Whether a lady can claim to be wife by Simply Putting Sindoor And Mangalsutra?

In order to verify the truthfulness or otherwise in the version of the
respondent, it is necessary to go through the contents  in the FIR lodged by the
respondent with Ambazari Police Station, Nagpur, being No. 246/2013, on
11.9.2013. In fact, it was the complaint against the appellant  u/ss. 376 and
417 of the IPC. The FIR reveals the name of the respondent  as Smt. Rekha
Ashok Chandrayan which was her maiden name. She had specifically stated in
the complaint that she was married with Raja Balkrishna Deshpande in the

year 1998. There  was a divorce between them in February, 2007. However for
the sake of children, they are residing together, even after divorce. The said
version   clarifies   that   respondent   was   residing   with   her   ex­husband   on
11.9.2013, since her marriage that took place  some time in 1998.  If that was
the   case   of   the   respondent,   then   there   was   no   question   of   residing   with
appellant   at   Jagat   Apartment,   after   her   alleged   marriage   with   him   on
16.4.2012. As regards marriage, it is mentioned in the complaint that on one
of  the occasions, in  the  afternoon,  the appellant  called her on phone on the
third floor to his apartment. Accordingly, she   went to 3rd   floor of Jagat
Apartment   and   infront of Lord Krishna, the appellant put  Sindoor  on her
forehead and also put Mangalsutra on her neck and declared that they were
married. After  two days, the respondent  was called by  the appellant  on 6th
floor of Jagat Apartment. The appellant   told her to wear red  saree  while
coming   and   thereafter   physical   relationship   between   the   appellant   and
respondent  were established. Significantly, the respondent deposed  before the
Family Court that the clothes were offered to her at the time of  marriage and
garland was put on. There is discrepancy   in the   version of respondent   as
regards time of offering  the red saree to her.  The contents in the FIR make
clear that the respondent was aware that respondent was not married with the
appellant   and,   therefore,   she   had   mentioned   her   maiden   name   in   the
complaint. Moreover, the respondent  never disclosed her marriage to anyone

in the society, including the neighbours or  relatives. No witness is  examined
by the   respondent on her behalf. These facts establish that there was no
marriage between the parties,  on the  date of filing the complaint. In the  instant  case also, the  respondent  failed to  prove that there was
a marriage between the appellant   and respondent. There is   no proof to
substantiate the case of the respondent in that  regard. No one attended the
said   marriage.   The   alleged   marriage   was   not   celebrated   with   proper
ceremonies.   In   fact,   there   was   no   marriage   between   the   appellant   and
respondent, as claimed by the respondent; there was no cohabitation  between
the parties; they were never recognised  as husband and wife  by the society.
Even there was no live­in relationship between the parties.  They never stayed

under the same roof as husband and wife. There is absolutely no   iota of
evidence in that regard. On the contrary, evidence on record demonstrates
that   the   respondent   was   residing   with   her   ex­husband   and   children   at
Gopalnagar, Nagpur.  In this view of the matter, it is held that the respondent
has failed to prove that she was a legally wedded wife of appellant.  Hence, the
point No.(1) is  answered in negative.
34. As   regards   point   No.2,     since   the   respondent   failed   to   prove     her
marriage with the appellant, there is no  question of granting the prayer for
restitution   of   conjugal   rights.   The   Appeal   is,   therefore,   allowed   and   the
judgment   and decree passed by the learned Judge of the Family Court is
quashed and set aside. 
35. Thus, in view of the fact that no marriage is proved between the parties,
there is no question of  granting the prayer for restitution of conjugal rights to
the respondent. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR.

FAMILY COURT APPEAL NO.57/2015
Shri Nitin s/o Omprakash Agrawal

v 
Smt. Rekha w/o Nitin Agrawal 
(falsely claiming so)

 CORAM :     B.P. DHARMADHIKARI     &
          MRS    . SWAPNA  JOSHI, JJ.

DATED: 31.01.2017



1. The appellant/husband  has preferred the present Appeal under section
19 of the Family Court’s Act,1984 read with Section 28 of the Hindu Marriage
Act 1955, being aggrieved by the judgment and order dated 1.4.2015 passed
by the learned Judge, Family Court No.2, Nagpur, whereby the Petition No.A.
1087/2013  filed  by  the  respondent/wife  for   restitution  of  conjugal  rights,

under section 9 of the Hindu Marriage Act has been allowed. 
2. The brief facts  giving  rise to the Family Court Appeal are as under :
The respondent was married with one Rajesh Balkrishna Deshpande  in
the year 1998. She has begotten two children out of the said wedlock. There
was   a   divorce   between   respondent   and   Rajesh   Deshpande   on   23.8.2007.
However, in the interest of children, both of them continued to stay together in
the same flat situated at Gopalnagar. In the year 2011, the respondent joined
Manjusha Convent, situated at Dharampeth, Nagpur, as a part­time teacher.  In
the same building, on the ground floor, the appellant was running a Tent house
(Bicchayat Kendra). It would not be out of place to mention here that appellant
is   from  Marwari  community,   whereas   the   respondent   is     Maharashtrian
Brahmin. The respondent came in contact with the appellant. There was love
affair between them which continued for about 6 to 7 months, inasmuch as
they exchanged text messages and met each other very often. The appellant
got married with respondent on 16.4.2012 by putting   a  Mangalsutra  and
applying vermillion on parting of hair, before the idol of Lord Krishna, on 3rd
floor   of   Jagat   Apartment,   Ravinagar,   Nagpur.   Physical   relations   were
established between the appellant and respondent since then. The appellant
had sexual relations with the respondent on many occasions on the third floor
as well as sixth floor of Jagat Apartment where the parents of appellant used
to reside. The parents of appellant were oblivious about the said relationship

between the appellant and respondent. At the relevant time, they used to stay
sometimes at Hyderabad with their daughter and some time at Dubai with
their son. Parents of the appellant opposed the marriage between appellant
and respondent. They alleged that there was no marriage between appellant
and  respondent. In due course, they arranged a marriage of appellant in their
own community, with a girl residing at Raipur {Chhatisgarh}. The engagement
ceremony  of the appellant  was performed  with that  girl on 4.8.2013.
3. The respondent lodged a complaint against the appellant  at Ambazari
Police Station alleging offence of rape and cheating. It is the allegation of the
respondent  that  the appellant has committed  rape on her, on the allurement
and promise of marriage. The respondent lodged  a complaint with the police
on 11.9.2013. The respondent lodged a complaint with the Human Rights
Commission also. As the  appellant  started avoiding the respondent  and did
not   keep   his   promise   to   marry  respondent   before   the   society,   she   filed   a
petition   for   restitution   of   conjugal   rights,   under   Section   9   of   the   Hindu
Marriage Act.   
4. It   is   the   case   of   the   appellant   that   on   7.8.2013,   the   respondent
demanded  an amount of Rs. 10 lakhs  threatening to  implicate him  in a false
case of sexual harassment. The appellant, under duress,  paid an amount of Rs.
2 lakhs on 8.8.2013 to the respondent, in order to save himself  and his family
members from the false report and tarnishing the reputation in the society.  On

the same day, the  appellant  received a text message from the Mobile Number
of the respondent expressing her happiness over receiving the amount for
which she remained grateful to him. On 9.8.2013 the respondent  withdrew all
the allegations against the appellant, by giving in writing on  stamp paper of
Rs. 100/­.  
5. It   is   alleged   that   the   respondent   continued   to   send   SMSs     to   the
appellant . After about 2/3  days, the respondent  visited the shop of appellant
along with   her ex­husband­Rajesh Deshpande and demanded an amount of
Rs.   10   lakhs.   She   threatened   to   lodge   report   with   the   Police   against   the
appellant. The appellant  realised that the respondent  was blackmailing him.  
6. The appellant filed his written statement   and denied   the averments
made   in   the   petition.   The   appellant   contended   that   the   respondent   has
wrongly represented herself to be his wife, in the absence of any proof thereof.
The appellant submitted that the respondent   has mentioned her name   as
‘Rekha Ashok Chandrayan’ in the FIR. The FIR does not disclose that the
appellant­Nitin is her husband. It is submitted that, in the FIR the respondent
has not mentioned the date of marriage whereas, in the petition for  restitution
of  conjugal rights,  she has mentioned  the date  of marriage  as 16.4.2012.
According to the appellant,  as per Section 7 of the Hindu Marriage Act, no
ceremonies prevailing in the community of either of the parties, have been
performed.   Therefore,   there   is   no   marriage   between   the   appellant   and

respondent,   in   the   eyes   of   law.   The   appellant   further   contended   that   on
7.8.2013 the respondent  had demanded Rs. 10 lakhs  from the appellant  and
when he expressed his inability to hand over the said amount, she got annoyed
and threatened him to implicate in a  false case of sexual harassment. 
7. The   respondent  examined   herself    as  well  as   Nodal  Officer   on   her
behalf. The appellant examined himself.
8. On the basis of aforesaid pleadings, the evidence led by the respective
parties and after hearing both the sides, learned Judge of the Family Court
recorded a finding that the respondent is entitled for decree for restitution of
conjugal rights. The appellant  has challenged the said judgment and  decree. 
9. Mr. Anand Jaiswal, learned  senior counsel with Mr. Gadhia, counsel for
the appellant vociferously argued that the learned Judge, Family Court  erred
in granting the decree of restitution of conjugal rights in favour  of respondent.
He further argued that there was no marital tie between the appellant   and
respondent. He invited our attention to the FIR (Exh.50) lodged by respondent
on 11.9.2013 at Ambazari Police Station which does not disclose the date of
marriage although it was an important event in the life of the respondent.
Later on, the respondent came up with the date of marriage   as 16.4.2012
almost one month after lodging of the FIR. Mr. Jaiswal, pointed out that the
FIR reveals the name of the respondent as Rekha Chandrayan and father’s
name as Ashok Chandrayan. Likewise, her residential address is mentioned as

Gopalnagar, Vinay Apartment, Flat No. 304. The FIR   does not   disclose the
name of   respondent   in   marital name   i.e. appellant ’s name.   He further
submitted   that the   respondent   has not mentioned the customary rites or
religious ceremonies of marriage performed in accordance with either Marwari
community or Brahmin community. According to him, as per Section  7 of the
Hindu Marriage Act, ceremonies are required to be performed like ‘Saptapadi’
or ‘phere’ for marriage and if  it is not done, it is no marriage in the eyes of law.
He further submitted that the shop of the appellant  was on the ground floor
of the building whereas the respondent  used to attend Manjusha Convent on
the above floor. Except that acquaintance there was no relationship between
the   parties.   He   submitted   that   once   the   respondent   had   requested   the
appellant for financial help of Rs. 5000/­ which was extended by him, on
humanitarian grounds. According to Mr. Jaiswal, on 4.8.2013, engagement of
appellant was performed on which occasion, the respondent   congratulated.
However, all of sudden,  on 7.8.2013, the  respondent   demanded an amount
of   Rs. 10 lakhs from the appellant, threatening   that he should pay the
amount else, she would lodge a report with  Police about  sexual assault  by
him and his proposed marriage would be endangered. Mr. Jaiswal submitted
that therefore in order to save his engagement and  reputation in the society,
the appellant agreed to pay an amount of Rs. 2 lakhs to the respondent  which
she acknowledged, sending the text message mentioned supra. Thus, according

to Mr. Jaiswal, there was no marriage between the parties and, as such, there
is no question of restitution of conjugal right, as claimed by the respondent. 
10. Learned counsel for the respondent, Mr. S.G.Joshi, contended that the
marriage took place between the parties in front of idol of Lord Krishna, on
third floor of Jagat Apartment. It is not at all the case of  respondent that the
marriage took place as per the customs of any of the  communities to which
the parties belong. According to Mr. Joshi, as there was continuous physical
relationship between the parties, the trial Court rightly came to the conclusion
that marriage was performed between the parties. Mr. Joshi submitted that as
the appellant had admittedly handed over the amount of Rs. 5,000/­to the
appellant earlier and thereafter the amount of Rs. 2 lakhs, on demand, the said
fact itself shows that certainly there was existence of relations between the
parties as husband and wife. Mr. Joshi, contended   that it   was  Gandharva
marriage between the parties   as the respondent was not aware of Marwari
ceremonies and as she was informed by the appellant that they  married as per
the   Marwari   customs,   therefore,   the   respondent     agreed   to   keep   physical
relations with appellant. Mr. Joshi submitted that no doubt on the stamp paper
of Rs.100/­ the respondent withdrew the allegations against the appellant.
However, it is not clear as what were the allegations exactly and this fact itself
shows the relationship between the parties. Lastly, he submitted that learned
Family Court has rightly passed the judgment in favour of the respondent . 

11. After hearing learned counsel for both the sides and on  a perusal of the
original record and proceedings, the following points arise for determination:­
(1) Whether the marriage  was  solemnised between the
parties  on 16.4.2012 ? .. .. No.
(2) Whether the appellant is entitled for quashing   and
setting aside the order of restitution of conjugal rights passed
by the learned Judge of the Family Court? ..Yes.
(3) What order ?  ..  Appeal is allowed.
12. Before proceeding with the facts and circumstances of the case, it would
be necessary to go through the admitted facts in the Appeal. 
It is  fairly admitted that the respondent  was married with one Rajesh
Balkrishna Deshpande, in the year 1998. There was  a  divorce between Rajesh
and respondent on 23.8.2007. It is not disputed that Rajesh and respondent
were residing  at Gopalnagar, with their two children and they stayed  together
even  after divorce till March, 2014.  It is not disputed that the respondent was
serving as  a Teacher in Manjusha Convent, which is situated in the building
where the appellant  was doing the business of Tent house. It is also not in
dispute that the appellant possesses his residential accommodation on the
third and sixth floors of Jagat Apartment. It is also not  seriously disputed that
the appellant   and respondent   were acquainted with each other from 2011
onwards and the respondent had visited the two flats  of  appellant in Jagat
Apartment, to see the interior work. It is an admitted fact that the respondent

had   lodged   a   complaint   against   the   appellant     with   Human   Rights
Commission, which was subsequently withdrawn. It is also an admitted fact
that there was exchange of text messages between the parties, that too at odd
hours. It is not in dispute that the respondent had acknowledged the receipt of
amount of Rs. 2 lakhs   from the appellant     and accordingly sent him   text
message expressing thanks and gratitude. It is not in dispute that the parents
of the appellant   were residing in Jagat Apartment and they used to reside
sometimes at Hyderabad with their daughter and sometimes  at Dubai,  with
their another son.     
13. In   the   backdrop   of   the   above­referred   facts,   we   have   to   examine
whether there was a marriage between appellant  and respondent , as per the
provisions  of Hindu Marriage Act. As discussed supra,  a short point  involved
in   the   present   Appeal   is,   whether   there   was   a   valid   marriage   between
appellant  and respondent  as alleged, or  it was a live­in relationship between
them. It is the specific case of the respondent  that they got married as per the
customs prevailing, inasmuch as the marriage took place before the idol of
Lord Krishna on 16.4.2012  and as per  the Hindu  rites and  traditions the
marriage was  performed at Apartment No.303, Jagat Apartment, Ravinagar,
Nagpur. The appellant put  vermillion  mark on the forehead of the respondent
and he put on Mangalsutra  on her neck. The appellant   also offered a garland
to the respondent and  as per the usages and convention, offered saree, blouse

and other clothes to her. After marriage, there was a relationship between the
parties as husband and wife for more than one­and­a­half years. According to
the  respondent,  she insisted for  registration  of  marriage  with  Registrar  of
Marriages. However, there was no such registration of marriage for which,
admittedly,  the respondent  never raised any legitimate grievance. According
to the respondent, nobody  was informed about the said  marriage, so much
so,  even the parents of  appellant  were not aware of the said marriage as the
appellant  did not disclose  about the said fact to them. The appellant  kept on
saying that  as he  belongs  to Marwari  community, huge dowry is required to
be   offered   in   the   marriage   and   furthermore,   she   being  Maharashtrian
Brahmin,  could   not   be   accepted   by   his   parents.   The   appellant,   however,
promised her to perform a customary  marriage for the sake of society, family
and     friends.   In   her   cross­examination,   the   respondent   admitted   that   she
knows   that for solemnization of Hindu marriage, certain rituals   are to be
performed, those rituals may be different. She however stated that she does
not know the first rites in Agrawal community is of ‘Dwarchar’ which means
mother of bride performs  pooja  of groom on his first arrival at the entrance
gate   and   further   does   not   know   whether   the   bride   and   groom   exchange
garlands which is known as 'Varmala' and certain mantras  are chanted and the
bride and groom take round around the sacred fire  (Saptapadi). She stated
that she does not know  that parents of bride gifts bride which is known  as

‘kanyadan’. She however admitted that she had never seen such a marriage in
which only two rites  i.e.of Sindur and Mangalsutra are performed. The  said
version of  the respondent  clearly indicates that she was aware of the fact that
in   any   marriage   only   two   rites   i.e.  Sindoor    and  Mangalsutra    are   not
performed. 
14. As  against this, the case of the appellant  is that in Agrawal community,
marriage procedure is as follows :
1) The marriage function starts from the function known
as Bhauhaath (Ganesh Pujan)
2) Haldad Ban:  the function of applying turmeric  to the
bride  and groom  at their respective places. 
3) Chakbhat  a   type   of   ritual   performed   for   Mama   by
groom’s mother. 
According to the appellant, there was absolutely no marriage  between
him and respondent,  as alleged by the respondent .
15. In order to verify the truthfulness or otherwise in the version of the
respondent, it is necessary to go through the contents  in the FIR lodged by the
respondent with Ambazari Police Station, Nagpur, being No. 246/2013, on
11.9.2013. In fact, it was the complaint against the appellant  u/ss. 376 and
417 of the IPC. The FIR reveals the name of the respondent  as Smt. Rekha
Ashok Chandrayan which was her maiden name. She had specifically stated in
the complaint that she was married with Raja Balkrishna Deshpande in the

year 1998. There  was a divorce between them in February, 2007. However for
the sake of children, they are residing together, even after divorce. The said
version   clarifies   that   respondent   was   residing   with   her   ex­husband   on
11.9.2013, since her marriage that took place  some time in 1998.  If that was
the   case   of   the   respondent,   then   there   was   no   question   of   residing   with
appellant   at   Jagat   Apartment,   after   her   alleged   marriage   with   him   on
16.4.2012. As regards marriage, it is mentioned in the complaint that on one
of  the occasions, in  the  afternoon,  the appellant  called her on phone on the
third floor to his apartment. Accordingly, she   went to 3rd   floor of Jagat
Apartment   and   infront of Lord Krishna, the appellant put  Sindoor  on her
forehead and also put Mangalsutra on her neck and declared that they were
married. After  two days, the respondent  was called by  the appellant  on 6th
floor of Jagat Apartment. The appellant   told her to wear red  saree  while
coming   and   thereafter   physical   relationship   between   the   appellant   and
respondent  were established. Significantly, the respondent deposed  before the
Family Court that the clothes were offered to her at the time of  marriage and
garland was put on. There is discrepancy   in the   version of respondent   as
regards time of offering  the red saree to her.  The contents in the FIR make
clear that the respondent was aware that respondent was not married with the
appellant   and,   therefore,   she   had   mentioned   her   maiden   name   in   the
complaint. Moreover, the respondent  never disclosed her marriage to anyone

in the society, including the neighbours or  relatives. No witness is  examined
by the   respondent on her behalf. These facts establish that there was no
marriage between the parties,  on the  date of filing the complaint. 
16. Thus, after going through the testimony of the respondent  as well as
the appellant and on a perusal of the  contents of FIR, it is  vividly visible  that
the respondent being   a divorcee who   had   undergone one marriage   and
having two kids,  was  certainly aware of the customs  and rituals of Hindu
marriage. She  was no longer a  young girl who would have not  understood
the sanctity of marriage. It is undigestable that respondent, aged about 36
years, was not   aware of the rites and rituals and the ceremonies of Hindu
marriage. The respondent did not succeed in proving the marriage  as per the
Brahmin or Marwari community.  As per the provisions of Hindu  Marriage Act,
the marriage   must be performed as per the ceremonies, rites and rituals
recognised by either of the parties. Even  importance is given to Saptapadi in
Hindu marriage. Admittedly,   no such ceremonies were performed   between
the parties. 
17. Coming   to   the   other   part   of  the   evidence,   as   far   as   text   messages
exchanged between the parties  are concerned, on 20.8.2013, the respondent
sent a message  to the appellant,  which is  at Exh. 89. It  reads thus  
(Vernaculars omitted)

The next message was on 29.8.2013  at 8.42 a.m.(Exh.49),  which reads
thus: 
(Vernaculars omitted)
The third message is dated 30.8.2013 is  at 3.00 p.m.  (Exh. 42) which
reads thus, 
(Vernaculars omitted)

On going  through all the three  text messages,  it is crystal clear  that
there was no marriage between the parties and, all the while,  the respondent
kept on insisting that though the appellant   did not marry with her,   the
relationship should be maintained between them. All the three text messages
demonstrate  that there was no  marriage between the   parties. 
18. The learned Judge of the Family Court has misinterpreted   all   those
text messages and has come to an erroneous conclusion that all   the abovereferred
text messages proved that there was physical relationship between the
parties and there was intimacy between them and, therefore, certainly   they
had married with each other and it was a valid marriage. In our opinion,

though  there  might   be  physical   relationship,   however,  there   was   no  valid
marriage between the parties as per the provisions of Hindu Marriage Act.
Even there was no   live­in relationship between   them, as claimed by the
respondent, as there is no  cogent and convincing  evidence on record  to show
that the parties resided  together  at Jagat Apartment.   
19. Significantly,   in   order   to   prove   her   case,   the   respondent     has   not
examined any witness on her behalf to show that at least the appellant  and
respondent  stayed together  in Jagat Apartment for  certain period. 
20. Now  coming  to the text message with regard to the acknowledgment
of the receipt of amount of Rs. 2 lakhs, the said message  clearly indicates that
the respondent  had received the amount of Rs. 2 lakhs   from the appellant .
According   to   the   appellant,   the   said   amount   was   paid   to   the   respondent
although she  was demanding  an amount of Rs.10 lakhs, in order  to  allow
him to marry with the girl with whom he got engaged on 4.8.2013.  According
to the appellant, since  he was in position to hand over the amount of Rs.  2
lakh only, to save his engagement with the girl and the reputation of his family,
he handed over the   said amount to the respondent. The said   fact   simply
indicates that there was no doubt physical relationship between the parties,
however, there is no evidence to show  that the parties were married with each
other. 
The  text message  at Exh.46  reads thus :
(Vernaculars omitted)


All these above­referred  messages  speak volumes  about the reputation
and character of the respondent. Those messages  never shed light on the  fact
that the parties were married with each other. The above   facts   show that
neither     there   was   a   marriage   between   the   parties   nor   their   subsequent
conduct in any manner,  indicate that they were married with each other. 
21. The   compact   discs   (CDs)   relied   upon   by   the   respondent   nowhere
indicate that there  was marriage between the parties  and, therefore,  are not
helpful to the respondent. 
Section  7 of the Hindu Marriage Act,1955  reads thus:
“(1) A Hindu marriage may be solemmnized in accordance
with the customary rites   and ceremonies of either party

thereto.
(2) Where   such     rites   and   ceremonies     include     the
saptapadi  ( that is,   the   taking of   seven steps   by the
bridegroom  and the bride jointly before  the scared fire), the
marriage       becomes     complete   and   binding     when   the
seventh step is taken.”  
It is also necessary to go the relevant provisions of Sections 50 and
Section 114 of the Evidence Act, which are  couched in the following terms :
Sec. 50:   Opinion on relationship, when relevant ­ When
the  Court has  to form an opinion  as to the relationship
of   one   person   to   another,   the   opinion,   expressed   by
conduct,   as to the existence of such relationship, of any
person who,  as  a member of the family or otherwise, has
special means of knowledge  on the subject,  is a relevant
fact:
Provided   that such opinion shall not be sufficient
to prove   a marriage   in proceedings under the Indian
Divorce Act,1869 ( 4 of  1869), or in  prosecutions under
sections 494, 495, 497 or 498 of the Indian penal Code
(45 of  1860).
Section 114  :   Court may presume existence of certain
facts:  the Court   may presume  the existence of any fact
which it thinks  likely to have happened, regard being had
to the common  course of natural events, human conduct
and   public and private business, in their relation to the

facts of the particular case.”
22. On going  through the above­said provisions, the existence of marriage
between   the   appellant   and   respondent   is   not   seen   in   the   present     case.
Likewise,  it is very difficult to presume in the present case  from the  conduct
of   the   parties   that   there   was   relationship   between   the   appellant     and
respondent  as husband and wife.
23. Moreover,   where   a   marriage   is   alleged   to   have   been   performed   in
accordance with  any modified form of Shastric Hindu Law, it must be pleaded
and proved  as a custom.  In the absence of a plea as to the custom, no amount
of  evidence can be looked into.
24. Learned counsel for the appellant­appellant placed reliance upon the
judgment, reported in AIR 1987  BOM  27:(Ningu Bamane and others  vs.
Sadashiv   Bamane   and  others)  wherein     it     was   held   that  Pat  marriage
between the parties  which is  recognised  and approved  form of marriage, it
is held in that case that when  a man and woman live together as husband and
wife   for   sufficiently  long   time   and   were   treated   as   husband   and   wife   by
friends, relatives and neighbours, there is always  a presumption in favour of
their marriage. The above­said case law is not  applicable to the facts of the
present case, as it is not the case of the  respondent  that they were  teated  as
husband   and   wife   by   friends,   relatives   or   neighbours.   In   fact,   there   is

absolutely no evidence on record to show that the appellant and respondent
stayed together in Jagat Apartment as husband and wife, apart   from   bare
words of the respondent .
25. Learned counsel for the  appellant  placed reliance upon the judgment
reported at  (2009)  15 SCC 184: (M.Yogendra and others  vs. Leelamma N.
and others) wherein the issue of  property was involved. Paragraph 20 of the
same reads thus:
“   .....Before   the     court,   evidence   in   different   forms   may   be
adduced. Information  evidence may be one of them. But for the
purpose of arriving   at   a conclusion as to whether a valid
marriage has been   performed or not.   The court would be
entitled to  consider the circumstances thereof.  There may be  a
case where the witnesses   to the marriage are not available.
There may also be a case where documentary evidence to prove
marriage is not available. It is in the aforementioned situation,
the information of those persons who had the occasion  to see
the conduct of the parties they may testify  with regard to the
information (sic opinion) they form probably the conduct of the
persons concerned.”
26. As  already discussed, except the bare words of  the respondent,  there
is absolutely no evidence on record to show that there was a valid marriage
between the parties on 16.4.2012.  It is not  at all the  case of the respondent
that apart from appellant and respondent   anybody else was present at the

time of marriage.  In these circumstances, it is difficult  to rely upon  the bare
words of respondent. In fact, there was no occasion to see the conduct of the
parties  i.e. their behaviour  as appellant  and respondent  in the society. There
is absolutely no evidence on record to show that the parties  stayed together as
husband and wife and their friends and relatives presume them to be husband
and wife. The  respondent continued to stay with her ex­husband. No evidence
came on record that she stayed for a few days or at night time   at Jagat
Apartment. There is no evidence that neighbours treated that the  respondent
was the wife of the appellant. On the contrary, it is clear that society continued
to recognise the respondent   and Rajesh/(ex­husband)   as married couple.
The appellant  and  respondent  never  cohabited as husband and wife at Jagat
Apartment or anywhere else. The fact, however,  remains that the society never
recognised the appellant  and respondent as a married couple.   
27. In AIR  1965  SC 1564 : (Bhaurao Lokhande vs.State of Maharashtra
and another),  it is held by the Hon'ble Apex Court   the term "solemnize”
means, in connection with a marriage, ‘to celebrate the marriage with proper
ceremonies and in due form, according to  the Shorter Oxford Dictionary.   It
therefore   follows,   therefore,   that   unless   the   marriage   is   celebrated     or
performed  with proper  ceremonies and in due  form, it  cannot be said to be
solemnized. Thus, the ceremonies as claimed by the   respondent     were not
prescribed by law or approved by custom and therefore the marriage does not

come within the purview of Section 7 of the Hindu Marriage Act.
28. In Kochan Rani  vs. Mathevan Kani  reported in 1971(2) SCC 345, the
Hon’ble Apex Court in paragraph no.6  observed thus,
“6.....................It   is   well     established     that   in   the   matter   of
custom  a party has to plead in specific terms as to what is the
custom   that   he   is  relying   on   and   he   must   prove   the   custom
pleaded by him. He cannot be permitted to prove a  custom not
pleaded by him. In Abdul  Hussain Khan vs. Bibi Sona Dero  AIR
1917 PC 181,the Judicial Committee observed: “It is, therefore,
incumbent upon the plaintiff to allege  and  prove the custom on
which he relies”.   That  was also the view taken  by this Court in
Thakur   Gokalchand v. Parvin Kumari AIR 1952   SC 231.  The
reason for this is rule is obvious.  Anybody who puts forward a
custom must  prove by satisfactory evidence the  existence of the
custom pleaded, its continuity and the  consistency with which it
was observed. A party  against whom a custom is pleaded must
have a notice as to what  case he has to meet. The opposite party
apart from  rebutting  the evidence adduced by the plaintiff may
be  able to prove that the custom in question was not invariably
followed. He  cannot   get    ready  with    that  evidence  without
knowing the nature of the custom relied upon by the plaintiff.
Therefore all that we have to see in  the present case is whether
the  respondent has established  the custom pleaded by him. ....” 
29. The learned Judge of the Family Court has wrongly shifted the burden
upon   the   appellant.   In   fact,   it   was   for   the   respondent   to   prove   that   the

marriage  was performed as per the customs under Hindu law.  She has  failed
to prover her cohabitation with the appellant after the alleged marriage, as
husband and wife.  There is absolutely no iota of evidence in that  regard, of
the   neighbours,   relatives   or   friends   of   the   respondent.   Surprisingly,   the
children of the respondent were also not aware of the so called marriage
between the appellant and respondent. No evidence in that regard is  adduced
on behalf of the respondent. The society was not knowing  about the divorce
between the respondent and her ex­husband as they continued to stay together
as husband and wife, for the sake of their children.  It is interesting  to note
that if the respondent claimed to be legally wedded wife of the appellant, then
she should have challenged the engagement of the appellant with a girl  from
Raipur, however, she kept mum. On the contrary, she accepted the amount of
Rs.2   lacs   from   the   appellant   and   kept   mum.   She   also       withdrew   the
allegations against the appellant. The behaviour  of the respondent leads to the
conclusion that there was no marriage between the appellant and respondent.
In fact, the   onus rests upon the respondent to prove that there was a valid
marriage between the appellant and respondent. 
30. It would be useful to  refer to the judgment of this Court in case of  Mr
Raj Amarsingh   Gulale vs. Mrs.Manasi Raj Gulale, reported in 2015  (3) ALL
MR 365, wherein it is held that merely because there was exchange of the calls
between the parties, that   does not necessarily mean that the parties   were

husband and wife. Those call details  did not show  that marriage  took place
between the parties. 
31. In the instant case also, there  are  numerous  phone calls  between the
parties. However the said fact does not necessarily  indicate that there  was a
marriage between the appellant  and respondent. Even  the  CDs  which are
relied upon by the respondent, do not show that marriage  existed between the
appellant and respondent.
32. In 2011 (15) SCC 531 in case of  Pallavi Bharadwaj vs.  Pratap Chuhan,
the Hon’ble Apex Court  observed  that there is no document  about marriage
or   any   acceptable   material   relating   to   marriage,   hence   the   Apex   Court
restored the judgment of Family Court which had held that  since the marriage
was not performed, there is no question  of  decree for  restitution of conjugal
rights. 
33. In the  instant  case also, the  respondent  failed to  prove that there was
a marriage between the appellant   and respondent. There is   no proof to
substantiate the case of the respondent in that  regard. No one attended the
said   marriage.   The   alleged   marriage   was   not   celebrated   with   proper
ceremonies.   In   fact,   there   was   no   marriage   between   the   appellant   and
respondent, as claimed by the respondent; there was no cohabitation  between
the parties; they were never recognised  as husband and wife  by the society.
Even there was no live­in relationship between the parties.  They never stayed

under the same roof as husband and wife. There is absolutely no   iota of
evidence in that regard. On the contrary, evidence on record demonstrates
that   the   respondent   was   residing   with   her   ex­husband   and   children   at
Gopalnagar, Nagpur.  In this view of the matter, it is held that the respondent
has failed to prove that she was a legally wedded wife of appellant.  Hence, the
point No.(1) is  answered in negative.
34. As   regards   point   No.2,     since   the   respondent   failed   to   prove     her
marriage with the appellant, there is no  question of granting the prayer for
restitution   of   conjugal   rights.   The   Appeal   is,   therefore,   allowed   and   the
judgment   and decree passed by the learned Judge of the Family Court is
quashed and set aside. 
35. Thus, in view of the fact that no marriage is proved between the parties,
there is no question of  granting the prayer for restitution of conjugal rights to
the respondent.  Hence the following order:
ORDER
1) The  Appeal is allowed.
2)  The judgment and decree dated 1.4.2015 passed by the learned Judge,
Family Court No.2, Nagpur in Petition No. A­1087/2013, is  set aside. 
No costs. 
JUDGE JUDGE

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