RATHNAMMA & ORS. versus SUJATHAMMA & ORS.

Citation: [2019] 14 S.C.R. 647 · Decided: 15-11-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed

Judgment (excerpt)

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RATHNAMMA & ORS.
v.
SUJATHAMMA & ORS.
(Civil Appeal No. 3050 of  2010)
NOVEMBER 15, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Hindu Marriage Act, 1955 – ss.5, 7 and 11 – Succession in
the estate on basis of a marriage – Claim for – Plaintiff, maternal
grand-daughter of defendant No.1 claimed to have married ‘H’ her
uncle (son of defendant No.1) on 7.3.1986 - ‘H’ had died on
15.10.1986 – Defendant  No.1 had two sons (including ‘H’) and
three daughters – Plaintiff sought share of the estate of defendant
No.1, as wife of deceased ‘H’ – Trial court held that the plaintiff
and ‘H’ had not attained the qualifying age at the time of
registration of marriage in the office of sub-Registrar and thus,
marriage was void ab initio – Also, there was no evidence of
performance of necessary marriage ceremonies in terms of s.7 of
the Hindu Marriage Act therefore, mere registration of an
agreement of marriage was not sufficient to prove marriage – In
the result, the Trial Court dismissed the suit – First Appellate Court
held marriage to be valid and decreed the suit – Aggrieved,
defendants filed second appeal, however, same was dismissed –
On appeal, held: In the instant case, the plaintiff has not proved
custom of marriage to her mother’s brother and/or judicial
precedent recognizing such marriage – In the absence of any
precedent or custom of such marriage, no judicial notice can be
taken of a custom – The entire case was based upon an agreement
of marriage in which there was no assertion regarding
solemnization of the customary ceremonies or the rites or that the
parties had performed saptpadi in the manner contemplated u/s.7
of the Hindu Marriage Act, 1955, therefore, the plaintiff cannot
succeed the estate of ‘H’ on basis of a marriage which she failed
to prove.
Allowing the appeal, the Court
HELD: 1. The High Court has committed illegality in
holding that since the defendants have denied marriage, it cannot
   [2019] 14 S.C.R. 647
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SUPREME COURT REPORTS
[2019] 14 S.C.R.
be asserted by the defendants that the marriage of the plaintiff
with ‘H’ was not a valid marriage.  The plaintiff has led evidence
to the effect that the marriage was solemnized in the office of
Sub-Registrar vide Ex.P/1.  Ex.P/1 has been rightly found to be
not a certificate of registration of marriage under the Special
Marriage Act, 1954 and that there is no evidence that any
ceremony has taken place.  In the agreement of marriage (Ex.P/
1), it is only stated that both parties are of same caste and with
the permission and consent of both of their fathers, they have
entered into this agreement of marriage.  This type of marriage
is not recognized in law as Section 7 of the Act contemplates
that the marriage can be solemnized in accordance with
customary rites and ceremonies of either party thereto and where
such rites and ceremonies include the Saptpadi, the marriage
becomes complete and binding when the seventh step is taken.
[Para 13] [655-F-G; 656-A]
2. The plaintiff has not led any evidence of solemnization
of marriage as provided under sub-clause (2) of Section 7 of the
Act or by leading any evidence of customary rites and
ceremonies. The burden to prove marriage was on the Plaintiff
alone. The defendants have denied marriage of the Plaintiff,
therefore, the burden to prove marriage was on the plaintiff
alone. Apart from such fact, the marriage cannot be said to be
taken place in terms of Section 5(v) of the Act which is to the
effect that the parties are not sapindas to each other, unless the
custom or usage governing each of them permits of a marriage
between the two.  Such marriage is a void marriage but, on a
petition, preferred by either party thereto. [Para 14] [656-B-D]
3. In the present case, the plaintiff has not proved custom
of marriage to her mother’s brother and/or judicial precedent
recognizing such marriage. In the absence of any precedent or
custom of such marriage, no judicial notice can be taken of a
custom as argued by the learned counsel for the plaintiff.  In the
absence of any pleading or proof of custom, the argument that
in Vokkaliga community, such marriage can be performed cannot
be accepted as no judicial precedent was brought to the notice
of the Court that such a custom exists in the Vokkaliga
community nor there is any instance quoted in evidence of
existence of such custom.[Para 17] [658-C-D]
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4.  The burden to prove the marriage was on the plaintiff.
The plain

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