Shashikala Ashok Kulkarni vs Neha Ashok Kulkarni And Others
2017 Latest Caselaw 7286 Bom

                                                               CRA315-15.odt
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
            CIVIL REVISION APPLICATION NO. 315 OF 2017
                                   WITH 
      CA/518/2014 IN CRA/315/2015 WITH CA/5711/2017 IN 
                        CRA/315/2015 
        Smt. Shashikala  w/o Ashok                 ... Applicant
        Kulkarni, Age 53 years, Occu: 
        Household, R/o New  D16/95, TPS 
        Colony, Parli-V, at present 41 
        II, Main Amarjyoti Layout, R.T. 
        Nagar,  Post Bangalore 560 032

        VERSUS
1       Ku. Neha d/o Ashok Kulkarni,               ... Respondents
        Age 19 years, Occu: Education,
        r/o Dental College, Ladies 
        Hostel, Aurangabad.

2       Chi. Aniket s/o Ashok Kulkarni,
        Age 13 years, Occu:educatio,
        U/g Ku. Neha d/o Ashok Kulkarni,
        R/o   Govt.Dental   College,   Ladies 
        Hostel, Aurangabad.
3       The Branch manager, State Bank of 
        Maharashtra,   Branch   T.P.S.   Parli 
        Vaijnath, District Beed.
4       The Branch Manager, State Bank of 
        India,   Branch   Parli   Vaijnath, 
        District Beed.
5       The Post Master, Post office, TPS 
        Branch, Parli Vaijnath, Dist. 
        Beed
6       The Dy. Chief Account Officer,
        MAHAGENCO, r/o Thermal Power 
        Station, Parli Vaijnath, District 
        Beed
7       The Branch Manager, L.I.C. of 
        India, Branch Ambejogai (95E)


Mr. P. S. Paranjape, Advocate for the applicant,
Mr. J. R. Shah, Advocate for respondent Nos. 1 and 2,

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                                                                 CRA315-15.odt
Mr. P. B. Paithankar, Advocate for Respondent No.4,
Mr. S. M. Godsay, Advocate for respondent No.6

                          CORAM         : K. L. WADANE, J.

                          RESERVED ON   : 13.09.2017
                          PRONOUNCED ON : 19.09.2017

JUDGMENT:    

1. The applicant has preferred this revision

application against the judgment and order passed by

the learned District Judge-2 in Misc. Civil Appeal

No.38/2013, dated 18.11.2013.

2. Brief facts may be stated as follows:

(1) It is the case of the applicant that the

applicant married with one Ashok Govindrao Kulkarni

(since deceased) on 09.07.2007 and their marriage was

registered immediately on 10th July, 2007. Husband of

the applicant met with an accident and expired on

03.06.2008.

(2) Respondent Nos. 1 and 2 are the children of

deceased Ashok Govindrao Kulkarni begotten from his

first wife.

(3) The applicant filed Misc. Application No. 50 of

2009 seeking succession certificate under section 372

of the Indian Succession Act in reference to certain

CRA315-15.odt amount kept by Ashok Kulkarni in his name during his

life time and in the capacity of wife, the applicant

has claimed succession certificate. Respondent Nos. 1

and 2 appeared and contested the application. They

have denied the relationship between the Applicant and

deceased Ashok Kulkarni.

(4) In the trial Court, in order to establish the

claim, the applicant and her brother adduced their

oral evidence and produced on record the copy marriage

certificate Exh. 56 and xerox copy of memorandum of

marriage at Exh.64. As against this, no evidence is

adduced on behalf of the respondents.

(5) The trial court has allowed the Misc. Civil

Application No.50/2009 and directed to issue Succession

Certificate in the name of revision applicant and

respondent Nos. 1 and 2. Being aggrieved with the

same, Respondent Nos. 1 and 2 preferred Misc. Civil

Appeal No.38/2013. The learned District Judge-2,

Ambajogai allowed the appeal and directed issuance of

Succession Certificate in the name of present

respondent Nos. 1 and 2 only. Being aggrieved with

the same, initially second appeal was preferred by the

present revision applicant and during pendency, the

CRA315-15.odt second appeal was converted into the present Civil

Revision Application.

3. I have heard Mr. P. S. Paranjape, learned

counsel for the revision applicant, Mr. J. R. Shah,

learned counsel for respondent Nos. 1 and 2, Mr. P. B.

Paithankar, learned for Respondent No.4 and Mr. S. M.

Godsay, learned for respondent No.6.

4. Considering the rival contentions of both the

sides and upon hearing the learned counsel for both

the sides, a short question arise for my determination

i.e. Whether the marriage between the revision

applicant and deceased Ashok Kulkarni is duly proved by

adducing cogent evidence?

5. Mr. Paranjape, the learned counsel appearing for

the applicant strongly relied upon the oral evidence of

the applicant as well as documents produced on record

at Exh.56- Marriage certificate and Exh.64- Memorandum

of Marriage. By relying upon these documents, Mr.

Paranjape, the learned counsel has submitted that the

certified copy of the marriage certificate is directly

admissible in evidence, being a public document and

this certificate is not challenged either by wife or

husband and therefore, in view of sections 74 and 75

CRA315-15.odt of the Evidence Act, the above said documents can be

read in the evidence.

6. As against this, learned counsel appearing for

respondent Nos.1 and 2 has argued that the marriage

certificate Exh.56 is based upon the xerox copy of the

Memorandum of Marriage Exh.64. This basic document, is

not duly proved. The learned counsel further argued

that to prove the copy of Memorandum of Marriage

Exh.64, brother of the revision applicant is examined

and he deposed that there is his signature on the

memorandum. Looking to the copy of the Memorandum of

Marriage Exh.64, it is a xerox copy. No original

memorandum of marriage is produced on record, nor

permission of the court is taken to lead secondary

evidence to prove the memorandum of marriage.

7. Considering the rival submissions of both the

sides and looking to document Exh.64, it appears that

it is a xerox copy and though it is exhibited, it is

not duly proved since the original memorandum of

marriage has not been placed on record nor the

permission of the trial court was taken to adduce

secondary evidence.

8. Looking to the certificate of registration of

CRA315-15.odt Marriage Exh.56, it is a certified copy. However, from

the contents of the same, it appears that this

certificate is issued, based upon the contents and

particulars in the memorandum of marriage, which is not

duly proved by the applicant. Therefore, it was for

the applicant to establish the memorandum of marriage

and its contents strictly in accordance with law.

9. Apart from documentary evidence, I have gone

through the pleadings of the parties and the evidence.

Respondent Nos. 1 and 2, in their written statement,

para 6, have specifically denied the relationship/

marriage of the present applicant with deceased Ashok

Kulkarni. When the marriage itself was in dispute, it

was for the applicant to establish her marriage with

deceased Ashok and to prove the solemnization of

marriage. Mere production of memorandum of marriage

Exh.64 which not at all duly proved is not sufficient

to establish the marriage.

10. On perusal of the oral evidence of the

applicant, it appears that in the affidavit of her

oral evidence, merely she has stated that she is

legally wedded wife of deceased Ashok Kulkarni, her

marriage is registered under the Hindu Marriage Act,

CRA315-15.odt 1955 and marriage certificate is issued. This the only

oral evidence adduced by the applicant to establish

solemnization of marriage between her and Ashok

Kulkarni.

11. Section 7 lays down the conditions for a Hindu

Marriage which must be fulfilled in a case of any

marriage between two Hindus which can be solemnized in

accordance with requirement of Hindu Marriage Act,

1956. The word "solemnize" means, in this

connection, to celebrate the marriage with proper

ceremonies and in due form. Unless the marriage is

celebrated or performed with proper ceremonies and due

form, it cannot be said to be a marriage duly

solemnized. Solemnization of marriage must be in

accordance with customary rites and ceremonies of

parties to it and where such rites and ceremonies

includes 'Saptapadi' that ceremony must be observed.

The word 'Solemnized" refers to the rites and

ceremonies of the marriage. What is required is

substantial compliance with only those rites and

ceremonies, performance of which is, by the customary

law of either party, deemed as a absolutely necessary.

Non performance of such rites and ceremonies of prime

necessity would be regarded as failure to solemnize the

CRA315-15.odt marriage and no valid Hindu Marriage can result. This

is because the marriage was not duly solemnized by the

performance of essential ceremonies is, under the Act,

no marriage at all.

12. The aforesaid are the requirements of valid

marriage between two Hindus. Herein the present case,

there is no oral evidence about the performance of the

ceremonies such as Saptapadi etc. When the marriage

itself is denied by Respondent Nos. 1 and 2, then

evidence of high degree has to be laid by the

applicant. However, in the present case, it reveals

that evidence adduced on behalf of the applicant is

not sufficient to hold that there was a legal, valid

marriage between the applicant and deceased Ashok

Kulkarni. Merely production of marriage certificate

which is issued on the basis of Memorandum of

Marriage, original of which is not produced on record,

is not sufficient to prove the marriage between the

parties. Therefore, my finding to the point referred

above is in the negative.

13. I have gone through the reasons recorded by the

trial court as well as the first appellate court. The

trial court has not considered this aspect. The first

CRA315-15.odt appellate court has properly considered this aspect and

has allowed the appeal. I do not find any illegality,

impropriety or incorrectness in the judgment and order

passed by the first appellate court. There is no

substance in the revision application, therefore, it is

liable to be dismissed and accordingly it is dismissed.

No order as to costs.

14. Pending Civil Applications also stand disposed

of.

(K. L. WADANE, J.) JPC