RSA 165/2005 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER The legality and validity of the judgment and decree dated 28.06.2005 pa ssed in Title Appeal No. 15 of 2005 by the learned Civil Judge (Sr. Div.), Goalp ara, reversing the judgment and decree dated 10.03.2005 passed in Title Suit no. 75 of 2003 by the learned Civil Judge (Jr.Div.) Goalpara is under challenge in the instant Regular Second Appeal. 2. Heard Mr. B Banerjee, learned counsel appearing for the appellant. Also heard Mr. H Das, learned counsel for the respondents. 3. This Court while admitting the Regular Second Appeal, formulated the fol lowing substantial questions of law: a) Whether the learned court of appeal below is justified in holding that t here was valid marriage between the defendant and the deceased Moniram under Ga ro Customary Law though the defendant had admittedly deserted the deceased and m arried another person without the decision of Mohari, the special custodian of m arriage laws under Garo custom ? b) Whether the learned court of appeal below is justified in holding that the defendant and the deceased lived together as husband and wife but failed t o consider the question of re-marriage with another person and eventually she ha s lost all her right to property and she is not entitled to get any thing und er the law of inheritance of Garo Customary Law and therefore all property wou ld automatically passes into the hands of Nokna or of the new wife whom the maha ri eventually provides for the abandoned husband and as such whether the impugne d judgment suffers from perversity? 4. In order to answer the substantial question of law as formulated, the co urt has to go through the pleadings of the parties, the evidence on record and the relief sought for: The appellant herein as plaintiff brought a suit being Title Suit No. 75 of 2003 seeking the following reliefs:- \a) For a declaration that the defendant is not a lawful wife of lat e Moniram Marak; b) For a declaration that the defendant is not entitled to any property lef t by late Moniram Marak; c) For a declaration that Succession certificate obtained by the defendant in Misc. (success) Case No. 26/2000 is fraudulent, void and inoperative in law; d) For a declaration that the plaintiff is sole heiress of late Moniram Mar ak and entitled to all properties - movables and immovables left by said late Mo niram Marak; e) For a permanent injunction to restrain the defendant from claiming herse lf as the wife of late Moniram Marak and also from claiming any right to any pr operty left by late Moniram Marak. 5. The relief as sought for is based on the averments made in the plaint co ntending that Maniram Marak was an employee of Assam State Electricity Board, Go alpara Division, who died on 09.05.1999 while on service and he died as unmarr ied leaving the plaintiff as full sister as his only heiress and under Garo cust omary law, the plaintiff being the only surviving sister is entitled to inherit all the properties of late Moniram Marak. It has further been averred that the d efendant lived with the deceased for few years as his mistress without any forma l marriage but deserted late Moniram Marak in the year 1983 and went to Meghal aya by adopting a new name, ’Mailani Sangma’, married one Mr. Pinalson Momin o f village Hatibasha under PS and PO Mendipathar, East Garo Hills district and re siding there since 1983. But after the death of Moniram Marak, the defendant wi th mala fide intention came back in order to grasp the entire property and in fa ct obtained a Succession Certificate to the estate of late Moniram Marak being M isc. (Succ.) Case No. 26/2002 on 04.06.2003 without arraying the plaintiff as pa rty respondent in the case and hence the suit seeking the relief as indicated ab ove. 6. On receipt of the summon the defendant appeared and contested the suit b y filing her written statement contending that the suit is not maintainable, th e suit is bad for non-joinder of heirs of the deceased Maniram Marak and raised other objections as available under the law. The real facts she has averred t hat Maniram Marak married the defendant according to ’Sangsari process of Garo customary law about 29 years ago and out of their wedlock a daughter was born a nd the daughter Bresilla Marak was married to one Mr. Dhona Sangma, a resident of Hatibasa, Mendipathar, District East Garo Hills. The defendant has further a verred that there was a long enmity between the plaintiff and the defendant sinc e her marriage. However Bresilla Marak, the daughter of the plaintiff has posed herself as Balbila Marak, wife of late Maniram Marak obtained a Succession certi ficate being No. 22/2000 fraudulently from the learned District Court Goalpara f or collecting the debts, etc. of late Maniram Marak but knowing the fact, the de fendant filed a petition for revocation of the Succession Certificate so granted being Misc. Case No. S.C. (R) 26/2002 which was revoked and a Succession Cert ificate was issued being Misc. S.C. 75/2002 and accordingly the employer ASEB pa id Rs. 50,000/- (Rupees Fifty Thousand) only as a part payment but again on 30.0 7.2003 the said Bresilla Marak posing herself as Balbila Marak sent a notice to the Executive Engineer, ASEB for withholding the remaining amount and hence the suit, which is frivolous and prayed for dismissal of the suit. 7. Upon the pleadings of the parties, the learned trial court has framed as many as five issues which reads as follows: 1) Whether there is cause of action in the suit? 2) Whether the suit is maintainable in the present form? 3) Whether the suit is bad for non-joinder of necessary parties? 4) Whether the suit is barred by the law of limitation? 5) To what relief(s) parties are entitled to as per law and equity? 8. During the trial the plaintiff has examined as many as 5 (five) witnesse s whereas the defendant has examined 4 (four) witnesses in support of their resp ective case. The learned trial court after going through the evidence on record and after hearing the parties has decreed the suit holding that there was no va lid marriage between the defendant and late Maniram Marak. 9. Being aggrieved with the judgment and decree passed in Title Suit, the defendant took up the matter on the file of the leaned Civil Judge (Sr. Div.) Goalpara. The learned First Appellate Court after going through the record and the evidence thereon has held that if a man and woman live together for long y ears as husband and wife than a presumption arises in law of legality of marria ge existing between the two. But the presumption is rebuttable. In the instant c ase, the presumption has not been rebutted and hence it can be held that here oc curred a valid marriage in between them and thus reversed the judgment and decre e of the learned trial court and allowed the appeal relying on a decision of the Apex Court reported in AIR 1996 SC 1290 and hence the present appeal. 10. Mr. Banerjee, learned counsel appearing for the appellant, would contend that the facts pleaded and established would go to show that the leaned Appella te Court has committed an error of law while relying on the decision of the Apex Court reported in AIR 1996 SC 1290 (Ranganath Parmeshwar Panditrao Mali and Ano ther -vs- Eknath Gajanan Kulkarni and Another), whereas in subsequent decision r eported in (2005) 3 SCC 636 (Saritaben Somabhai Bhatiya -vs- State of Gujarat & Ors.), the Apex Court has held that the expression ’wife’ as per Section 125 o f the Criminal Procedure Code, 1973 (hereinafter referred to as ’the Code’) r efers to only legally married wife. The Apex Court has further held that provis ions of Section 125 of the Code are applicable and enforceable whatever be the p ersonal laws of the parties. But section 125 of the Code requires the claimant t aking benefit under Sub-Section 1(a) thereof to establish that she is the wife o f the person concerned and the said issue cannot be decided only by reference to the law applicable to the parties and hence the personal law is relevant for de ciding the validity of the marriage and therefore cannot be altogether excluded from consideration and hence require interference considering the evidence on re cord. 11. In order to substantiate the argument advanced, Mr. Banerjee has drawn t he attention of the court the evidence of the parties chronologically, whereas P W 1 has deposed that the defendant Balbila had lived for about 3/4 years with Mo niram as mistress without any valid marriage and there was no issue. When Manira m was severely attacked by TB, she deserted him and fled away with one Sanjib Ma rak in December, 1983 and she never came back. She lateron changed her name, Ba lbila and adopted a new name Mailani and married Pinalson Momim of Mendipatha r. PW 2 has deposed that Balbila and Maniram Marak lived together for about 3/4 years without undergoing any lawful marriage. But she left the house of Maniram Marak in 1983 when he was attacked by TB. She never came back to Maniram Marak. She neither came when Maniram Marak died on 09.05.1999 nor she attended the last rites of late Maniram. Balbila thereafter married Pinalson of Mendipathar. PW 3 has deposed that Balbila deserted Maniram after 3/4 years and fled away with Sa njib Marak in the month of December 1983 and never came back. PW 4 has deposed t hat Balbila lived with Maniram for few years but when Maniram was attacked by TB , she deserted him and never came back to him. She salso did not attend the last rites of Maniram. She married Pinalson Momin. Sister of Maniram, Smt. Arat Mara k and other relatives performed the last rites of Maniram after his death. PW 5 has deposed that Maniram lived with Balbila for few years, but when he was suffe ring from TB, she deserted him and his sister Arat Marak looked after him till h is death and performed the last rites. In cross-examination PW 1 stated that Jelson Marak is the mother-in-law of Late Maniram. Bresilla is not the daughter of late Maniram. Both the defenda nt and Maniram resided together only for 4 years. Bresilla is the daughter of Ba lbila through other persons. She had further stated that Balbila stayed with Ran jit, who expired thereafter after living together for 10 years without any marri age. In cross, the PW 2 stated that Maniram and Balbila lived together for 15/1 6 years without any lawful marriage. Bresilla was the adopted daughter. Balbila lived without marriage. PW 3 in cross has stated that they lived together for a bout 13/14 years without marriage. PW 4 in cross-examination has stated that th ey lived together for 10/12 years as per Sangsari custom without marriage and if children are born out of marriage, they are treated as legal heirs as per the Sangsari custom. However, Maniram had no children. When Maniram died in the year 1999, Balbila had already settled at Hatibasa with one Filmoni in the year 1988 and out of the said wedlock with Filmoni, Balbila had three children though he was not sure if Balbila had married Filmoni. In cross PW 5 has stated that the l ate Maniram and Balbila was residing as husband and wife as per Garo custom. 12. Mr. Banerjee learned counsel appearing for the appellant has also drawn the attention of the court to the evidence of defendants in order to substantiat e that there was no valid marriage between the defendant Balbila and late Manira m Marak. The relevant portion of 4 DW’s and the cross-examination of all DW’s ha ve been referred to while arguing the case. The evidence on record would go to s how that DW 1 (the defendant herein) has deposed that the marriage between her a nd Maniram Marak was performed as per Sansari Garo custom before 29 years back. The defendant and late Maniram had no issue and they took a girl Bresilla in ado ption before 25/26 years and subsequently given marriage to Dhanaram Sangma. The re was an enmity between the plaintiff and her family. The daughter of the plain tiff Smti Bresoni Marak by showing her name as Balbila Marak applied for Success ion Certificate on 04.01.2001 and accordingly Succession Certificate was issued in her favour. After knowing the fact the defendant applied for revocation of succession certificate which was granted and being a legal heir she applied for Succession Certificate being Misc. S/C 75/2002 and accordingly Successio n Certificate was issued and the ASEB paid Rs. 50,000/- to her . She has denied to have married to one Pinalson Marak and stated that she is the only legal heir of late Maniram Marak. She has further deposed that relation between her and pl aintiff was not good. In cross-examination she has admitted that Alvila Marak wa s married to late Maniram Marak who has deserted him after 2 years and stated th at the marriage between her and late Maniram was solemnized according to Sangsar i Garo custom. DW 2 in her evidence has stated that she has seen the marriage be tween the defendant and late Maniram Marak and they lived as husband and wife for about 25 years and she is the legal heir of late Maniram Marak and entitle d to the properties of late Maniram Marak. In cross-examination she has admitted that Alvila was married to late Maniram Marak and stayed with him for 3/4 years . Thereafter Alvila deserted late Maniram Marak. She has further stated in cross -examination that out of the marriage, one child was born to Balbila and late M aniram Marak and she attended at the time of delivery of the girl Bresilla and stayed there during the night as she was ’Dhai’ and denied the suggestions put to her. DW 3 is the employee of ASEB who worked with late Maniram Marak who de posed that the marriage between late Maniram Marak and Balbila was performed acc ording to Sangsari Garo custom and he was present at the time of marriage an d they lived together as wife and husband till the death of late Maniram Marak. He has further deposed that after two (2) years of their marriage they adopted a girl and she was known as Bresilla Marak who was married to Dhaniram Sangma and at present is living with her husband at Hatibasha at Meghalaya. When Maniram M arak was suffering from TB, Smti Balbila Marak was taking care of late Maniram Marak. The other suggestion of marriage with other person has been denied and s he states that Balbila is entitled to inherit the properties left by the decease d late Maniram Marak. In cross-examination, he deposed that Maniram was married to Alvila and she stayed with him. Maniram and Alvila was married as per Christi an custom and lived together for about 7/8 years and thereafter Alvila left Mani ram, she left behind Balbila as per Sangsari Garo custom though Christian person cannot marry another without divorce. But according to Sangsari Garo custom, on e can keep more than one wife and other suggestions put to him have been denied. The defence has further examined DW 4 to prove the marriage between late Manira m Marak and Balbila who has deposed that at the time of the marriage between the m she was present and the marriage was performed according to Sangsari Garo cust om. But after the death of Maniram Marak the plaintiff has driven out the defend ant who is now living with her daughter. She has further deposed that after or b efore the death of Maniram Marak, the defendant has never married any person and no child was born as alleged. The defendant being the legally married wife, she is entitled to the properties left by the deceased late Maniram Marak. In cross -examination she has denied all the suggestions put to her. She has stated that relation between the plaintiff and defendant Balbila was not good. 13. Mr. Banerjee has further referred the principles of Garo Customary law p revalent amongst the Garos. He has drawn the attention of certain words under th e Garo customary law which is relevant for the decision of the instant case. The word ’chra’ means ’male relatives’. The word ’Ma-chong’ means ’motherhood. The word ’mahari’ means ’male members’ consisting of the maternal uncle, sons, dau ghters, husbands and the other members of same ’ma-chong’. The word ’Nokna’ or ’ a-Kim’ is usually ’nokkrons’ father’s nephew (sister’s son). The word ’Nokkrom’ means in case of an ancestral property the heiress , who may be the youngest d aughter or the daughter chosen by the parents and approved by the maternal uncle s, is the legal owner. The word ’Nokma’ means ’head of a village’. The word ’San gsarek’ means the ’traditional indigenous religion’. 14. With reference to the context as mentioned above, Mr. Banerjee would sub mit that the marriage rule among the Sangsarek (non-Christian) Garos, polygamy i s permissible. Polyandry is not known. A man can have more than one wife even up to seven wives. In case of all marriages consent of the first wife and her ’chra ’ are necessary. If the marriage is without their consent, he forfeits the right to his authority over the property of the first wife. However, during post harv est agricultural activities in a well to do Sangsarek family, the first wife her self approaches her ’chra’s to arrange for another wife from ’ma-chong’ for her husband. In the instant case the evidence on record would show that when Alvil a deserted Maniram Marak, the first wife did not approach her ’chra’s to arran ge for another wife from ma-chong of her husband and consequently thereupon the marriage between the defendant Balbila and late Maniram Marak has no sanctity un der Garo Customary law, more so, when the defendant as per her own admission mar ried Maniram without his divorce with Alvila, though the defendant has claimed t hat late Maniram Marak was later on converted to Christianity prior to one year of his death and hence the marriage, if any, cannot be termed as valid marriage which require interference under Section 100 of the Code. 15. Mr. Banerjee would further contend that in case of adoption of Bresilla Marak as alleged, it is a custom of Garos that adoption is always done in consul tation with the ’chra’ and relatives. The adopted daughter preferably belongs to the sisters of the adoptive mother or someone from the same motherhood or ’ma c hong’s. This is done in order to retain within the ma-chong or motherhood which however, does not reflect on the evidence of record and hence the adoption of Br esilla Marak cannot be termed as valid adoption as required under the Garo custo mary law and hence both the issues of marriage and adoption requires interferenc e disentitling them to inherit the properties of late Maniram Marak. 16. Mr. Banerjee would submit drawing the attention of the court that on 12. 10.2009 the defendant Balbila Marak died and on her death two legal representati ves of late Balbila Marak were substituted whereby it can be presumed that the l egal representatives so substituted to which no affidavit-in-opposition has been filed controverting the substitution of her legal heirs can be presumed that th e defendant deserted late Maniram Marak which disentitled her to inherit the pro perties of late Maniram Marak and the finding arrived at by the learned lower a ppellate court holding that long duration of living as husband and wife under the same roof can be presumed to be legal and valid marriage relying on the d ecision of Ranganath Parmeshwar (Supra) which cannot be relied upon in the insta nt case in view of decision in Savitaben (supra) and the judgment under challeng e requires interference under section 100 of the Code being perverse. 17. On the contrary, Mr. H. Das, learned counsel appearing for the defendant s would contend supporting the judgment delivered by the learned lower appellate court that the defendant Balbila and late Maniram Marak was married according t o Sangsarek Garo custom and lived together for near about 29 years till the deat h of Maniram Marak and the desertion as alleged by the appellant cannot be prove d in view of the evidence of DW’s and she is entitled to inherit all the propert ies of late Maniram Marak. In support of his contentions he relied on the follow ing decisions viz., i) AIR 1978 SC 1557 (Badri Prasad -vs- Deputy Director of Consolida tion and Ors.) ii) AIR 1998 Karnataka 364 (Smti Radhamma -vs- Union of India & Ors. ) iii) AIR 1996 SC 1290 (Ranganath Parmeshwar Panditrao Mali and Anr. - vs- Eknath Gajanan Kulkarni and Anr.) iv) (2005) 3 SCC 636 (Savitaben Somabhai Bhatiya -vs- State of Gujar at and others) v) (2009) 15 SCC 184 (M. Yogendra and Ors. -vs- Leelamma and Ors.) 18. Considered the argument advanced. Perused the evidence on record in deta il alongwith the pleadings of both the parties. Admittedly late Maniram Marak wa s a Sangsarek (a non-Christian), whereas he married Alvila (a Christian), who de serted him without adhering to the rule of divorce under Garo customary law. It is also an admitted fact that there was no divorce between late Maniram Marak an d Alvila. On desertion by Alvila, the defendant Balbila came to the life of late Maniram Marak and they lived together as husband and wife without complying the rule of marriage under the Garo customary law as would reveal from the material s on record. Similar is the question of adoption of Bresilla Marak. A sangsarek cannot marry a woman who is Christian without being divorced by his first wife a nd without the consent of ’chra’s as indicated above, though the defendant of he r own admission deposed that late Maniram Marak converted himself into Christian ity without being divorced by his first wife. Therefore the inference can be dra wn thereof that there was no valid marriage between them and she cannot be terme d as legally married wife in accordance with Garo customary law disentitling her to the properties of late Maniram Marak. 19. Another feature of the case is that as pleaded on behalf of the defen dants that Balbila never deserted late Maniram Marak whereas she died on 12.10. 2009 and her legal representatives were substituted, wherefrom it becomes clear that the defendant deserted late Maniram Marak and at the time of desertion she had no issue through Maniram and the unimpeachable evidence led by the parties w ould clearly establish that the defendant deserted late Maniram Marak thereby disentitling her to get the properties of late Maniram Marak and the grounds urg ed coupled with the evidence on record would establish that the marriage betwee n the defendant Balbila and late Maniram Marak was not a valid marriage and the presumption cannot be drawn when customary law speaks otherwise. 20. Now coming to the decisions cited by the parties, it is noticed that in the case reported in Badri Prasad (supra), the Apex Court held that a man and wo man living together for 50 years, strong presumption arises in favour of wedlock and proof as to factum of marriage by examining the priest and other witnesses not necessary and the case reported in Smt. Radhamma (supra), it