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It was strenuously argued and seriously maintained that in the case of Sudras, no religious ceremony was necessary for a marriage, if it conforms to any one of the eight forms of marriage recognised under Hindu law; the form adopted in the instant case conforms to the 'Gandharva' form of marriage and no religions rites are prescribed for it in the case of regenerate classes even and there was no need for them in the case of Sudras; all that is necessary for this form of marriage is an agreement between the two spouses which is the outcome of love, and if this is satisfied the legal nexus springs and the marital tie becomes indissoluble; in other words it brings about between the two the status of man and wife.

This view is also supported, says the learned author toy Vasishta and Baudhayana. He then concludes:

"After this if anybody says that the recognition of marriages gives a premium to the use of force or fraud, I shall recommend him to read the severe penalties prescribed by the Hindu law against the culprit who becomes guilty of such transgressions."

23. Prom the above examination of the Smritis and commentaries, it is obvious that there are really two essential elements necessary to constitute a valid marriage under Hindu law according to Shastras; one a secular element, viz., gift of the bride or 'Kanyadhana' in the four approved forms, the transference of dominion for consideration in the 'Asura' form and mutual consent or agreement between the maiden and the bridegroom in the 'Gandharva' form. These must be supplemented by the actual performance of the marriage by going through the form prescribed by the 'Grihyasutras' of which the essential elements are 'panigrahana' and 'saptapadi'. In the case of 'Rakshasa' and 'Paisacha' forms also, there should be a marriage rite in the form prescribed by the Shastras. This is the religious element. Both the secular and the religious elements are essential for the validity of a marriage. The 'Gandharva' form of marriage is no exception to the rule.

Very recently the Patna High Court in-- Kamani Devi v. Kameshwar Singh', AIR 1946 Pat "316 (G), considered the question elaborately and expressed the view that the 'Gandharva' form of marriage was not invalid according to the "Mithila school of Hindu law and was available even to Brahmins. It was held that, for this form of marriage, nuptial rites and ceremonies including homa and 'saptapadi' were necessary.

26. There are certain 'obiter dicta' in 'Viswanathaswamy Naicker v. Kamu Animal', 24 Mad LJ 271 at p. 282 (H) that marriage in that particular community to which the zarnlndar belonged was not shown to be valid and that proof was necessary that it was in vogue. It was assumed in 'Maharajah of Kolhapur v. Sundaram Ayyar', AIR 1925 Mad 497 (I), that the 'Gandharva' form of marriage was obsolete. The Allahabad High Court in 'Bhaoni v. Maharaja Singh', 3 All 738 (J; condemned this form of marriage in strong terms by describing it as nothing more or less than concubinage & that it had become obsolete as a form of marriage. The learned Judges however did not refer to any of the texts and the opinion of the text writers on this question. In a later case in the same court 'Mt. Kishen Dei v. Sheo Paltan', AIR 1926 All l (K) Daniels J. observed at p. 6 as follows:

"In this state of the evidence I am forced to rest my conclusion not on a definite finding that it has been established before me that this form of marriage is valid, but rather on the general presumption which ought to be drawn in favour of a valid marriage, 'when the fact of the celebration of some form of marriage is established and it has not been established before me by evidence on behalf of the plaintiff that that form is invalid."

As we read the judgment, we do not consider that the learned Judge intended to lay down that if the parties who intended to contract a marriage, with a full knowledge of the rites prescribed for a lawful marriage either by the law applicable to them or by the usage of the community to which they belonged, deliberately chose some form of marriage not sanctioned by such law or usage, the parties could still invoke a presumption in favour of the validity of the rite they chose to adopt. Flouting the law cannot furnish, a legal basis for any such legal presumption. There is no room for the application of any presumption in the present case as we know definitely from the evidence as to what happened at the function of the marriage. Prom the mere fact that the first plaintiff and the third defendant lived as husband and wife for a number of years it cannot be presumed that there was a valid, marriage, if there is nothing more. If, as pointed out in 'Bai Diwali v. Moti Karson', 22 Bom 509 (V), certain ceremonies are performed, and it is not known after a long lapse of time as to what exactly was the nature of the ceremonies, there may be room for presuming the validity of a marriage, but in the present case there is no room for the application of any presumption.