Kerala High Court
A.B. Jisha, D/O. A.A. Balan vs K.S. Dilip, S/O. E.K. Sankaran on 5 February, 2003
Bench: K.A. Abdul Gafoor, K. Thankappan
JUDGMENT Abudl Gafoor, J.
1. An infantile disorder has put the appellant and respondent into this trouble of fighting cases in the Family Court and before this court.
2. The appellant was born on 3.5.1980. On 28.9.1998 when she had just crossed the border line of 18 years as provided in Section 5(iii) of the Hindu Marriage Act, 1955, both of them in the presence of Babitha, stated to be a friend, and others in a Mutt of which RW5 was the priest, got married themselves garlanding each other as stated by RW.5. Immediately after the marriage, both of them went to their own houses. Admittedly, the marriage has not been consummated. Later, the appellant-girl found gout the folly behind these and had a rethinking, perhaps, due the counselling by the parents and relatives. She filed O.P.No. 564/98 in the Family Court, Kozhikode seeking a declaration that the ceremonies conducted on 38.9.1998 does not result in a marriage and consequently for a declaration that the appellant does not have the status of a wife of the respondent. This petition had to be filed, in the wake of an advertisement appeared in one among the vernacular dailies at the instance of the respondent that the appellant was his wife. As a counterblast to O.P.No. 564/98, the respondent filed O.P.No. 615/98 seeking restitution of conjugal rights with the appellant. Both these were tried together and O.P.No. 564/98 was dismissed finding that there was valid marriage between the two and consequently O.P.No. 615/98 for restitution of conjugal rights was allowed. The common order of the Family Court is impugned in these appeals.
3. It is contended by the appellant that when the alleged ceremonies were conducted on 28/9/1998, the appellant had just crossed few more months after her 18th birth anniversary and the consent given by her was not a free consent. There was no arrangement for such a marriage by her parents. In such circumstances, there was no consent of the parents as well. It is further submitted by her that though she fell in love with the respondent in her later teen age, she did not have real intention to marry him and to live with him as husband and wife. It was because of some undue influence and persuasion her alleged consent was obtained and it was after administering a sweet candy with some drug that she had been taken to the Mutt manned by RW.5 to conduct the ceremonies to result in a marriage as alleged by the respondent. She had never lived with the respondent. The marriage had never been consummated. There was no marriage at all and the ceremonies performed cannot be taken as a marriage as no ceremonies as available in the community of the parties as enjoined in Section 7 of the Hindu Marriage Act, have been performed, to solemnise a marriage. Therefore, there was no marriage at all and the respondent cannot style himself as the husband of the appellant and consequently cannot claim restitution of conjugal rights.
4. The letters Ext.B1 series were produced by the respondent to show that the appellant had given free consent for the marriage. It was also contended that the long standing relationship between them and her visit in his house and the presentation of the ring which was also accepted by the appellant are sufficient to indicate that her consent was freely given and that there was a valid marriage. The parties were not within prohibitory limits as enjoined in Section 5 of the Hindu Marriage Act. Therefore, there was no question of declaring the marriage as null and void. The only prohibition with respect to the consent is that the parties shall not be below the age of 18 years. Admittedly by the appellant, the appellant had crossed the age of 18 years on 28.9.1998. Therefore, consent of the parents was not required as per the Act. She was a major to accord her own consent for the marriage. RW.5, the priest had spoken to before the court below about her free will and consent. In the presence of friends and relatives ceremonies of the solemnisation of the marriage in terms of Section 7 of the Act had been performed. They have exchanged garlands and taken few steps as directed by RW.5 to result in marriage, the respondent contends.
5. the appellant had stated in the petition as well as in her deposition as PW.1 before the court below that she did not intend to marry the respondent. But these statements had not been believed by the court below because of her tacit admission on the basis of Ext.B1 letters with reference to her intention to get the marriage registered and the exchange of garlands, receipt of the ring etc. Ext.B1 series are sufficient, the respondent contends to show that she had really intended to marry the respondent and therefore, it cannot be contended that she had never consented on 28.9.1998 to go to the Mutt headed by RW.5 to perform the ceremonies of marriage. Therefore, the decree does not in any way require modification, the respondent contends.
6. It is in the aforesaid fact situation, we have to deal with, as mentioned at the threshold, the infantile disorder that has resulted in the legal fight by the young couple. It is an admitted case that the alleged marriage was on 28.9.1998 and that for the marriage she had been taken from the computer school where she had been studying. She was not an earning member, though technically became major on 3.5.1998, she had been depending for everything on her parents. On 28.9.1998 she had only crossed just 4 months after 18 years of age. In such a situation, even though she was legally capable of giving consent for the purpose of marriage, it shall have far reaching consequences not only on the life of the appellant, but also respondent. It is immaterial to examine whether that consent given was a real consent. Had it been a real consent and had she been fond of the respondent, being and adult she ought not have retracted from earlier views expressed in Ext.B1 series, to depose before the court below that she did not really intend to marry the respondent. This indicates that the wisdom has dawn in the mind of the appellant, on rethinking about the repercussions of the alleged ceremonies in 28.9.1998. She did have a real rethinking and has thus deposed that there was no real marriage with a free consent from her. In this respect, it has to be borne in mind that after the alleged date of marriage viz., 28.9.1998, both the parties had not lived together even for a day. The marriage has not been consummated. It is an admitted fact. In such circumstances, merely because of exchange of garlands in the presence of RW.5 in the Mutt, where it is disputed that the appellant's parents were not present, it cannot be said that the marriage had taken place by reason of such simple ceremony.
7. Under Section 7 of the Hindu Marriage Act to solemnise a marriage there shall be ceremonies as are available as per the customs in the respective communities. It has not been in evidence that this alone was the custom for the marriage, in their community or that this is the custom followed by the ancestors of the appellant. In such circumstances, merely because of an exchange of garland or taking one or two steps as suggested by RW.5 it cannot be taken that the ceremonies for solemnisation of a marriage had been performed in terms of Section 7 of the Act. Without performing the ceremonies as enjoined in Section 7, it cannot be taken that the marriage has been really solemnised, even though the appellant had just crossed the age of 18 as on 28.9.1998.
8. Above all, the appellant a young girl had expressed her unwillingness to live with the respondent who claims to be her husband. They have also not lived together at all. In such circumstances, there is no reason at all to foist the respondent as husband on an unwilling young girl, the appellant. To hold, in such circumstances, that a marriage had taken place legally will spoil not only the future of the appellant, but also a young boy the respondent. Therefore, both of them have a forget this infantile disorder in their young life. Accordingly, we are of the view that there was no valid marriage and the appellant is not the wife of the respondent because of the alleged ceremony conducted in the presence of PW.5 on 28.9.1998. Consequently, the order in O.P.No. 615/98 for restitution of conjugal rights has also to be vacated. We do so.
Appeals are accordingly allowed; setting aside the judgment and decrees impugned.