persons like Karnaladevi Chattopadhyaya and Durgabai Deshmukh etc. In the meanwhile, the respondent also persuaded her to marry. Him and sought her consent. Accordingly., after consulting her parents, the petitioner decided to marry him.

3. The, marriage took place at Andal Mandir, Mysore, in the presence of Smt. Pandit Sundaranima, who was in charge of that Ashram. A purohit officiated at the marriage, her parents, respondent's mother, Barister Srikantalah of Bangalore and, others were present. The marriage was not arranged on, large scale for. obvious reasons. Thereafter, the petitioner and respondent lived as husband and wife for more than two decades. The respondent treated her as a beloved wife, Even he got performed'. with her his 60th birth day in the year 1962, Ex. p-19 is the invitation issued by the mother of respondent inviting relatives and friends to attend Shastipoorthi. Shanthi ceremony on 26-4-1962, in the morning at 9-20. It is sent with best compliments of Mr. Muthoji Rao Scindia Mrs. Prameswari Bai M. Scindia.

It is further averred that Mangalya Sootra Dharana was performed in the course of the ceremony. Exs. P-20 to P~32 and Ex. p-36, are the photos taken' on that occasion. Even after performing the Shastipoorthi Shanthi ceremony, the petitioner and the respondent lived together happily without any misunderstanding between them. In the month of December, 1971, however, the respondent left the house. The respondent proceeded to Bhadravathi stating that one Chavan friend of his was not well. For 20 days, he did not return. Being apprehensive called the brother of the respondent name Achutha Rao and requested him to make enquiries. After a couple of days, she received a letter from the respondent as per Ex. p-47. Thereafter he returned on Monday next and on return he asserted that he could not stay with the petitioner and asked her to leave the house. She asserted her right and then he left the house. Thus, the misunderstandings developed till at last he started troubling her to leave the house. Hence, she instituted the petition under Section 9 of the Hindu Marriage Act, 1955, praying for restitution of conjugal rights as to respondent ,started living away from the house. ,

4. The petition was instituted on 10-4-1971 the respondent contested the petition by filing his statement of objection. According to him, there was no marriage between him and the petitioner he further asserted that at the time of filing Ns objections, the petitioner was. 62 years of age and he was 72 years of age. . He further asserted that the petitioner is widow having a son aged above 44 years. He had a spouse, and his sun through her is aged about 40 years. He described the averments in the petition as mischievous. He is a Maratha by caste and is aged about 72 years and the petitioner did not belong to his caste. His marriage was performed with another lady, according to the, customary rites, he denied that he lived with the petitioner,'as her husband The petition was, according to him, instituted to blackmail him, and hence he prayed that the same should be dismissed.



5.The learned Civil.Judge raised the following points at arising from the pleadings

(a) Whether the petitioner has proved that she is the wife of the Respondent?

(b) Whether the petitioner has proved that the respondent has withdrawn from her society without reasonable or just cause?

(c) Whether the petitioner is entitled to the relief of restitution of , conjugal. rights?

During the course of hearing, the petitioner examined herself as P. W-5 and examined four other witnesses as P.Ws-1 to 4. She got marked Exhibits P-1 to P-73. As against, the respondent examined himself as R.W-1 and got marked Exs. D-1 to D-8. The learned Civil Judge, appreciating the evidence on record, held in negative the Point No. I as also Point No. 2 and in that view dismissed the petition. Aggrieved by the said order, the petitioner has come up in appeal before this Court.

6. The learned Advocate appearing for the petitioner appellant vehemently contended that the very approach of the learned Civil Judge to the facts of the case was not legal and proper. He submitted that since, even according to the learned Civil Judge, it was held proved that the petitioner and respondent lived as husband and wife for more than two decades, there was a strong presumption of valid marriage and the burden shifted on the respondent to prove -that the marriage was not legal and valid. He pointed out that the learned Civil Judge, did not approach the facts in that perspective. According to him, the respondent failed to rebut the presumption arising from the facts of the case and the learned Civil Judge wrongly cast the burden on the petitioner. He further submitted that even assuming that there was any impediment for the marriage to be legal and valid when it first took place, there could not be any such impediment or obstacle when the marriage was re-performed in the year 1962, before performing Shastipoorthi Shanthi ceremony. He also pointed out that even after 1962 they lived as husband and wife and as such, he submitted, that the learned Civil Judge was not justified in recording his finding that the petitioner failed to prove that she was married' wife of the respondent. In that view, the appeal, according to him, was entitled to succeed.

11. The presumption of law is a strong legal presumption and is not likely to be repelled by mere balance of probabilities. The evidence repelling that presumption must be strong, distinct and satisfactory. However, intendment is made in favour of marriage de facto and the presumption drawn is based upon cohabitation and repute. The Weight of the presumption gets strengthened when it. is proved that the party whose marriage is in question distinctly intending to marry and went through a form of marriage with that intention and also subsequently lived together as husband and wife and were estimated and reputed - as such by those who knew them. Even when there is no positive evidence of any marriage having taken place, the presumpItion is not only with regard to factum of marriage,'but also with regard to the parties and the requisite ceremony to constitute a valid marriage.

12. When once it is proved that the marriage was performed 'the presumption arises that it is valid in law and that the necessary ceremonies had been performed, unless evidence to the contrary is adduced that the necessary ceremonies there not performed. This Court in the case of Lalithamma S. N. v. T. S. Ramaswamy (ILR (1975) Kant .1973) had an occasion. to consider this aspect. His Lordship Chief Justice Govinda . Bhat (as he then was), speaking for the Division Bench has observed. thus, in para-7 of the Judgment:-

"When a man and woman have been proved to have lived together as man and wife, the law will presume, until the contrary be clearly proved, that they were living together in consequence Of it, valid marriage and not in a state of concubinage Vide Mayne on Hindu Law and Usage, 11th 'Edition (reprint), pages N3 and 164. In Sastry V. Elaider. Aronegary v. Sembecutty Vaigalie 6. Appeal cases.164 which came up in appeal be fore the Judicial Committee of the Privv council from the decision of the Supreme court at Cevlon it has been laid down that 'according to Rornan-Dutch law there is a presumption in favour of marriage rather than of concubinage, and that according to the law of ceylon, as in England, where a man and woman are proved to have lived together as man and wife, the law will presume. unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. In Mouji Lal v. Musammat Chandrabati Kumari 381.

16. The learned Advocate appearing for the respondent, however, invited our attention that the learned Counsel appearing for the petitioner has put several suggestions which go to rebut the presumption of validity of marriage.. The learned Counsel appearing for. the petitioner, in the course of cross-examination of the respondent, has put a suggestion that the marriage in Andal Mandir took place in the year 1957. In the crossexamination this is what is elicited.

"It is not true to suggest that subse quent to the year 1946 we were meeting each other and by about theyear 1957 it culminated in love and as, a consecluence there was marriage."

In the interrogations put to the respondent it is stated as under ;

"Is it riot a fact that you married the petitioner according to Sastricrites in Andal Mandiram, Mysore, in or about 1955. Is it not a fact that you and petitioner have been living in the house in Subramanya temple street as man and wife since 1955 till the year 1972.

Again, the learned Counsel invited our attention to the deposition of P.W-5, the petitioner, wherein it is elicited thus :

"The respondent had retired by then. He retired at Bangalore as D.I.G. He has not set up his family at Mysore. At the time of marriage the respondent was residing at Bangalore".

Later, it is further elicited:-

"It may be about two years earlier to the marriage, the respondent has retired from service".

17. The other ground raised before us is that the marriage was void. because the Hindu Marriage Act, 1955, had already come into force on 18-5-1955, and the marriage took place thereafter and it was hit by provisions of Section 17 of the Hindu Marriage Act. Section 17 of the Hindu Marriage at states* "Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly".

Thus. it is obvious that in order to attract the provisions of this Act, it would be necessary that the respondent must! show that the marriage was i after the commencement of the Act, namely, after 18-5-1955.

18. We have already observed above that the presumption arising on the faci of the case is a very strong presumption, and that unless the respondent adduce clear, cogent and reliable evidence, the presumption is not rebutted. The point therefore, that arises for our consideration is: Whether suggestions made, the stray sentence elicited in the course of cross-examination of the lady and the questions put on interrogation cannot be sufficient to rebut the presumption arising from the facts of the case discussed above.

21. Mahamahopadyaya P. V. Kane in his monumental work on Dharmhsastra (History of Dharmasastra Vol. V. Part I, 1962 at p. 758) describes the Sastyabdapurti S.hanthi, This is what he has observed, "There is a Ms. (of only three folios in D. C. No. 609 of the year 1882-83, now in the Bhandarkar Oriental Institute at Poona) which deals with this santi attributed to Saunaka and is called Ugrarathasanti at the end. The santi -is to be performed on the day or naksatra of one's birth, On that day the -p'erson of 60 years should take an auspicious bath, perform his daily religious duties, should invite Brahmanas and choose one to officiate who is learned in the Vedas -and Vedangas and is well conducted, -First Ganesh worship should be performed, then punyahavacana, worship of mother. goddesses, then nandisraddha. He should' bring together sarvausadhis, twigs and leaves of five trees, five jewels,. pancagavya, and pancamrta: then worship, of nine planets - should be performed.

Then be should make a *hbma'1n,. honour. of- Mrtyunjaya (siva) with oblar tions of durva grass and sesame 1000%'Ibt 5000, or 3000 or one thousand in i.hxr~W and then he should sacrifice separately te the secondary objects of worship But, he has no where mentioned that it .is necessary to perform the rites of mar riage oftee again. In. the Sankalpa which he has given in the foot-note he has men tioned:

(Matter in Sanskrit omitted-Ed.) "Sri Kane has further stated that 9twhoever perform-, this santi~ according to the rules prescribed for grahasanti~ -would certAin1v live for a, hundred years, all misfortunes will vanish and all pro-

sperity will be his." Therefore, it is obvious that the parties with a view to reassure themselves that the marriage is valid and legal underwent the ceremonies of marriage at the beginning of the Santi. It is needless for us to point out that in the case of, non-brahmins by custom the tying of 1~11'.is the only essential ingredient of a marriage. We are discussing this aspect incidentally and we make it'clear that even the earlier marriage at the initial stage entered into by the parties is held to be quite valid and legal and the subsequent conduct depicted above would further establish that the parties held out as husband and wife, they lived as husband and wife and they re-assured themselves that their wedlock was legal and valid by undergoing the ceremony once again at the beginning of the Sastyabdapurti ceremony. That being so, we have no hesitation to hold that the learned Civil'Judge approached the facts from a wrong angle and came to the conclusion that the marriage was not proved tc be legal. We are- of the considered view that the marriage was legal and that the couple lived for decades as husband and wife, they held out as husband and wife, created reputation amongst friends, relatives and acquaintances as husband and wife and the husband who isl now challenging the validity of the marriage has failed to rebut the strong 1 sul ion arising from such state of h we hold that the 'present petitioner is the legally " wedded wife of the respondent.

22. The evidence of the respondent, makes it -clear that he is withdrawing :,from the cornpany of his wife without Just and proper cause. The letters he has addressed subsequent to 1971 also make this clear. That being so, the petitioner wife is entitled to restitution of conjugal rights as contemplated under Section 9 of the Hindu Marriage Act, 1955.

23. In the result, therefore, the appeal is allowed. The order of the learn ed Civil Judge under appeal is set aside and the petitioner-appellant is granted decree for restitution of conjugal rights as prayed for. In the peculiar facts of this case, we make no order as to costs.

24. Appeal allowed.

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